Postal Workers (Postal Service)

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1075 (N.L.R.B. 2003)

POSTAL WORKERS (POSTAL SERVICES) 1075
American Postal Workers Union, Madison Area Lo-
cal, AFL–CIO (United States Postal Service) and
Patrick T. Wall. Case 30–CB–4355(P)
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND ACOSTA
On May 25, 2001, Administrative Law Judge William
N. Cates issued the attached bench decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We affirm the judge’s conclusion that the Respondent
did not unlawfully select or encourage certain employees
to file grievances to the exclusion of other employees
who were similarly situated to the grievants. In doing so,
we note, as did the judge, that employee Darrell Linke
testified that he asked Union Steward Carol Muenkel
why not all of the flat mail sorters who worked on the
linear integrated parcel sorter (LIPS) machine were in-
cluded as part of the grievance; that Muenkel replied that
individual grievances were filed to “make the manage-
ment notice the grievance more;” and that Muenkel also
told him that “[in] filing individual grievances nonunion
members would not be included.” Linke did not elabo-
rate on this testimony. Indeed, he testified that after
Muenkel made the above statement to him, he “basically
let it go at that.” Although the judge restated Linke’s
above testimony in his recitation of facts and referred to
it again in his summary of the evidence, he neither dis-
credited it nor expressly discounted it in light of the
weight of contrary, exculpatory evidence.
While Linke’s testimony is not contradicted, it is also
not corroborated. Two other employees, Bill Wedeward
and Charging Party Patrick Wall, also complained to
Muenkel about the grievance settlement, but, unlike
Linke, neither testified that Muenkel told them that indi-
vidual grievances were filed to exclude nonunion mem-

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
bers from participating. There is no other evidence that
the Respondent arbitrarily, unfairly, or discriminatorily
prevented or impeded anyone—union member or not—
from filing a grievance. Indeed, as the judge found and
we agree, the preponderance of the relevant evidence is
to the contrary.2 More specifically, we agree with the
judge that the record establishes that the Respondent
proffered a reasonable explanation for filing individual
grievances rather than an all-inclusive blanket griev-
ance—the reasonably anticipated persuasive impact that
numerous individual grievances would have on manage-
ment.
Finally, we acknowledge that none of the approxi-
mately 76 employees who filed grievances were non-
union members. However, unit employees were over-
whelmingly union members. Indeed, only 5 percent
were not. Thus, of the approximately 80 affected em-
ployees who did not file grievances, only a small portion
were nonunion members.3 It is not reasonable to believe
that the Respondent would somehow intentionally sub-
vert or circumvent the opportunity of many of its mem-
bers to file grievances just to make certain that a few
nonmembers also did not get such an opportunity, par-
ticularly where, as here, there was at the time in question
no certainty that any of the grievances would be resolved
favorably to the grievants.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

CHAIRMAN BATTISTA, concurring.
I concur in the result. In my view, the Union offered a
reasonable explanation as to why it chose to have many
individual grievances, rather than have one blanket
grievance. However, it was arguably unlawful for the
Union to encourage members, and not nonmembers, to
be the individual grievance-filers.1 Notwithstanding this,
I agree that there is no violation. There is no evidence
that nonmembers were precluded from filing individual
grievances, and no evidence that the Union would refuse
to process any such grievances. In these circumstances, I
concur in finding no violation.
2 Thus, we disagree with our colleague’s implication that the Re-
spondent encouraged its members, but not nonmembers, to file individ-
ual grievances.
3 The precise number of nonmembers among the employees who
worked on the LIPS machine during the relevant time period was not
established. We note that Charging Party Wall was a union member at
the time that the grievances were filed.
1 I am not suggesting that the Union prevented or impeded anyone
from filing a grievance. I am merely suggesting, based on Linke’s
testimony, that the Union affirmatively asked members, rather than
nonmembers, to file grievances.
338 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
Angela B. Jaenke, Esq. and Paul Bosanac, Esq., for the General
Counsel.
Bruce M. Davey, Esq., for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard this
case in trial in Madison, Wisconsin, on April 30 and May 1,
2001. The case alleges the American Postal Workers Union,
Madison Wisconsin Area Local, AFL–CIO (Union), selectively
encouraged some unit employees, for which it was the exclu-
sive bargaining representative, to file grievances regarding a
specific work change, while specifically excluding other em-
ployees from doing so. It is alleged the Union failed to fairly
represent the employees it excluded from filing grievances for
reasons that were unfair and arbitrary and in breach of the fidu-
ciary duty it owed to all unit employees it represents. The ac-
tions and/or inaction of the Union are alleged to violate Section
8(b)(1)(A) of the National Labor Relations Act (Act). All par-
ties were afforded full opportunity to appear, to introduce rele-
vant evidence, to examine and cross-examine witnesses.1 At
the close of trial and after oral argument by Government and
union counsel, I issued a Bench Decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s (Board)
Rules and Regulations setting forth findings of fact and conclu-
sions of law.
For the reasons (including credibility determinations), stated
by me on the record at the close of the trial, I found the Gov-
ernment failed to prove the Union failed to fairly represent
Charging Party Patrick T. Wall, an individual (Charging Party
Wall or Wall), or some 80 other similarly affected employees.
The evidence did not establish any employees were unlawfully
excluded from filing grievances nor did the evidence demon-
strate any conduct on the part of the Union that would consti-
tute unfair and arbitrary action on its part pertaining to filing
grievances. The Government likewise failed to demonstrate the
Union violated its fiduciary duty to the employees it represents.
The evidence did, however, establish that Charging Party Wall
was a member of the Union during material times herein, was
aware of the problems that gave rise to the filing of the underly-
ing grievances, was timely told to file a grievance but failed to
do so. The evidence established certain other employees simi-
larly situated to Wall failed to file grievances. The evidence
tended to indicate that any soliciting of grievances by the Union
was openly made to all employees present on any of the occa-
sions of soliciting grievances with no pattern shown of selective
solicitations aimed at including or excluding anyone. The evi-
dence at best demonstrated approximately one-half of the unit
employees chose to file grievances over the underlying work
1 On May 17, 2001, the Government filed a motion to set aside
bench decision, permit amendment of the complaint, and reopen the
record. The Government’s motion is denied. The Government was
aware it had no authority to amend its complaint herein at the time it
elected to proceed to trial. If the Government believed its proposed
amendment to be critical to its case, it could have postponed the trial
until it had authority to do so. The Government chose to proceed at its
peril and may not now force the Union to respond further.
changes while the other half did not and it was only after the
Union obtained a favorable settlement for those who filed
grievances that the other employees became concerned about
their failure to do so. I recommended the complaint be dis-
missed in its entirely.
I certify the accuracy of the portion of the transcript, as cor-
rected,2 pages 196 to 220, containing my bench decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
The Board has jurisdiction in this matter under Section 1209
of the Postal Reorganization Act. The Union is a labor organi-
zation within the meaning of Section 2(5) of the Act and has
not violated the Act in any manner set forth in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The unfair labor practice complaint is dismissed.

APPENDIX A
DECISION
196
This is my decision in American Postal Workers Union
Madison, Wisconsin Area Local, AFL–CIO (United States
Postal Service) hereinafter union in Case 30–CB–4355(P).
First I wish to thank counsel for their presentation of the evi-
dence. If you will think back over the trial I have not asked any
questions, perhaps one or two for clarification only. That al-
ways reflects well on counsel and each of you are a credit to the
party or position that you represent. May I also state that it has
been a pleasure being in Madison, Wisconsin.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board, hereinafter Board, General Coun-
sel, hereinafter Government counsel, acting through the Re-
gional Director for Region 30 of the Board following an inves-
tigation by Region 30’s staff. The Regional Director for Re-
gion 30 of the Board issued a complaint and notice of hearing,
hereinafter complaint, on June 29, 2000 based upon an unfair
labor practice charge filed by Patrick T. Wall, an individual,
hereinafter Charging Party Wall or Wall, on April 4, 2000.
Certain facts herein are admitted, stipulated or not in
197
dispute. I am required to set forth certain of those facts which I
now do. The parties admit and I find the Board has jurisdiction
in this matter under Section 1209 of the Postal Reorganization
Act. The parties admit and I find the union is a labor organiza-
tion within the meaning of Section 2(5) of the Act. The parties
2 I have corrected the transcript pages containing my bench decision
and the corrections are as reflected in attached appendix B. [Omitted
from publication.]
3 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
POSTAL WORKERS (POSTAL SERVICES) 1077
admit that the following union officials are agents of the union
within the meaning of Section 2(13) of the Act. Namely local
president Steven G. Raymer, local vice president Martin Mater
and stewards Pam Langlitz, L-A-N-G-L-I-T-Z, Mike
McCarthy, M-C-C-A-R-T-H-Y, Dennis Landen, L-A-N-D-E-
N, Greg Wood, Bret Wersland, W-E-R-S-L-A-N-D, Carol
Muenkel, M-U-E-N-K-E-L, Edgar Reeves, R-E-E-V-E-S, and
Paul Muenkel, M-U-E-N-K-E-L.
The parties admit that by virtue of Section 9(a) of the Act the
union has been the exclusive collective bargaining representa-
tive of all postal clerks employed by the United States Postal
Service, hereinafter Postal Service, at its Madison, Wisconsin
facility, hereinafter called the unit. At all times material herein
the union and Postal Service have maintained and enforced a
collective bargaining agreement covering conditions of em-
ployment in the unit and contains among other provisions a
grievance and arbitration procedure.
It is alleged that in September and October, 1999 the union
selected and/or encouraged 76 employees to file and thereafter
process grievances related to the Postal Service’s
198
implementation of a new keypad on the linear integrated sorter
machine, hereinafter sometimes referred to as the LIPS ma-
chine, to the exclusion of the Charging Party and approximately
80 other employees who were similarly affected.
It is alleged Charging Party Wall in March, 2000 saw a list
posted by the union stating the union and the Postal Service had
reached a settlement of the 76 filed grievances just referred to
and as part of the settlement each of the 76 employees who had
filed grievances were awarded $160.00
It is alleged the union’s conduct in the selection and/or en-
couraging of the 87 employees to file and thereafter process the
grievances related to the LIPS machine to the exclusion of Wall
and the approximately 80 other employees similar situated
constitutes a failure on the part of the union to fairly represent
Charging Party Wall and the other similarly situated employees
for reasons that are unfair and arbitrary and has breached the
fiduciary duty the union owes to the employees it represents.
It is further alleged that the union by its conduct I have just
described has restrained and coerced and is restraining and
coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act and the Union thereby has engaged in un-
fair labor practices within the meaning of Section 8(b)(1)(A) of
the Act.
Before I get into the facts and a discussion of those let
199
me state that this case as in most cases requires some credibility
resolutions. In arriving at my credibility resolutions I state that
I carefully observed the witnesses as they testified and I have
utilized such in arriving at the facts herein. I have also consid-
ered each witness’ testimony in relation to other witnesses’
testimony and in light of the exhibits presented herein. If there
is any evidence that might seem to contradict the credited facts
I shall set forth I have not ignored such evidence but rather
have discredited or rejected it as not reliable or trustworthy. I
have considered the entire record in arriving at the facts herein.
This case centers around or grows out of the Postal Service’s
implementation of a new keypad on its at the time new linear
integrated parcel sorting machine some time in late 1999, per-
haps around September of that year. The actual machine may
have been installed and in the process of being advanced as
early as 1998. The LIPS machine was able to accommodate
small packages and bundles of mail for processing with opera-
tors utilizing a keypad.
The LIPS machine was designated or at least in this trial re-
ferred to from time to time as an FSM 1000 machine. The
LIPS machine is approximately 80 to 90 feet long with two
conveyor belts, one about four feet off the ground while the
other is about seven feet off the ground. The LIPS machine
requires approximately seven employees to operate with the
employees
200
rotating essentially between the task of keying the mail and of
sweeping the machine. Keying the mail simply means entering
into the keypad the destination by number of the mail and the
sweeping of the machine simply means emptying the sacks or
bins as they are filled.
More specifically keying the mail consists of the FSM 1000
machine operator who determines from a label on the parcel
where the package is to be shipped and then keying that number
into the keypad and the package is then directed to bins or bags
corresponding to the area the parcel is designated to be sent.
More specifically with respect to the sweepers are those em-
ployees who kept the filled parcel bags taken away from the
machine and replacing them with empty bags or containers.
According to local union president Steven G. Raymer the un-
ion and Postal Service negotiated regarding who or what cate-
gory of employees would be utilized to staff the 1000 LIPS
machine. The flat mail sorters were chosen for the task. It
appears at some point during the fall of 1999 the Postal Service
changed the keypad on the 1000 LIPS machine without notice
to or negotiating with the union. The changes, while not fully
described in this record, at least indicates that the position zero
was moved on the keypad. It appears the keypad changes
caused great concern for the involved employees.
The dissatisfaction resulted in a number of grievances being
filed over the Postal Service’s changing of the keypad and
201
perhaps to some extent the installation of a voice activated
system instead of or in addition to the keypad system of opera-
tion. Some 77 or perhaps 76 individual grievances were filed
in late September or early October, 1999 with the union related
to these new keypad and voice activated system changes for the
LIPS machine.
This case then comes to focus around the grievances with the
Government contending the union arbitrarily and discriminato-
rily solicited employees to file the grievances in question so
that certain unit employees were rewarded while others were
precluded from participating in or left out of any settlement of
the grievances. The union contends everyone was free to file
grievances if they were affected by the changes and that all
grievances filed were processed and a settlement was arrived at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
with the Postal Service whereby each affected employee who
filed a grievance was paid $160.00 by the Postal System.
The grievances were settled by the union and the Postal Ser-
vice on or about March 9, 2000. In addition to the $160.00 per
grievant award there was certain language that was in the set-
tlement reference the LIPS machine operators that the union
considered very favorable to the employees.
The union posted a notice on or about March 14, 2000 on the
union’s bulletin board at the main postal facility. The terms of
the settlement agreement that I have just made reference to
202
which among other things awarded the employees filing the
grievances $160.00 were set forth. It was around this time that
certain flat sorter machine operators realized they were not
numbered among those that had been awarded $160.00 and
commenced to question the union as to why they were not in-
cluded.
The Government called six and a half year flat sorter ma-
chine operator Bill Wedeward, W-E-D-E-W-A-R-D, who testi-
fied he started working on the LIPS machine in the fall of 1998
one or two days per week because employees were rotated onto
and off of LIPS machine operations. Wedeward testified the
Postal Service management discussed the introduction of the
LIPS machine as early as the fall of 1998 and that union stew-
ards or union officials were present when the Postal Service
management did so.
Wedeward testified the union knew there were employee
problems and concerns with the operation of the LIPS machine
from its early introduction in Madison, Wisconsin. Wedeward
testified that it was such that postal supervisor Meinholz, M-E-
I-N-H-O-L-Z, asked the employees if they had any ideas to
help make the LIPS machine work better. Wedeward testified
he verbally raised LIPS machine concerns with the union stew-
ards. Wedeward testified the keypad changes the Postal Ser-
vice brought about were important to the operators but he did
not ask to file a grievance related thereto, nor was he asked by
the union to file a grievance.
203
Wedeward testified he observed the posting on the union
bulletin board of the settlement of the grievance related to the
LIPS machine, which notice was posted on or about March 14,
2000. Flat sorter machine operator Wedeward testified some-
one had inked in on the bottom of the settlement notice posted
on the union bulletin board the words “It pays to be a union
member”. Wedeward testified that two or three days after the
settlement notice was posted he spoke with union steward Carol
Muenkel, M-U-E-N-K-E-L, to ask how this settlement hap-
pened and why he was not included.
According to Wedeward the union steward replied that ini-
tially a couple of people filed grievances and thereafter union
president Raymer held a meeting with the union stewards and
asked them to solicit as many grievances on the subject matter
as they could so that they could possibly have 70, 80 or perhaps
90 grievances and that it would carry more weight with the
Postal Service if the situation came to the Postal Service’s at-
tention in that manner.
Wedeward asked if he had any recourse at that time and un-
ion steward Muenkel told him no. Wedeward testified that on
April the 12th, 2000 he telephoned union president Raymer and
in the 2 or 3 minute phone call with Raymer he asked why all
of the flat sorter machine operators were not included in the
settlement. According to Wedeward Raymer asked if he had
filed a grievance and he acknowledged he had not. Raymer
told
204
Wedeward everyone on the settlement listed on the bulletin
board that received $160.00 came forward and filed an individ-
ual grievance with the union.
Wedeward asked why the union did not file a class action
grievance and Raymer according to Wedeward responded
“There would have been no clout in a class action grievance”.
Raymer told Wedeward there was nothing that could be done
for him at that time and told Wedeward he should be happy
with the verbiage in the settlement because it was very helpful
to the flat sorter machine operators.
Wedeward testified he spoke with union steward Carol
Muenkel on April 13, 2000 while at the LIPS 1000 machine.
Wedeward testified he told the union steward that union presi-
dent Raymer had said that those who got a settlement had all
come forward and filed individual grievances and that that was
different from what she had told him. Wedeward stated to
Muenkel “He’s lying to me, isn’t he?” According to Wedeward
the union steward replied that union president Raymer “some-
times said things and then forgot them”.
According to Wedeward union steward Muenkel contended
the stewards were solicited to solicit grievances. However, he
acknowledged she did not say that union president Raymer told
the stewards to solicit any particular employees. Wedeward
acknowledged on cross-examination that during the times in
question herein he was a union member. The Government
presented
205
flat sorter machine operator William Hutton who testified he
was an 8 year employee with the Postal Service and had been a
union member for the entire time.
Hutton testified he worked the LIPS machine one or two
times a week since its introduction and had even trained others
to work on the machine. Hutton testified it was the changes to
the keypad on the LIPS machine and the introduction of a mi-
crophone voice activated addition that caused the problems for
the LIPS machine operators. Hutton explained the zero was
moved to a different location on the keypad and as such created
a problem.
Hutton testified he was asked by union steward Wersland,
W-E-R-S-L-A-N-D, if he wanted to file a grievance over the
keypad change. Hutton explained that the union steward said to
him in the presence of four other employees “We are thinking
of filing a grievance. If we do, do you wish to be considered.”
Hutton never filed a grievance nor expressed any concern or
upset to the union about the keypad changes. Hutton explained
in his testimony that the key change—keypad change simply
“wasn’t that big of a deal to me”.
POSTAL WORKERS (POSTAL SERVICES) 1079
Flat sorter machine operator Darrell Linke, L-I-N-K-E, testi-
fied he had been a union member until one week before the trial
herein. Linke testified he worked on the LIPS machine ap-
proximately two days per week before and after the company
instituted the changes that it did on the keypad configuration
206
for the LIPS machine. Linke testified he was aware of the
grievances over the keypad changes and testified union steward
Carol Muenkel, M-U-E-N-K-E-L, told him to file a grievance
regarding the keypad.
Linke testified he had not made any complaints about the
keypad change prior to the union steward making the above
comments to him. Linke testified he never pursued or at-
tempted to file a grievance. Linke testified he observed the
settlement notice on the grievance on the union’s bulletin board
and talked with union steward Muenkel about it. Linke testi-
fied he asked Muenkel why he was not included and was told
he should have filed a grievance. Muenkel told Linke accord-
ing to Linke that individual grievances were filed because it
would make the greatest impact on management and that non-
union members would not be included.
Linke acknowledged on cross-examination that he could
have filed a grievance but elected not to and that others on the
crew that he worked on did in fact file grievances. Flat sorter
machine operator Patrick Wall testified he was a union member
from 1980 until April 2001. Wall testified he was getting out
of the union for thirteen pay periods which he said he figured
was the equivalent of the $160.00 award the union got for the
other employees in the LIPS machine grievance settlement but
that the union did not get such for him.
Wall testified that in the fall of 1998 his crew was
207
assigned to rotate for duty on the LIPS machine. Wall testified
he thought the assignments to the LIPS machine should have
been placed up for bid and he complained to the union about
that fact. He testified he was also rotating onto the LIPS ma-
chine at the time the keypad changes were made. Wall testified
he had conversations with union steward Carol Muenkel and
Bret Wersland. He testified Wersland said to file a grievance
but that Muenkel never said anything about filing one.
Wall testified he observed the posted settlement notice in
March of 2000 and the copy he saw posted had written on the
bottom of it “It pays to know your rights.” Wall testified that
two weeks after the posting of the settlement notice on the un-
ion bulletin board he spoke with local union vice president
Martin Mater, M-A-T-E-R, about what had happened with the
LIPS settlement. Wall testified Mater asked if he had read the
language on the settlement, to which Wall said he responded he
had and “I got screwed”. Wall spoke with union steward
Muenkel the next day to no satisfaction for him.
Employee Todd Yates testified that at material times herein
he was a part time flexible flat sorter machine operator. Yates
testified that when the keypad changes were made he com-
plained to union steward Wersland and that Wersland told him,
Yates, that he was a part time flexible employee and as such he
would have to live with the changes that the Postal Service was
instituting. Yates saw the settlement notice on the union
208
bulletin board but never spoke with anyone from the union
about it. Yates testified there were part time flexible employees
on the settlement list.
One final witness called by the Government and gave testi-
mony with respect to the issues herein was U.S. Postal Service
labor relations specialist Andritsch who testified that on many
occasions the union did file class action grievances.
The union then presented evidence with respect to what had
transpired regarding the LIPS machine changes. Union presi-
dent Raymer testified that individual grievances in this matter
was the preferred manner in which to proceed because any
individual employees affected could be specifically identified.
He also stated individual employees came forward and filed the
grievances individually.
Raymer testified that it was his considered opinion that indi-
vidual grievances as opposed to a class action grievance would
have a far greater impact on the Postal Service. Union presi-
dent Raymer testified it was not the union’s practice to solicit
grievances and grievances were not specifically solicited in this
matter. Raymer testified employees were told that if they felt
aggrieved to file a grievance and if they did not to do so.
Union president Raymer testified that some of the affected
union stewards for example filed grievances while other af-
fected stewards did not. Raymer testified that with each sepa-
rate
209
grievance the individual filing the grievance attached a written
statement of how the change on the keypad on the LIPS ma-
chine had specifically affected that individual employee. Union
president Raymer explained that with individual grievances it
could be documented specifically who had been harmed and to
what degree, that it was not just for union officials or for a few
but for those actually harmed.
Union president Raymer testified he had assisted Charging
Party Wall on numerous occasions with problems Wall had on
moving into and out of the facility in Madison. Union vice
president Martin Mater testified he has known Charging Party
Wall for an extended period of time and helped Wall on the
transfers into and out of the Madison Area Postal Service.
Union vice president Mater testified he specifically spoke with
Wall and Pasell, P-A-S-E-L-L, about the LIPS machine and
their assignment of work to the machine.
Vice president Mater testified he told the two that they
should ask to file a grievance. Neither Wall nor Pasell elected
to file a grievance. Mater testified that on his tour which was
tour three on the pay location he was involved with, location
340 of that tour, that certain of the ten therein filed a grievance
over the keypad change while others did not. Page 1 of Union
Exhibit 3 as testified about by Mater indicates that of the ten
employees he made reference to five filed grievances over the
matter while five did not.
210
It would appear that all ten were active union members. Un-
ion vice president Mater testified he had personal friends who
did file grievances regarding the LIPS keypad change while
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
others of his personal friends did not. Mater explained for ex-
ample that employee Jane Patterson did not feel the changes
impacted her so she did not file a grievance.
Union steward Wersland testified he did not solicit employ-
ees to file grievances regarding the keypad changes on the LIPS
machine but rather talked with the employees he came in con-
tact with and told them “If they were upset to file a grievance”.
Wersland testified he spoke along the above-described lines
with every employee on his crew including Charging Party
Wall. Wersland testified some employees on his crew filed
grievances while others did not.
Union steward Wersland testified he talked with employee
Yates but asserted the conversation he recalled with Yates in-
volved a matter where Yates was trying to complain about a bid
position and that bid—and that Yates as a part time flexible
employee was not eligible to bid on positions and as such was
told that no relief would be forthcoming for Yates. Wersland
specifically denied telling Yates he could not file a grievance
over the keypad changes on the LIPS machine.
Wersland specifically testified he made no effort to keep
nonmembers from filing grievances over the keypad change to
the LIPS machine. Wersland likewise testified he was not
aware of
211
any effort by the union to discourage certain individuals from
filing grievances while encouraging others to do so.
That is the highlight of the evidence that was presented in
this case. Has the Government established by evidence in the
form of testimony or exhibits that the union selected and/or
encouraged 76 employees to file and thereafter process griev-
ances related to the Employer’s implementation of a new key-
pad on the linear integrated parcel sorter machine to the exclu-
sion of the Charging Party and 80 other employees similarly
affected.
Before I discuss further the evidence and make an applica-
tion of it to the applicable principles that guide me I shall
briefly state the principles that govern this type case. It is well
settled that a union which enjoys the status of exclusive collec-
tive bargaining representative as the union herein does has an
obligation to represent employees fairly, in good faith and
without discrimination against any of them on the basis of arbi-
trary, irrelevant or invidious distinctions. Vaca, V-A-C-A v.
Sipes, S-I-P-E-S, 386 U.S. 171 (1967).
A union breaches this duty when it arbitrarily ignores a meri-
torious grievance or processes it in a perfunctory manner or
fails to even process a grievance that would appear to be meri-
torious. Again Vaca v. Sipes at 194. Also see Hines, H-I-N-E-
S v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976). Corre-
spondingly, so long as a union exercises its discretion in
212
good faith and with honesty of purpose a collective bargaining
representative is granted a wide range of reasonableness in the
performance of its representational duties toward the unit em-
ployees.
For a union’s actions to be arbitrary it must be shown that in
light of the factual and legal landscape at the time of the un-
ion’s action the union’s behavior is so far outside a wide range
of reasonableness as to be irrational. Airline Pilots v. O’Neill,
O-’-N-E-I-L-L, 499 U.S. 65 at 67 (1991). Mere negligence,
poor judgment or ineptitude in grievance handling are insuffi-
cient to establish a breach of the duty of fair representation.
Ford Motor Co. v. Huffman, H-U-F-F-M-A-N, 345 U.S. 330
(1953).
Again, however, there comes a point where a union’s action
or its failure to take action is so unreasonable as to be arbitrary
and thus contrary to its fiduciary obligations. Again even in
applying the facts to the law herein there are certain points that
are not in dispute. There was a settlement arrived at involving
76 grievances and the union posted the settlement on the un-
ion’s bulletin board which stated among other things that 76
employees who had filed individual grievances were awarded
$160.00 each.
Did the Government establish what it alleges and if so does
the action or inaction of the union demonstrate it failed to rep-
resent the Charging Party and similarly situated employees
213
for reasons that are unfair and arbitrary in breach of its fiduci-
ary duty that it owes to the employees it represents.
First it is clear grievances were not filed on behalf of or by
every individual in the flat sorter machine operators classifica-
tion which was the classification selected by negotiating be-
tween the union and the Employer to operate the LIPS machine.
There does not appear on this record to be a challenge to the
fact that approximately 76 filed grievances while approximately
80 did not. More specifically, has it been established that the
union made a specific and/or concerted effort to include certain
individuals in the filing of grievances and to attempt to exclude
others from filing grievances for whatever reason.
The Government’s contention is that the union’s actions
herein were specifically designed to preclude among others
nonunion members from benefiting from the LIPS machine
grievances. What evidence would support the Government’s
contention that the union wanted to exclude certain employees
from the grievance action or the settlement of such grievances.
I think it is incumbent that you look to the testimony of em-
ployee Wedeward. He states there was a notation inked in at
the bottom of the settlement agreement that was posted on the
bulletin board stating it pays to be a union member. Does that
in and of itself or in conjunction with other matters establish
that the union took the action alleged in the complaint.
214
Wedeward also testified about a conversation with union stew-
ard Carol Muenkel, M-U-E-N-K-E-L, two or three days after
the settlement notice was posted and she told him that union
president Raymer had instructed the union stewards to solicit as
many employees as possible to bring more clout to the issue
with management.
Wedeward also testified about a conversation he had with
union president Raymer on April 12, 2000 in which he asked
why he was not included in the settlement and was told that
those who were included were the ones that came forward and
filed a grievance. Wedeward further testified that he went back
on April the 13th, 2000 to speak with Carol Muenkel, a union
representative, and told her what union president Raymer had
POSTAL WORKERS (POSTAL SERVICES) 1081
said, that everyone who was awarded the $160.00 in the settle-
ment had come forward and individually filed grievances.
Wedeward testified that he told the union steward “That’s
not what you told me” and that the union steward didn’t move
away from it but simply said that union president Raymer
sometimes says things and then forgets them. Employee Linke
testified that union steward Muenkel told him to file a griev-
ance over the keypad change but he did not. After the settle-
ment was posted he spoke with the union steward about the
settlement wondering why he was not included.
Union steward Muenkel told him he was told to file a griev-
ance and did not and that individual
215
grievances made a greater impact upon the Postal Service, and
was also told that this was a means, manner or grounds that
nonunion members would not be included in the settlement.
Does all of that establish that the union sought to include cer-
tain employees and exclude others in the filing of grievances
related to the LIPS machine. One has to look further. Em-
ployee Wall testified the posted settlement agreement contained
written language at the bottom of it that stated “It pays to know
your rights”. I note that that differs from what Wedeward said
was at the bottom of the one he saw which was “It pays to be a
member.”
In looking further at whether the union had unlawful motiva-
tion in its action with the filing of the grievances related to the
LIPS machine the Government would ask that I note, and I do,
that there is some evidence in the newsletters of the union
called “The News Flash” that it wanted everyone to be mem-
bers of the union even to the extent of stating in its September,
1998 newsletter that it was tired of freeloaders and in negotiat-
ing a collective bargaining agreement with the Postal Service in
1998 those who were members would benefit while those who
were not would be excluded from the benefits.
In its June, 1999 newsletter, again “The News Flash”, the un-
ion published a nonmember list of the Madison, Wisconsin
Area Local. That is it listed those employees that it contended
were not members of the union. It is against this backdrop that
I
216
have just outlined that I shall explore the union’s actions in
light of the applicable law that I just made reference to.
Has the union by its actions or inactions exhibited a built-in
unlawful bias against employees being nonmembers. The
overall evidence would persuade me that the answer to that
question is no. Certainly there is evidence that the union wants
all unit members to join the union and it even prints lists of
those whom it contends doesn’t belong to the union and states
its vivid distaste for freeloaders. However, none of the credited
conduct established in this record would in its totality demon-
strate the union would based on any built-in bias unlawfully
refuse to represent nonunion members in the bargaining unit.
Did the union selectively solicit employees to file grievances
or stated differently specifically exclude the Charging Party and
other similarly situated from filing grievances based on arbi-
trary or unfair reasons or breach of its fiduciary duty. Did the
union seek to benefit its members at the expense of or at the
exclusion of nonmembers. The answer on this record is again
no.
The union president testified it was not the union’s policy
nor did they solicit grievances in this case. Union vice presi-
dent Mater testified that the union did not solicit employees to
file grievances and that there was no effort by the union to so-
licit specific grievances. Union steward
217
Wersland testified that he did not solicit grievances, that when
he talked with all of the employees in his unit he indicated if
they were upset to file grievances.
Has the Government established that there was specificity
with soliciting and/or precluding employees from filing griev-
ances. The evidence to this point would indicate no. We fur-
ther then come to some specific examples that the Government
urges establishes that the union ignored certain grievances or
complaints of employees while at the same time soliciting em-
ployees to file grievances who had not complained. A careful
examination of those instances do not establish the Govern-
ment’s case.
Wedeward for example testified he was not asked to file a
grievance and that he did not attempt to file a grievance. He
was one of those that the Government contends complained
about the situation but his complaints were ignored and he was
not asked to file a grievance. But additionally Wedeward gave
some very interesting testimony in that he stated he did not
even know if he was affected by the changes of the keypad to
the LIPS machine. Wedeward acknowledged that he had never
encountered any personal problems or for that matter any other
type of problems with the union stewards in the location that he
worked.
As to employee Yates’ testimony that he talked with union
steward Wersland about the keypad changes and that Wersland
told
218
him there was nothing that could be done for him because he
was a part time flexible employee is in my opinion an inaccu-
rate recollection of what took place between he and union
steward Wersland. I’m persuaded the discussion between
Yates and Wersland was as Wersland testified to, that the dis-
cussion involved job bidding which Yates was not eligible for,
rather than the keypad changes.
I’m fully persuaded based on the overwhelming weight of
the evidence in this case that if Yates had sought to file a griev-
ance on the keypad change to the LIPS machine that the union
would have allowed him to do so and would have processed it.
I base that in part on the fact that the settlement itself included
PTF or part time flexible employees. Additionally, I specifi-
cally credit Wersland’s testimony that he did not tell Yates he
could not file a grievance.
Were the circumstances surrounding the soliciting of Hutton
and Linke to file grievances establish any pattern or action on
the part of the union to include certain individuals while ex-
cluding other individuals. The answer again is no. Hutton’s
own testimony shows that when union steward Wersland men-
tioned filing a grievance regarding the keypad change that four
other employees were present. That taken in conjunction with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
Wersland’s testimony he did not solicit grievances but rather
told employees if they were upset to file grievances persuaded
me—persuades me there was no unlawful—there was no
219
unlawfully motivated conspiracy on the part of Wersland
and/or the union to unlawfully include some employees while
excluding others.
Linke testified union steward Carol Muenkel, M-E-U-N-K-
E-L, asked him to file a grievance about the keypad changes
but that he did not do so. He said that later he did attempt to
file a grievance. He knocked on the union’s doors. There was
nobody there. He never followed up on it. But Linke on cross-
examination acknowledged that when the union steward spoke
with him about filing a grievance the steward was talking to
more than just one employee, that others were also present.
Thus I’m persuaded that these actions by the union specifi-
cally regarding employees Wedeward, Yates, Hutton and Linke
do not establish any effort on the part of the union to unlaw-
fully exclude some from filing grievances while unlawfully
soliciting others to do so.
Next, did the union demonstrate arbitrary or unfair conduct
or a breach of its fiduciary duty when it elected to proceed with
the dispute regarding the LIPS machine by individual griev-
ances versus a class action grievance. The union’s explanation
specifically through union president Raymer provides a reason-
able explanation for the union’s action. That is president Ray-
mer testified that it was his considered opinion that the problem
with the LIPS machine would have far greater impact on the
Postal Service if it was done by a large number of
220
individually filed grievances so that the Postal Service could
see the magnitude of the impact on the employees.
Did the union’s action in that regard move it outside an exer-
cise of its discretion in good faith and with honesty of purpose.
I’m persuaded it did not move them outside that wide range of
reasonableness that is afforded a union in the representation of
the unit employees.
Did the union engage in some poor judgment in this case.
Perhaps. If there were any comments inked in by the union at
the bottom of their notice of this settlement while neither would
appear to violate the National Labor Relations Act, either ver-
sion of what may have been at the bottom of the note, perhaps
it would have been better not there.
Do some of the articles that are printed by the union included
in its “News Flash” represent exceptionally good judgment.
Perhaps not but it does not rise to the level of placing the union
outside its duty of fair representation.
Having carefully considered all of the evidence I find that
the Government has failed to establish that the union acted in
an unfair or arbitrary manner or that it breached its fiduciary
duty to the employees it represents and as such I shall dismiss
the complaint.
This hearing is closed.