Red Bank Local American Postal Workers

344 NLRB No. 89 Red Bank Local, American Postal Workers Union, AFL–CIO and Michelle Faiman. Case 22–CB– 9921 May 27, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by Mi- chelle Faiman on August 20, 2004, the General Counsel issued the complaint on November 30, 2004, against Red Bank Local, American Postal Workers Union, AFL– CIO, the Respondent, alleging that it has violated Section 8(b)(1)(A) of the Act. The Respondent failed to file an answer. On January 18, 2005, the General Counsel filed a Mo- tion for Default Judgment and memorandum in support with the Board. On January 24, 2005, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a timely response. The allegations in the motion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by December 14, 2004, all the allegations in the complaint could be considered admitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated December 20, 2004, notified the Respondent that unless an answer was received by December 27, 2004, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s motion for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The United States Postal Service (the Employer) pro- vides postal services for the United States and operates various facilities throughout the United States in the per- formance of that function, including its facility in Eaton- town, New Jersey, the only facility involved herein. The Board has jurisdiction over the Employer and this matter by virtue of Section 1209 of the Postal Reorgani- zation Act, 39 U.S.C. Sec. 101 et seq. (the PRA). The Respondent is now, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, by virtue of Section 9(a) of the Act, the Respondent has been the exclusive collective- bargaining representative of the following employees of the Employer (the unit): All maintenance employees, motor vehicle employees, postal clerks, special delivery messengers, mail equip- ment shops employees and material and distribution centers employees excluding managerial and supervi- sory personnel, professional employees, employees en- gaged in personnel work in other than a purely non- confidential clerical capacity, security guards, all postal inspection service employees, employees in supple- mental work force as defined in Article 7, rural letter carriers and mailhandlers of letter carriers. At all material times, the Respondent and the Em- ployer have maintained and enforced a collective- bargaining agreement covering conditions of the em- ployment of the unit and containing, among other provi- sions, a grievance and arbitration procedure. Since about May 27, 2004, the Respondent has failed and refused to include the Charging Party, Michelle Fai- man, among unit employees who were to share in the distribution of a lump sum payment made by the Em- ployer to employees identified by the Respondent, which resulted from the settlement of a class action grievance concerning displacement of certain Tour 3 postal clerks. The Respondent engaged in the conduct described above because Faiman was not a member of the Respon- dent. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed to represent the Charging Party for rea- sons that are unfair, arbitrary, and invidious, and has breached the fiduciary duty it owes to the Charging Party and the unit. The Respondent has thereby restrained and coerced employees in the exercise of their rights guaran- teed in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has discriminatorily failed to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 include Michelle Faiman among the employees who were to share in the distribution of a lump sum payment made by the Employer to employees in the settlement of a class action grievance, we shall order the Respondent to make Michelle Faiman whole for any loss of earnings and other benefits suffered as a result of the Respon- dent’s unlawful conduct, with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Red Bank Local, American Postal Workers Union, AFL–CIO, Eatontown, New Jersey, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to include employees who are not members of the Respondent among unit employees who share in the distribution of a lump sum payment made by the U.S. Postal Service to employees identified by the Respondent, in settlement of a class action griev- ance. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Michelle Faiman whole for any loss of earn- ings and other benefits suffered as a result of the Re- spondent’s unlawful conduct in excluding her from the employees who were entitled to share in the lump sum payment made by the U.S. Postal Service to employees in settlement of a class action grievance concerning dis- placement of certain Tour 3 postal clerks, with interest, in the manner set forth in the remedy section of this deci- sion. (b) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all records in the pos- session of the Respondent, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (c) Within 14 days after service by the Region, post at its business office and meeting places copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (d) Sign and return to the Regional Director sufficient copies of the notice for posting by the U.S. Postal Ser- vice, if willing, at all places where notices to employees are customarily posted in its facility in Eatontown, New Jersey. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your be- half with your employer Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to include employees who are not our members among unit employees who share in the distribution of a lump sum payment made by the U.S. Postal Service to employees identified by us, in settlement of a class action grievance. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Michelle Faiman whole for any loss of earnings and other benefits suffered as a result of our unlawful conduct in excluding her from the employees who were entitled to share in the lump sum payment made by the U.S. Postal Service to employees in settle- ment of a class action grievance concerning displacement of certain Tour 3 postal clerks, with interest. RED BANK LOCAL POSTAL WORKERS 3 RED BANK LOCAL, AMERICAN POSTAL WORKERS UNION, AFL–CIO