United States Postal Service

National Labor Relations Board - Board Decisions

Mar 5, 1979

240 N.L.R.B. 1198 (N.L.R.B. 1979)

1198 DECISIONS OF NATIONAL LABOR RELATIONS BOAR)
United States Postal Service and National Alliance of
Postal & Federal Employees
American Postal Workers Union, St. Louis, Missouri
Local, AFL-CIO and National Alliance of Postal &
Federal Employees. ('ases 14 ('A 11044 () and
14 ('B 3845 (P)
March 5, 1979
DEC'ISION AN[) ORDER
By l IMBIRS J NKINS. Mt Rl'll ,\1 ) 'FRI I S) I
On July 18, 1978, Administrative l aw Judge Nor-
man Zankel issued the attached Decision in this pro-
ceeding. Thereafter, each Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National abor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative l-aw Judge and to
adopt his recommended Order.
We agree with the Administrative Iaw Judge's
conclusion that the Respondent Ulnion breached its
duty of fair representation by revoking without valid
reason its assent to employee Mary I,. Berry's reas-
signment, in violation of Section 8(b)( I )(A
On July 27, 1975, Arbitrator oward (i. (amser
issued an award interpreting the overtime provision
of the collective-bargaining agreement between the
Employer and the Union to require the Emploser to
pay overtime rates to employees when the, worked
outside their regularly scheduled assignments, except
when such work was performed as the result of an
employee's request, approved by the Union. A form
entitled "Request for Temporary Schedule (Change
for Personal Convenience" was established wherebs
employees could request work outside their regular
schedules. The signatures of the employee and a
union steward on the form were generally considered
to be sufficient to exonerate the Employer from mak-
ing overtime payments as prescribed by the arbitra-
tion award.
In November 1977, Berry was employed as an
t he Respondent I miln h;ls excepted tI certlinl cedlhbilit firdini
made bh the Ndmn lstri c .aw Judge I1 is the Board's e,tbhlihicd 1pl '
not to o',errule ;in Sdiillistrttlxc IIAO JLIdge's rcSotliio s I .ilth ICIpeI It
credihility unless the cleair prep i tderance of all of the rcle a nlt cidcnce
Colnv ice u that the r soluHtiolls ;Ire icorrect l lt. Thus. he appear, Io halxe approved the eque ile e-p cllloe )C\ (,
Isot m for lempor rx as nignllenle extelndinli fronl :ehruar 8 to [)eceilihel
31L 1978.
I hus. colilarir, i olr disseultlug eolleaue'l as.Isertoll. ii finding iS lit
haed upol tlie niere il.ltkllsne .. inl,eiiiiil O e.r e i pnel.le.. of tuin l
officials" Intead. it i hibed uponr the exercise f poer h .a Union lu afCi
for purcl\ personil re.l lo% N. 1 ,,ne roked the earhe l .sser t gi'n Li h, the
general presideiCli, *\i.i11, i, helais it Lid IIIt L 1lpI'rt I o \llI "I ncI' pcil-
,,li.l \-e
&
of terillpori ix Ais.giliiicTI1 I ilt \1I lIe\ s Cic iti la ie hbeeti
grOIIlded I i le itglinilte Iou 1 .11 lllCrll d 1111 i nt l 'ke I1 it'i\ le' ., iCfix ldl.
u1es. nie dle, it relider 11hc iip ixiiiii oif hiI, 'Ies .ie i stIC. uh'llc e iad
.arhltrar, If iiir d I.enTiII collc.aetic', pi IioI prex.iiled a l I L11 ff IL., I
COelid lafi,,fill' ,uerrtile iril Iecli~111 propetix Illi.n t i The I i llll d chled
upon I; ellpliu x cc pre, le i ltc offi, ,,i nx r iii tled xi. hit lihe
Berrs's temporary assignment was revoked merely
because the action of one union official did not satis-
fy the personal views of another union official. The
revocation, on such grounds, of union actions taken
and relied upon by the employee in circumstances
such as those presented herein cannot be found to
serve any legitimate union concern. It is. instead, an
arbitrary and capricious exercise of power by the
Union in violation of its duty of fair representation.
Accordingly, we agree with the Administrative
Law Judge's conclusion that the Respondent Union.
by revoking its assent to employee Berry's temporary
assignment, violated Section 8(b)( )(A) and violated
Section 8(b)(2) by causing the Employer to terminate
Berrv's temporary assignment. Further, we agree
with the Administrative Law Judge's conclusion that
the .Employer violated Section 8(a)(l) and (3) of the
Act by terminating Berrv's temporary assignment."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and hereby
orders that the Respondent Union, American Postal
Workers Union, St. Louis, Missouri Local, AFL
('10. its officers. agents. and representatives, and the
Respondent Employer. United States Postal Service.
St. Louis, Missouri. its officers, agents, successors.
and assigns. shall take the action set forth in the said
recommended Order.
M: \HI-K rRL ts)A -. dissenting:
Unlike my colleagues. I would find that Respon-
dent lUnion's actions in regard to employee Mar L.
Berry's temporary assignment outside her regularly
scheduled shift did not amount to a breach of the
Union's duty of fair representation, and I therefore
dissent from the finding that Respondent Union and
Respondent Employer violated the Act.
It is undoubtedly true that Mooney's actions. tak-
en in single-minded pursuit of what he thought were
union policies, resulted in a detriment to Berry. How-
ever, there is not a shred of evidence that Moonex
was motivated by anything other than what he
thought was good union policy--not personal rea-
sons, not an intent to harm Berry, nor any other in-
vidious reason grounded in bad faith. It may be, as
suggested by the majority, that Mooney was mistak-
en in this case concerning the propriety of Berry's
ihikihl it.i ,, ood union polih, " et this clearl, sould result in .rhitrary.
C.irticls.i i .id tif.iir .iolio11n i1 \ulitllon of he duti of f1air represent.ltin
Iln tie .hlcie oI f ex pix l e th eereto nll er n1urphN .adoptps ro piral
tlhe \dniiirllotr.iti lv .ludc's reconlenditloii that the I oln he Illdce
prIil.alx i1ititd le tliploer secondi.rilx I hible for ;In lss f earning, em
p1 iee BetIL I ll .lu .e Mifflered in .I result of the ditsrirniTatl l a g.ilnst her
UNITED STATES PO TAL SERVICE 9
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporary assignment. It is certainly true that Moo-
ney was insensitive to Berry's situation in his en-
forcement of what he perceived to be the contractual
rights to overtime pay for work outside regular
scheduled hours. But it is not the function of this
Agency to remedy mere mistakenness, insensitivity.
or even ineptness of union officials where these qual-
ities do not arise for invidious reasons and are not
grounded in bad faith. I fear that today's decision
moves the Board one step closer to supervising the
day-to-day decisions of collective-bargaining repre-
sentatives in enforcing collective-bargaining agree-
ments.
Because I do not believe that the Union violated
the Act, I would, of course, also dismiss the charges
against the Employer.
DECISION
SIAIEMENI OF HI CASE
NORMAN ZANKEL. Administrative Law Judge: This case
was heard before me on May 8, 1978, at St. Louis, Mis-
souri.
Upon charges filed by National Alliance of Postal and
Federal Employees (hereinafter called Alliance) on Janu-
ary 5, 1978, an order consolidating cases, complaint and
notice of hearing was issued on February 15, 1978, by the
Regional Director for Region 14 of the National Labor
Relations Board (hereinafter the Board) against the United
States Postal Service (hereinafter called the Employer) and
against American Postal Workers Union, St. Louis, Mis-
souri Local, AFL-CIO (hereinafter called APWU).
In essence, the complaint alleges that APWU restrained
and coerced employees in violation of Section 8(b)(1)(A) of
the National Labor Relations Act, as amended (hereinafter
the Act) by unfairly and arbitrarily withdrawing its ap-
proval of employee Mary L. Berry's temporary work as-
signment, and also violated Section 8(b)(2) of the Act by
discriminatorily causing or attempting to cause the Em-
ployer to discriminate against Berry.
Additionally, the complaint alleges that the Employer
discriminated against Berry, its employee, by acceding to
the request of APWU to revoke approval of her temporary
work assignment, in violation of Section 8(a)(1) and (3) of
the Act.
Timely answers to the complaint filed by the Employer
and APWU, while admitting certain allegations, deny the
commission of any unfair labor practices. All issues were
fully litigated at the hearing; all parties were represented
by counsel and were afforded full opportunity to examine
and cross-examine witnesses, to introduce evidence perti-
nent to the issues, and to engage in oral argument. Timely
post-hearing briefs were received from counsel for the
General Counsel, counsel for the Employer, APWU coun-
sel and counsel for Alliance.
Upon the entire record, and from my observation of the
witnesses and their demeanor, upon substantial, reliable
evidence, and after careful consideration of the briefs of
counsel,' I make the following:
FINDINOS AND CONCLUSIONS
I JURISDI( ION
Respondent Employer, with its main office in Washing-
ton, D.C., provides postal service for the United States of
America and operates various facilities throughout the
United States in the performance of those duties.
The Board's jurisdiction herein attaches by virtue of Sec-
tion 1209 of the Postal Reorganization Act.
The facility involved in this proceeding is operated by
the Employer and is located in St. Louis, Missouri.
11 TE LABOR ORGANIZAFIONS INVOLVED
It is undisputed, the record reflects, and I find that
American Postal Workers Union, St. Louis, Missouri, Lo-
cal, AFL-CIO, and National Alliance of Postal & Federal
Employees are, and at all times material herein have been,
labor organizations within the meaning of Section 2(5) of
the Act.
III TE ALLEGE(;) LUNFAIR LABOR PRA(CTICES
A. Relevant Background
At least since 1971, APWU has represented, for collec-
tive-bargaining purposes, all the employees in the so-called
clerk craft working in the Employer's St. Louis, Missouri,
facility.
At all times material herein, APWU has also been the
collective-bargaining representative of the employees at the
St. Louis facility in three other craft units designated as
special delivery, maintenance and motor vehicle. APWU.
at St. Louis, operates under the general direction of a gen-
eral president, Michael Amann. Each craft, in turn, has its
own president. William D. Mooney is president of the clerk
craft. Subordinate to the craft presidents are stewards. The
clerk craft has approximately 20 stewards who service em-
ployees in that craft within designated work areas of the St.
Louis facility.
The managerial hierarchy of the Employer includes
manager of distribution, Malcolm V. Dearing, who has
overall supervisory authority for the operations performed
by the clerk craft employees; and his subordinate. A. John-
son, operations analyst, in overall charge of the work shift
(officially designated Tour) on which Berry had been tem-
porarily working at the time of the alleged unlawful con-
duct.
On July 27, 1975, arbitrator Howard G. Gamser issued
an arbitration award interpreting the overtime provision
(art. VIII, sec. 4) of the then-current collective-bargaining
agreement between the Employer and APWU. In salient
part, arbitrator Gamser ruled that the Employer was re-
quired to apply the contractual commitment to pay em-
I hc Inlploer's un oppsosed motion Ho correct the official transcript. p
131, . 7 h deleling "20.()" and suhstituting "20.() hours" Is hereby
granled
UNITED STATES POSTAL SERVICE 1201
ployees overtime rates whenever they worked outside of
their regularly scheduled workweek, except where such
other-than-regular work was performed as an accommoda-
tion by the Employer to an employee's request and APWU
"condoned and agreed" to such a temporary deviation
from the regular schedule. To implement the requirement
of agreement and condonation, a form entitled "request for
temporary schedule change for personal convenience" was
established (G.C. Exh. 5(a) ) by the contracting parties.
This form was utilized by employees who desired to work
temporarily on a shift other than that to which they were
regularly scheduled. The requesting employee's signature
and the signature of an APWU steward commonly were
accepted as satisfying the requirement set forth in the arbi-
tration award by which the Employer would be exonerated
from making overtime payments as dictated by the arbitra-
tion award.
Even prior to the events leading to arbitrator Gamser's
award, the Employer encountered excessively high over-
time costs. On August 26, 1971 a consent order was en-
tered by the United States District Court by the District of
Columbia in settlement of certain civil class actions against
the Employer to recover back wages for work performed
outside the regular schedules of substantial numbers of
postal employees. The record reveals that the consent order
resulted in approximately $300,000 in overtime reimburse-
ment for employees who had worked in the St. Louis. Mis-
souri, facility alone. Nationally, the consent order required
payment of millions of dollars for overtime compensation
where employees worked outside their regular assignments.
The Employer reacted immediately to the arbitrator's
award. On August 14, the assistant postmaster general,
James C. Gildea, issued employer-wide instructions to ap-
prise all local managers to curtail temporary schedule
changes pending development of new guidelines to con-
form with the arbitration award (Emp. Exh. 4). On Febru-
ary 23. 1976, the Employer issued written procedures by
which local managers were to conduct themselves so as to
minimize the amount of overtime which might have to be
paid to employees who work outside their regular sched-
ules (Emp. Exh. 5). Attached to these written instructions
was a sample of the agreed-to form (referred to herein-
above) by which an employee would request a temporary
schedule change for personal convenience, upon which a
steward could signify the condonation and agreement re-
quired by the arbitrator's award. Specifically, the February
23, 1976, instructions require local managers who grant an
employee's request for a temporary schedule change to ob-
tain the employee's signature upon the written request and
to advise the employee that the steward assigned to the
employee's work location must also sign the document. Lo-
cal managers were advised that this procedure was neces-
sary "prior to making the requested temporary schedule
change" and "in order to be relieved of the obligation to
pay overtime for work outside of schedule." As indicated.
the parties thereafter utilized this form in situations where
employees requested temporary schedule changes.
According to Dearing (who was uncontradicted on this
point), in April 1977 2 the Employer and APWU agreed
that by September 30. the Employer would have all regular
employees assigned to specific positions. (Apparently.
there had been, prior to April, a large number of regularly
employed clerks working at the St. Louis facility without
definite schedule assignments.) To accomplish this goal.
the Employer posted approximately 160 positions. The em-
ployees bid for those positions. At the completion of all
bidding. there remained several unfilled positions. The Em-
ployer then filled these remaining jobs by "drafting" (ap-
parently an involuntary procedure) clerks to complete the
process to which the Employer committed itself in April.
Meanwhile, the Employer continued to be plagued with
excessive overtime. On August 3, management received the
written admonition that "we (management) all are aware
of the necessity to reduce overtime." (Employer Exh. 9-a).
On October 21, management was advised "heavy use of
overtime continues in the St. Louis Post Office" and local
managers were requested to set limits on overtime and
were warned "the overtime is self-defeating and must be
reduced to acceptable limits."
B. Chronoloqv' of Events
The events herein emanate from Berry's effort to defer
changing her work hours from tour 11 to tour I. Berry was
employed by the Employer in December 1975: and, in No-
vember 1977, was employed as an unassigned clerk on tour
II, the working hours of which were 7 a.m.-3:30 p.m.
Berry resided with her widowed and totally blind mother
for whom Berry personally cared. During Berry's working
hours on tour II. she was required to provide a hired com-
panion for her mother.
By letter dated November 16. Berry' was advised that she
had been "drafted" to a definite assignment (in furtherance
of the Employer's April commitment) to tour 1, the work-
ing hours of which were 10:30 p.m. to 7 a.m. Her new
assignment was to become effective November 26.
Berry immediately consulted the Employer's acting dis-
trict manager, Wil Clary (acting in Dearing's temporary
absence), and explained her situation at home. Berry re-
quested deferral of the tour change so as to provide her
time to arrange for the night time care for her mother.
Berry was advised to put her request in writing, and by
letter dated November 18 she requested a 60-day detail to
her then present tour II assignment. This detail would have
the effect of deferring the transfer to the position to which
she had been drafted.
By letter dated November 23, Operation Analyst John-
son granted her a -week extension of the effective date of
reporting to tour I so that she could remain on tour 11.
Johnson also provided Berry with the form upon which
employees make their request for temporary schedule
changes for personal convenience.
Berry' completed the "request for a temporary schedule
change for personal convenience" form requesting "per-
mission to remain on Tour II until January 1978." Berry
: ll11 date, hereaftcr are in 1977 unless otherwise ndicated
it 1t apparenl that the "drafted" asiglnment as,. for all intents and
purpo,e,. efrecttlxel Berr'', so-called definite .issignmentr Ihus. to remain
in her then .urrent posltlion on tour 11. she ould he required to request a
teliporalr hed le change from the newlvs assigned position.
UNITED STATES PO TAL SERVICE 1201
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed the form on November 23 and obtained APWUl's
General President Amann's signature on that date. Amann
signed on the line provided for a steward's signature. I he
form specifies "I understand that should this request be
granted, I will not he entitled to the payment of overtime
for hours worked outside of and instead of my regular
schedule."
Berry delivered the schedule change form containing her
signature and Amann's signature to Johnson who immedi-
ately (on November 23) wrote her that her request would
be presented to the operation analyst on tour I for his con-
sideration.
On November 30 the tour I operation analyst advised
Berry in writing that her temporary schedule change had
been approved for 60 days, and that she would not have to
report to her drafted "regular assignment on Tour One"
until the week of Fehruary 5. 1978.
On December 28. Johnson sent Berry a memorandum
entitled "termination of detail" in which she was advised
that the detail previously effective until Februarv 5. 1978,
would now terminate on December 30 instead. She was
advised to then "return to your regular assignment on Tour
One." Johnson terminated the detail pursuant to instruc-
tions from Dearing who had advised Johnson that APNWU
"has chosen to revoke their approval of the detail of Ms.
Berry." Dearing instructed Johnson to explain to Berry
that the Employer had no option, and that the revocation
"is a unilateral Union action over which we (management)
have no control." D)earing's directive to Johnson resulted
from the receipt. by Dearing. of a letter from clerk craft
President Mooney. The letter, dated December 23. is set
forth fully. as follows:
This is to inform you that the detail of full-time
regular clerk Mary Berry will be terminated on 1 77
(sic) 78. She had requested a 60 day detail.
When her request for change of schedule was filled
out it was not stipulated as to how long it was to run
for. Therefore, it should not have been allowed to be
for more than the I day. But, since it was for a legiti-
mate reason and since it has gone this long it will be
considered approved.
Should the employee continue on tour two after
1/1/77 (sic) management will be libel (sic) for over-
time pay for all hours worked outside of her regular
schedule.
Your prompt attention to this matter will be greatly
appreciated.4
Dearing who was candid and forthright in his testi-
mony, impressed me with his sincerity. In relevant aspects,
Dearing was fully corroborated by documentary evidence.
He testified that his instruction to Johnson to revoke the
deferral of Berry's new assignment was based upon his ob-
servation that Mooney's letter advised that APWU would
expect overtime payment to Berry if she continued to work
on tour II after January I1 1978, coupled with his knowl-
edge of the continuing and vigorous efforts of the Em-
ployer to reduce overtime costs.
Molonc's testimony relalil\e tol the gen iel of this Ietlil 'ill he dle-
scribhed. inra, in sec. III. (C. entitled "Anallssi"
After receiving the notice of revocation from Johnson.
Berry personally consulted with Dearing on December 29;
she advised him that she could not yet assume her drafted
assignment to tour 1, because she had not been able to
make arrangements for her mother's companion. Both Ber-
rv and Dearing testified to the effect that Dearing told her
he had no choice but to revoke the tour 11 extension be-
cause he had to reduce overtime costs, but that he would
try to find a way in which he could accommodate her.
Dearing then recalled that he had a similar situation some
months before, and that the earlier situation was handled
by the grant of time off without pay. Dearing again spoke
with Berry and suggested that she apply for a combination
of annual leave and leave without pay, in writing, to permit
her to remain at home during the month of January 1978.
On December 30. Berry requested. in writing, a 30-day
leave of absence beginning January 1. 1978. recapitulating
the events which preceded this particular request. Dearing
responded in writing on December 30, granting the leave of
absence to February 8. 1978. Thus, Berry was placed in
leave-without-pay status beginning January 4 until, pre-
sumably, through February 8, 1978. The record is unclear
as to whether Berry remained on leave without pay status
until February 8. 1978. She did not, however, report to her
drafted tour I position because she had an opportunity to
bid on a tour 11 position some time in January 1978 and
was awarded that bid.
(C' ., nalvsi.s
I. Case 14 C'B 3845(P)
The principal thrust of the General Counsel's conten-
tions attaches to the alleged violation of Section 8(b)( I )(A).
It is asserted that APWU's revocation of assent to Berry's
temporary reassignment to her then-current position was
arbitrary, capricious. and invidious and, hence, unlawful
under the Board's decision in Miranda Fuel (Companv, Inc.,
140 NlRB 181 (1962). To determine the character of the
APWU revocation, detailed examination of clerk craft
President Mooney's activities is necessary.
Mooney's testimony alludes to several reasons for writ-
ing his December 23 letter to Dearing. Considered as de-
fenses to his actions, I find that each asserted reason for
writing that letter is not supported in fact or logic.
First, Mooney testified that his request to revoke Berry's
temporary assignment derives from a grievance settlement.
According to Mooney, whose testimony' during direct ex-
amination was cautious, generalized, and vague, the letter
was written as a result of a December 7 grievance settle-
ment. His testimony is so obscure on this point that it can-
not be said, with certainty, that such a grievance discussion
as Mooney described actually ever occurred. He was not at
all clear in his early testimony whether that grievance in-
volved Berry. Indeed. in later testimony. Mooney said that
he first learned of Berry's 60-daN extension on December
19 when the supervisor, Homeyer. with whom he allegedly
filed the December 7 grievance, showed him Berry's re-
quest for temporary assignment. At that point, Mooney
became self-contradictory. He testified that after seeing
Amann's approval of BerrN's request. Mooney dropped his
UNITED STAI`ES POSTAL SERVICE 1203
demand that the Employer pay Berry overtime for work
she might perform while working on her temporary assign-
ment. Based on the record, I cannot, and do not, place
reliance upon Mooney's assertion that his December 23
letter was the product of anm grievance settlement.
There are two additional factors which require me to
discard Mooney's suggestion that a grievance disposition
was behind his December 23 record. Mooney claimed that
the grievance was prompted by a report by another em-
ployee to him that Berry had not reported to her drafted
position. No such other employee was called as a witness
to corroborate Mooney. Indeed, his acknowledged pre-
hearing affidavit suggests no such employee existed, the
affidavit stating "sooner or later an employee would have
mentioned it" (Berry's 60-day assignment). (Emphasis sup-
plied.) In the circumstances herein. I consider it generous
to conclude either that Mooney's reference to such an em-
ployee complainant is a fiction or that the testimon of
such an employee would be adverse to the Union's cause.
Next. I note that Mooney's December 23 letter omits any
reference to the purported grievance disposition. Mooney
claimed this omission is an "oversight." Granting that a
grievance settlement was made either on December 7 or 19
(depending upon which version of Mooney's testimon is
most accurate), it is clear that no more than 14 days (and
possibly only 4 days) elapsed between the grievance resolu-
tion and his writing the December 23 letter. It is implausi-
ble to believe that if there had actually been a grievance
resolution as described by Mooney he would not have
mentioned it in his December 23 letter.
Upon all the foregoing. I reject the APWU claim that its
December 23 request to terminate Berry's temporary as-
signment was based upon a resolution of a grievance.
Next, Mooney testified that Amann had no authorit to
assent to Berry's 60-day request for temporary assignment.
As indicated, supra. the APWU stewards function in spe-
cifically designated work areas of the Employer's St. Louis
facility. According to Mooney stewards Dan Freshly and
Carol Wilkins were assigned to Berry's work area. Moone',
claimed that only either Freshly or Wilkins could appropri-
ately sign Berry's request for temporary assignment. In ef-
fect, this testimony suggests that the Union should be ex-
onerated from liability herein because the December 23
letter may not be considered tantamount to a revocation of
an assent of APWU to Berry's temporary assignment. In-
stead, that letter should be interpreted as doing nothing
more than asserting APWU's rights as granted by arbitra-
tor Gamser. Although such a formulation is intriguing
Mooney's further testimony relative to the issue of authori-
ty to sign requests for temporary assignment vitiates such
contentions. Thus, Mooney testified that he did not advise
anyone within the Employer's managerial hierarchy of
such limited authority as that on which he now relies. In
addition, while claiming that he had instructed the APWU
stewards to refer employees seeking temporary assign-
ments to the stewards in their particular work areas, he
admitted that he himself had signed such requests for em-
ployees who were located outside of his designated area.
Because the record shows that Mooney had disregarded
the very rule by which he sought to indemnify his actions.
and because it is illogical that Amann. general president of
APWU. would not possess the authority to commit APWU
to an assent to an employee's request for temporary assign-
ment, I consider any defense based upon the claimed ab-
sence of authority in Amman to sign Berry's request to be
contrived for defense of the case at bar. Buttressing this
result is the total failure of Mooney to repudiate Amman's
authority in his December 23 letter.
The language of the December 23 letter suggests yet a
third defense. As set forth hereinabove, the first sentence
of the letter's second full paragraph suggests that Berry's
request was defective in that it did not specify the exact
date in February on which Berry desired the temporary
assignment to terminate. In that same paragraph. Mooney
goes on to claim that Berry's temporary assignment should
have been limited to I day. The latter statement demon-
strates the irrationality of Mooney's position. Nowhere in
this record is there evidence reflecting any time limitation
upon temporary assignments. Indeed, there is evidence that
Mooney himself. after being evasive on the subject, ac-
knowledged that he had signed a request of employee A.
G. Isom for a temporary assignment extending from Feb-
ruary 8. 1978, to December 31, 1978 (Emp. Exh. I). Thus, it
is clear that the length of a temporary assignment was not
a material factor to the validity of an employee's request
for temporary assignment. Accordingly, the facts belie
Mooney's assertions.
Upon all the foregoing, I conclude APWU's evidence as
to the reasons why Mooney wrote the December 23 letter
to Dearing does not withstand scrutiny and does not estab-
lish valid defenses to the complaint allegations.
I turn now to what the record undeniably demonstrates
relative to the basis of Mooney's activities. He admitted
that he has been a consistent enforcer of the contractual
overtime provision and the Gamser arbitration award.
From time to time during his presidential tenure. Mooney
asked the Employer for a variety of overtime information
and for agenda discussions of this subject at joint labor-
manacement meetings. Even the APWU post-hearing brief
observes that the "record is uncontradicted that Mr. Moo-
ney holds the Postal Service to the provisions of the collec-
tive-bargaining agreement and arbitrator Gamser's opin-
ion. Mr. Mooney had been very consistent in filing
grievances concerning the overtime pay provision so that
employees may obtain their rightful compensation."
Mooney admitted that. in pursuit of the above policing
functions. he established a personal policy which limited
the temporary assignment requests to 30 dayns. Although
APWU contends that the policy was disseminated in writ-
ing to all stewards, the record clearly reveals such written
instructions had not been issued prior to 1978.6 Thus, at
the time of the alleged unlawful conduct. the record con-
tains no evidence such written instructions had been is-
sued. Mooney himself testified that he issued the written
instructions after the instant problem arose. Although
Mooney testified that Amann was aware of Mooney's poli-
lhc t IIll'o pth hea ril t ibr i llsor , lhils fc;l t here fan Inlplcalll
lihllll li[ d ouint11 hI ilt Cffc Ihalt ith llpl\er partlipalled in formiu-
1 Itn IIl polat (ontr.nir t l hi npll hriroin. I find in, record eidence r I
h111rt .pt -rtlion
[I ItC. I cItII IlnIrlk. I I I Acr llII introdu.t.r d il)to ¢ illrC.
UNITED STATES POSTAL SERVICE
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cy, I do not credit Mooney in this respect because it is
improbable that Amann would have signed Berry's request
for temporary assignment if he had been aware such a poli-
cy was in existence. 7
Analysis of Mooney's so-called policy persuades me that
it was not at all an official APWU pronouncement. Rather,
it was a flexible, quite personal method by which he could
pursue his admitted ambitious and vigorous enforcement
of the overtime provisions. Not only is it apparent that
APWU stewards were unaware of the policy, but it is un-
contradicted that Berry had not been informed of it by
Mooney or anyone else. Despite this observation, it is not
the existence or absence of such a policy which is under
attack. I perceive the instant issue to require an answer to
the question whether Mooney's application of his policy
(if, in fact, it existed) or whatever other basis he used to
send the December 23 letter to Dearing was so arbitrary
and capricious as to constitute a breach of the APWU's
duty of fair representation.
The duty of fair representation was first enunciated by
the Supreme Court in the 1944 case of Bester William
Steele v. Louisville & Nashville Railroad Co.. et al. 323 U.S.
192, which arose under the Railway Labor Act. In that
case a union which, pursuant to that act, had authority to
bargain as the exclusive representative of a class of railway
employees took action to prevent blacks from holding cer-
tain jobs. The Supreme Court held, in substance, that the
same statute which gave the union the right to act as the
exclusive bargaining agent for all members of the craft in-
herently required the union to represent nonunion or mi-
nority members in the craft fairly, impartially, and in good
faith. The Court found that the usual judicial remedies of
injunction and damages were appropriate for a breach of
such a duty.
In Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), the
Supreme Court applied the same logic to a union whose
status as an exclusive bargaining agent derived from the
National Labor Relations Act. In that case the Court
looked into the union's handling of the seniority of return-
ing veterans and set forth the criteria that a union must
follow, saying "a wide range of reasonableness must be
allowed a statutory bargaining representative in serving the
unit it represents, subject always to complete good faith
and honesty of purpose in the exercise of its discretion."
The Supreme Court reiterated this concept of fair repre-
sentation as applied to a union whose authority stems from
the National Labor Relations Act in the case of Humphrey
v. Moore, 375 U.S. 335, 350 (1964). In that case the union
had integrated seniority lists and an action for breach of
contract had been brought under Section 301 of the Act.
The Court said:
By choosing to integrate seniority lists based upon
length of service at either company, the union acted
upon wholly relevant considerations, not upon capri-
cious or arbitrary factors. The evidence shows no
breach by the union of its duty of fair representation.
Though all of the Supreme Court cases cited above held
that a union which exercises authority as an exclusive bar-
Amann did not appear as a witness at the hearing.
gaining agent pursuant to statute has a concomitant duty
to represent fairly all of the employees for whom it bar-
gains, none of them dealt with the question whether a
breach of that duty violated any of the unfair labor prac-
tice sections of the Act. The Board addressed this question
in Miranda Fuel Company, Inc.. supra, enforcement denied
326 F.2d 172 (2d Cir. (1963)). In that case, the Board
found that a union caused an employer to reduce an
employee's seniority status in a manner that violated its
collective-bargaining contract. The Board held that the
duty of a statutory representative to represent all employ-
ees in the bargaining unit had to be viewed in the context
of the right guaranteed employees by Section 7 of the Act
"to bargain collectively through representatives of their
choosing." The Board then held (140 NLRB 185):
Section 7 thus gives employees the right to be free
from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting
their employment. This right of employees is a statu-
tory limitation on statutory bargaining representa-
tives, and we conclude that Section 8(b)( )(A) of the
Act accordingly prohibits labor organizations, when
acting in a statutory representative capacity, from tak-
ing action against any employee upon considerations
or classifications which are irrelevant, invidious, or
unfair.
The Board further held that a union violated Section
8(b)(2) of the Act where its failure to represent employees
fairly adversely affected the employment status of an em-
ployee, saying (140 NLRB 186):
We further conclude that a statutory representative
and an employer also respectively violate Section
8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant
reasons or upon the basis of an unfair classification,
the union attempts to cause or does cause an employer
to derogate the employment status of an employee.
In essence, the Board held that where a union causes an
employer to adversely affect an employee's employment
status in such a manner that no legitimate employer or
union purpose is served, the foreseeable result is an unlaw-
ful encouragement of union membership. Thus, where an
employer bows to a union demand that an employee's em-
ployment status be derogated, and that demand serves no
legitimate employer or union purpose and is therefore in-
vidious and unfair, the employer has discriminated in re-
gard to hire or tenure of employment or other terms and
conditions of employment: and, in the process, has encour-
aged membership in a labor organization within the mean-
ing of Section 8(a)(3) of the Act. It is a violation of Section
8(b)(2) of the Act for a union to attempt to cause an em-
ployer to discriminate against an employee in violation of
Section 8(a)(3). whether or not that attempt is successful.
In the Miranda case the Board found that the union did
violate Section 8(b)(1)(A) and (2) of the Act and that the
employer violated Section 8(a)(1) and (3). Although en-
forcement of the Board's Miranda decision was denied, a
majority of the court of appeals did not rule on the ques-
tion whether a breach of the duty of fair representation was
an unfair labor practice.
UNITED STATES POSTAL SERVICE 1205
So long as a union exercises its discretion in good faith
and with honesty of purpose, a collective-bargaining repre-
sentative is endowed with a wide range of reasonableness
in the performance of its duties for the unit employees it
represents. Mere negligence, poor judgment, or ineptitude
in its actions is insufficient to establish a breach of the duty
of fair representation. Ford Motor Co. v. Huffman, supra,
King Soopers, Inc., 222 NLRB 1011 (1976); Truckdrivers,
Oil Drivers, and Filling Station and Platform Workers Local
705, etc. (Associated Transport, Inc.), 209 NLRB 292. 304
(1974); Maxam Dayton, Inc., 142 NLRB 396, 418 (1963).
However, this discretion is not without limitation. When a
union's action or its failure to take action is so unreason-
able as to be arbitrary and thus contrary to its fiduciary
obligations, it is guilty of an unfair labor practice. Griffin v.
International Union, United Automobile, A erospace and Agri-
cultural Implement Workers of America, UA W, 469 F.2d
1811 (4th Cir. 1972); United Steel Workers of America, Lo-
cal 8093, 225 NLRB 802; King Soopers, supra: General
Truck Drivers, Warehousemen, Helpers and Automotive Em-
ployees 7 Local 315, etc. (Rhodes & Jamieson, Ltd), 217
NLRB 616 (1975).
In his post-hearing brief, the General Counsel suggests
that Mooney was motivated to write his December 23 letter
because, as the evidence reveals, Berry is a member of Alli-
ance, a rival labor organization. The record shows further
that Berry has served as district treasurer of Alliance and
editor of its monthly newsletter. Other than whatever infer-
ences may be drawn from these facts, no direct evidence
was presented before me to reveal these factors were con-
sidered, or relied upon, by Mooney in addressing Dearing
on December 23. The General Counsel himself concedes
that the existence of such hostility is conjectural. In this
posture, I do not find that Mooney was motivated by an-
tagonistic personal or interunion considerations. Instead, I
find that the record clearly shows Mooney wrote to Dear-
ing on December 23 solely to promote his campaign of
strict enforcement of the overtime provisions.
Applying the lesson of the case precedent cited above
the question herein is whether Mooney's conduct should be
deemed so unreasonable, perfunctory, or capricious as to
be considered arbitrary. My conclusion as to Mooney's
motivation shows that he was seeking to enforce the provi-
sions of arbitrator Gamser's award. Thus, the record is sus-
ceptible to a conclusion that Mooney's conduct was de-
signed to advance a legitimate union purpose, a lawful
action contemplated by Miranda. At worst, his conduct
could be deemed to be a product of ineptitude. The Board
has held a union harmless where it is engaged in activities
of the latter category. Thus, in granting a respondent
union's Motion for Summary Judgment the Board com-
mented, in General Truck Drivers, Chauffeurs and Helpers
Union, Local 692, etc. (Great Western Unifreight System)
209 NLRB 446, 448 (1974):
[I]t is clear that negligent action or nonaction of a
union by itself will not be considered to be arbitrary,
irrelevant, invidious, or unfair so as to constitute a
breach of the duty of fair representation violative of
the Act. Something more is required. [Emphasis sup-
plied.]
I find that "something more" present herein. APWU
placed Berry (by Amann's signature on her temporary as-
signment request) in the position where her temporary as-
signment had been granted. She could rely upon that grant.
The denial of her request conceivably could have affected
her employment for, had she not been permitted to remain
on her original tour and not found satisfactory assistance
for her mother, Berry might have been forced to resign. As
soon as Mooney realized the grant of Berry's request was
inconsistent with his personal policy, he precipitously dis-
patched the December 23 letter. Mooney's action becomes
even more impulsive and fanciful when viewed in the con-
text of his failure to conduct an investigation of the facts
prior to taking formal action. Also considered in this re-
gard is my finding that his assertion that a grievance had
been filed is incredible.
Upon all the foregoing, I conclude that Mooney's shot-
gun approach to seeking enforcement of the overtime pro-
visions, in the situation herein, was arbitrary and capri-
cious, a breach of the Union's duty of fair representation,
and a violation of Section 8(b)(IXA) of the Act.
Further, I conclude that Mooney's actions fall within
that category of proscribed conduct discussed by the Board
in the second-cited abstract, supra, from its Miranda deci-
sion. I find that there was a clear impairment of Berry's
employment status which was incurred as a direct result of
Mooney's December 23 letter. Specifically, she was re-
quired to accept a "leave-without-pay" status. Such result
is tantamount to the type of derogation contemplated by
the Board in Miranda. Hence, I find that APWU also vio-
lated Section 8(bX2) of the Act by Mooney's December 23
request that Berry's temporary assignment be terminated.
2. Case 14-CA- 11044(P)
The Employer urges it cannot be found to have discrimi-
nated against Berry because its revocation of Berry's tem-
porary assignment was based upon legitimate employer
purposes; namely. to insulate itself from adding to the pro-
liferation of excessive overtime costs and to conform to
arbitrator Gamser's overtime award. This argument is but
superficially appealing.
Noteworthy upon this issue is the fact that my analysis
of the Gamser award and the contractual overtime provi-
sion does not show that either provides limitations on the
length of temporary details. There is no evidence of any
other mandate requiring the Employer to accede to the
requests of APWU for termination of Berry's detail upon
the basis stated by Mooney in his December 23 letter. I
acknowledged that the Board, in Miranda, stated:
. . .[T]he Supreme Court did not overrule its holding
in Radio Officers that union membership is encour-
aged or discouraged whenever a union causes an em-
ployer to affect an individual's employment status.
What it does hold, in our opinion, is that an 8(a)(3) or
8(b)(2) violation does not necessarilyflow from conduct
which has the foreseeable result of encouraging union
membership, but that given such "foreseeable result"
the finding of a violation may turn upon an evaluation
of the disputed conduct "in terms of legitimate em-
UNITED STATES PO TAL SERVICE 205
1206 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
plover or union purpo.se." 1140 NLRB at 187 188.1
[Emphasis supplied.]
When balancing the rights of employees guaranteed by
the Act against the instant Employer's obvious need to
maintain vigilance against excessive overtime, the employ-
ees' rights weigh more heavily and must be deemed para-
mount. To say that the Employer pursued a legitimate in-
terest within the framework of Miranda is to ignore the
effect of Amann's signification of assent to Berry's tempo-
rary assignment request. Thus, the Employer, if it chose.
could have claimed it would honor the prior APWU assent
to the full 60-day temporary assignment. The Employer
could have disregarded Mooney's December 23 letter.
When it acted upon Mooney's request to terminate Berry's
temporary assignment. in the peculiar circumstances
herein, I conclude it overstepped the bounds of pursuing
legitimate employer objectives.
Assuming that there is merit to the Employer's conten-
tion that the Board, in Miranda. intended to express the
caveat that employer actions which encourage union mem-
bership are not per se violative of Section 8(a)(3), I con-
elude the evidence herein does not support application of
that rationale in the case at bar. The Employer's argument
is fallacious. Despite my conclusion that "legitimate em-
ployer purposes" existed herein. I do not find the Em-
ployer to have terminated Berry's temporary assignment
based upon them. In short, I am unable to conclude that
Dearing was actually motivated (as much as the
Employer's brief contends) by concern for adherence to
either the arbitration award or to the need to reduce over-
time costs. Logic dictates a different conclusion, which is
proved by analysis of how Dearing reacted to Moonev's
December 23 letter. What Dearing did was, simultaneously
upon receipt of the December 23 letter, to yield to the
request to terminate the temporary assignment. This was
done in the framework of Amann's prior assent to Berry's
request and exoneration of the Employer for overtime lia-
bility. What would have been Dearing's reaction had vet
another union official (not Amann or Mooney) subse-
quently (after December 23) repudiated Mooney's demand
to terminate the assignment and reverted to the original
position of APWU? Based upon the demonstrated reaction
of Dearing to Mooney's letter, it is not unreasonable to
assume that the latter postulation would have resulted in
reinstatement of Berry's 60-day temporary assignment in
full. Viewed in this posture, I conclude that Dearing's revo-
cation of Berry's assignment was principally predicated
upon the APWU request rather than the contractual or
economic consequences expounded by the Employer's able
counsel. Upon the foregoing, therefore, I find the "legiti-
mate employer purpose" theory inapposite.
The acquiescence of the Employer to the demand of the
APWU, without contractual or other legal justification. I
find, necessarily encouraged membership in or fealty to-
ward APWU under the broad principles enunciated by the
Supreme Court in Radio Officers' Union of the Commercial
Telegraphers Union, A FIL [Bull Steanship Co.], 347 U.S. 17
(1954). Accordingly. I find that by terminating Berry's tem-
porary assignment on December 30, the Employer violated
Section 8(a)(1) and (3) of the Act.
IN Il III 1 1 I II ) 1 I N .iAIR IAIO)R 'R \ I( 11IS I PN
(')MMI R(I
The activities of APWU and of the Employer set forth
above, occurring in connection with their operations, have
a close, intimate, and substantial relationship to trade, traf-
fic. and commerce among the several States and tend to
lead, and have led, to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V I R I MI )
As I have found that the Employer has violated Section
8la)( I and (3) of the Act by terminating Berry's temporary
assignment on December 30, the Order shall require the
Employer to cease and desist from interfering with, re-
straining, and coercing employees in the exercise of their
rights guaranteed in the Act: and from encouraging mem-
bership in APWU by discriminating against employees in
regard to their hire or tenure of employment, except as
authorized by Section 8(a)(3) of the Act.
As I have found that APWU violated Section 8(b)(1)(A)
when it breached its duty of fair representation, and vio-
lated Section 8(b)(2) by causing the Employer to terminate
Berry's temporary assignment, the Order will require
APWU to cease and desist from restraining and coercing
employees in the exercise of their rights guaranteed in the
Act and from causing, or attempting to cause, the United
States Postal Service to discriminate against any employee
in violation of Section 8(a)(3) of the Act.
As it is clear that Berry suffered a loss of pay during
January 1978 when she assumed a "leave-without-pay" sta-
tus, it is appropriate that the Order contain a provision for
reimbursement of backpay to Berry.
In its post-hearing brief. Alliance has suggested that
APWU be made primarily liable for backpay and the Em-
ployer secondarily liable. The General Counsel requests
that backpay liability be joint and several. I perceive merit
to the position of Alliance.
In considering the backpay remedy., it is appropriate to
evaluate the equities of the case at bar. Zoe Chemical Co.,
Inc., 160 NLRB 1001, 1003 (1966). The facts herein show
that the activities of APWU struck at one of the most vul-
nerable (Bulletin (Compan'!, 181 NLRB 647 (1970)) of the
Employer's points -excessive overtime. It is uncontra-
dicted that Dearing extended himself to provide Berry with
a feasible alternative to her original request for the 60-day
temporary assignment. It is unchallenged that Dearing
cooperated sympathetically with Berry throughout the
events herein. Although it is true that Dearing possibly
could have ignored Mooney's December 23 letter, he was
faced with the unenviable dilemma of being charged by
APWU with refusal to bargain and/'or a violation of the
Employer's contractual obligations as defined by the Gam-
ser arbitration award. In Wismer and Becker, Contracting
Engineers, 228 NLRB 779 (1977), the employer acceded to
the union's unlawful request to replace certain direct hires
with union referrals; the Board modified (228 NLRB 779.
fn. 7) the Administrative Law Judge's recommended Order
which provided for joint and several backpay liability so
that the union bore primary, and the employer secondary,
UNITED STATES POSTAL SERVICE 1207
liability for backpay. In Wismer the Board noted the
employer's initial refusal to comply with the union demand
for discharge and protested the union's requests, but "final-
ly complied with . . . (the union's) .. . demand only be-
cause . . . the employer believed such action was com-
pelled by contract." Thus, the Board concluded that the
employer made a good-faith attempt to avert taking the
discriminatory action.
Herein, though it is unquestioned that Dearing took im-
mediate action upon receipt of Mooney's December 23 let-
ter, it is equally clear that any' protest Dearing might have
made to Mooney's request would have been met with an
argument by APWU that the Gamser decision had settled
the issue of overtime payments. Indeed, I find that the ar-
bitration award did accomplish that very result. In this
context, I consider Mooney's letter a threat to invoke the
arbitrator's decision as the basis for potential legal or eco-
nomic action against the Employer. Thus. Mooney wrote
"should the employee [Berry] continue to work on Tour
Two after 1/1/77 [sic] management will be libel Isicl for
overtime pay for all hours worked outside of her regular
schedule." It is reasonable to conclude that, confronted
with Mooney's demand, based as it was upon the Gamser
award, it would have been a futile gesture for him to have
protested Mooney's request for termination of Berry's tem-
porary assignment.
Upon the foregoing and, particularly in the absence of
allegations or proof of so-called independent 8(a)( I) allega-
tions or other direct evidence of a discriminatory motiva-
tion by the Employer, I conclude that the record as a whole
reveals the Employer treated Berry fairly and cooperated
with her in her efforts to avoid even a greater disaster than
actually befell her-the possibility that she would termi-
nate her employment because of her inability to procure
satisfactory companion's services for her mother. J. l li
& Son Masonry, 191 NLRB 872, 875 (1971). Accordingly.
the Order will require the Employer, in conjunction with
APWU, with APWU primarily liable, to make Mars Berrx
whole for any loss of earnings suffered as a result of the
discrimination against her. Specifically she is to be reim-
bursed for all losses incurred as a result of her having been
placed in "leave-without-pay" status, together with interest
thereon to be computed in the manner prescribed in F. I'
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 1977). 8
Finally, in the limited circumstances of this case, where
no termination of employment is involved, I conclude a
broad cease and desist Order is not warranted. Accord-
ingly, the Order will provide that the Employer and
APWU cease and desist from engaging in violations of the
Act in the more narrow "in any like or related manner"
formulation. Cf. NV.L.R.B. v. Entwistle Mf/. Co., 120 F.2d
532, 536 (4th Cir. 1941); Treadwa Inn of Princeton. Inc..
236 NLRB 530, fn. 2 (1978).
Upon the basis of the foregoing findings of fact. conclu-
sions, and the entire record, I make the following:
' See generall . I Plumlrit,,: Ilarlt nt, ( , 138 NI RBH 7i 14621
CoN(I.It SIoNS Of: La,,
1. United States Postal Service is covered by the Act and
subject to the Board's jurisdiction.
2. American Postal Workers Union, St. Louis, Missouri
Local. AFI.-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. National Alliance of Postal & Federal Employees is a
labor organization within the meaning of Section 2(5) of
the Act.
4. By requesting the Employer to terminate the tempo-
rary assignment of Mary Berry on December 23. 1977,
APWU breached its duty of fair representation in violation
of Section 8(b)( I )(A) of the Act.
5. By requesting the Employer. on December 23, 1977. to
terminate the temporary assignment of Mary, Berry.
APWU caused the Employer to discriminate against her.
anti thereby violated Section 8(b)(2) of the Act.
6. By acceding to the request of APWU to terminate the
temporary assignment of Mary Berry, the Employer, by
terminating said temporary assignment on December 30.
1977, interfered with, restrained, and coerced employees
and discriminated against them, in violation of Section
8(a)( 1) and (3) of the Act.
Upon the above findings of fact. conclusions of law, the
entire record in the case. and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
ORDER
A. Respondent United States Postal Service. its officers.
agents. successors, and assigns. shall:
1. Cease and desist from:
(a) E ncouraging membership in American Postal Work-
ers Union, St. Louis, Missouri Local, AFL CIO. or any
other labor organization by discriminating against employ-
ees in regard to hire or tenure of employment or an' other
term or condition of employment, except as authorized by
Section 8(a)(3) of the National Labor Relations Act, as
amended.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. ake the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) In conjunction with American Postal Workers
Union, St. Louis. Missouri Local, AFL-CIO, with said la-
bor organization primarily liable, make whole Mary Berry
for any loss of earnings suffered as a result of the discrimi-
nation against her. with interest thereon to be computed in
accordance with the formula set forth above in section V
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records, social security payment records, timecards,
In Ihe e'enlt al0 eeptions re filed ;a, proided h Sec 101 46 of the
Rules iad Retlitons of the Ntonal I aboh r Relations Board. the findiagh.
lulr lolll. .1l recotlnl elided Order herein shall .al prolidcd in Sec.
1It2 4S t Bhe Rule, and Reulatlnl. he .adopted h the Board ald hectile
ls flldillg, e. 'llil%I. U I111, ()rlder .Id 1a ll obleC illl thereto shall he
deviled , .i\Lied for all purposes
UNITED STATES PO TAL SERVICE 07
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its St. Louis, Missouri, facility, copies of the
attached notice marked "Appendix A." 10 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by a United States
Postal Service Representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the United
States Postal Service to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the United States Postal Service has taken to comply here-
with.
B. Respondent American Postal Workers Union, St.
Louis, Missouri Local, AFL-CIO, its officers, agents, and
representatives shall:
I. Cease and desist from:
(a) Failing to accord its duty of fair representation to all
employees it represents for purposes of collective bargain-
ing at the St. Louis, Missouri, facility of the United States
Postal Service.
(b) Causing, or attempting to cause, the United States
Postal Service to discriminate against employees in viola-
tion of Section 8(a)(3) of the Act at its St. Louis, Missouri,
facility, except as authorized by Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) In conjunction with United States Postal Service,
with American Postal Workers Union, St. Louis, Missouri
Local, AFL-CIO, primarily liable, make whole Mary Berry
for any loss of earnings suffered as a result of the discrimi-
nation against her, with interest to be computed in the
manner prescribed hereinabove in section V entitled "The
Remedy."
(b) Post at its office and meeting halls servicing the em-
ployees of the Employer's St. Louis, Missouri, facility, cop-
ies of the attached notice marked "Appendix B." Copies
of said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by a designated rep-
resentative of APWU, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by APWU to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Transmit to the Regional Director for Region 14.
signed copies of said notice in sufficient numbers to be
posted by United States Postal Service at its St. Louis, Mis-
souri, facility, the Employer willing, in all places where no-
tices to its employees are customarily posted.
(d) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
APWU has taken to comply herewith.
'In thie eent that 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 National L abor Relations Board" shall read "Posted Pursuant to a
Judgment f the Ulniled States Court of Appeals Enforcing an Order of the
National I iabhr Relations Board."
See n. 10. ipir
APPENDIX A
NOTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present evidence, it has been decided that we violated the
law. We have been ordered to take certain steps to correct
our violations and have been ordered to post this notice.
We intend to abide by the order and do the following:
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves into labor organizations
To form, join, or support unions
To bargain as a group through a representaive
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all of these things.
WE WILL NOT discriminate against you, or encourage
membership in American Postal Workers Union, St.
Louis, Missouri, Local, AFL-CIO, or any other labor
organization, with regard to your hire, tenure of em-
ployment, or other terms and conditions of employ-
ment, except to the extent that your union and we
have a lawful requirement that employees become
union members.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of any and
all of the rights described at the top of this notice.
WE WILL, in accordance with the secondary obliga-
tion imposed on us by the National Labor Relations
Board, make whole Mary L. Berry for all earnings she
lost as a result of our discrimination against her by our
terminating her temporary assignment in December,
1977, with interest.
UNITED STATES POSTAL SERVICE
APPENDIX B
NOtICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present evidence, it has been decided that we violated the
law. We have been ordered to take certain steps to correct
UNITED STATES POSTAL SERVICE 1209
our violations and have been ordered to post this notice.
We intend to abide by the order and do the following:
First, we notify you that the National Labor Relations
Act gives all employees these rights:
To organize themselves into labor organizations
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or for
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT fail to provide you with the duty to
fairly represent you imposed by the National Labor
Relations Act, as amended, by virtue of our status as
your collective bargaining representative.
WE WL.L NOr discriminate against you by causing or
attempting to cause. the United States Postal Service,
St. Louis, Missouri to adversely affect the terms of
your hire, tenure of employment, or other terms and
conditions of employment, except to the extent that
such action is permitted by Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
WE WitL NOT in an)' like or related manner restrain
or coerce you in your exercise of any and all of the
rights described at the top of this notice.
WL WILL in accordance with the primary obligation
imposed upon us by the National Labor Relations
Board, make whole Mary L. BerrN for all earnings she
lost as a result of our failure to provide her with fair
representation and our causing the United States
Postal Service to discriminate against her, with inter-
est.
AMERICAN POStAI. WORKERS UNION ST LouisS
MIssotRi LO(AI.. AFL-CIO