United States Postal Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Elmer Shephard and Daniel Zoeller Amercian Postal Workers Union, AFL-CIO, Local 1936 and Elmer Shephard and Daniel Zoeller. Cases I-CA-16072(P) and I-CB-4543(P) January 13, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 16, 1980, Administrative Law Judge Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondents United States Postal Service and American Postal Workers Union, AFL-CIO, Local 1936, filed exceptions and supporting briefs and the General Counsel filed limited cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor 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, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by its president's un- lawful use of contractual superseniority and ap- pointment-of-steward provisions to protect junior employees from involuntary transfer to another fa- cility of Respondent Postal Service,2 which action resulted in the involuntary transfer of the two Charging Parties.3 The Administrative Law Judge Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her find- ings. 2 Chairman Fanning does not agree with the Administrative Law Judge's reading of Warehouse Union, Local 860, International Brotherhood of Teamsters, Chauffeurs. Warehousemen & Helpers of America (The Empo- rium), 236 NLRB 844 at fn. 2 (1978), as holding that a collective-bargain- ing representative can violate the Act by withholding relevant informa- tion from employees. Nor is any such duty necessary as the predicate for finding a violation here, which consists solely of conferring supersenior- ity on favored individuals without regard to substantial, legitimate union objectives. s Member Penello agrees that Respondent Union violated Sec. 8(bXIXA) and (2) of the Act by its unlawful use of valid superseniority and appointment-of-steward clauses, inasmuch as Union President Boek- holder's appointment of four ersons to be stewards, done in an effort to protect them from transfer to another facility of Respondent Postal Ser- vice, was not necessary to the performance of Respondent Union's repre- sentative functions. See his dissenting opinions in District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL-CIO (The Paintsmiths, 254 NLRB No. 10 further found that Respondent Postal Service vio- lated Section 8(a)(3) and (1) of the Act by acqui- escing in Respondent Union's unlawful conduct. We find, on the contrary, that under the circum- stances here Respondent Postal Service was not re- quired to question or reject the stewards appointed by Respondent Union. The relevant facts are as follows. Postmaster Hirsch was notified of two of the steward appoint- ments at issue here, that of McLeod and Union President Boekholder, on November 21, 1978. On January 1, 1979, Boekholder notified Hirsch of the two other disputed steward appointments of Chmielewski and Spaulding. In the spring of 1979, Chmielewski, Boekholder, and Spaulding, as the three least senior employees in the unit, received notices from Respondent Postal Service informing them that they were to be involuntarily transferred to a new facility. Boekholder grieved the transfer on behalf of the three employees on the ground that, as stewards, they were protected from invol- untary transfer by the steward superseniority clause in the parties' collective-bargaining agreement. The grievance was allowed at step one of the grievance procedure and the transfer notices were rescinded. Subsequently, on May 3, 1979, Hirsch sent transfer notices to Charging Parties Shephard and Zoeller as the fourth and fifth least senior employees. Upon receipt of the transfer notices, Shephard and Zoeller prepared a petition addressed to the post- master alleging that the steward appointments vio- lated the collective-bargaining agreement. The peti- tion was signed by nine employees. Shephard and Zoeller then presented an oral grievance to a su- pervisor. Upon learning of that grievance, Boek- holder presented another oral grievance to the same supervisor on behalf of the two Charging Parties. The supervisor denied the grievance. She- Inc.), 239 NLRB 1378 (1979), enforcement denied 620 F.2d 1326 (8th Cir. 1980); United Brotherhood of Carpenters and Joiners of America, Local 49 (Scott and Duncan, Inc.), 239 NLRB 1370 (1979); and Teamsters Local 959, State of Alaska, affiliated with International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America (Ocean Technology, Inc.), 239 NLRB 1387 (1979). Respondents have excepted to the Administrative Law Judge's state- ment in sec. IA, of her Decision that Respondent Postal Service took the position that the part-time clerk is excluded from the bargaining unit as a "casual" employee. Respondent Union has also excepted to the Ad- ministrative Law Judge's statements in sec. II,B,(l),(b), of her Decision to the effect that "defacto stewards" are not entitled to superseniority under the collective-bargaining agreement herein, and that this agreement may be read as prohibiting the appointment as a regular steward of any union officer. We agree with Respondents that Respondent Postal Service did not take the position that the part-time clerk was a casual employee and with Respondent Union that the collective-bargaining agreement does not require the conclusions made by the Administrative Law Judge regarding de facto stewards and the appointment of union officers to steward posi- tions. However, as none of these statements by the Administrative Law Judge are material to the factual basis for the ultimate finding of a viola- tion of Sec. 8(bX)(A) and (2) of the Act, we find that the errors therein do not affect the result of her Decision. 74 UNITED STATES POSTAL SERVICE phard and Zoeller subsequently spoke to Hirsch who informed them he could do nothing. Shephard requested that Boekholder take his grievance to step two of the grievance procedure. Boekholder denied this request and Shephard and Zoeller were involuntarily transferred. On these facts the Ad- ministrative Law Judge found, inter alia, that Re- spondent Postal Service violated Section 8(a)(3) of the Act by acquiescing in Respondent Union's ap- pointment of various employees as union setwards when it had reason to believe that Respondent Union was improperly invoking provisions of its contract to favor junior over senior employees in job rentention. We note that no party contends that either the superseniority or appointment-of-steward clauses are unlawful in themselves. Moreover, there was no finding that Respondent Union was not entitled, as a purely contractual matter, to appoint four ste- wards. In fact, the unlawful nature of Union Presi- dent Boekholder's conduct derives solely from the arbitrary and invidious manner in which he applied concededly lawful contractual clauses thereby fail- ing to fairly represent his fellow unit employees. And, although Respondent Postal Service became aware of a conflict between the Charging Parties and Respondent Union over the steward appoint- ments when the Charging Parties' grievance con- cerning them was presented to it,4 no proof has been offered that Respondent Postal Service actual- ly knew about that aspect of Boekholder's conduct which rendered it unlawful. In brief, Respondent Postal Service was not in a position to question Re- spondent Union's motives in appointing stewards and did not violate the Act when it acceded to Re- spondent Union's choice.5 We shall therefore dis- miss the 8(a)(3) and (1) allegation of the complaint. 4 The Administrative Law Judge concluded that Respondent Postal Service must have had considerable doubt over the validity of the ap- pointments because it initially sent transfer notices to Boekholder, Chmie- lewski, and Spaulding, although they had been certified as stewards 5 or 6 months earlier and as such were protected by the contractual supersen- iority clause from transfer. Such action on the part of Respondent Postal Service may, as Respondent Postal Service claims, have resulted from an inadvertent and not improbable clerical error and we decline to adopt the inference drawn by the Administrative Law Judge regarding this inci- dent. We additionally disavow the Administrative Law Judge's finding that the General Counsel repudiated the complaint allegation of a viola- tion of Sec. 8(a)3) and (1) of the Act in the course of this proceeding. ' In Explo, Inc., 235 NLRB 918 (1978), relied on by Respondent Postal Service, the Board found that the union violated Sec. 8(bXIXA) and (2) of the Act when its business agent appointed, for personal reasons, his son-in-law and a friend as union stewards, and thereby secured for them certain employment advantages at the expense of other employees. The Board further found that, absent proof of the employer's knowledge that in giving effect to a lawful steward superseniority clause it was abetting the union's unlawful discrimination, the employer could not be found to have acquiesced in the union's unlawful conduct or to have violated Sec. 8(aX3) of the Act. Contrary to the Administrative Law Judge, we do not find Explo distinguishable from the instant case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order part A of the rec- ommended Order of the Administrative Law Judge and hereby orders that the Respondent, American Postal Workers Union, AFL-CIO, Local 1936, Newburyport, Massachusetts, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint, in- sofar as it alleges violations of the Act by the United States Postal Service, be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to charges filed on May 14, 1979, and amended on June 21, by Elmer Shephard and Daniel Zoeller, a con- solidated complaint was issued on August 23 against the United States Postal Service, herein the Employer, and the American Postal Workers Union, AFL-CIO, Local 1936, herein the Union, alleging that on or about No- vember 21, 1978, and January 2, 1979, the Union improp- erly appointed three stewards to the Newburyport, Mas- sachusetts, Post Office, and the Employer then improper- ly applied the superseniority provision of the controlling collective-bargaining agreement with the result that the Charging Parties were involuntarily transferred to an- other Postal Service installation although they were senior in length of employment to the newly appointed stewards who were not transferred. The complaint al- leges that such conduct by the Union was violative of Section 8(b)(1)(A) and (2) of the Act,' and that the Em- ployer violated Section 8(a)(3) and (1) of the Act by ac- quiescing in the Union's conduct and thus transferring the Charging Parties. Pursuant to due notice, a hearing was held before me in Boston, Massachusetts, on January 17, 1980. All par- ties were afforded full opportunity to present written and oral evidence and argument and to examine and cross-ex- amine witnesses. At the conclusion of the hearing, the parties waived oral argument. Post-hearing briefs have been filed on behalf of the General Counsel and each of Respondents. Upon the entire record, together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS Respondent United States Postal Service is subject to the jurisdiction of the National Labor Relations Board pursuant to the National Labor Relations Act, as amend- National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed, by virtue of certain provisions of Chapter 12 of the Postal Reorganization Act, 2 39 U.S.C. 1201-09. Respondent American Postal Workers Union, AFL- CIO, Local 1936, is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts In the fall of 1978 there were 12 full-time and about 3 "part-time flexible" clerks working in the Newburyport, Massachusetts, Post Office. In addition, there were two custodial employees. There is no dispute that all these employees were represented by the Union, although the evidence is somewhat unclear as to whether the custodial workers were in the same bargaining unit as the clerks or in a separate unit. In any event, their names are not in- cluded in the relevant seniority list stipulated by the par- ties. It is also undisputed that the custodial workers were not members of the Union. Additionally, there was a substation of the Newburyport Post Office in Salisbury, Massachusetts, manned by a supervisor and one part-time clerk. According to Union President John M. Boek- holder, the Union contends that the part-time clerk at Salisbury is included in the Newburyport clerks' bargain- ing unit, while the Postal Service has taken the position that the part-time clerk is excluded from the bargaining unit as a "casual employee." The status of that clerk was not litigated in the present hearing and his name does not appear on the stipulated seniority list. Boekholder, president of the Union since May 1977, testified that in November 1978 two full-time clerks start- ed to work at 5 a.m., four at 5:30 a.m., one at 6:30 or 7 a.m., and the remaining regular full-time clerks, five in number, reported at 9:30 a.m. One custodian began work at 4:45 a.m. 3 Boekholder further testified that, although the word "tour" is not defined in the collective-bargain- ing agreement, it is an established practice to consider the working day as having two "tours": The "early" tour being from 5 or 5:30 a.m. to 1:30 or 2 p.m., and the "late" tour from 9:30 a.m. to 6:30 p.m. Thus, generally speaking, between 9:30 a.m. and 2 p.m. all the full-time employees are present.4 However, Boekholder also re- vealed that his hours "vary." In November 1978 he worked from 5 a.m. to 2 p.m. on Monday; 9:30 a.m. to 6:30 p.m. on Wednesday, Thursday, and Friday; and 5 a.m. to I p.m. on Saturday. 5 In 1978 the Postal Service started construction of a large regional facility in Woburn, Massachusetts. Boek- holder testified that around July of 1978 Newburyport Postmaster Albert W. Hirsch, having received official 2 39 U.S.C. §101, et seq. 3 Although the record does not so reveal, presumably the second cus- todial employee worked from about 9:45 a.m. to 6:45 p.m., 15 minutes after the office closed. 4 This usage, however, is not universal. Zoeller testified: "There's three tours in a day, II a.m. to 7 p.m., 7 a.m. to 3 p.m., and 5 p.m. to midnight. I just previously worked 3 months and there was only three tours in Woburn." 6 At the time of the present hearing, Boekholder's hours were substan- tially the same the only difference being that on Wednesday through Friday he worked from 9 a.m. until 6 p.m. rather than 9:30 to 6:30. notice of the projected regional facility, "call[ed] his clerks together." Thereafter there were many rumors and much speculation that completion of y might render some employees in existing facilities excess. "Excessing" would result in involuntary transfer of excessed employ- ees.6 Boekholder did not testify as to precisely what Hirsch said to the clerks in July 1978. Neither Hirsch nor any other representative of the Employer testified. However, the record as a whole shows that it would have been impossible at that time for Hirsch or anyone else to predict how much, if any, excessing at Newbury- port would be caused by the future operation of the Woburn facility. Anybody at all conversant with the op- erations of the Postal Service would realize that the new facility might cause some excessing at some existing fa- cilities. But excessing at any particular facility was not inevitable or predictable. Zoeller testified that at some time in the past, when a large facility was constructed in Springfield, Massachusetts, there were rumors "about people being excessed but they never left." In 1976 Charging Party Shephard had been president of the Union. A grievance arose concerning a discharge. Since this was the first grievance to reach step 2, She- phard called for help from James Smyrnios, then Massa- chusetts president of American Postal Workers Union (APWU). Smyrnios suggested that he be designated as "chief steward" for Respondent Local 1936, a position he held for "sixty-five different post offices." Boekholder accepted the suggestion and certified Smyrnios as chief steward. Shephard then served "unofficially" as "ste- ward on hand." Shephard was never certified as a ste- ward in accordance with the collective-bargaining agree- ment. 7 As Boekholder testified, being president of the Union "doesn't automatically make you a steward. You're a steward in an unofficial capacity unless other- wise certified to the Postmaster of the facility." Thus, Shephard did not acquire superseniority under the con- tractual provision that: While serving as a steward or chief steward, an em- ployee may not be involuntarily transferred to an- other tour, to another station or branch of the par- ticular post office, or to another independent post office or installation unless there is no job for which the employee is qualified on such tour, or in such station or branch, or post office. As noted above, in May 1977 Boekholder succeeded Shephard as president of the Union. There was no change in the certification of the Union's steward at that time. In October 1978 Smyrnios became national representa- tive of APWU for the New England region. On October 6 he attended a regional conference of union and em- ployer representatives. At that meeting s he learned that I The parties use the word "excess" as a verb. The contract calls for transfer of excessed employees. 7 The relevant provisions of the contract are set forth in Appendix A to this Decision. 8 find it unnecessary to resolve some doubt as to whether Smyrnios actually received written information on September 26, 1978. Nor is it Continued 76 UNITED STATES POSTAL SERVICE the Postal Service projected the excessing of two clerks at Newburyport. Smyrnios testified that "sometime in November" he and Boekholder conversed regarding stewards. Accord- ing to Smyrnios, in that conversation he told Boekholder about the regional meeting in which he received the pro- jection of excessing. Smyrnios testified that he refused to tell Boekholder "or anybody else the number of employ- ees that were going to be excessed" because Smyrnios and a national vice president of APWU were "working on this very strong" and "were hoping that [they] would reduce and minimize the excessing which was finally ac- complished. "Under date of November 29 Smyrnios sent to "all Presidents/Chief Stewards" copies of the data he had received at the October 6 regional meeting.9 That material specified the numbers of employees to be ex- cessed at various locations, including two clerks at New- buryport. Smyrnios further testified that, in the same conversa- tion in November, Boekholder inquired as to how many stewards could be named at Newburyport. Smyrnios told Boekholder that "he had the right to name a steward for every tour that was not being covered, all stations and branches and that he ultimately could have, with the size of that installation, at least six stewards"; i.e., two for the clerks-one for each of the two tours; an alternate to cover Boekholder's absences;'° one for the custodians;x and one for each of two substations. 1 2 Boekholder testified that he spoke to Smyrnios about the appointment of stewards on or about November 1. Boekholder also testified that he had merely heard rumors about excessing. However, he then conceded that "[t]here may have been a conversation" with a union representative about the projected excessing. He said: "It was common knowledge . . . that there were going to be post offices impacted by the new Woburn facility and that the Newburyport facility would possibly be one of those facilities." I credit Smyrnios' testimony that in one conversation, sometime in November, he informed Boek- holder of the "official" projection of excessing at New- buryport and stated his opinion that the Union was enti- tled to have "at least six" stewards in the Newburyport Post Office. Thereafter, the number of employees expect- ed to be excessed at Newburyport frequently fluctuated between two and three. Sometime in November, after his conversation with Smyrnios, Boekholder set about appointing stewards. According to him, he went down the seniority list asking each employee on the list if he wanted to be a steward. The stipulated seniority list as of November 1978 con- tained the names of the 12 regular (i.e., full-time) clerks necessary to decide whether Hirsch got the information from Smyrnios or vice versa. 9 Possibly 2 weeks earlier. t' Boekholder did not designate any "alternate" as such. It is doubtful whether an "alternate" would qualify as a "steward" with the perquisites of such office. See Appendix A attached hereto. I Under Smyrnios' announced interpretation of the contract there ap- parently could have been two stewards for the custodians because they presumably worked on different "tours." 12 In its brief, the Union states: "Although the record reveals the exis- tence of only the Salisbury station, Smyrnios understood there was a second one. Although outside the record it is a fact that there is another small station open only during the busy summer months." at the Newburyport Post Office. The two custodians were not included, nor was the part-time clerk working at the Salisbury substation. The first four persons on the seniority list declined the offers. George A. McLeod, number five on the seniority list, accepted. Then the em- ployees in the sixth and seventh positions declined. The Charging Parties, Zoeller and Shephard, numbers eight and nine respectively, also declined to become stewards. The three remaining clerks, numbers 10 through 12, re- spectively, were Mark C. Chmielewski, secretary-treasur- er of the Union; Boekholder, union president; and Joseph F. Spaulding, a friend and partner of Boekholder in a moonlighting business of landscaping and odd jobs. These three persons at the bottom of the seniority list agreed to become stewards. On November 21, 1978, Boekholder, as union president, notified Postmaster Hirsch that "effective immediately" McLeod would "be representing APWU Local 1936 as Shop Steward . . . on the 5:30 a.m.-1:30 p.m. work tour" and "effective im- mediately" Boekholder would "be representing APWU Local 1936 as Shop Steward on the 9:30 a.m.-6:30 p.m. work tour." It should be noted that Boekholder's letter makes no reference to crafts or classes of employees, ob- viously covering all employees represented by the Union. Under date of January 1, 1979, Boekholder again wrote Hirsch, stating that "Spaulding has been appointed shop steward for the custodians" and Chmielewski for the Salisbury substation. Boekholder testified that all the appointments had been made at the same time as he was about to begin 2 weeks' active service with the Coast Guard reserve. He typed and dispatched the first letter and instructed Chmielewski to notify Hirsch of the other two appointments. However, Chmielewski failed to do so until Boekholder asked a second time after his return from Coast Guard service. Boekholder did not explain the delay of more than a month after his return. In the spring of 1979, Postmaster Hirsch sent excessing notices to Chmielewski, Boekholder, and Spaulding, the three regular clerks lowest in seniority. No explanation was presented for the Employer's sending such excessing notices to persons who had been certified as stewards some 5 or 6 months earlier. Boekholder presented a grievance on behalf of the three employees. The griev- ance was allowed at step I and the excessing notices were rescinded. Then, under date of May 3, 1979, Post- master Hirsch sent Shephard and Zoeller excessing no- tices, stating that "effective July 14, 1979, [they] were being involuntarily reassigned." Upon receipt of these notices Zoeller and Shephard prepared a petition ad- dressed to the postmaster. It said that the appointments of Boekholder, Spaulding, and Chmielewski violated the collective-bargaining agreement and "that no Steward or Stewards represent this Local 1936." The petition was signed by nine employees. At a union meeting on May 7, 1979, Zoeller and She- phard attempted to discuss the situation. When Shephard raised questions concerning the appointment of the ste- wards and the length of their terms, 3 Boekholder re- 13 Shephard testified that "[t]he election should have been in February and they received the letter January Ist certifying two stewards." She- Continued 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied, in effect, that the appointment of stewards fell completely within the scope of his judgment. Zoeller asked if Boekholder had informed Spaulding of the su- perseniority provision before Spaulding agreed to become a steward. Boekholder refused to answer the question, ruling that Zoeller was "out of order." Shephard and Zoeller complained to Boekholder, who summarily rejected the complaint. Thereupon they pre- sented an oral grievance to William Chisolm, a supervi- sor. Upon learning of that grievance, Boekholder became irate, maintaining that, although the contract provided for employees' filing step I grievances, it was customary to have even step I grievances filed by the Union. Boek- holder thereupon presented an oral grievance to Chisolm concerning Zoeller's and Shephard's excessing. Chisolm denied the grievance. Shephard and Zoeller also spoke to Postmaster Hirsch, who said he could do nothing. Shephard then requested that the grievance be taken to step 2. Boekholder denied the request saying that it would cost the Union $300 and they could not win. The actual transfers pursuant to the May 3 notices were effectuated on September 8 and 11, 1979, when Shephard and Zoeller were assigned to the Woburn fa- cility, approximately 30 miles from Newburyport. The Woburn facility is 33-1/2 miles from Zoeller's home, whereas the Newburyport Post Office is only 6 miles away. The transfer added half an hour traveltime each way. The Woburn facility is 35 miles from Shephard's home, adding 40 minutes to his trip each way. On De- cember 1, 1979, Zoeller was reassigned to Newburyport, but Shephard was still working in Woburn at the time of the present hearing. B. Discussion and Conclusions 1. The Union-Section 8(b)(l)(A) and (2) a. Factual conclusions The relevant objective facts are generally undisputed. But the reason for the appointment of stewards, a crucial fact, is in dispute. Boekholder testified that his desire for additional ste- wards was based on several factors. First, Smyrnios said that, because of the new position as a national represen- tative, he could no longer serve as Local 1936's "chief steward" However, he had spent very little, if any, time on Local 1936 grievances. Like Shephard, Boekholder had only one grievance at step 2 and he handled that with telephonic advice by Smyrnios. Presumably, Smyr- nios' successor as Massachusetts president of the union, or some other union representative, would be available for advice if needed. Boekholder conceded that the number of grievances and other problems14 had not in- creased during his presidency. He maintained, however, that he was tired of having people, both employees and phard did not disclose the basis for this testimony and the Union's consti- tution and bylaws are not in evidence. Boekholder and Chmielewski had been reelected as president and secretary-treasurer, respectively, on March 6, 1979. 14 Under the collective-bargaining agreement stewards' only function is to handle grievances. management representatives, "descend on" him as soon as he arrived at work. He provided no specifics. Boekholder testified that he was unable to continue handling all grievances because of added responsibilities he had recently acquired. As he put it: "We lost our chief steward because he was made National Representa- tive. I had other responsibilities on the outside; my wife had just had a baby so she was demanding more of my time at home and, of course, I'm involved with in the Coast Guard."'5 But it appears that he had been serving in the Coast Guard reserve for a long time and there is no evidence that the time he spent on Coast Guard re- serve business had recently increased. And he conceded that the handling of grievances had never required his presence at the post office outside of his scheduled work- ing time. Thus, any added outside responsibilities could not have curtailed the time required for handling griev- ances, the number of which had not increased. The General Counsel called Boekholder and examined him under Rule 61 I(c) of the Federal Rules of Evidence. On "cross-examination" by the Union's counsel, Boek- holder for the first time said that his major aim was to assure "full coverage," i.e., the presence of a steward at all times, because problems can be best handled as soon as they arise. He testified that, for example, if a supervi- sor performs unit work, he should be stopped immediate- ly, and it is of no avail to tell him, after the fact, not to do so again. It is not at all clear that such matters would constitute grievances that stewards could handle. There is no evidence that Boekholder mentioned this factor to Smyrnios. And, since Smyrnios had served as chief ste- ward for 65 locals, presumably he would have remedied the situation if "full coverage" was needed for properly handling grievances. Even though the collective-bargain- ing agreement calls for employees to file their own step I grievances, 16 Boekholder unnecessarily added to his work by insisting that even step grievances must be filed by the Union. Boekholder's testimony as to the reason for appointing stewards was riddled with contradictions. For example, he testified: Q. When you asked whether or not they wanted to be stewards back in November of 1978, did you tell them where you needed a steward for an early tour or a late tour A. I really can't recall, Counselor, because of the fact that I was looking for shop stewards and I wasn't being too damn choosy because there didn't seem to be a whole lot of interest generated in being a shop steward up to that point in time. '5 It may be noted that Boekholder did not refer to his landscaping business. ' Art. XV, sec. 2, of the contract provides: "Step 1: (a) Any employ- ee who feels aggrieved must discuss the grievance with the employee's immediate supervisor within fourteen (14) days of the date on which the employee or the Union first learned or may reasonably have been expect- ed to have learned of its cause. The Union may also initiate a grievance at step . .... " 78 UNITED STATES POSTAL SERVICE At another point he was asked why he offered steward appointments on a strict seniority basis if his goal was to attain full coverage. His reply was: First, Your Honor, since we rated the shop ste- wards I tried to go about it the fairest way I could, by offering senior man first refusal, I thought was only right, that's all . . . That's my only explana- tion. It never came to my mind but it is a point well taken, what if three people from the top had taken it? Most of the senior people I didn't think would take it, but I thought they should have a chance because the senior people weren't very active in the Union. When I say very active, they didn't attend union meetings although we had sent our notices to them every month. I thought I should give all union members a chance at becoming shop stewards. [Em- phasis supplied.] The evidence establishes that the method Boekholder used for appointing stewards was not calculated to and in fact did not achieve full coverage. For example, Boek- holder certified himself as "representing APWU Local 1936 as Shop Steward on the 9:30 a.m.-6:30 p.m. work tour." Boekholder did not work on Tuesdays; on Mon- days he worked the "early tour," leaving at 2 p.m.; and on Saturdays he worked the "early tour," leaving at 1 p.m. Additionally, he conceded that on Thursdays and Fridays he and Spaulding worked the same hours. Spaulding was certified as "shop steward for the custo- dians," although he was not a custodian. Similarly, Chmielewski was certified as steward at the Salisbury in- stallation, although he did not work there and thus would not be immediately available to handle grievances as they arose. Boekholder testified that he had no knowledge of grievances handled by any of the newly appointed ste- wards. That seems most unlikely, since Boekholder was president of the Union and thus would be concerned with the adequacy of the handling of grievances by inex- perienced persons. Respondent's failure to call McLeod, Chmielewski, and Spaulding warrants an inference that their testimony would be adverse to the Union 17 and would show that there really was no need for their ser- vices as stewards. 8 Finally, Boekholder's demeanor and manner of testify- ing did not impress me favorably. He was somewhat too glib and set upon making his points rather than forth- rightly answering questions. Accordingly, on the foregoing considerations, I dis- credit Boekholder's testimony as to his reasons for ap- pointing stewards in November 1978 and January 1979. Discrediting Boekholder's explanation of his appoint- ments, I find that the evidence requires the inference that he was using the contractual appointment-of-stewards and superseniority provisions to protect low seniority employees from being excessed. To achieve this purpose, it was essential that they be stewards while senior em- "1 See, e.g., NL.R.B. v. Alcan Forwarding Co., 607 F.2d 352 (9th Cir. 1979). 18 See, e.g., VL.R.B. v. Walton M;anufacturing Company & Loganville Pants Co., 369 U.S. 404 (1962); NVL.R.B. v. Hovell Chevrolet Co., 204 F.2d 79, 86 (9th Cir. 1953). ployees did not become stewards. To avoid the appear- ance of discrimination he offered steward appointments by seniority. However, he was reasonably sure that the senior employees would reject the offers. To assure that the employees in the middle of the seniority list would not become stewards, Boekholder intentionally withheld from them his information that two or three clerks were to be excessed but they could be protected by stewards' superseniority. Without superseniority, Spaulding, Boek- holder, and possibly Chmielewski would be excessed. However, if those three employees became stewards, Zoeller and Shephard would be victims. 19 The evidence establishes that the three persons pro- tected by becoming stewards were the last three on the seniority list; namely, Chmielewski, Boekholder, and Spaulding. 20 Boekholder knew of the projected excess- ing. As the only union officer in addition to Boekholder, Chmielewski probably had received the relevant infor- mation. There is no direct evidence that Spaulding had been advised. However, Boekholder conceded that he may have told some employees of the projected excess- ing. Spaulding was a friend and business partner of Boek- holder. It thus appears probable that Spaulding was one of the employees whom Boekholder informed of the pro- jected excessing. On that state of the evidence, it would be natural for the Union to call Spaulding, whose ap- pointment was directly in issue. From the Union's failure to call Spaulding I infer that his testimony would be ad- verse to the Union and would indicate that he had re- ceived full information and advice from Boekholder. b. Boekholder's position The November 21 certification of Boekholder as a ste- ward "effective immediately" in itself appears to recog- nize that he was not then a steward. It also appears clear that, under the collective-bargaining agreement, nobody can qualify as a steward unless he is so certified to the Postal Service. Unequivocal and uncontradicted evidence establishes that the Union president does not automatically become a steward but only may serve "in lieu of' a steward in specific grievances as "designate[d] in writing to the Em- ployer." Indeed, the contract may be read as prohibiting the appointment as a regular steward of any union offi- cer employed by the Employer involved. (See Appendix A, art. XVII, sec. 2B.) The evidence is clear that Presi- dents Shephard and Boekholder acted only as "informal" or "unofficial" stewards when Smyrnios was the Union's duly certified "chief steward," presumably pursuant to article XVII, section 2C, of the contract. Although, around the beginning of October 1978, Smyrnios told Boekholder that he (Smyrnios) would not be able to con- tinue to serve as Local 1936's chief steward, it does not appear that his certification was ever rescinded. When Boekholder was confronted with a step 2 grievance, he Y Although Smyrnios had expressed the opinion that the Union was , entitled to "at least six" stewards, it was unlikely that the appointment of that number would be accepted by the Postal Service, which wanted the minimum number. See infra, sec. 11.B,2. 20 McLeod, who also accepted a steward appointment. probably would not have needed that protection. 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still consulted Smyrnios as Shephard had previously done. It may be that the General Counsel considers Boek- holder as a "de facto steward" in line with Otis Elevator Company, 231 NLRB 1128 (1977). In that case Adminis- trative Law Judge Wilks held that the Act was not vio- lated when union officers were granted superseniority while acting as de facto stewards. In affirming the Ad- minstrative Law Judge's Decision, the Board held that the union contract lawfully conferred superseniority on union officers "because in their official capacities they contributed to the ability of the Union to represent the unit efficiently and effectively." Thus, the Board did not rely on the existence of de facto stewardship. In the pre- sent case, the collective-bargaining agreement does not provide superseniority for union officers and it elaborate- ly provides the method of appointing stewards. Thus, it would appear that "de facto stewards" would not be enti- tled to superseniority under the contract in the present case. If Boekholder was not a steward entitled to supersen- iority before November 1978, he obviously stood to gain personally by becoming one at that time. That being so, there was a clear conflict of interests between him and other employees in the unit. Under those circumstances, it would appear that he could not fairly represent the other employees, and should not have undertaken in effect to grant himself superseniority, which meant im- munity from the excessing which he knew had been offi- cially projected. The General Counsel does not dispute the Union's view that stewards may be appointed, rather than elect- ed, and the testimony that a large majority of APWU's locals, particularly the smaller ones, do have appointed rather than elected stewards. However, in their petition to Postmaster Hirsch in 1979, Zoeller and Shephard, joined by seven other employees, contended that "no Steward or Stewards represent this Local" because the appointments made by Boekholder were "in direct viola- tion of Article XVII, Section 2A" of the collective-bar- gaining agreement and "[t]he entire membership was not totally informed and/or advised of the rights and benefits of a Steward." Boekholder had been one of three per- sons who originally received excessing notices, which were then rescinded as a result of Boekholder's griev- ance based on the employees' superseniority as stewards. As a result, Zoeller and Shephard were sent excessing notices. Boekholder objected to their having filed their own grievance and filed another purportedly by the Union on their behalf. When that grievance was denied, it was Boekholder, as union president (or possibly as a "certified" steward), who decided that the Union would not take the grievance to step 2. Manifestly, even if Boekholder had been a steward before November 1978, his personal interests were in direct opposition to Zoeller's and Shephard's; if their grievance were to be allowed, presumably Boekholder's excessing notice would be reinstated. 2 1 21 This would be the result even if only two people were eventually excessed, since Boekholder was next to last on the seniority list. The last person on the list was Spaulding, Boekholder's friend and business part- ner. There would be the same conflict of interests if Boek- holder had abstained from acting and had delegated ap- pointment authority to another officer. Chmielewski, ap- parently the only other union officer, had also originally been sent an excessing notice and would have been vul- nerable if his appointment as a steward were rejected by the Postal Service. It will be recalled that, as the Union stresses, for a long time it was not finally decided wheth- er two or three employees would be excessed in New- buryport, and Chmielewski was third from the bottom of the seniority list. Under these facts, it may well be that no stewards could lawfully be appointed and that, if stewards were needed or desired, they had to be elected by the mem- bership after full disclosure of all relevant facts known to Boekholder. In short, totally apart from any provisions of the Union's constitution and bylaws (which are not in the record), the evidence does not support the General Counsel's at least tacit concession that Boekholder, as union president, had untrammeled authority to appoint stewards. As previously stated, the complaint does not allege Boekholder's appointment as violative of the Act. And the General Counsel has not questioned the right of Boekholder to appoint stewards. Accordingly, the fore- going discussion of Boekholder's position can serve, at most, as "background," shedding some light on the ap- pointments alleged in the complaint. c. The applicable case law The theory on which the complaint and the General Counsel's argument proceed is perhaps best delineated in the captions of the argument in his post-hearing brief as follows: A. Respondent Union breached its duty of fair representation by its selection of three new ste- wards, and by its arbitrary method of selection of these stewards, thereby violating Section 8(b)(l)(A) and (2) of the Act. B. Respondent Union unlawfully applied a lawful superseniority clause, in that the application of the clause was unnecessary for the proper administra- tion of the collective-bargaining agreement, and therefore violated Section 8(b)(1)(A) and (2) of the Act. The most recent relevant decisions are United Brother- hood of Carpenters and Joiners of America, Local 49 (Scott and Duncan, Inc.), 239 NLRB 1370, District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL- CIO (The Paintsmiths, Inc.), 239 NLRB 1378, and Team- sters Local 959, State of Alaska, affiliated with Internation- al Brotherhood of Teamsters, etc. (Ocean Technology, Inc.), 239 NLRB 1387, all decided on January 17, 1979.22 Scott and Duncan and Paintsmiths were decided by the full 22 On April 30, 1980, the Court of Appeals for the Eighth Circuit, in a 2-to-I decision, denied enforcement of the Board's order in Paintsmiths. The Paintsmiths Inc. v. N.L.R.B.., 620 F.2d 1326. The court there disap- proved the rationale applied by the Board in all three of its decisions on January 17, 1979. As an Administrative Law Judge, I am bound by the Board's decisions. 80 UNITED STATES POSTAL SERVICE four-member Board, Chairman Fanning and Members Jenkins and Truesdale forming the majority, with Member Penello dissenting, and Ocean Technology was decided by a panel, with Chairman Fanning and Mem- bers Jenkins in the majority and Member Penello again dissenting. Paintsmiths expressly overruled Local Union 798, of Nassau County, New York; Brotherhood of Painters and Allies Trades, AFL-CIO (Nassau Division of Master The Painters Association of Nassau-Suffolk Counties Inc.), 212 NLRB 615 (1974), in which Chairman Miller and Members Kennedy and Penello constituted the majority, with Members Fanning and Jenkins dissenting. The Board's three decisions all involved, in one form or another, the hiring of persons expressly desired by the union to serve as stewards, with superseniority, which required the discharge of or failure to hire other employ- ees. Although the Paintsmiths trilogy was to some extent a departure from earlier Board decisions, it reaffirmed the basic principle that "consideration of [the Union's] reasons for enforcing the [appointment-of-stewards] clause as it did [is] 'critical to the issue of whether it thereby committed an unfair labor practice."' 239 NLRB 1378, quoting Ashley, Hickham--Uhr Co., 210 NLRB 32, 33 (1974). But the Board's decisions are not entirely clear as to how the Union's "reasons" are to be determind. The majority in Paintsmiths said: We reject the argument . . . that the holding in Ashley, Hickham--Uhr should be limited to a union's concern for placing a particularly knowledgeable steward on a potentially troublesome jobsite. As the dissent indicated in [Local Union 798, of Nassau County (Nassau Division of the Master Painters Asso- ciation), 212 NLRB 615], "the degree or extent of the union's problem" should have no bearing on the lawfulness or unlawfulness of its conduct. For, as the dissent there further indicated, "[c]onduct which is engaged in solely for the purpose of pro- moting legitimate union objectives under the collec- tive-bargaining relationship cannot be classified as an arbitrary encouragement of union membership." Here, as the Union was attempting to insure its con- tract would be policed by members more indepen- dent of the Employer than the usual work force, its actions promoted legitimate union objectives, and we therefore dismiss the complaint which alleges otherwise. 23 In Scott and Duncan, supra, 239 NLRB 1370-71, the Board majority stated its position more pointedly as fol- lows: Given the established legitimacy of the Union's objective, i.e., to enforce its appointment-of-steward clause, it becomes irrelevant as to whether there might have been some other action it could have taken. It is not up to this Board to determine how best a union should protect its legitimate interests, and we would be intruding too far into its internal workings were we to do so. 13 In reversing the Board, the Eighth Circuit held that, to grant super- seniority to some employees, it must be shown that the action served a "substantial," as well as a "legitimate." union interest . . . it is not necessary to presume that [the union's business agent] wanted an experienced ste- ward on the job but merely to recognize that his objective was a legitimate one sanctioned by the contract. The fact that another official was available on the jobsite to police the agreement is irrelevant, since under that agreement it is the Union's right to designate whom it will choose to be its steward, and it is not the function of the Board to evaluate the severity of the Union's problems. These are matters for the Union's own determination, and there is no basis for us to attempt to substitute our judgment in this matter for that of the Union. Ac- ceptance of the legitimacy of this belies any conten- tion that the Union attempted to secure employment for Nealon for discriminatory purposes.24 In Ocean Technology, 239 NLRB 1387, Chairman Fan- ning and Member Jenkins followed the same principles, holding that a union operating an exclusive hiring hall could require an employer to hire a person chosen by the union to be a steward instead of a person the employer had requested by name, as permitted by the collective- bargaining agreement. The matter arose when a large project was tapering off. The union maintained that it had not previously realized that all of the employees then on the job had been requested by the employer by name and therefore none had been chosen by the union. The union contended, apparently with no evidentiary support, that none of the present employees was qualified to be a steward. Administrative Law Judge Boyce held that the union had not overcome the "adverse presump- tion" against it, "since it had not established the existence of circumstances of a compelling nature requiring the presence of specific stewards, or for that matter any ste- wards, on particularly troublesome jobsites." 239 NLRB 1387. In reversing, the majority of the Board panel said: "We disagree with the Administrative Law Judge's premise that all attempts to apply steward preference clauses in the hiring hall context are burdened with an adverse presumption." In explanation, they proceeded to note that in Dairylea Cooperative Inc., 219 NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976), "the Board recognized that the continuous presence of an experi- enced steward on the job provides a benefit to all em- ployees in the unit which outweighs the incidental detri- ment to other unit employees engendered by granting the stewards superseniority for purposes of layoff and recall." The Dairylea majority pointed out that hiring halls usually operate in the construction industry, where jobs normally are not "permanent" and where, therefore, layoffs are not a crucial matter. The majority seems to have ruled, as a matter of law, that the "ensuring of ex- perienced, qualified, and loyal stewards on such jobs to administer the collective-bargaining agreement is a legiti- mate union objective." In conclusion, the majority said (239 NLRB at 1389): we find the clause herein valid on its face since by assuring the presence of a qualified steward on the 24 There is no discussion of the possible applicability in 8(b)(2) cases of the "mixed motives" principle used in 8(a)(3) cases. 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job it serves the same basic objective as a clause granting stewards superseniority for purposes of layoff and recall. The appropriate question is not whether there was a compelling need to send particular stewards to par- ticularly troublesome projects, but rather whether the Union's conduct was "arbitrary, invidious, or ir- relevant to [its] legitimate . . . interest." Ashley, Hickham--Uhr Co., 210 NLRB 32, 33 (1974). Ac- cordingly, unless there is a showing that the Re- spondent's appointments belied any motivation to assure effective administration of the contract, a violation of the Act is not established. In Ocean Technology it was held that the union had acted on proper motivation even though there was no showing that the collective-bargaining agreement had not been fully enforced before the union decided to assert its right to appoint stewards and thus deny the employer's con- tractual right to request specific employees by name. The rationale of Ocean Technology appeared earlier in The American Can Company, 235 NLRB 704 (1978), where Chairman Fanning and Member Truesdale, with Member Penello dissenting, held that a union did not violate the Act when it granted superseniority to union officers whose duties showed "no visible or direct impact by them on contract administration." The major- ity declined to "second-guess a union's decision as to what officers aid the union in effectively representing the unit." But, as quoted above, the panel majority in Ocean Technology left it open for a violation of the Act to be found if "there is a showing that the Respondent's ap- pointments belied any motivation to assure effective ad- ministration of the contract." In a footnote, as examples of such violations, the majority cited Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No. 282, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Explo, Inc.), 229 NLRB 347 (1977), and Pattern Makers' Association of De- troit and Vicinity, Pattern Makers' League of North Amer- ica, AFL-CIO (Michigan Pattern Manufacturers Associ- ation), 233 NLRB 430 (1977). In Explo, in a decision adopted in pertinent part by the Board, Administrative Law Judge Dyer said, inter alia (229 NLRB at 351): The Union defends the . . . appointment of Kel- leher as shop steward as one that was warranted by the necessities of the time. It is clear . . . that there was no necessity to have an outsider come in as shop steward because there was no demonstrated necessity of any expertise in the exercise of the stewardship. Administrative Law Judge Dyer then proceeded to state that the appointment of Kelleher as a steward with su- perseniority would assure him a permanent job with Explo, the only dynamite company in New York City. Kelleher had been appointed a steward by his father-in- law. Summing up his conclusions, the Administrative Law Judge said (supra at 351): The appointment of a shop steward with super- seniority . . . for the purposes of granting the ap- pointer's son-in-law a good job, and retaliating against the Explo employee-members is arbitrary, invidious, and discriminatory to the Explo employ- ee union members, and violates the Union's duty of fair representation of its employee-members. . . since this company is in business permanent- ly on a year-round basis, there is no apparent reason for the outside appointment of a union steward such as would ordinarily be the case where the Union is appointing a steward at a construction project where the job may last for an indefinite period. Where the appointment of a shop steward displaces employees of long-seniority standing, Respondent has a high duty of care to be sure that what is done is properly done for the benefit of its members and not for the benefit of the business agent and his son- in-law, or for vindictiveness. In Michigan Pattern Makers Association, 233 NLRB 430, a union was held to have violated the Act when it "grant- ed a hiring preference to its present and former officers who performed no steward functions at the plant." Ocean Technology, Inc., 239 NLRB 1387, fn. 7. But, simultaneously with Ocean Technology, which ap- pears to acknowledge the viability of Explo, the Board issued Paintsmiths, in which, without any discussion of nepotism, a Board majority held that a union had not violated the Act when it required an employer to hire the union business agent's brother as a steward with the resultant discharge of another employee. If any general rule can be articulated from the relevant cases, it would appear to be the following: A union's naming stewards (or officers or committee members) pursuant to the terms of a governing collective-bargain- ing agreement enjoys a presumption of validity. The General Counsel can rebut that presumption only by pre- senting compelling affirmative evidence that the union's action "belied" any "legitimate" union purpose be served.I31As previously set forth, Boekholder conceded (or, more accurately, repeatedly protested) that when he offered stewardships to the clerks he intentionally re- frained from mentioning the contractual superseniority clause to any of them. He further testified that he adver- tently refrained from informing all of the clerks of the officially projected excessing, although he conceded that he "possibly" advised "some" of them of the excessing. It has heretofore been found that Boekholder told at least Spaulding of the projected excessing. In a footnote to his brief, counsel for the General Counsel argues that "the Union had a duty to tell the employees of the impending excessing and how it would affect their decision whether to become stewards." Cf. The Emporium, 236 NLRB 844 at fn. 2 (1978). In the footnote cited, the Board held that a union had failed in its duty to represent all employees fairly "by persisting in demanding a wage increase it knew would result in their termination." The Board proceded to "note that [the union] did not advise the clericals their wage demand was jeopardizing their jobs while insisting that it was prompted by the unit's demand for the increase." This 82 UNITED STATES POSTAL SERVICE statement by the Board, brief as it may be, establishes that a union's duty of fair representation can be violated by the withholding of relevant information from employ- ees. d. Conclusions As previously noted, Smyrnios expressed the opinion that the Union was entitled to "at least six" stewards at the Newburyport Post Office. The Union has not deviat- ed from that contention. However, as discussed below (sec. II,B,2), counsel for the Postal Service stated only that the Union was arguably entitled to four stewards when Boekholder certified that number. In my opinion, the relevant provisions of the collective-bargaining agreement (Appendix A hereto) are so ambiguous as to require extrinsic evidence for determining their actual purport. The parties did not litigate the question. How- ever, the parties' past practice at the Newburyport Post Office does appear. The only person ever certified was Smyrnios, who was designated chief steward, presum- ably under article XVII, section 2C, of the agreement, covering the appointment of a union representative not employed by the Employer to "provide service to a number of small installations where a steward is not pro- vided by the" formula set forth in section 2A. With Smyrnios as chief steward, Union Presidents Shephard and Boekholder had been "unofficial" stewards-on-the- spot to assist Smyrnios. The Union had never previously attempted to implement its present contention that it was entitled to one steward per craft and per "tour" at each facility. The word "tour" is not defined. 25 Additionally, the basic provision on "Appointment of Stewards" (art. XVII, sec. 2A) contains an express proviso that "no more than one steward may be certified to represent em- ployees in a particular work location." The context of that proviso is not sufficiently clear to negative its appar- ent meaning. Although I have serious doubt that the Union was contractually entitled to the four stewards it eventually certified to the postmaster, I note that the General Coun- sel does not dispute that entitlement and has presented no evidence or argument as to the proper construction of article XVII of the contract. Accordingly, it is here as- sumed that the certifications of stewards in November 1978 and on January 1, 1979, were not interdicted by the contract. The assumption that the certification of stewards did not violate the collective-bargaining agreement does not by itself rule out a violation of the Act. I do not read the Board's recent trilogy as holding that the exercise of a contractual right to name supervisors is lawful as a matter of law irrespective of the surrounding facts. It is clear that, when, as found above, Boekholder in- formed Spaulding, his friend and business partner, of the as In its brief, the Union states: "Tour' is the equivalent of 'shift' and is defined in art. VIII, sec. 1, as eight hours per 'shift' and is defined in art. VIII, sec. 1, as 8 hours per day within 10 consecutive hours in offices of less than 100 employees .... " Respondents present no evidence or ar- gument to support this view. Since the word "shift" is defined in the agreement, one would naturally expect that word to be used when it was intended, and would therefore conclude that "tour" as used in art. XVII is not synonymous with "shift." projected excessing, he acted discriminatorily. There is nothing in the evidence which would support a finding that Spaulding was experienced or otherwise especially qualified to serve as steward, particularly for the two custodial workers. Boekholder and McLeod had previ- ously been certified as stewards "representing APWU Local 1936" on the late and early tours, respectively. The Union did not (and, so far as the evidence discloses, could not) provide any sound reason for Spaulding's ap- pointment. The absence of any plausible reason, coupled with the timing of the appointment and Boekholder's in- forming Spaulding of the projected excessing, requires the inference that Boekholder was acting for the invi- dious purpose of granting a benefit to Spaulding,, at the expense of another employee who did not have the ad- vantage of Boekholder's information. In Paintsmiths (239 NLRB 1378) the majority express- ly found that there was "no proscribed purpose in Re- spondent's enforcement of the [appointment-of-stewards] provision" and accepted the union's position "that its sole reason for exercising its contractual power to desig- nate its own steward was to ensure it would have pre- sent a steward who would be more disposed to enforce trade rules and police the contract without fear of losing a regular job," which was "a legitimate purpose." In the instant case the Union's asserted reasons for the appoint- ments are belied by the evidence, which affirmatively es- tablishes the appointments as being for an invidious reason. There is nothing in the Board's recent decisions to in- dicate that a union may use its contractual power to ap- point stewards solely for a "proscribed purpose." Nor is there any suggestion that the Board has abandoned, or even limited the scope of, the principle that a union is required to represent all employees in the bargaining unit fairly without arbitrarily or invidiously discriminating among them. It has been found as a fact that Boekholder certified stewards as of November 21, 1978, and January 1, 1979, solely for the purpose of protecting low-seniority em- ployees from involuntary transfers.2 6 The methods used were blatant violations of the Union's duty of fair repre- sentation. Most obvious is the fact, as found above, that Boekholder gave the relevant information to Spaulding, his friend and business partner as well as the employee with least seniority, while withholding it from other em- ployees, particularly from Zoeller and Shephard. But even without the specific finding that Boekholder informed Spaulding of the projected excessing, the fail- ure to inform each clerk of the excessing would consti- tute a violation of the Union's duty of fair representation. The projected excessing was critical to the employees' decisions to accept or reject the offered stewardships. It is no answer to argue, as Respondents do, that She- phard and Zoeller, having previously been union offi- cers, should be charged with knowledge of the supersen- iority clause. Without knowledge of the projected ex- cessing, they could not fully appreciate the effect that their decisions might have on their employment. One z6 It is thus necessary to consider what the decision would be if Boek- holder acted from mixed motives. 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might also note the irony in Respondents' contention that Zoeller and Shephard should be charged with knowl- edge of the superseniority clause whereas the Union argues that it could not be charged with knowledge of the significance of that provision. The Union's argument is, in part: "Must a union official who learns that a par- ticular employee may be in danger of discharge reveal that to the person involved or suffer a possible duty of fair representation charge? Suppose there is a meeting of shop stewards or union officers at which information re- garding the workplace is discussed which later turns out to be significant. Arc they under a duty to divine what will become significant and therefore what must be dis- closed to the members of the bargaining unit?" The answer to the first question, ostensibly a rhetorical ques- tion, is a resounding affirmative. In answer to the second question, it is sufficient to observe that no "divination" was required in the present case. Boekholder knew that two or three employees at the Newburyport Post Office were slated for excessing. He also knew that an employ- ee becoming a steward would be protected therefrom. The significance of these facts was obvious. All con- cerned employees thus were entitled to all the informa- tion that Boekholder had. .2. The Employer-Section 8(a)(3) and (1) The complaint alleges that the Postal Service violated Section 8(a)(3) and (1) of the Act by acquiescing in the Union's application of the superseniority provision and therefore transferring Zoeller and Shephard out of the Newburyport Post Office. At the hearing, counsel for the General Counsel expressly disavowed any contention that the superseniority clause was invalid under Dairylea Cooperative, Inc., 219 NLRB 656, enfd. 531 F.2d 1162. As quoted above, the General Counsel's brief speaks in terms of "a lawful superseniority clause." But the brief also indicates that, unless "a violation is found under a Dairylea theory," no violation of Section 8(a)(3) and (1) may be found. For this proposition the General Counsel cites Explo, Inc., 235 NLRB 918 (1978), which he sum- marizes as holding that, given a valid superseniority clause, "the employer had no duty to inquire into the va- lidity of the appointments." Taken together, the General Counsel's statements amount to a repudiation of the Sec- tion 8(a)(3) and (1) allegation of the complaint. It may reasonably be argued that the General Counsel's conces- sions put an end to the matter. However, the General Counsel did not move to amend the complaint to delete the allegation against the Postal Service and at the hear- ing he gave no advance indication of his present position. Both at the hearing and in a post-hearing brief, the Postal Service has attempted to meet the 8(a)(3) and (1) allegation by argument. Under the circumstances here presented, it is my opin- ion that I am not bound by the General Counsel's legal position. I consider it my obligation to decide on the record evidence all issues raised by the complaint. Al- though the Postal Service elected not to present any in- dependent evidence, it fully participated in the hearing and had full opportunity to litigate its liability. It certain- ly cannot claim prejudice by my deciding the 8(a)(3) and (1) allegation since the General Counsel's concession was not made until the simultaneous filing of post-hearing briefs. In his opening statement at the hearing, counsel for the Postal Service stated his position as follows: As far as the Post Office is concerned, we kind of view ourselves as the innocent bystander. The two complaining parties here are not only employ- ees of the Postal Service but two of our better em- ployees. If we had freedom to excess those that we want to, these would have been one of the last ex- cessed, not one of the first. .. . We were advised of four employees who were stewards, the [union] president and three others. We felt that under the contract they were entitled to this, at least arguably . . .and, therefore, we [honored] 27 our contractual agreement. We did not think that as the Employer we had a right to interfere with the number of ste- wards, although we are not wild about stewards. If we had our way, we wouldn't have any of the things. They wanted four, we felt we were stuck with it under the contract, so we honored that com- mitment. We did not make a determination as to who ought to be stewards because we didn't think we had the right to.... If I follow the General Counsel's theory, he is saying we may have a right to a role in how many and who are selected; we don't think that is such a bad idea.... Several aspects of this argument call for discussion. First, counsel asserts that the Union is entitled to four stewards only "arguably." As previously stated, the rel- evant contract provisions are, to say the least, ambigu- ous. The Postal Service gives not the slightest hint of the basis on which it resolved the "argument" perceived in favor of the Union's conduct. The Employer was clearly aware of the conflict between the Union, as represented by Boekholder, and the Charging Parties, who were the victims. As soon as they received their excessing no- tices,2 8 Zoeller and Shephard (joined by seven additional employees) immediately put Postmaster Hirsch on notice that they deemed steward appointments to be void. Thus, the Postal Service was not free to accede to the Union's position just because it may have been the easy way out for the Employer. The Employer's unexplained acceptance of the Union's position is particularly note- worthy becuse it seriously impinges on the Employer's stated preference. Indeed, it appears that the Postal Service itself must have had considerable doubt as to the validity of the ap- pointments, since it originally sent excessing notices to Chmielewski, Boekholder, and Spaulding some 5 or 6 months after their certification. The Postal Service never undertook to explain why it summarily granted Boek- holder's first grievance and equally summarily rejected Zoeller's and Shephard's grievance. Each of these griev- ances could have served as a vehicle for resolving the 27 Errors in the transcript are hereby noted and corrected. 25 While the record is not entirely clear, it appears that the Charging Parties' petition to Hirsch may have been prepared, circulated, and/or presented to Hirsch even before they actually received their excessing notlices. 84 UNITED STATES POSTAL SERVICE Union's "arguable" rights. The Postal Service was under a special obligation because the direct conflict of inter- ests between Boekholder personally and the Charging Parties was inescapably evident. Under these circum- stances, the Postal Service owed Zoeller and Shephard, as a minimum, an opportunity to present their arguments against the propriety of the steward appointments. There can be no substantial doubt that the Postal Ser- vice was correct in its opinion that it could have no voice in "a determination as to who ought to be ste- wards." The collective-bargaining agreement provides unequivocally that "[t]he selection of stewards or chief stewards is the sole and exclusive function of each union." But the contract does not leave to the Union the unilateral right to say how many stewards may be certi- fied; it contains an elaborate formula for determining the permissible number of stewards. Such provisions mani- festly are designed for the Employer's benefit; the Union would have no desire to place a ceiling on the number of stewards it could have, whereas, as its counsel stated, the Postal Service wanted to limit the number of stewards as much as possible. Under its present position, the Postal Service would be powerless to prevent the Union's naming every employee as a steward. The detailed terms of article XVII of the collective-bargaining agreement would be virtually nugatory. As noted above, counsel for the General Counsel cites Explo, Inc., 235 NLRB 918, as authority for the proposi- tion that "the employer had no duty to inquire into the validity of the appointments." Explo is not controlling here. In that case, the union's misconduct concerned the identity of a steward. Building Material, Local 282 (Explo, Inc.), 229 NLRB 347. There was no question as to the number of stewards, a matter which is spelled out in the contract involved in the instant case. A final word may be added concerning the Employ- er's position. Like the Union, the Postal Service main- tains that Zoeller and Shephard must be charged with knowledge of the superseniority clause. But, as was true of the Union, the fact is that the Postal Service knew of the projected excessing when the appointments were made, but the Charging Parties did not have that infor- mation. There is not a shred of evidence that the project- ed excessing was made public or that the Postal Service ever informed the employees. On all the evidence, I find that the Postal Service was aware of sufficient information to put it on notice that the Union might well be distorting the collective-bar- gaining agreement for the purpose of unlawfully discri- minating in favor of chosen employees. Accordingly, I conclude that the Employer violated Section 8(a)(3) of the Act by acquiescing in the Union's application of the choice-of-steward and superseniority provisions of the collective-bargaining agreement while it knew or should have known that the Union was probably discriminating against employees in contravention of its duty of fair representation. CONCLUSIONS OF LAW 1. Respondent American Postal Workers Union, AFL- CIO, Local 1936, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent United States Postal Service is an em- ployer subject to the jurisdiction of the Board pursuant to the National Labor Relations Act, as amended, by virtue of certain provisions of Chapter 12 of the Postal Reorganization Act, 39 U.S.C. 1201-09. 3. By requesting the Employer to retain George McLeod, Mark Chmielewski, and Joseph Spaulding under the superseniority-provision of the applicable col- lective-bargaining agreement, while withholding from senior employees at the Newburyport, Massachusetts, Post Office information known to the Union and relevant to employees' retention rights, the Union has violated and is violating Section 8(b)(l)(A) and (2) of the Nation- al Labor Relations Act, as amended. 4. Respondent United States Postal Service has violat- ed and is violating Section 8(a)(3) and (1) of the Act by acquiescing in the Union's appointment of George McLeod, Mark Chmielewski, and Joseph Spaulding as union stewards when the Employer had reason to be- lieve that the Union was improperly invoking provisions of its collective-bargaining agreement to favor junior em- ployees over senior employees in job retention. 5. The above unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondents have violated the Act, I shall recommend that they be required to cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Union be required to re- scind the certification of George McLeod,2 9 Mark Chmielewski, and Joseph Spaulding as union stewards at the Newburyport, Massachusetts, Post Office, and that Respondent United States Postal Service be required to withdraw recognition of said employees as union ste- wards.3 0 Additionally, it will be recommended that the Postal Service be required forthwith to transfer Elmer Shephard from his present position in Woburn, Massa- chusetts, to his former position in the Newburyport, Massachusetts, Post Office. The General Counsel requests that the Union be re- quired to compensate Shephard and Zoeller for the addi- tional commuting time and expenses caused them by the transfers. Presumably the General Counsel's failure to re- quest that the Postal Service not share this monetary ob- ligation stems from the view the Postal Service had no obligation to question the steward appointments. But, having found that the Postal Service had such an obliga- ton, I shall recommend that it be held liable jointly and severally with the Union. The amounts due hereunder shall be computed in the manner prescribed in F W Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).31 29 Although the appointment of McLeod in itself was not injurious to any other employees, it was part of an improper course of conduct. o3 The General Counsel does not request that Boekholder's appoint- ment he rescinded. As noted above, the General Counsel assumes as a fact that Boekholder had been a steward since May 1977. a~ See, generally, sis Plumbing & Heating Co., 138 NLRB 716 (1962). 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As is customary, Respondents will also be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 2 A. Respondent American Postal Workers Union, AFL-CIO, Local 1936, its officers, agents, and represen- tatives, shall: I. Cease and desist from: (a) Unlawfully appointing union stewards at the New- buryport, Massachusetts, Post Office without first im- parting to all such employees all information known to the Union relevant to the protection of their seniority and job retention rights. (b) Construing or applying contractual provisions con- cerning superseniority and/or appointment of stewards for the purpose of discriminating among employees. (c) In any like or related manner restraining or coerc- ing employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Rescind the appointment and certification of George McLeod, Mark Chmielewski, and Joseph Spaulding as union stewards at the Newburyport, Massa- chusetts, Post Office (including the Salisbury, Massachu- setts, substation), and notify the postmaster at such facili- ty of the rescission. (b) Notify Elmer Shephard and the Newburyport post- master that the Union has no objection to Shephard's re- transfer to his former position at the Newburyport, Mas- sachusetts, Post Office. (c) Make Elmer Shephard and Daniel Zoeller whole for the additional commuting time and expenses caused them by their transfer to a Postal Service facility in Woburn, Massachusetts, in September 1979, such com- pensation to be computed in the manner set forth in the section of this Decision entitled "The Remedy." (d) Post at the Union's meeting hall and office copies of the attached notice marked "Appendix B." 3 3 Copies of said notice, on forms provided by the Regional Direc- tor for Region 1, after being duly signed by Respondent Union's representative, 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 posted. Reasonable steps shall be taken by the Union to assure that said notices are not altered, defaced, or cov- ered by any other material. 32 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 33 In the event 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 Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (e) Mail to the Regional Director for Region 1 signed copies of "Appendix B" for posting by Respondent United States Postal Service. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords necessary to analyze the amount of compensation due to Elmer Shephard and Daniel Zoeller under the terms of this Order. (g) Notify the Regional Director for Region , in writ- ing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. [The Administrative Law Judge's recommended Order, part B, is omitted from publication.] APPENDIX A Agreement between United States Postal Service and American Postal Workers Union, AFL-CIO, et al. (1978 National Agreement, effective July 21, 1978, through July 20, 1981) ARTICLE XVII REPRESENTATION Section 1. Stewards. Stewards may be designated for the purpose of investigating, presenting and ad- justing grievances. Section 2. Appointment of Stewards. A. Each Union signatory to this Agreement will certify to the Employer in writing a steward or ste- wards and alternates in accordance with the follow- ing general guidelines. Where more than one ste- ward is appointed, one shall be designated chief ste- ward. The selection and appointment of stewards or chief stewards is the sole and exclusive function of each Union. Stewards will be certified to represent employees in specific work location(s) on their tour; provided no more than one steward may be certi- fied to represent employees in a particular work location(s). The number of stewards shall be in ac- cordance with the formula as hereinafter set forth: Up to 49 Employees in the same craft per tour or station/steward. B. At an installation, a Union may designate in writing to the Employer one Union officer actively employed at that installation to act as a steward to investigate, present and adjust a specific grievance or to investigate a specific problem to determine whether to file a grievance. The activities of such Union officer shall be in lien of a steward designat- ed under the formula in Section 2A and shall be in accordance with Section 3. Payment, when applica- ble, shall be in accordance with Section 4. C. To provide steward service to a number of small installations where a steward is not provided by the above formula, a Union representative certi- fied to the Employer in writing and compensated by the Union may perform the duties of a steward. D. At the option of a Union, representatives not on the Employer's payroll shall be entitled to per- 86 UNITED STATES POSTAL SERVICE form the functions of a steward or chief steward, provided sch representatives are certified in writ- ing to the Employer at the regional level and pro- viding such representatives act in lieu of stewards designated under the provisions of 2A or 2B above. 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 at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT appoint and/or certify to the United States Postal Service any employees as union stewards without first fully advising all em- ployees represented by us of all information known to us which bears on the actual or possible effect of any such appointment upon their seniority and re- tention rights. WE WILL NOT appoint any employees as union stewards for the purpose of affording them super- seniority rights over any employees having greater seniority by reason of length of employment. WE WILL NOT in any like or related manner re- strain or coerce any employees in the exercise of the rights guaranteed them by Section 7 of the Na- tional Labor Relations Act. WE WILL rescind the certification of George McLeod, Mark Chmielewski, and Joseph Spaulding as union stewards and WE WIL L notify the postmas- ter in Newburyport, Massachusetts, of this rescis- sion. WE WILL notify the Newburyport postmaster and Elmer Shephard that we have no objection to the immediate retransfer of Elmer Shephard to his former position at the Newburyport Post Office. WE WILL compensate Daniel Zoeller and Elmer Shephard for any increase in commuting time and expenses they may have suffered by reason of their being transferred from the Newburyport, Massachu- setts, Post Office to a postal facility in Woburn, Massachusetts, in September 1979. AMERICAN POSTAL WORKERS UNION, AFL-CIO, LOCAL 1936 87