Red Bank Local American Postal Workers

National Labor Relations Board - Board Decisions

May 27, 2005

344 N.L.R.B. 89 (N.L.R.B. 2005)

344 NLRB No. 89
Red Bank Local, American Postal Workers Union,
AFL–CIO and Michelle Faiman. Case 22–CB–
9921
May 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by Mi-
chelle Faiman on August 20, 2004, the General Counsel
issued the complaint on November 30, 2004, against Red
Bank Local, American Postal Workers Union, AFL–
CIO, the Respondent, alleging that it has violated Section
8(b)(1)(A) of the Act. The Respondent failed to file an
answer.
On January 18, 2005, the General Counsel filed a Mo-
tion for Default Judgment and memorandum in support
with the Board. On January 24, 2005, the Board issued
an order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. The Respondent did not file a timely response.
The allegations in the motion are therefore undisputed.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was filed by December 14, 2004,
all the allegations in the complaint could be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated December 20, 2004, notified the Respondent that
unless an answer was received by December 27, 2004, a
motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service (the Employer) pro-
vides postal services for the United States and operates
various facilities throughout the United States in the per-
formance of that function, including its facility in Eaton-
town, New Jersey, the only facility involved herein.
The Board has jurisdiction over the Employer and this
matter by virtue of Section 1209 of the Postal Reorgani-
zation Act, 39 U.S.C. Sec. 101 et seq. (the PRA).
The Respondent is now, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, by virtue of Section 9(a) of the
Act, the Respondent has been the exclusive collective-
bargaining representative of the following employees of
the Employer (the unit):
All maintenance employees, motor vehicle employees,
postal clerks, special delivery messengers, mail equip-
ment shops employees and material and distribution
centers employees excluding managerial and supervi-
sory personnel, professional employees, employees en-
gaged in personnel work in other than a purely non-
confidential clerical capacity, security guards, all postal
inspection service employees, employees in supple-
mental work force as defined in Article 7, rural letter
carriers and mailhandlers of letter carriers.
At all material times, the Respondent and the Em-
ployer have maintained and enforced a collective-
bargaining agreement covering conditions of the em-
ployment of the unit and containing, among other provi-
sions, a grievance and arbitration procedure.
Since about May 27, 2004, the Respondent has failed
and refused to include the Charging Party, Michelle Fai-
man, among unit employees who were to share in the
distribution of a lump sum payment made by the Em-
ployer to employees identified by the Respondent, which
resulted from the settlement of a class action grievance
concerning displacement of certain Tour 3 postal clerks.
The Respondent engaged in the conduct described
above because Faiman was not a member of the Respon-
dent.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed to represent the Charging Party for rea-
sons that are unfair, arbitrary, and invidious, and has
breached the fiduciary duty it owes to the Charging Party
and the unit. The Respondent has thereby restrained and
coerced employees in the exercise of their rights guaran-
teed in Section 7 of the Act, in violation of Section
8(b)(1)(A) of the Act. The Respondent’s unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has discriminatorily failed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
include Michelle Faiman among the employees who
were to share in the distribution of a lump sum payment
made by the Employer to employees in the settlement of
a class action grievance, we shall order the Respondent
to make Michelle Faiman whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dent’s unlawful conduct, with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Red Bank Local, American Postal Workers
Union, AFL–CIO, Eatontown, New Jersey, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to include employees who are
not members of the Respondent among unit employees
who share in the distribution of a lump sum payment
made by the U.S. Postal Service to employees identified
by the Respondent, in settlement of a class action griev-
ance.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Michelle Faiman whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unlawful conduct in excluding her from the
employees who were entitled to share in the lump sum
payment made by the U.S. Postal Service to employees
in settlement of a class action grievance concerning dis-
placement of certain Tour 3 postal clerks, with interest,
in the manner set forth in the remedy section of this deci-
sion.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records in the pos-
session of the Respondent, including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of
this Order.
(c) Within 14 days after service by the Region, post at
its business office and meeting places copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region

1 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.”
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Sign and return to the Regional Director sufficient
copies of the notice for posting by the U.S. Postal Ser-
vice, if willing, at all places where notices to employees
are customarily posted in its facility in Eatontown, New
Jersey.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 be-
half with your employer
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to include employees
who are not our members among unit employees who
share in the distribution of a lump sum payment made by
the U.S. Postal Service to employees identified by us, in
settlement of a class action grievance.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL make Michelle Faiman whole for any loss of
earnings and other benefits suffered as a result of our
unlawful conduct in excluding her from the employees
who were entitled to share in the lump sum payment
made by the U.S. Postal Service to employees in settle-
ment of a class action grievance concerning displacement
of certain Tour 3 postal clerks, with interest.
RED BANK LOCAL POSTAL WORKERS 3
RED BANK LOCAL, AMERICAN POSTAL WORKERS UNION, AFL–CIO