Postal Workers Local 735 ( Postal Service)

National Labor Relations Board - Board Decisions

Jul 21, 2004

342 N.L.R.B. 545 (N.L.R.B. 2004)

POSTAL WORKERS LOCAL 735 (POSTAL SERVICE)
342 NLRB No. 47
545
American Postal Workers Union, Local 735 (United
States Postal Service) and Teri Adelson. Cases
17–CB–5444 and 17–CB–5517
July 21, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On March 23, 2004, Administrative Law Judge James
L. Rose issued the attached supplemental decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions, and to adopt the recommended Order as
modified and set forth in full below.
The General Counsel’s initial complaint alleged that
the Respondent Union excluded the Charging Party, Teri
Adelson, from sharing in a backpay settlement of a lost-
work grievance because she was not a union member.
The parties settled Adelson’s initial charge through a
non-Board settlement agreement.1 Subsequently, how-
ever, the General Counsel revoked his dismissal of the
complaint and issued a consolidated complaint on the
basis of a newsletter column written by the Respondent’s
president that discussed the settlement agreement and
Adelson. The new complaint alleged that Adelson’s ex-
clusion from the grievance settlement and the subsequent
newsletter column each violated Section 8(b)(1)(A) of
the Act.
In his initial decision, the judge found that the newslet-
ter column neither was unlawful nor justified the revoca-
tion of the dismissal of the initial complaint. The Board
majority (Member Liebman dissenting), however, found
that the revocation was proper and remanded the case to
the judge for a determination on the merits of both com-
plaint allegations. Postal Workers Local 735 (Postal
Service), 340 NLRB 1044 (2003).
In his supplemental decision, the judge found that both
allegations had merit. The Respondent has not excepted
to these findings.2 However, the General Counsel filed
two limited exceptions to the judge’s remedial provi-
sions.

1 Pursuant to the settlement agreement, the Respondent paid Adelson
the amount of backpay she should have received and posted an infor-
mal notice.
2 In the absence of exceptions to the judge’s unfair labor practice
findings, we find it unnecessary to consider the judge’s basis for find-
ing these violations.
First, the General Counsel contends that the judge’s
remedial notice was inadvertently addressed only to
“Members,” rather than to “Employees and Members.”
As the General Counsel points out, where a union vio-
lates the Act in a manner that affects both members and
nonmembers, the Board normally requires that the notice
be addressed both to “members” and “employees”—i.e.,
to all the employees in the bargaining unit.3
Second, the General Counsel contends that the judge
erred by inadvertently failing to require the Respondent
to “mail” copies of the notice to all bargaining unit
members, rather than to “send” them as the recom-
mended Order states. A Board order normally does spec-
ify that a notice be “mailed” when the respondent is re-
quired not only to post the notice, but also to distribute
copies of it to individual unit members.4
We therefore find merit in both of the General Coun-
sel’s exceptions, and we will modify the judge’s recom-
mended Order and notice accordingly.5 Pursuant to the
Board’s established practice in cases involving violations
of Section 8(b), we will also modify the recommended
Order to provide for the posting of the notice in the Em-
ployer’s workplace, if the Employer is willing. We will
also delete the reference to the possibility of the Respon-
dent’s going out of business. See, e.g., L. D. Kichler Co.,
335 NLRB 1427 fn. 2 (2001). Finally, we will also mod-
ify the notice in accordance with Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004).
ORDER
The Respondent, American Postal Workers Union,
Local 735, Wichita, Kansas, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Refusing to represent fairly all members of the bar-
gaining unit, regardless of their membership in the Un-
ion, by excluding them from participation in a grievance
settlement to which they would otherwise be entitled.
(b) Informing union members and nonmembers that
the Union approves of actions its stewards take that dis-
criminate against unit employees.

3 E.g., Joint Council of Teamsters 3, 28, 37, 42 (Lanier Brugh
Corp.), 339 NLRB 131, 135–136 (2003); Teamsters Local 122 (August
Busch & Co.), 334 NLRB 1190, 1195–1196, 1259 (2001), enfd. 2003
WL 880990 (D.C. Cir. 2003).
4 See, e.g., Air 2, LLC, 341 NLRB 176 fn. 2 (2004).
5 In its brief, the Respondent represents that it has already complied
with the terms of the judge’s recommended Order, including mailing
copies of the notice in the form attached to the judge’s decision to all
employees in the unit. The legal effect of any efforts to remedy the
violations found by the judge may be addressed in compliance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

546
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business office and meeting places copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
17, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(b) Mail a copy of the notice to every member of the
bargaining unit.
(c) Sign and return to the Regional Director sufficient
copies of the notice for posting by the U.S. Postal Ser-
vice, if willing, at all places where notices to employees
are customarily posted in its facility at 9450 East Corpo-
rate Hills Drive, Wichita, Kansas.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT refuse to represent fairly all members of
the bargaining unit, regardless of their membership in the
Union, by excluding them from participation in a griev-
ance settlement to which they would otherwise be enti-
tled.
WE WILL NOT inform union members and nonmembers
that the Union approves of actions its stewards take
which discriminate against employees.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
AMERICAN POSTAL WORKERS UNION, LOCAL 735

David Nixon and Michael Werner, Esqs., for the General Coun-
sel.
Terry D. Smith and Larry D. Ehrlich, Esqs., of Wichita, Kan-
sas, for the Respondent.
SUPPLEMENTAL DECISON
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Wichita, Kansas, on October 11, 2001. The
initial complaint alleged that the Respondent discriminated
against the Charging Party because she is not a member of the
Respondent by not including her in a payout that settled a
grievance the Respondent brought against the United States
Postal Service. This was an alleged violation of Section
8(b)(1)(A) of the National Labor Relations Act. The case was
adjusted pursuant to a non-Board settlement agreement and the
complaint dismissed by the Regional Director.
A second charge was filed by the Charging Party and the
Regional Director concluded that postsettlement acts of the
Respondent were also a violation of Section 8(b)(1)(A). He set
aside the settlement agreement and issued a consolidated com-
plaint.
Following a 1-day trial, I concluded that the Respondent’s
postsettlement act complained of was not a violation of Section
8(b)(1)(A) nor did it justify setting aside the settlement agree-
ment. I therefore recommended that the matter be dismissed.
Exceptions were taken to the Board, which held that the Re-
spondent’s postsettlement act minimized the effect of the set-
tlement notice and therefore the agreement should be set aside.
Accordingly, the Board remanded the matter to me for a deci-
sion on the merits of whether the Respondent’s acts, which
were settled, and statements in its newsletter were violations of
Section 8(b)(1)(A).
Subsequent to the Board’s remand, counsel for the Respon-
dent moved to reopen the record so that he could present evi-
dence. Counsel did cross-examine the General Counsel’s wit-
nesses (including Christine Pruitt, who allegedly committed the
initial unlawful act); and, though given the opportunity to call
witnesses and present other evidence, he declined to do so,
resting at the close of the General Counsel’s case. Counsel did
not suggest any basis for reopening the record under the
Board’s Rules, and I find none.
POSTAL WORKERS LOCAL 735 (POSTAL SERVICE)

547
Thus, on the record made at the trial, including my observa-
tion of the witnesses, briefs, and arguments of counsel, I make
the following findings of fact, conclusions of law, and recom-
mended Order.
I. JURISDICTION
The United States Postal Service (USPS) provides postal
services for the United States and operates various facilities
throughout the several States, including a facility at 9450 East
Corporate Hills Drive, Wichita, Kansas. The Board has juris-
diction over the USPS pursuant to the Postal Reorganization
Act, 39 U.S.C. § 1209(a).
II. THE LABOR ORGANIZATION INVOLVED
American Postal Workers Union, Local 735 (the Respondent
or the Union) is admitted to be, and I find is, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
To reiterate the operative facts: For some years the Union
has been the exclusive bargaining representative of a unit of the
USPS employees at the East Corporate Hills Drive facility. On
May 25, 2000,1 Christine Pruitt, the Union’s steward, filed a
grievance alleging that Ricky Bryant, an employee in another
craft, had been assigned work within the Union’s bargaining
unit jurisdiction. This matter was resolved at the second step
with an agreement that unit employees who were on the “over-
time desired” list would be compensated for the 105 hours that
Bryant had done bargaining unit work. However, not all such
unit employees received a payment.
Pruitt testified that she chose which unit employees would
share in the payment, and that in order to give those chosen
more money (specifically Alfred Norris and Debbie Holt, each
of whom told Pruitt that they wanted $300), she excluded Teri
Adelson, the Charging Party. She denied that Adelson was
excluded because she was not a union member. She testified
that she eliminated Adelson solely so that others could receive
more money, however, she admitted that those who did so were
union members.
Denise Brown, the USPS manager who settled the grievance
with Pruitt, testified that during their meeting Pruitt called
someone and then reported that since it was a “class action”
grievance, the Union could choose whomever it wished to
compensate. Alfred Norris, one of the unit employees who was
compensated, credibly testified that Pruitt had told him she was
only going to pay those who were union members, a statement
he then relayed to Adelson’s brother.
Adelson filed a charge alleging that she had been discrimi-
nated against because of her nonmembership in the Union, and,
as noted above, the complaint was settled pursuant to a non-
Board agreement, which required the Union to post a notice and
make an appropriate payment to Adelson. This settlement was
finalized in April 2001.

1 All dates are in 2000, unless otherwise indicated.
The notice posted by the Union was in the form of a letter to
all bargaining unit employees from Dave Darrough, the Un-
ion’s president. It reads:

The American Postal Workers Union Local 735 rec-
ognizes and observes the rights of all employees in
the Unit.

In the May 2001 newsletter to members, Darrough reported
concerning settlement of the of the grievance and the unfair
labor practice:

In this particular case, a large sum of money was involved in
the award. In order to make the award worthwhile, it was de-
cided to divide it between a number of the Bargaining Unit. In
this case we asked that the award be divided between ap-
proximately 50% of the Bargaining Unit employees at Corpo-
rate Hills. Normally the Union will rotate awards so that eve-
ryone will eventually receive compensation. However, in par-
ticular case [sic.], non-member Teri Adelson was not one of
50% chosen. Since her brother was one who was selected to
receive compensation, Ms. Adelson was passed over. Evi-
dently this didn’t set well with Ms. Adelson. Although she
doesn’t pay dues and probably never will, she certainly de-
mands everything that dues paying members struggle for. Ms.
Adelson never called the Union or made an inquiry as to why
she wasn’t included. She simply filed a complaint with the
National Labor Relations Board alleging she had been dis-
criminated against by the Local Union. At some point, even
when you are right, litigation costs more to defend than it is
worth. On the advice of our attorneys, we decided to avoid
further litigation that promised to run into the thousands. I set-
tled her complaint by paying her the amount those who re-
ceived the award settlement paid. I report this to the member-
ship because it is true. I was cautioned that if I reported this I
should look over my shoulder and not be surprised if another
complaint isn’t filed against me. I am never surprised at the
steps a SCAB, FREE LOADER or what ever you choose to
call a person who refuses to pay their fair share and take a free
ride on the dues of the dues paying membership. I tell you
right now, I am proud of Chris Pruitt and stand behind and
support her 100%. She never intentionally did anything
wrong, and I don’t believe she ever will.

Based on this newsletter, Adelson filed the second charge in
this matter and the Regional Director revoked his order dis-
missing the first complaint and issued the consolidated com-
plaint alleging that the Union had violated Section 8(b)(1)(A)
by the actions of Pruitt and Darrough.
B. Analysis and Concluding Findings
1. The newsletter
In my initial decision, I concluded that Darrough did not vio-
late Section 8(b)(1)(A) in his newsletter to members. On this
conclusion, the Board specifically expressed no opinion, ruling
only that Darrough’s statements in the newsletter justified set-
ting aside the settlement agreement. However, the Board also
said: “Darrough’s comments exceeded Section 8(c)’s zone of
protection by suggesting that it is permissible, indeed laudable,
for a union to discriminate against nonmembers. For this rea-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

548
son, contrary to our dissenting colleague’s view, Darrough’s
comments were not privileged.”2 Later in its decision, Postal
Workers Local 735 (Postal Service), 340 NLRB 1363, 1365
(2003), the Board posed an analogy:

An employer’s supervisor refuses to grant monetary benefits
to an employee because of the employee’s membership in a
union. The employee files a charge against the employer, and
the General Counsel issues a complaint. The case settles on a
non-Board basis. The settlement includes the posting of a no-
tice. Shortly thereafter, the employer posts a notice which ex-
coriates membership in the union and says that the employer
“is proud of” the supervisor’s conduct and “stands behind and
supports the supervisor 100%.” The General Counsel asserts
that this conduct undermines the settlement and is unlawful.
In our view, the General Counsel would be correct, and we
reach the same result in the instant case. [Emphasis added.]

From this language I conclude that the rule of decision in this
matter is that Darrough violated Section 8(b)(1)(A) by his
newsletter comments because he implied that nonmembers
would not be represented by the Union or treated fairly. As the
Board notes, expressing contempt for “free loaders” would not
be unlawful or justify setting aside the settlement agreement
since the Union has an 8(c) right to state its opinion. See also
Letter Carriers Local 3825 (Postal Service), 333 NLRB 343
(2001).
2. Excluding Teri Adelson from the settlement
Though Pruitt testified that Adelson’s nonmembership in the
Union was not a factor in her decision to exclude Adelson, I
credit the testimony of Denise Brown and Alfred Norris. Brown
is the Employer’s manager involved in negotiating the griev-
ance settlement. She testified that during the settlement confer-
ence, employee Debbie Holt asked Pruitt “if we had to pay Teri
because she was not a union member.” Pruitt then made a tele-
phone call and subsequently “looked at Debbie and said, it is a
class action. We can pay whoever [sic] we want.”

2 While dissenting Member Liebman did “not reach the issue of
whether Darrough’s column violated Sec. 8(b)(1)(A),” implicitly, she
must have concluded it did not, since she concluded that the settlement
agreement should not have been set aside.
Norris testified that in a discussion with Pruitt he said that
Adelson should have been included in the grievance. Pruitt
“kind of stated that they were going to pay only union mem-
bers.” He insisted that Adelson be on a subsequent grievance
for overtime and she was. This fact, however, does not exoner-
ate Pruitt’s refusal to include Adelson in the first grievance
settlement.
To exclude an employee from a grievance settlement simply
because she is not a member of the union is clearly a violation
of Section 8(b)(1)(A). Letter Carriers Local 3825 (Postal Ser-
vice), supra.
Further, even if union membership was not a factor in ex-
cluding Adelson from the grievance payout, the mere fact that
she was excluded though otherwise eligible is itself sufficient to
conclude that Pruitt did not fairly represent members of the
bargaining unit. Thus in Mine Workers District 5 (Pennsylvania
Mines Corp.), 317 NLRB 663 (1995), an arbitrator awarded
backpay for supervisors having done bargaining unit work and
retained jurisdiction over issues of who would receive money
and how much. The union requested the employer to pay the
whole amount ($6121.09) to the union, which was done. The
union did not distribute any of the award to employees on
grounds that it would have been difficult to determine who was
entitled to what. The Board found the union’s act a breach of its
duty of fair representation and a violation of Section
8(b)(1)(A).
This is an even stronger case. Accordingly, I conclude that
excluding one member of the bargaining unit from a grievance
award simply so that others might get more is a breach of the
Union’s duty of fair representation and a violation of Section
8(b)(1)(A).
REMEDY
Having concluded that the Respondent committed certain un-
fair labor practices, I shall recommend it cease and desist there-
from and post an appropriate notice. The Charging Party having
been compensated in the amount received by others who par-
ticipated in the grievance settlement, no backpay is due.
Since the Union’s newsletter was the vehicle for Darrough’s
violation, I shall recommend that the Union be ordered to send
a copy of the notice to each union member and each member of
the bargaining unit.
[Recommended Order omitted from publication.]