National Assn. of Letter Carriers

LETTER CARRIERS BRANCH 47 (POSTAL SERVICE) 667 National Association of Letter Carriers, Branch #47 (U.S. Postal Service) and Dale Carroll. Case 27– CB–3733–P February 23, 2000 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME On October 1, 1998, Administrative Law Judge Albert A. Metz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, National Association of Letter Carriers, Branch #47, Denver, Colorado, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1 Contrary to our dissenting colleague, we agree with the judge that the Respondent violated Sec. 8(b)(1)(A) when it told the Charging Party that it would not provide him with the overtime desired list (OTDL) because he wanted the list in order to file charges against the Respondent, and not for a grievance. Our dissenting colleague main- tains that the Respondent was simply explaining that it would not assist the Charging Party in prosecuting a charge against itself, and was not threatening him that it was refusing to provide the information in re- taliation for filing a charge. The test for a violation of Sec. 8(b)(1)(A), however, does not depend upon an examination of a respondent’s moti- vation. Rather, it depends on whether or not the respondent’s statement or conduct would have a reasonable tendency to restrain or coerce an employee in the exercise of statutory rights, including the right of ac- cess to the Board’s processes. Boilermakers Local 686 (Boiler Tube Co. of America), 267 NLRB 1056, 1057 (1983). We adopt the judge’s finding that the Respondent’s statement violated Sec. 8(b)(1)(A) be- cause such a statement demonstrated to the Charging Party the Respon- dent’s retaliatory motive in refusing to provide the list and thus would reasonably tend to restrain or coerce an employee from filing charges with the Board. We further agree with the judge’s conclusion that the allegations contained in the amended charge and complaint are sufficiently related to the allegation in the original, timely filed charge, to satisfy the re- quirements of Sec. 10(b). The allegations involve the same section of the Act (Sec. 8(b)(1)(A)) and the same legal theory (the Union’s duty of fair representation owed to all unit employees). Further, the charge, amended charge, and complaint allegations all involve the same se- quence of events: the Charging Party’s efforts to determine the accu- racy of his overtime rights under the collective-bargaining agreement. See Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989). Further, the Respondent was given adequate notice to prepare and present evi- dence to defend against the complaint allegations, which were fully litigated at the hearing. Cf. Carpenters Local 35 (Construction Em- ployers Assn.), 317 NLRB 18 (1995). Member Hurtgen finds his colleagues’ analysis of this issue to be consistent with his own analysis in his dissent in Ross Stores, 329 NLRB 573 (1999). He, therefore, agrees that the allegations contained in the amended charge and complaint are sufficiently related to the allegation in the original, timely filed charge, to satisfy the require- ments of Sec. 10(b). 2 We have modified the judge’s recommended Order to reflect the appropriate injunctive language. Substitute the following for paragraph 1(c). “(c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” MEMBER HURTGEN, dissenting in part. I do not agree that the Respondent Union threatened Carroll that its refusal to supply the information was in retaliation for his filing of a charge with the Board. The facts show that the Respondent explained to Carroll that it would supply information to support a grievance against the employer, but would not supply information to support a charge against itself. In essence, the Union would not assist the prosecution of a case against itself. Rather, Carroll should get the information from the em- ployer. I agree that this explanation is not a valid basis for refusing the information. But that explanation is a far cry from threatening the employee that the refusal to supply information is a retaliatory punishment for charge-filing. In these circumstances, the General Coun- sel has not shown that Carroll would reasonably interpret the Respondent’s explanatory remark to mean that the Respondent was retaliating against him for charge-filing. Accordingly, I dissent. Barbara E. Greene, Esq., for the General Counsel. Michelle Dunham Guerra, Esq., for the Respondent Union. DECISION1 ALBERT A. METZ, Administrative Law Judge. This case in- volves issues of whether the Respondent has violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act).2 On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the parties’ briefs, I make the following findings. I. JURISDICTION AND LABOR ORGANIZATION The Respondent admits that it is a labor organization within the meaning of Section 2(5) of the Act, and that the Board has jurisdiction over the United States Postal Service (USPS) under the terms of the Act. II. BACKGROUND The Respondent is the collective-bargaining agent for postal letter carriers at the Denver, Colorado, Sullivan post office. The Respondent’s stewards at Sullivan are Linda Wishon and Jack Hart. Larry Miles is an alternate steward. The Charging Party, Dale Carroll, is a unit employee represented by the Re- spondent. Carroll had been a union steward, but at the time of the relevant events, no longer held that position. 1 This case was heard at Denver, Colorado, on June 15–16, 1998. All dates refer to 1997 unless otherwise stated. 2 29 U.S.C. § 158(b)(1)(A). 330 NLRB 109 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668 III. THE OVERTIME DESIRED LIST The collective-bargaining agreement between the Respon- dent and the USPS provides that overtime work shall be equita- bly distributed among employees desiring to perform such work. In an effort to efficiently distribute such work an over- time desired list (OTDL) of interested employees is maintained in the USPS supervisor’s office. Employees are individually named and their hours worked per day, including overtime, is stated on this list. A final determination of the equitable distri- bution of overtime is made at the end of each calendar quarter. The overtime opportunities, however, are tracked on a daily basis so that inequities may be detected before the end of a quarter. Steward Linda Wishon maintained a list of overtime hour opportunities on her personal home computer as a check against any mistakes on the OTDL. She also shared her software for- mula with Supervisor Rick Pruess who maintained his calcula- tions on a USPS computer. When Wishon discovered what she believed to be an error on the OTDL, she would give this in- formation to USPS supervision. Part of the agreement between the USPS and the Respondent requires that if an employee has asked for overtime but ulti- mately refuses such work he is nonetheless charged with having worked the overtime hours for purposes of calculating equitable distribution. In the late summer of 1997 Carroll had questions about his being charged for overtime work not performed when he was on vacation. He also had doubts as to whether Respondent’s steward, Jack Hart, had received preferential treatment regard- ing overtime work calculations. As a result Carroll filed unfair labor practice charges against the Respondent and a grievance. The Respondent ultimately settled the grievance but Carroll continued to have doubts about the accuracy of his overtime hours. On September 2 Carroll sent a routing slip to four union stewards requesting that the Respondent give him, “day to day reports on both OTDL’s for the third quarter.” When he did not immediately get the information, Carroll sent a second request to the Respondent’s stewards on September 3. Carroll noted in each request that he was acting as his own steward in the mat- ter. Stewards Wishon and Hart talked to Carroll about his request for information. They asked if he wanted to file a grievance in conjunction with his request for the OTDL. Carroll told them he needed the information for a charge that he had filed with the NLRB. They asked if he had specific dates in mind and he told them he did not but wanted to see all the hours he was being charged with for overtime. The stewards told Carroll that since he wanted the information for a charge with the NLRB and not a grievance he should see management about getting the list from them. Within a few days the Respondent did give Carroll a copy of the official OTDL but never gave him Wis- hon’s computer calculations regarding employees’ overtime hours. IV. ANALYSIS The Government alleges that the refusal of the Respondent to provide Carroll with the Respondent’s list regarding overtime violates its duty to fairly represent Carroll. The Respondent contends that Wishon’s personal notes were not required to be produced because its duty of representation does not extend beyond representation under the contract.3 A union has the duty to fairly represent employees for whom it possesses collective-bargaining rights under the Act. The Board holds that a union may breach its duty of representation, and thus violate the Act, if it fails to provide employees with a wide range of requested information. Auto Workers Local 909 (General Motors Corp.-Powertrain), 325 NLRB 859 (1998) (refusal to account to its members for the disparity in grievance settlement money distribution.); Letter Carriers Branch 529, 319 NLRB 879, 880 (1955) (copies of a grievance.); Teamsters Local 282 (General Contractors), 280 NLRB 733 (1986) (job referral information in the operation of an exclusive hiring hall); Security Personnel of Hospitals (Church Charity Foun- dation of Long Island), 267 NLRB 974, 980 (1983) (status of grievance); Security Officers Local 408 (South Jersey Detec- tive Agency), 260 NLRB 419 (1982) (copies of collective- bargaining agreement and health and welfare plan). The duty includes the obligation to supply information when the request is reasonably directed toward ascertaining whether the em- ployee has been fairly treated in receiving work assignments. Operating Engineer Local 3, 324 NLRB 1183 (1997). The Respondent, in its representative capacity, used Wis- hon’s list to check on the equitable distribution of overtime work. This was the same reason Carroll asked for the Respon- dent’s list. The Respondent’s OTDL would be helpful to Car- roll in determining if he had been incorrectly charged with hours or if he was being treated disparately. This information was useful to him regardless of ultimate intended purpose– processing a Board charge or filing a grievance. Carroll could not know what final use the information would be to him until it was received and analyzed. The Respondent did not give any legitimate reason the requested information should not be sup- plied. Although Carroll was given the USPS’ OTDL, he did not receive the Respondent’s list as a check on the accuracy of his overtime rights under the collective-bargaining agreement. The Respondent regularly used its own list to have changes made in the USPS’ overtime calculations. I find that the Re- spondent’s refusal to give Carroll its OTDL was “sufficiently outside the range of reasonableness as to be accurately charac- terized as arbitrary.” Letter Carriers Branch 529, supra. I find that such refusal is contrary to Respondent’s duty of fair repre- sentation and is a violation of Section 8(b)(1)(A). Operating Engineers Local 3, supra. The Board has further alleged that Carroll was threatened by the Respondent when the Union’s OTDL list was refused him because he had filed charges with the Board. The statement to that effect by the Respondent’s agents did tend to have a re- straining and coercive effect on an employee. I find that the refusal to provide the information because Carroll filed charges with the Board is an additional violation of Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. The United States Postal Service is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3 The Respondent also argues the original charge does not encom- pass the conduct alleged to be a violation of the Act. I find the language of the original and amended charges is sufficient to incorporate the conduct litigated at the hearing and alleged in the complaint. LETTER CARRIERS BRANCH 47 (POSTAL SERVICE) 669 2. The National Association of Letter Carriers, Branch #47 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(b)(1)(A) of the Act. 4. The foregoing unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The Respondent, National Association of Letter Carriers, Branch #47, its officers, agents, and representations, shall 1. Cease and desist from (a) Refusing to supply information from the Union’s over- time desired list to employees represented by the Union. (b) Telling employees it will not provide them with informa- tion because they have filed charges with the National Labor Relations Board. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Supply to Dale Carroll the Union’s overtime desired list information he requested on September 2 and 3, 1997. (b) Within 14 days after service by the Region, post at its business offices and meeting halls copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to supply information from the Union’s overtime desired list to employees represented by the Union. WE WILL NOT tell employees we will not provide them with information because they have filed charges with the National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL supply to Dale Carroll the Union’s overtime desired list information he requested on September 2 and 3, 1997. NATIONAL ASSOCIATION OF LETTER CARRIERS, BRANCH #47