Postal Workers Union

National Labor Relations Board - Board Decisions

Jun 29, 2007

350 N.L.R.B. 219 (N.L.R.B. 2007)

POSTAL WORKERS
350 NLRB No. 22
219
Long Island NY Area Local, American Postal Work-
ers Union AFL–CIO and Marc Dralus and
George O’Malley. Cases 29–CB–13164 and 29–
CB–13195
June 29, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On January 2, 2007, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, to
which the Respondent filed an answering brief. The Re-
spondent filed cross-exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the
record and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions and to adopt the rec-
ommended Order.3
The General Counsel excepts, among other things, to
the judge’s failure to find that the Respondent violated

1 The General Counsel moves to strike the Respondent’s brief in
support of cross-exceptions, arguing that the brief misrepresents the
record in several respects and fails to comply with Sec. 102.46 of the
Board’s Rules. With respect to noncompliance with Sec. 102.46, the
General Counsel argues that the brief does not reference the specific
cross-exceptions to which the brief relates. The motion is denied, as
the brief substantially complies with the requirements of Sec. 102.46,
see La Gloria Oil & Gas Co., 337 NLRB 1120 fn. 1 (2002), and be-
cause the alleged factual misrepresentations are not sufficiently serious
and numerous to warrant striking the brief.
2 We find merit in the General Counsel’s exception that the judge
erred in failing to find that the Respondent was motivated by animus
toward Marc Dralus’ exercise of his Sec. 7 rights when insisting that
the Employer not assign him overtime work. The Respondent engaged
in the same conduct at the same time toward George O’Malley, who,
along with Dralus, exercised his Sec. 7 right to refrain from member-
ship in the Respondent., The judge, however, only found Sec. 7 animus
as to O’Malley. Although the evidence establishes animus as to Dralus
as well, we find that the Respondent satisfied its rebuttal burden be-
cause it is undisputed that Dralus’ name was not placed on the quarterly
overtime desired list before the quarter began, as required by the par-
ties’ collective-bargaining agreement, and the Respondent has met its
burden of showing that it would have insisted that Dralus not be as-
signed overtime for this reason in any event..
3 Member Schaumber agrees with his colleagues that the Respondent
did not violate Sec. 8(b)(1)(A) by refusing to process Dralus’ grievance
regarding overtime work. While, as the judge correctly observed, Re-
spondent has a fiduciary duty to fairly represent all employees for
whom it is the designated bargaining representative, without considera-
tion of their union membership, Dralus’ name did not appear on the
quarterly overtime desired as mentioned above, and the General Coun-
sel failed to offer any additional evidence supporting the merit of
Dralus’ grievance. See, e.g., Electrical Workers Local 2127 (I-T-E
Electrical Products), 271 NLRB 885, 888–889 (1984).
Section 8(b)(2) by filing a May 9, 2006 grievance against
the Employer for assigning George O’Malley 8 hours of
overtime work on April 4, 2006. Although we agree that
the consolidated complaint includes this allegation, we
find it unnecessary to decide whether the May 9 griev-
ance separately violated the Act, because such a finding
would not materially affect the remedy. Accordingly, we
find it unnecessary to pass on this 8(b)(2) allegation.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Long Island New York Area
Local, American Postal Workers Union, AFL–CIO, Val-
ley Stream, New York, its officers, agents, and represen-
tatives, shall take the action set forth in the Order. Sub-
stitute the attached notice for that of the administrative
law judge.
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 a 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.
WE WILL NOT cause or attempt to cause the United
States Postal Service to deny overtime assignments to
George O’Malley because he has chosen not to be a
member of the Union.
WE WILL NOT in any like or related manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make George O’Malley whole for any loss of
earnings and benefits he may have suffered as a result of
the discrimination against him.

4 Member Schaumber would find that the facts establish that the Re-
spondent violated Sec. 8(b)(2) by filing its grievance against the Em-
ployer for assigning overtime work to O’Malley.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
LONG ISLAND NY AREA LOCAL, AMERICAN
POSTAL WORKERS UNION, AFL–CIO
Nancy Reibstein, Esq., for the General Counsel.
Anton G. Hajjar, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on October 10, 2006. The charge
in Case 29–CB–13164 was filed by Marc Dralus on May 25,
2006. The charge in Case 2–CB–13195 was filed by George
O’Malley was filed on July 13, 2006. A complaint in Case 29–
CA–13164 was issued on June 28, 2006, and a consolidated
amended complaint was issued on July 2006.
In substance, the consolidated alleged as follows:
1. That on or about April 5, 2006, the Respondent, for dis-
criminatory reasons, caused or attempted to cause the Employer
to refuse to allow Dralus and O’Malley to be on the “Overtime
Desired” list and thereby cause them to lose overtime work.
2. That on or about April 6, 2006, the Union, for arbitrary
and unfair reasons and because Dralus and O’Malley were not
union members, refused to process their grievance regarding
the Employer’s failure to place them on the “Overtime Desired”
list for the second quarter of 2006.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service and the Respondent are
subject to the jurisdiction of the National Labor Relations
Board (the Board) pursuant to Section 1209 of the Postal Reor-
ganization Act of 1970.
II. ALLEGED UNFAIR LABOR PRACTICES
This case involves clerks employed at the post office in Val-
ley Stream, New York. The postal clerks are covered by a
national collective-bargaining agreement between the US
Postal Service and American Postal Workers Union, AFL–CIO.
The local union is the Long Island NY Area Local, American
Postal Workers Union, AFL–CIO. During the relevant period
of time, there were about 26 clerks, some of whom were mem-
bers of the Union and others, including Marc Dralus and
George O’Malley, who were not members.
In the case of O’Malley, he was a member of the Union until
he resigned in 1998. During a period from 1990 to 1992, he
was an assistant shop steward. Inasmuch as Dralus did not
testify in this proceeding, I do not know when he resigned. The
evidence showed that documents were posted on the union
bulletin boards indicating who are members and who are not
members. Also posted on union bulletin boards were flyers
describing, in unflattering terms, the word “scab.”
Article 15 of the contract contains a grievance procedure
providing for a multiple-step procedure culminating in arbitra-
tion. At step 1, the contract provides that any employee “who
feels aggrieved” must discuss his or her grievance with the
immediate supervisor within 14 days of the date when the em-
ployee learned or could reasonably have expected to learn of
the incident. Step 1 grievances also can be initiated by the
Union within 14 days of the occurrence. At the step 1 level, the
supervisor and the union representative are authorized to settle
a grievance in whole or in part. In the event that no resolution
is reached, the supervisor is required to render a decision within
5 days unless the parties agree to an extension. If the Union is
not satisfied, it may appeal an adverse decision to step 2 within
10 days after receipt of the supervisor’s decision. The step 2
appeal, unlike the step 1 grievance, specifically requires the
Union to generate a document on a standard grievance form
indicating: (1) a detailed statement of facts; (2) the contentions
of the grievant; (3) the particular contractual provisions in-
volved; and (4) the remedy sought.
Article 8 deals generally with hours of work and article 8,
section 5, deals with overtime assignments. The latter provi-
sion provides for a system whereby “two weeks prior to the
start of each calendar quarter, full-time regular employees de-
siring to work overtime during that quarter shall place their
names on an ‘Overtime Desired’ list.” Basically, this is de-
signed so that the employees can self-select who will be avail-
able for overtime work during the ensuing 3-month period. It
therefore is designed to give overtime to those employees who
want it and excuse from overtime assignments, to the extent
possible, those employees who do not want them.
Before the second quarter of 2006, the system operated by
having a signup sheet posted before each quarter. Supervisor
William Lombardo would then take the completed signup sheet
and transpose those names onto a second list that he generated
and maintained at his office. This second list, which contained
the names of the people who had signed up for overtime, was
generated for each week during the quarter and indicated who
was eligible for and who was given overtime assignments dur-
ing the week, and how many hours each person worked. The
employees on the second list were categorized by their normal
days off because those were the days that they would be eligi-
ble to work overtime. Thus, if a set of employees normally
took their days off on Tuesday, then they would be eligible to
get overtime assignments for Tuesdays. If another set of em-
ployees normally took their days off on Wednesday, then they
would be eligible for overtime assignments on Wednesday.
In any event, Lombardo testified that in utilizing the second
list, he used seniority to make only the initial assignment of
overtime to a person on that list. For example, if overtime was
available on the first Monday of the new quarter, the highest
qualified person on the second list, whose normal off day was
Monday, would be the first person offered that overtime as-
signment. After that first day, and for the remaining 3 months,
the employees on the list who were eligible for Monday over-
time would be offered overtime on a rotating basis. Over a 3-
month period, this tended to result in rough equality in overtime
assignments.
On January 25, 2005, a labor-management meeting was held
at the Valley Stream Post Office. A number of items were
discussed including the “Overtime Desired list.” According to
Postmaster James Meade (who had recently come into this
office), the Union made a number of nonspecific allegations of
POSTAL WORKERS 221
favoritism. With respect to the list, both he and Elaine Marzoc-
chi (also recently elected to the position of chief shop steward),
testified that the parties agreed that from then on, it would be
the Union that would administer the “list” instead of Lombardo.
That meant that Marzocchi and her assistant shop steward,
Sharkey, were delegated the function of making up the “sec-
ond” list from the sign in sheets and keeping track of who was
getting overtime assignments and making sure that that those
assignments were being allocated in a fair manner. The Union
agreed to perform this function and Meades apparently was
glad to get rid of it.
An overtime signup sheet was posted sometime between 12
and 15 days before April 1, 2006, which is the start of the next
quarter. During at least some part of that time, Dralus was on
leave to take care of a sick family member and apparently tele-
phoned Lombardo and asked him to do him a favor and place
his name on the signup sheet. Lombardo testified that he forgot
to do this and as a result, Dralus’ name did not appear on the
signup sheet when Marzocchi made up the list that she and
Sharkey were going to use to make the overtime assignments
during the second quarter of 2006. (In making the new list, she
essentially followed the pattern and practice that Lombardo had
done before.)
As for O’Malley, testified that during the open period, he
signed the signup sheet in the presence of another employee
and near where Lombardo was situated. However, the signa-
ture that O’Malley identified as his own, bears no resemblance
to his or anyone else’s signature. He testified that he signed the
sheet this way because on two or three occasions, some years
ago, someone had written “scab” next to his name. In any
event, the signature that he identified has no relationship to
O’Malley’s normal signature and is completely illegible.
Marzocchi testified that on March 30, 2006, she took down
the signup sheet and using a copy from the previous quarter’s
list prepared by Lombardo, whitened out the names of Dralus
and O’Malley because their names (which were on the previous
quarter’s list) were not on the signup sheet. She testified that
she then left the new list in the office and when she next found
it on or about April 1, 2006, she noticed that Lombardo had
written in the names of Dralus and O’Malley. She testified that
since their names were not on the signup sheet, and inasmuch
as Lombardo no longer was supposed to be responsible for
taking care of the “list” she took a magic marker and blacked
out these two names. She testified that she received a written
note from Lombardo stating that Dralus had called him on
March 23 and asked that Lombardo put his name on the sign-up
sheet and that it was Lombardo had forgotten to put his name
on the list. As to O’Malley, Lombardo’s note asserted that he
and Bruce Roettinger saw O’Malley sign the signup sheet.
According to Marzocchi, she did not believe that the proce-
dure allowed for an employee to have someone else sign his or
her name. She also testified that looking at the signup sheet,
she could not see any signature that bore even the slightest
resemblance to the signature of O’Malley and she didn’t be-
lieve Lombardo’s statement that he saw O’Malley sign the
sheet. (Marzocchi testified that for many years, she took care
of the timecards and was very familiar with the employees’
signatures.)
At a meeting held on April 5, 2006, the Union’s representa-
tives, at the end of the meeting, complained that Lombardo had
disregarded the Union’s new responsibility for preparing the
“Overtime Desired List” by disregarding it and assigning over-
time to George O’Malley. Postmaster James Meade testified
that the Union’s representatives were adamant as to O’Malley
and although they acknowledged receiving Lombardo’s letter
(described above), their position was that they did not believe
Lombardo. He also testified that if the Union’s representatives
stated that if Company insisted on giving overtime to Dralus
and O’Malley, the Union would file a grievance. Meade fur-
ther testified that Union Representative Peeples stated that he
didn’t know what the story was with O’Malley because they
saved his job and they don’t know why he’s not in the Union.
And while it is true that Meade’s testimony as to this last
statement only came out during cross-examination, it is also
true that the Respondent did not attempt to call any witnesses to
rebut it.
As a result of the April 5 meeting, Lombardo was told by
Meade not to assign overtime to Dralus or O’Malley for the
remainder of the quarter and he complied. Also, it appears that
the parties agreed that when employees signed the signup sheet,
they would have to print their names in addition to writing their
signatures. This new procedure was implemented starting with
the next quarter (July to October). In this regard, Dralus and
O’Malley signed and printed their names and were put on the
“Overtime Desired List.” Therefore, the only overtime loss that
is claimed in this case is overtime for the period between April
1 and June 30, 2006.
At some point, probably after the April 5 meeting, O’Malley
asked Assistant Shop Steward Sharkey to file a grievance
against the Employer for its refusal to assign him overtime.
O’Malley testified that he sat down with Sharkey who wrote
down what he had to say and he thought that this was tanta-
mount to the filing of a grievance. (The record does not show
if Dralus actually filed a grievance.)
In early May 2006, Dralus and O’Malley asked Shop Stew-
ard Marzocchi to process grievances regarding the Company’s
failure to give them overtime. She refused and told them that
she had killed the grievance.
The General Counsel asserts that the Union refused to proc-
ess these grievances even though the Employer was willing to
accede to the claims of Dralus and O’Malley. But this misses
the point. Assuming that Dralus and O’Malley were successful
in their grievances and were given overtime assignments during
the quarter from April to June 30, 2006, this would necessarily
involve reducing the overtime opportunities for the other em-
ployees who were on the overtime desired list. Thus, if Dralus
and O’Malley were not legitimately entitled to get overtime
(because they had not signed the signup sheet), then a favorable
resolution of their grievances would result in a detriment to
other employees who were in the bargaining unit and to whom
the Union also owed a duty of fair representation.
III. ANALYSIS
Section 8(b)(2) makes a union liable if it causes or attempts
to cause an employer to discriminate against an employee in
violation of Section 8(a)(3) of the Act or to discriminate against
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
an employee with respect to whom membership has been de-
nied or terminated on some ground other than his failure to
tender the periodic dues and initiation fees uniformly required
as a condition of acquiring or retaining membership.
If a union causes the discharge of an employee because he or
she has chosen not be a union member or because of his union
activity (or lack thereof), this would constitute a violation of
Section 8(b)(2). Except in circumstances where there is a valid
union-security clause and the employee has not been denied
union membership because of his failure to pay the uniformly
required union dues and fees (or their equivalent), a union vio-
lates this section of the Act if makes an efficacious demand
that an employer discharge, or otherwise discriminate against
an employee because of his or her nonmembership. Letter
Carriers Branch 86 (Postal Service), 315 NLRB 1176, 1177–
1178 (1994).1
Similarly, a union’s efficacious attempt to cause an employer
to discharge an employee because of his internal dissident un-
ion activities is also a violation of the Act. USF Red Star, Inc.,
330 NLRB 53, 57–58, (1999). Moreover, the violation relates
to any form of discrimination and not just to “causing” a dis-
charge. Thus, in Letter Carriers Branch 3126 (Postal Service),
330 NLRB 587 (2000), the Board held that there was a viola-
tion of Section 8(b)(2) when a union, through its shop steward,
demanded that an employer refuse to allot overtime to an em-
ployee because he had resigned his membership in the union.
In essence, Section 8(b)(1)(A) prohibits a union from re-
straining or coercing employees in the rights guaranteed by
Section 7 of the Act. When a union violates Section 8(b)(2) by
causing an employer to discriminate against an employee be-
cause the employee has withdrawn his union membership or
has engaged in dissident union activity, this is also a derivative
violation of Section 8(b)(1)(A) because the union’s actions
constitute restraint or coercion on the rights of employees to
refuse to engage in protected concerted activity, including the
right to refrain from joining a union.
There is also a line of cases that hold that a union violates
Section 8(b)(1)(A) if it fails to fairly represent the employees
for whom it is the designated bargaining representative. Vaca
v. Sipes, 386 U.S. 171 (1967). The theory here is that once
delegated the authority in accordance with Section 9(a) of the
Act to be the exclusive representative of employees within a
specified bargaining unit, a union has a kind of fiduciary duty
to represent them all fairly. Thus, a union is required to repre-
sent (for example in bargaining or grievance matters) all em-
ployees without consideration of their union membership or
activity. Machinists District 186 (Federal Mogul), 291 NLRB
535 (1988). Nor may a union act, or fail to act (for example by

1 In Stereotypers No. 120 (Dow Jones & Co.), 175 NLRB 1066 fn. 3
(1969), the Board stated:
The Trial Examiner held that “if Respondent’s objections [to Ander-
son’s transfer] had amounted to no more than a simple request, this
might not have satisfied the term ‘cause or attempt to cause’ as used in
the Act. We do not agree. In accordance with our previous holdings,
we hold in this case that a union’s efficacious request that an employer
discriminate against an employee is unlawful. . . . We do not find it
necessary, therefore, to determine whether the Respondent’s request
was fortified by a threat.”
refusing to process an employee’s grievance) in a manner that
is arbitrary, discriminatory or in bad faith. Vaca v. Sipes, supra.
The situations involving O’Malley and Dralus are similar to
the extent that they both had resigned from the Union and were
not members at the time of these incidents.
But their situations are different because in order to be eligi-
ble for overtime during the period in question, they would have
had to have signed the required signup sheet for the “Overtime
Desired List.” And in this case, while O’Malley may very well
have signed up for this overtime, Dralus did not.
A. O’Malley’s Case
As described above, in order to be placed on the “Overtime
Desired List” and be considered for overtime assignments, the
contract requires that any employee desiring overtime for a
given quarterly period, sign up for these assignments. In the
past, a signup sheet was put up about 12 to 15 days before the
beginning of the quarter and the supervisor was the person who
transposed the names of the people who signed up to a second
list that was then used to assign overtime. By mutual agree-
ment, in January 2006, that procedure was slightly changed so
that instead of the Company’s supervisor doing it, the Union’s
representatives would transpose the names on the signup list to
the overtime list.
In March 2006, O’Malley signed the signup list, albeit he did
so in a way that his signature could not be read.
Union Steward Elaine Marzocchi testified that when she re-
ceived the signup sheet, she did not put O’Malley’s name on
the overtime assignment list because she didn’t see his name on
the signup sheet. This was understandable. She also testified
that on the following day, she noticed that Supervisor Lom-
bardo had inserted O’Malley’s name on the overtime assign-
ment list whereupon she crossed his name out. In my opinion,
Marzocchi reasonably concluded that Lombardo was interfer-
ing with the agreement that had just been reached where she,
and not Lombardo, was responsible for making up the overtime
list from the names that appeared on the signup sheet.
At a meeting held on April 5, 2006, a number of other sub-
jects were first discussed. However, at the end of the meeting,
the Union’s representatives complained that Lombardo had
interfered with the previous agreement that the Union was to be
responsible for preparing and administering the overtime list.
There was some discussion of a letter that Lombardo had writ-
ten in which he asserted that O’Malley had, in fact, signed the
signup sheet. As to this, Postmaster Meade testified that the
union representatives said that they didn’t believe Lombardo.
Meade further testified that Union Representative Ron Peeples
stated that he didn’t know what the story was with O’Malley
because they had saved his job and they didn’t know why we
was not in the Union. This testimony was not contradicted.
In light of the statement by Peeples at the April 5 meeting,
made in the context of the Union’s position that O’Malley was
not entitled overtime, I infer that the decision to insist that
O’Malley not be assigned overtime for the 3-month period
starting on April 1, 2006, was motivated mainly by his non-
membership in the Union and the feeling by union representa-
tives that O’Malley had been insufficiently grateful for some
help that the Union had given him in the past. In this instance,
POSTAL WORKERS 223
O’Malley had signed the signup sheet and the Union chose not
to verify that fact with either O’Malley or anyone else.
On the basis of this record, I conclude that in O’Malley’s
case, the Union effectively caused the Employer to refuse to
give him overtime assignments for the period from April 1 to
June 30, 2006, primarily because O’Malley had chosen not to
be a member of the Union. I therefore conclude, in accordance
with the standards set forth in Wright Line, 251 NLRB 1083
(1980), that in this respect, the Respondent violated Section
8(b)(2) and (1)(A) of the Act. Inasmuch as I have concluded
that the Union violated this section of the Act, which will re-
quire a backpay remedy, it is unnecessary, in my opinion, to
reach any conclusion as to whether the Union breached a duty
of fair representation regarding a grievance that O’Malley al-
legedly filed over his overtime claim.
B. The Dralus Affair
Dralus did not sign the signup sheet. The claim is that
Lombardo had agreed to put his name on the signup sheet but
forgot to do so. The bottom line is that neither Dralus, nor
anybody on his behalf, put his name on the signup sheet. And,
as this was a contractual prerequisite for being given overtime
assignments for the quarter starting on April 1, 2006, there is
simply no basis for finding that Dralus was eligible for those
assignments.2
Accordingly, when the Union’s representatives insisted that
Dralus was not eligible for overtime assignments from April 1
to June 30, 2006, they were absolutely correct. If an employee
who failed to sign the signup sheet could, after the fact, suc-
cessfully argue that he nevertheless should be placed on the
overtime list because he forgot to put his name on the signup
sheet, then there would be no point in having the signup sheet
at all. It could simply be disregarded. There is a legitimate
reason for requiring employees to sign the signup sheet in ad-
vance of the quarter. This is so that all employees in the unit
can make their plans in advance and have a reasonable expecta-
tion as to what if any overtime they will be assigned to during a
given period of time, I fully appreciate the Union’s insistence
that the procedure be complied with by all of the employees.
The statement made by Peeples at the April 5 meeting re-
garding O’Malley does not, in my opinion, necessarily apply to
Dralus. And even if there was some ill feeling regarding the
fact that Dralus had chosen, at some time in the past, to resign
from union membership, the facts in this case convince me that
the Union’s representatives were correct in insisting that the
agreed upon procedure should be followed, without an excep-
tion being made for Dralus.
Accordingly, I conclude that the Union has not violated the
Act insofar as it makes allegations concerning Dralus.
CONCLUSIONS OF LAW
1. By causing the Valley Stream office of United States
Postal Service to deny overtime assignments to George
O’Malley for the period from April 1 to June 30, 2006, the
Union has engaged in unfair labor practices affecting com-

2 This should not be read to mean that I would conclude that the con-
tract permitted an employee to designate someone else to write his
name on the signup sheet.
merce within the meaning of Section 8(b)(2) and (1)(A) of the
Act.
2. The unfair labor practices found above, affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Except to the extent found herein, I conclude that the Re-
spondent has not violated the Act in any other manner encom-
passed by the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Union has caused the Employer to not
assign certain overtime to O’Malley, I shall recommend that it
be ordered make him whole for any loss of earnings and other
benefits he may have suffered by reason of the discrimination
against him less any net interim earnings, the amount of back
pay to be calculated in accordance with F. W. Woolworth., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (l987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Long Island New York Area Local, Ameri-
can Postal Workers Union, AFL–CIO, Valley Stream, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause the United States Postal
Service to deny overtime assignments to George O’Malley
because he has chosen not to be a member of the Union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make George O’Malley whole for any loss of earnings
and benefits he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy section
of this decision.
(b) Post at its office copies of the attached notice marked
"Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees and members are customarily

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.
4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material.
(c) Sign and return to the Regional Director sufficient copies
of the notice for posting by the Employer if willing, at all
places where notices to employees are customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.