Postal Workers (United States Postal Service)

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 1282 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 115
1282
American Postal Workers Union, AFL–CIO (United
States Postal Service) and Sylvia R. Williams.
Case 13–CB–17865
November 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 9, 2005, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
General Counsel filed exceptions and supporting brief.
The Respondent filed an answering brief, and the Gen-
eral Counsel filed a response.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions1 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Kevin McCormick, Esq., for the General Counsel.
Anton Hajjar, Esq., of Washington, DC, for the Respondent.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Deputy Chief Administrative
Law Judge. This case was tried in Chicago, Illinois, on June
16, 2005. The complaint alleges that the American Postal
Workers Union (Respondent Union or APWU) violated Section
8(b)(1)(A) of the Act by failing and refusing to pay under a
global grievance settlement agreement moneys owed to the
estates of 10 former Postal Service employees, all of whom
ceased working for the Postal Service prior to the consumma-
tion of the settlement agreement and passed away prior to the
distribution of settlement moneys.1
The Respondent’s timely answer denied the material allega-
tions of the complaint. All parties have been afforded a full
opportunity to appear, present evidence, examine and cross-
examine witnesses, and file posthearing briefs.2

1 In affirming the judge’s conclusions, we do not rely on his state-
ment that a union owes no duty of fair representation to a deceased
employee. Even assuming that the Union here owed such a duty, we
find that the General Counsel has not shown that the Union acted arbi-
trarily; therefore there is no unfair labor practice.
1 At trial, the General Counsel’s motion to strike the name, Willie
Rhodes, from paragraph VI(a) of the complaint was granted. (Tr. 7–8.)
2 The Respondent filed a prehearing brief and a pretrial motion to
dismiss the complaint, which was opposed by the General Counsel.
The Respondent filed a reply. I reserved ruling on the motion, which is
disposed of by this decision. Both parties filed posthearing briefs. The
Respondent also filed an opposition to a motion in the General Coun-
sel’s posthearing brief seeking reconsideration of an evidentiary ruling
I made at trial with respect to rejected GC Exh. 5. Since leave to file
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable
inferences drawn on the record as a whole, and after consider-
ing the briefs filed by the General Counsel and the Respondent
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act. It admits, and I find, that
the Postal Service is subject to the jurisdiction of the National
Labor Relations Board pursuant to 39 U.S.C. Section 1209(a).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Percy Harrison is a national business agent of the Respon-
dent Union. He is responsible for overseeing the union repre-
sentation of all APWU craft employees in the States of Illinois
and Michigan. Harrison is also the president of the Chicago
Bulk Mail Center Area Local (CBMC Local). (Tr. 59, 66.)
On June 23, 1995, CBMC Local Union Steward Joy Berard
filed a class action grievance asserting that the Postal Service
had violated several provisions of the collective-bargaining
agreement by hiring and using casual employees for more than
90-day terms to fill jobs normally performed by career employ-
ees. (Tr. 58; Jt. Exh. 2.) No employees were named in the
grievance nor did the Union seek compensation based on a lost
pay theory.3
The grievance was pursued to step 3 of the grievance proce-
dure. Eventually, the parties engaged in settlement discussions.
In early 2004, Harrison and Richard Little, Manager of Labor
Relations for Central Illinois District, discussed settling the
matter along with another outstanding grievance involving the
use of casual employees. (Tr. 32, 34.) Their discussions for
the most part focused on the amount of money it would take to
resolve the grievances. (Tr. 35, 83–85.) The Postal Service
ultimately agreed to pay approximately $5.5 million directly to
employees deemed eligible by the local union presidents to
participate in the settlement moneys. There were no restric-
tions placed on how the local union presidents would determine
who was eligible to receive settlement money. (Tr. 37.)
In the course of negotiations, Harrison asked Little what
would happen if a settlement check to an employee was re-
turned unclaimed. Little testified that he told Harrison that the
Postal Service would keep the money. (Tr. 35, 85.) He ex-
plained that it was expensive for the Postal Service to process
checks and if a check was mailed and returned unclaimed, the
Postal Service would not redistribute the amount of the check

the latter was not requested nor granted, I have not read the Respon-
dent’s opposition to that motion.
3 The Union’s theory was that the unit as a whole was disadvantaged
because the continuous use of casuals prevented the hiring of additional
full-time and regular part-time employees. There was no evidence or
argument that any individual employee lost overtime or otherwise was
economically injured because of the Postal Service’s conduct.
POSTAL WORKERS (POSTAL SERVICE) 1283
to the other employees. (Tr. 36.)4 Both Little and Harrison
testified that Harrison’s question was not raised or discussed in
the context of a deceased employee’s estate and at no time dur-
ing negotiations did Harrison tell Little that he wanted to dis-
tribute moneys to deceased bargaining unit members. (Tr. 36,
85.)
Harrison discussed Little’s comment about the unclaimed
checks with another union official and decided it would be
prudent to identify those employees who might be difficult to
contact. (Tr. 86.) Harrison obtained a list of former CBMC
from the Postal Services’ personnel department, which showed,
among other things, that some of the former employees had
passed away several years earlier.
On April 19, 2004, a written settlement agreement was
signed in which the parties agreed that the monetary remedy to
resolve the grievance would be $5,600,000 paid in two install-
ments. An initial payment of $5,500,000 would be divided in
following amounts among the following Postal Service facili-
ties: Bloomington P&DF, IL 61701 ($50,000); Champaign
P&DF, IL 61821 ($500,000); Chicago BMC, Forest Park, IL
60130 ($4,460,000); Decatur PO, IL 82521 ($50,000); South
Suburban, Bedford Park, IL 60499 ($140,000); and Franklin
Park Repair Center/MTEC ($300,000). The remaining
$100,000 would be held for at least 3 months after the initial
payment to be used to pay any other eligible individuals who
were inadvertently “missed” during the first payment. (Jt. Exh.
3, pp. 1 and 3.)
Significantly, the written agreement stated that “[t]he local
APWU Presidents from the locals listed in section #1 will iden-
tify, determine eligibility, and apportion payment for their re-
spective designated recipients. A list of those eligible individu-
als will be completed and submitted to the National Business
Agent. When all designated recipients have been identified, the
Business Agent will forward the information to the [Postal
Service] Central Illinois District Labor Relations Department
for processing.” (Jt. Exh. 3, p. 2.) In other words, each local
union president had sole discretion to determine who in the
local union would receive a payment, as well as the amount.
Also, the Respondent Union did not receive any of the moneys
to distribute. Rather, the Postal Service retained the settlement
money and distributed it directly to the individuals deemed
eligible by the local union presidents. (Tr. 64.)
In addition, the written settlement agreement stated that in
connection with the second installment of $100,000, “any re-
maining funds will be divided up between the designated re-
cipients from the Chicago BMC as identified by the Business
Agent, and will be awarded as a lump sum payment subject to
all Federal and State laws and postal regulations.” (Jt. Exh. 3,
p. 3.) Consistent with Little’s remarks about unclaimed mon-
eys, it also stated “that payroll adjustments will not be subject
to reapportionment under any circumstances. The Postal Ser-
vice will not be responsible for any subsequent apportionment
or additional payouts, with the exception of Item #3.” (Jt. Exh.
3, p. 6.)

4 Little explained that a check might be unclaimed if a person moved
without leaving a forwarding address or passed away without identify-
ing next of kin or was in jail and unable to pickup the check. (Tr. 36.)
As president of the CBMC Area Local, Percy Harrison was
responsible for determining who in his local would receive
settlement moneys.5 (Tr. 67.) Shortly after the agreement was
signed, but before a list of recipients was submitted to the
Postal Service, Harrison asked Little what would happen to the
money, if a check mailed to a deceased employee was returned
unclaimed. (Tr. 37.) Little testified that he told Harrison that it
would be treated like any other unclaimed check and the money
“would go back in the Post Office coffers.” (Tr. 37.) Harrison
testified that he decided not to include the names of the de-
ceased former employees on a list because he was concerned
that if their checks were returned unclaimed the Postal Service
would keep the money. Rather than have that happen, he de-
cided to divide the money among current employees and former
employees of his local union who were still living. (Tr. 88.)
Decedent, Michael A. Williams, was employed at the
CMBC, when he passed away on January 11, 2003. (Tr. 20; Jt.
Exh. 1.) In mid-July 2004, his widow, Sylvia Williams learned
that the grievance settlement had been paid out. She phoned
CMBC Local Union President Harrison asking whether there
was a check for her deceased husband. Williams testified that
Harrison told her that there was no payment for deceased indi-
viduals who were not active on the payroll. (Tr. 22.) He testi-
fied that he also told her that the Postal Service would keep any
money that was not claimed and therefore he decided not to pay
deceased former employees and risk losing some of the settle-
ment money. (Tr. 88.) Williams testified that she pointed out
to Harrison that a retired employee, Arthur Young, had been
paid, even though he was no longer active on the payroll.6
Williams also stated that Harrison told her that he did not want
to get into litigation over who was supposed to be paid from a
decedent’s estate. (Tr. 29–30.)
In November 2004, a dispute arose over whether another
group of employees represented by the Respondent Union, the
Motor Vehicle Service (MVS) employees, were covered by the
settlement agreement. A grievance was filed and pursued to
arbitration. In December 2004, an arbitrator ruled that the
group was included under the terms of the written settlement
agreement and should have received settlement moneys.
Around the same time, the Postal Service’s law department
notified Little that the estates/families of 10 deceased former
employees were claiming that they should have been included
in the settlement. (Tr. 39.)
As a result, on December 30, 2004, Little wrote to Harrison
asking him if he wanted to revise his list of “inadvertently
missed” recipients for the second wave of payments in light of
the arbitrator’s decision. In addition, Little pointed out that he
had been advised that there were 10 deceased estates/families
that were claiming they should have been included in the set-
tlement. Little specifically asked Harrison “[w]as it your intent
to exclude these former employees or were they inadvertently
missed?” (GC Exh. 3.)

5 The evidence shows that the other local union presidents, e.g., De-
catur, Champaign, South Surburban, and Bloomington made decisions
affecting individuals in their jurisdictions. (Tr. 67–68.)
6 Harrison testified that he paid over 20 retired employees, including
Arthur Young, from the settlement moneys. (Tr. 89, 97.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1284
After receiving the letter, Harrison phoned Little asking him
why the Postal Service was questioning whether the deceased
employees should have received settlement moneys. Harrison
testified that he told Little, “I really don’t care about them. I
said, that has nothing to do with our agreement. Our agreement
specifically says that that money was left there for people who
we inadvertently missed. I said, I submitted those names to you
so long ago and I said, I want you to pay those people.” (Tr.
90.)
Harrison followed up the telephone conversation with a let-
ter, dated January 7, 2005, stating, in relevant part:
In regard to the ten deceased estates/families you ask
about, I will let the APWU lawyers work out that problem,
as my concern is to get those that there are no questions
about their status and they should have been paid except
for inadvertent error.
Whatever money is left after these people are paid can
be left sitting until such time as the other problems have
been worked out, inclusive of the “Great B.S.” Fletcher
gave you on the MVS case. [GC Exh. 2; Tr. 91.]
B. Analysis and Findings
1. The alleged duty to represent deceased former employees
Section 2(3) of the Act states, in relevant part:
The term “employee” shall include any employee . . . and
shall include any individual whose work has ceased as a con-
sequence of, or in connection with, any current labor practice
or because of any unfair labor practice, and who has not ob-
tained any other regular and substantially equivalent employ-
ment, but shall not include any . . . individual employed by a
supervisor. . . .
Under Section 8(b)(1)(A), a union has a duty to fairly represent
all “employees” in the bargaining unit. However, in Allied
Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404
U.S. 157 (1971), the Supreme Court held that retired employees
are not “employees” within the meaning of the Act, that they
are not included in the bargaining unit, and that a union has no
duty to represent them in negotiations with the employer or to
take into account their interests in making bona fide economic
decisions in favor of employees in the bargaining unit. Id. at
180–181. Accord: Karo v. San Diego Symphony Orchestra
Assn., 762 F.2d 819 (9th Cir. 1985) (union owed no duty to
union member who was not an employee in the bargaining
unit); Cooper v. General Motors Corp., 651 F.2d 249 (5th Cir.
1981) (union owes no duty to supervisors who were formerly
members of bargaining unit).
If a union owes no duty of fair representation to a retired
employee of the bargaining unit, then it reasonably follows that
no such duty is owed to a retired employee who is deceased.
The undisputed evidence shows that all nine alleged discrimi-
natees had ceased working for the Postal Service and died prior
to April 19, 2004, the date the settlement agreement was
signed. Specifically, the undisputed evidence shows that they
had ceased working for the Postal Service on the following
dates:
Jewell Burton May 28, 2003
Michael A. Williams January 3, 2003
Benigne B. Earth January 8, 2001
Dawn Bramwell November 22, 1999
William Bendemer September 27, 1999
Robert Janiszewski May 30, 1998
Clifford Davis August 11, 1997
Esther Brown May 11, 1997
Evonne Price January 24, 1996
[Jt. Exh. 1.]
In addition, Harrison’s unrebutted testimony shows that all of
these former employees passed away prior to April 19, 2004.
(Tr. 68–72.) The General Counsel has not submitted any au-
thority (Board or judicial) showing that a union’s duty of repre-
sentation extends to deceased former employees. Accordingly,
I find that the Respondent Union owed no duty of representa-
tion to the deceased former employees or their estates.
2. Harrison’s reasonable and practical determination
In addition, and under analogous circumstances, the Board
held in Steelworkers Local 2869 (Kaiser Steel Co.), 239 NLRB
982 (1978), that a union lawfully limited the distribution of
moneys received in a settlement of a class action grievance to
employees, who remained employed in the bargaining unit at
the time the grievances were settled. Employees who had re-
tired, accepted supervisory positions, quit, been transferred out
of the unit, or had been discharged did not receive any settle-
ment moneys. The Board stated that the union’s decision “sim-
ply constituted one of a series of reasonable, practical adminis-
trative determinations regarding those employees entitled to
share in the settlement proceeds,” in circumstances where it
was difficult to precisely determine individual losses in pay.
239 NLRB at 983.
In the present case, the undisputed evidence viewed as a
whole shows that Harrison made a reasonable, practical admin-
istrative decision to pay only current and former employees
who were living at the time of the payout. The evidence shows
that Harrison checked and doublechecked with Little to make
sure that any moneys unclaimed would be kept by the Postal
Service, rather than be redistributed among the remainder of the
employees. After determining that a number of former em-
ployees were no longer living, he reasoned that any one or
more of their checks might go unclaimed and on that basis
made the decision not to pay them because he did not want to
risk losing money to the Postal Service. The undisputed evi-
dence shows that having made that decision Harrison paid cur-
rent and retired employees, who were living.
In addition, the evidence shows that Harrison’s determina-
tion not to include the former deceased employees in the pool
of “overlooked” employees to be paid out of the $100,000 was
also reasonable and practical. The settlement agreement spe-
cifically states that “any remaining funds from the $100,000
will be divided up between the designated recipients from the
Chicago BMC as identified by the Business Agent” of which
Harrison was the local president. Thus, by not paying the de-
ceased former employees he maximized the potential payout
for the current and retired CBMC local employees, who were
POSTAL WORKERS (POSTAL SERVICE) 1285
living, rather than risk losing some of the money if it went un-
claimed.
At trial, the General Counsel introduced the Respondent Un-
ion’s pretrial statement purportedly to show that Harrison’s
decision to exclude deceased members from participating in the
settlement was arbitrary. (Tr. 74; GC Exh. 6.) If anything,
however, the document on its face corroborates Harrison’s
testimony that the local union presidents had the sole authority
to decide who received settlement moneys and that if a check
was unclaimed, the Postal Service would not reissue the check.
Moreover, it shows that Harrison consistently took the position
that as the president of the CBMC local, he decided not to pay
the former employees who died prior to April 19, 2004, be-
cause he was concerned that the Postal Service would keep any
unclaimed checks.
It is settled law that a union may balance the rights of indi-
vidual employees against the collective good, or it may subor-
dinate the interests of one group of employees to those of an-
other group, if its conduct is based upon permissible considera-
tions. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
If a union resolves conflicts between employees or groups of
employees in a rational, honest, and nonarbitrary manner, its
conduct may be lawful under Section 8(b)(1)(A), even if some
employees are adversely affected by its decision. See also
Humphrey v. Moore, 375 U.S. 335, 348–349 (1964).
The General Counsel argues in its posthearing brief that Har-
rison’s determination was arbitrary because a deceased retiree
from another local union, Linda Triimar, was paid settlement
moneys. (Tr. 46, 48, 60.) That argument fails for several rea-
sons. First, it ignores the fact that the settlement agreement
specifically states that each local president has the sole author-
ity to pay or not to pay. Second, it ignores the undisputed evi-
dence that Linda Triimar was a member of the Decatur, Illinois
local, whose president, Charles Read, for reasons unstated in
the record decided to pay her.7 (Tr. 63.) She may have been
paid because she was living on the date the settlement agree-
ment was signed, but died subsequently.8 She may have lived
next door to her local union president and was paid because he
knew or was able to identify the conservator of her estate to

7 Harrison credibly testified that he did not know anything about the
individuals included on the list submitted by the Decatur local. (Tr.
94.)
8 There is no evidence showing when she died. (Tr. 94–95.)
ensure that her check was claimed and cashed. She may have
been paid because her local union president was unaware that
any unclaimed check would inure to the Postal Service and
therefore that factor did not enter into the decision to pay her.
She may have been paid for any of the above reasons or for
none of them. The fact that the Decatur local president paid
one deceased person does not support an inference that Harri-
son’s determination not to pay the deceased employees from his
local union was arbitrary absent any showing by the General
Counsel of the circumstances surrounding the payment.9
Accordingly, I find based on the evidence viewed as a whole
that the determination to exclude the deceased former employ-
ees from participating in the settlement was not arbitrary.
Rather it was a reasonable and practical determination that was
made in order to alleviate the risk of losing settlement moneys
that might have gone unclaimed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The complaint is dismissed.

9 At trial, the General Counsel sought to introduce into evidence a
November 30, 2004 letter and attachment responsive to a Board agent’s
document investigatory request. Counsel for the General Counsel as-
serted that he wanted to introduce the document to show that Triimar
had been paid. (Tr. 46–55; GC Exh. 5.) When it was pointed out to
him that he already had introduced evidence showing the same, he
conceded that it was also being introduced to show that Harrison re-
ceived a higher payment than anyone else and opined that this fact
showed the arbitrary nature of Harrison’s determination to exclude the
deceased former employees. (Tr. 53–55.) Agreeing with the Respon-
dent Union’s counsel, I excluded the document because it is cumulative
on the issue of Triimar being paid, and because I considered it a back-
door attempt to expand the scope of the complaint to allege that the
calculation of the settlement amounts were unfair, arbitrary, or dis-
criminatory. In his posthearing brief, counsel for the General Counsel
moved for reconsideration. I deny that motion for the same reasons
given at trial.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.