Rural Letter Carriers (Postal Service)

National Labor Relations Board - Board Decisions

Aug 16, 1984

271 N.L.R.B. 1034 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Rural Letter Carriers Association (United
States Postal Service, Slidell, Louisiana) and
Jackie Donney. Case 15-CB-2763(P)
16 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 May 1984 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief in support of the decision.
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard by me at Slidell, Louisiana, on Oc-
tober 3 and 4, and November 29 and 30, 1983. The hear-
ing was held pursuant to a complaint issued by the Re-
gional Director for Region 15 of the National Labor Re-
lations Board (the Board) on August 16, 1983, and is
based on an amended charge filed on July 18, 1983. The
complaint alleges that the National Rural Letter Carriers
Association (Respondent or Union) violated Section
8(b)(l)(A) of the National Labor Relations Act (the Act)
within the meaning of the Postal Reorganization Act
(the PRA) by, since about June 20, 1983, failing to repre-
sent Jackie Donney, a union member, in a grievance pro-
testing her discharge by the United States Postal Service,
Slidell, Louisiana (the Employer) because of personal
animus by Shirley Champagne, the Local Union steward,
toward Donney, and that the Union has thereby "failed
to represent Donney in her grievance for reasons which
are unfair, arbitrary, invidious, and a breach of the fudi-
ciary duty owed the employees it represents." The com-
plaint is joined by the answer of Respondent wherein it
271 NLRB No. 165
denies the commission of the alleged violation of the
Act.
On the entire record in this proceeding including my
observation of the witnesses who testified and after due
consideration of the positions of the parties, and closing
statement of the General Counsel and the brief filed by
Respondent, I make the following
FINDINGS OF FACT AND ANALYSIS'
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that the Board has jurisdiction over this matter which in-
volves a United States Post Office located in Slidell,
Louisiana, as the United States Postal Service (USPS) is
now, and has at all times material herein, been subject to
the jurisdiction of the Board in unfair labor practices
arising under the Act pursuant to Section 1209(a) of the
PRA.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find,
that Respondent, National Rural Letter Carriers Associa-
tion, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
The Charging Party was employed as a Rural Carrier
Relief employee (RCR) a part-time relief employee clas-
sification, at the United States Post Office in Slidell,
Louisiana, until May 28, 1983, when she was terminated
by Postmaster Frank J. Gerald, the chief administrative
officer of that facility, for having had three industrial ac-
cidents. The labor agreement and USPS guidelines set
out the terms of employment of the RCR including the
provisions that RCR's do not have access to the griev-
ance procedure with respect to disciplinary action taken
against them. In addition, the labor agreement contains a
nondiscrimination clause prohibiting discrimination
against employees "because of race, color, creed, reli-
gion, national origin, sex, age, or marital status or be-
cause of a physical handicap." This clause also provides
that "grievances arising under this article may be filed at
step 2 of the grievance procedure unless filed directly at
the national level."
Donney had initially been employed by the U.S. Postal
Service as an RCR following her discussion of employ-
ment with Shirley Champagne, a rural letter carrier, who
delivered mail to Donney's home. According to the un-
rebutted testimony of Champagne, which I credit,
Donney had inquired of Champagne concerning her em-
ployment and Champagne had given her information
which assisted Donney in learning the duties of a letter
carrier and gave her advice on a voluntary basis. In Sep-
tember 1982, Donney and Champagne's relationship de-
teriorated, and Donney ceased speaking to Champagne.
The following includes a composite of the testimony of the witnesses
at the hearing, which testimony is hereby credited except insofar as spe-
cific credibility resolutions are hereinafter made.
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RURAL LETTER CARRIERS (POSTAL SERVICE)
In December 1982, Donney received two letters of
warning by the Employer, one of which was for her fail-
ure to carry adequate stock of stamps which are sold to
customers along the mail route and another for calling in
ill without providing adequate documentation by a
doctor concerning her illness.
Donney telephoned Union State Steward Jimmy Rich-
ardson shortly after her termination on May 28, 1983,
and reached him on a second call the Monday following
her discharge. Donney testified that she read the termi-
nation notice over the telephone to Richardson and
asked if he would help her, and he told her he would file
a grievance on her behalf within a week. She inquired of
him what the basis of the grievance would be and he re-
plied that it would be based on discrimination and possi-
bly a few other grounds, but he would need to review
the labor agreement. Richardson did not inquire of her
for the names of any witnesses to the accidents. Donney
testified that a week later she learned that Champagne
had filed a grievance on her behalf. Donney had not
been contacted with respect to any grievance meetings
nor had she and Champagne spoken with respect to the
grievance at the time of hearing. Donney contended at
the hearing that she had witnesses who had observed her
accident. Donney initially learned that Champagne had
filed a grievance on her behalf by her inquiry of Post-
master Gerald whether he had answered her grievance
by Richardson to which Gerald replied that Champagne
rather than Richardson had filed a grievance on her
behalf, and that he had denied the grievance "because,
he felt that I had no rights, whatsoever." Neither Cham-
pagne nor Richardson contacted her to tell her the griev-
ance had been denied by Gerald. In early June 1983,
Donney attended a union meeting and spoke to Richard-
son who told her he had filed the grievance and that it
looked good and she had a "fifty-fifty shot."
Jimmy Richardson, the state steward, testified that
grievances are initiated at step I which is an oral discus-
sion between the grievant and the immediate supervisor.
If no decision agreeable to the grievant is reached at step
1, the grievance is processed at step 2(a) by the local
steward who writes up the grievances and furnishes a
copy to the postmaster. After the postmaster receives the
grievance, he has 7 days to set a meeting with the stew-
ard and after the meeting the postmaster has 10 days to
issue a written decision. If the grievance is denied at step
2(a), the steward prepares, files, and sends it to Richard-
son, the state steward, and Richardson reviews the file
and he may appeal the grievance to step 2(b) which is
commonly referred to as a disciplinary case. After step
2(b), if a denial is issued, Richardson prepares a file and
sends it to the regional representative who reviews it and
makes a decision whether to appeal the decision to re-
gional arbitration. If it is a disciplinary case, the labor
agreement provides that witnesses may be called at step
2(a) of the grievance procedure if the parties are each in
agreement to do so.
Richardson testified that in late May 1983 Donney
telephoned and informed him she had been terminated
because she had had three accidents. He told her he
would check into filing a grievance on her behalf based
on discrimination. He also discussed the matter with
Champagne at the end of a union meeting in early June
1983, and asked her to process a grievance under article
2 (the nondiscrimination clause of the labor agreement).
He also talked to Donney and her husband at the time
and told her (Donney) that he "thought there was a
good chance of getting it reversed, that she had basically
a fifty/fifty chance, but not to get her hopes up, that I
couldn't guarantee her anything, but that we would
process the grievance on her behalf." He also told her
that normally the post office would not do this to an-
other classification of employees. He was aware that
Donney and Champagne had not gotten along in the
past, but did not tell Donney that Champagne would
process the grievance nor did he tell Donney that he
personally would process the grievance.
He had subsequent telephone conversations with
Champagne concerning the grievance later in June when
he instructed her how to prepare the grievance form and
to file under article 2 of the labor agreement (the nondis-
crimination clause). During one conversation with
Champagne, he told Champagne that "I was sure Mr.
Gerald was going to deny the grievance, just take the
denial and ship it up to me." There was no discussion be-
tween himself and Champagne whether witnesses should
be presented at step 2(a) of the grievance procedure.
Champagne told him that the postmaster had told her
there were some items concerning Donney he did not
want to bring up if he did not have to do so. In that con-
versation, he told Champagne to bring the file (Donney's
grievance) to the state convention which took place
during the first full weekend of June. At the convention,
he reviewed the file and told Champagne that if this
were all the postmaster was relying on, he thought
chances of prevailing on the grievance were good. In
early July, he had a telephone conversation with Cham-
pagne who informed him that Gerald was going to deny
the grievance, and he told her to "get the paperwork to-
gether, and get it up to me, and I'll take it from here."
He acknowledged that he received a call from Donney
who told him she was upset as she had learned from
Postmaster Gerald that Champagne had processed the
grievance on her behalf. He testified that the grievance
was in the hands of the Union's regional representative
at the time of the hearing. He testified that Donney was
an RCR, had no right to have her discharge taken to the
grievance procedure but that he utilized the grievance
procedure and specifically the nondiscrimination clause
to have her case reviewed at a higher level although the
facts did not show that the discrimination clause was ap-
plicable to her grievance. He testified that in his experi-
ence, he has found that disputes are often resolved by
having them reviewed by higher postal authorities who
are not involved in the matter. He also testified that in
his experience there have never been witnesses presented
at step 2(a) of the grievance procedure. He discussed the
case with higher levels of the employer's management
with the district director of the Employer's Delta Dis-
trict on at least two occasions specifically on the ground
that the discharge was too severe for the accidents in-
volved. He has also discussed the case on a number of
occasions with Steve Smith, the regional representative
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union's Southern Region as well as with Dallas
Fields, the Union's national director of labor relations, at
the state convention whose response was that she had no
access to the grievance procedure.
Both Richardson and Smith testified to a series of dis-
cussions carried on between them and postal authorities
in an attempt to convince them to reinstate Donney;
these discussions were primarily carried on by Smith
with Jack Cleuwinsky, the then acting district director of
employee relations for the Employer. To the date of the
hearing, these efforts had been rebuffed by the Employer
although at one point settlement had appeared likely
until resistance to it by Postmaster Gerald became
known by the successor of Cleuwinsky who had been
transferred in the interim. Richardson, Smith, and Fields
all testified that they had initially concluded that RCRs
such as Donney had no access to the grievance proce-
dure with respect to discipline, and that the allegation of
discrimination under article 2 of the labor agreement was
utilized as a vehicle by the Union in seeking review of
the matter at a higher level. Smith testified that no final
answer had been received on the matter as of the date of
the hearing, but he expected a negative answer and
would recommend that the Union not pursue arbitration
on the grievance. I credit the testimony of Richardson,
Smith, and Fields as set out above.
Following Donney's termination on May 28, 1983,
Union Steward Champagne filed the grievance on her
behalf on June 13, 1983, at the direction of State Steward
Jimmy Richardson following the telephone call by
Donney to Richardson informing him of her discharge.
Postmaster Gerald told Champagne at one of several dis-
cussions in the initial grievance step meeting that there
were a number of other items he could have listed as ad-
ditional reasons for the discharge of Donney but had not
done so as he did not want to "crucify" Donney. Under
the terms of the labor agreement and as set out in the
guidelines, an RCR can be terminated at will although
the guidelines provide that "although extensive details
are unnecessary, the written notice should set forth the
reasons which caused the separation action to be initiat-
ed." According to the testimony of Gerald and Cham-
pagne, they met on several occasions in the initial stage
of the grievance procedure and Gerald asserted that
RCRs had no recourse to the grievance procedure, that
the discrimination clause under which Champagne subse-
quently proceeded on behalf of Donney at the direction
of State Steward Richardson did not apply to this situa-
tion, and that it was these statements with which Cham-
pagne concurred with, although, Gerald's comments on
the postal service grievance writeups indicated in broad-
er language that Champagne had agreed with his conclu-
sion that the grievance had no merit. I credit their testi-
mony in this regard.
Analysis
The General Counsel contends that Respondent violat-
ed Section 8(b)(1)(A) of the Act by reason of a breach of
its duty of fair representation by the processing of
Charging Party Donney's grievance in a perfunctory
fashion at step 2(a) of the grievance procedure because
of Champagne's animus toward Donney, thereby preju-
dicing beyond repair the possibility of the Charging
Party prevailing on her grievance for reinstatement and
contends that any uncertainty with respect to the merits
and ultimate outcome of the grievance, but for the al-
leged discriminatory processing by Respondent, should
be resolved in favor of the Charging Party and against
Respondent. The General Counsel cites the animus of
Champagne toward Donney, Champagne's prior circula-
tion of a petition, which was provided to the postmaster,
among the employees disavowing a written communica-
tion previously made by Donney to the Union's presi-
dent, Champagne's prior notification of the postmaster of
Donney's alleged inadequacies as an employee, Cham-
pagne's alleged failure to investigate the alleged acci-
dents on which the discharges were purportedly based
by the postmaster and her failure to communicate with
Donney concerning the grievance, and Champagne's
agreement with the postmaster that the grievance had no
merit as well as a notation on the grievance form itself
by Champagne concerning Donney's alleged harassment
of Champagne.
Respondent contends that the General Counsel has
failed "to show a nexus between the admitted animus be-
tween Shirley Champagne and Jackie Donney and any
acts or omissions by Shirley Champagne," and assuming
arguendo that Champagne failed to adequately represent
Donney, this failure was negated by persistent and ex-
traordinary efforts of her superiors within the Union's
heirarchy (State Steward Jimmy Richardson and South-
ern Regional Representative Steve Smith). Further, that
the investigative efforts by the Union of Donney's griev-
ance were sufficient, that Champagne represented
Donney adequately and "was not required to destroy her
effectiveness as a union steward soley for the sake of Ms.
Donney," and that Donney bears primary responsibility
for her situation as "she provoked her discharge, created
the difficulties of union representation of which she com-
plains, and so alienated the employees of the Slidell Post
Office that the Association could not win her reinstate-
ment."
After a review of all of the testimony and exhibits and
of the positions of the General Counsel and Respondent
in this case, I find that the General Counsel has failed to
prove a prima facie case of a violation of the Act by Re-
spondent. In making this determination, I have consid-
ered the admitted animus between Champagne and
Donney and have considered the predischarge conduct
of both Champagne and Donney toward each other. It is
clear that these two individuals were not on good terms
and it is undisputed that Donney has ceased speaking to
Champagne in the fall of 1982. It is also undisputed that
Donney was not on good terms with the majority of the
other employees at the Slidell Post Office. It is also clear
that Donney's job performance had been called into
question by the manager of the Post Office, and that
Donney had been disciplined through the issuance of
warnings in addition to the three accidents.
I credit Champagne who testified that the written note
on Donney's grievance form, (that this was another ex-
ample of Donney's harassment of Champagne) was an in-
advertent error caused by writing on a carbon on Cham-
1036
RURAL LETTER CARRIERS (POSTAL SERVICE)
pagne's answer to a customer complaint filed by Don-
ney's husband against Champagne for allegedl driving on
Donney's lawn while delivering mail to them. This is the
only logical application for such a note as it is clear that
a grievance filed by Champagne on behalf of Donney
protesting Donney's discharge in the absence of discus-
sion between Donney and Champagne concerning it
could not have been the subject matter of the note con-
cerning alleged harassment of Champagne by Donney. I
further credit Champagne's and Postmaster Gerald's ver-
sion of the discussion between themselves concerning the
grievance of Donney at which Champagne indicated to
Gerald that she agreed with his position that Donney
had no access to the grievance procedure as a Rural Car-
rier Relief employee with respect to her discharge but
that she was processing it to the next stage of the griev-
ance procedure at the direction of the state steward. I
have credited the testimony of State Steward Richardson
and Southern Regional Representative Smith concerning
their efforts with respect to the processing of the griev-
ance of Donney.
Under all the circumstances in this case, I do not find
that Champagne's processing of the grievance was defi-
cient so as to give rise to a violation of the Act. While it
would have obviously been preferable if Champagne had
withdrawn from her role as a steward concerning the
processing of this grievance in view of the animus be-
tween herself and Donney so as to avoid the appearance
of any deficiency in her processing of the grievance, I
find nothing in her conduct of the grievance that would
warrant a finding of a violation of the Act. Under the
circumstances of this case, I do not find her candor and
inability to show Gerald that Donney was covered by
the grievance procedure with respect to discipline or
was discriminated against under article 2 of the labor
agreement was violative of the Act. This is particularly
so in view of the undisputed conclusion of both the
union representatives and Gerald that an RCR had no
access to the grievance procedure with respect to disci-
pline in the light of the clear contract language which
precludes this. Furthermore, step 2(a), the initial step of
the grievance, is frequently attended solely by the stew-
ard, and witnesses are not routinely provided at this
stage of the proceeding. Moreover, assuming arguendo
that Champagne's conduct at the initial stage of the pro-
ceeding was less than adequate, I find that any deficien-
cy was remedied by the efforts of her superiors who
made extensive efforts to secure the reinstatement of
Donney through settlement of the matter with U.S.
Postal management representatives removed from the
Slidell Post Office which was the site of the dispute. I
thus find that Respondent did not violate Section
8(b)(1)(A) of the Act as I find no evidence that the
Union processed this grievance in a perfunctory manner
or otherwise engaged in arbitrary or discriminatory or
bad-faith conduct in this case. See Teamsters Local 307
(Jelco, Inc.), 238 NLRB 1450 (1978); Asbestos Workers
Local 17 (Catalytic, Inc.), 264 NLRB 735 (1982); Vaca v.
Sipes, 386 U.S. 171 (1967).
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the United States
Postal Service pursuant to Section 1209(a) of the Postal
Reorganization Act.
2. The National Rural Letter Carriers Association is a
labor organization within the meaninig of Section 2(5) of
the Act.
3. Respondent, National Rural Letter Carriers Associa-
tion did not violate Section 8(b)(l)(A) of the Act by fail-
ing to represent Jackie Donney in her grievance against
the United States Postal Service, Slidell, Louisiana.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The complaint is hereby dismissed in its entirety.
2 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.
1037