Columbus Area Local, American Postal Workers Union, Afl-Cio (U.S. Postal Service)

AMERICAN POSTAL WORKERS (POSTAL SERVICE) Columbus Area Local, American Postal Workers Union, AFL-CIO (U.S. Postal Service) and Jesse F. Williams. Case 9-CB-5337(P) 19 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 25 May 1983 Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Columbus Area Local, American Postal Workers Union, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified: 1. Substitute the following for paragraph 2(a). "(a) Move to dismiss the lawsuit the Respondent filed against John D. Harsunye in Franklin County Municipal Court." 2. Substitute the attached notice for that of the administrative law judge. We note that the duty of fair representation requires that a grievance filed by a bargaining unit member, whether union member or non- member, not be processed by the union in an arbitrary, discriminatory, perfunctory, or bad-faith manner Vaca v. Sipes, 386 U.S 171 (1967). 2 We agree that the Respondent should be ordered to move to dismiss the, lawsuit it filed against nonmember John Harsunye seeking recovery of expenses the Respondent incurred in processing his grievance. We find the Respondent's reliance on Bill Johnson's Restaurants V. NLRB, 461 U.S. 731 (1983), misplaced, because the Respondent's suit "has an objec- tive that is illegal under federal law " 461 U S at 737 fn 5. See Laundry Workers Local 3 (Virginia Cleaners), 275 NLRB 608 (1985). Patricia Rossner Fry, Esq., for the General Counsel. Leonard S. Sigall, Esq., of Reynoldsburg, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. This matter was heard by me on February 7, 1983, in Colum- bus, Ohio. Based on an unfair labor practice charge filed on August 10, 1982, by Jesse F. Williams against the Co- 277 NLRB No. 59 541 lumbers Area Local, American Postal Workers Union, AFL-CIO (the Respondent), the Regional Director for Region 9 of the National Labor Relations Board issued a complaint dated September 17, 1982. The complaint al- leges that Respondent violated Section 8(b)(1)(A) of the National Labor Relations Act, by billing and attempting to collect fees from nonmembers for processing griev- ances. Respondent denied the commission of any unfair labor practice. On consideration of the entire record, to include posthearing briefs filed by the General Counsel and Re- spondent,' I make the following FINDINGS OF FACT 1. JURISDICTION The United States Postal Service (the Employer) pro- vides postal services for the United Slates of America and operates various facilities throughout the country in performance of that function including its facilities in Columbus, Ohio, the only facilities involved in this pro- ceeding. The Board has jurisdiction over the Employer's operations in this matter by virtue of Section 1209 of the Postal Reorganization Act. II. THE LABOR ORGANIZATION INVOLVED Respondent, an affiliated local of the American Postal Workers Union, AFL-CIO, and the American Postal Workers Union, AFL-CIO are now, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Issues Presented The issues presented are whether Respondent in June 1982 violated Section 8(b)(1)(A) of the Act by posting a notice on bulletin boards at various postal facilities in the Columbus area and informing nonmembers that fees would be charged for processing grievances of non- members, and whether Respondent violated Section 8(b)(1)(A) of the Act by billing John Harsunye for the cost of handling his grievance and, when Harsunye did, not pay expenses incurred by Respondent in processing his grievances, by filing suit in Franklin County Munici- pal Court against John Harsunye seeking to collect $9.75, which Respondent charged him fir processing his grievance. For the reasons below, I find consistent with Board precedent that Respondent violated Section 8(b)(1)(A)2 of the Act. 1 The General Counsel's motion to correct transci ipt, which was unop- posed by Respondent, is granted 2 Sec. 8(b)(1)(A) of the Act provides, in pertinent part, that: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coeerce (A) employees in the exercise of the rights guaranteed in Section 7. Provided that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein, 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts The facts in this case are undisputed. The American Postal Workers Union has an extensive history of collec- tive -bargaining with the United States Postal Service. Their latest collective-bargaining agreement, which is ef- fective from July 21, 1981, to July 20, 1984, includes a grievance procedure culminating in final and binding ar- bitration. Although Respondent is the exclusive bargaining rep- resentative of unit employees, it is prohibited by Federal law from having a union-security clause in its collective- bargaining agreement with the Postal Service. Members of the bargaining unit are therefore free to remain non- members of Respondent. Currently Respondent has about 1250 members who pay $20.93 per month in dues. Respondent also represents another 400 unit employees who are nonmembers of the Union. In June 1982 Respondent posted on bulletin boards in various postal facilities in the Columbus area a notice which stated: To Non-Members No grievances will be filed for nonmembers unless directly requested by the (nonmember). No steward will file a step 1 nor will he or she hold a step I discussion with your supervisor unless direct- ly requested by the non-member. All forms will cost a nonmember $.25, all time off the clock spent on your grievance or any help requested by a nonmember will cost $10.00 per hour. All items, i.e., transportation, phone calls, will be charged to the nonmember. All nonmembers will be billed, if payment is not received within 15 days we will take the non- member to court to recover our costs. All grievances after step 1 becomes property of this local. Any request for information after step 1 will be at an extra expense. [Jt. Exh. 3.] About the same time that this notice was posted, Re- spondent also sent a letter to nonmembers which stated in pertinent part: If you are not a member of the APWU we will no longer hold step 1 for you unless we are request- ed to do so by you. You will be required to pay for all expenses incurred by this local in handling your grievance. All forms are $.25 each, all time, off the clock, spent on your grievance will be $10.00 per hour; transportation and other expenses will be charged to you. 'Any nonmember who fails to pay will be taken to court to recover our losses. [Jt. Exh. 2.] John D. Harsunye, a nonmember, signed an agreement with Respondent dated July 13, 1982, which stated in part: I hereby give my consent to have any grievance, (No. 72181A, CM) appealed to the highest step pos- sible to receive a resolve. I understand APWU posi- tion on nonmembers' fees and I will accept respon- sibility for the financial fees pertaining to this griev- ance. I also understand that I will be "billed" for forms and [et cetera] concerning this grievance. Harsunye did not pay pursuant to his agreement and Respondent sued him in the Franklin County Municipal Court for $9.75. No steps have been taken to secure a default judgment against Harsunye, although the evi- dence indicates that he is in default. The July 1982 edition of The Vindicator, Respondent's newsletter, contained an article arguing the benefits of union membership. The article included the assertion that "NONUNION MEMBERS ARE FREELOADERS," and the remark "Even in the short term you might be surprised how costly it could prove to be for you to remain outside the Union." (G.C. Exh. 2.) Respondent incurs a number of expenses in processing grievances of members or nonmembers of the Union. Ar- ticle 31, section 2 of the present collective-bargaining agreement allows the Postal Service to charge Respond- ent for costs incurred in supplying information needed for processing grievances. Respondent is charged $13.40 per hour for research time to get information necessary to process grievances, and 10 cents per copy. These amounts must be paid in advance, and are paid out of union dues. Other expenses which must also be paid from union dues but incurred in processing' grievances of members and nonmembers include the union steward's transportation expenses, reimbursement for steward's leave without pay, and office expenses such as copying machines. Uncontradicted testimony at trial was to the effect that taking a grievance to arbitration would cost a minimum of $1000. Respondent's letter to nonmembers stated that non- members would be charged 25 cents per form and $10 per hour for leave without pay of the representative for his or her time off the clock in handling the grievance. The 20 cents per mile which Respondent reimburses stewards for travel in connection with processing griev- ances would also be charged to nonmembers. Respondent has continued to represent nonmembers in grievance proceedings regardless of whether or not they have paid. No nonmember has been refused representa- tion because of his or her failure to pay. Jesse F. Williams, the Charging Party in this case, re- signed from the Union in March 1981 after 20 years of membership. In June 1982, he received a copy of the letter sent to nonmembers, which was referred to above. In August 1982, Williams filed a grievance claiming that a supervisor was doing bargaining unit work. On August 10, 1982, he filed the charge which is the basis of this complaint. Williams' grievance was handled in the normal fashion, as far as this record reflects, and Wil- liams was not charged any fee or expenses by Respond- ent for the processing of his grievance. C. Analysis and Conclusions Respondent argues that it should be allowed to recov- er expenses- it incurs in representing nonmembers in proc- essing grievances. Union members, the argument- pro- ceeds, by paying dues pay their fair share of the expenses associated with grievance processing and it is only fair to AMERICAN POSTAL WORKERS (POSTAL SERVICE) pass on to nonmembers the cost of processing any griev- ance they may file, especially in light of the fact that the Union is required to process grievances of nonmembers and may be sued civilly for money damages if it breaches its duty of fair representation.3 Respondent argues that nonmembers who do not pick up the expenses of proc- essing their grievances are "freeloaders." The situation is aggravated by the fact that pursuant to Federal law a union-security clause is not permitted in any collective- bargaining agreement between the Union and the Postal Service. Although all these arguments have some merit, this case must be decided in accordance with the law as it exists as of the writing of this decision. That law is quite clear. Section 7 of the Act specifically gives employees the right to refrain from joining a union. Section 8(b)(1)(A) makes it an unfair labor practice for a union or its agents to restrain or coerce employees in the exer- cise of those rights guaranteed in Section 7. A union, which is the exclusive bargaining representative of all employees in the unit , must represent all members of the bargaining unit and deligently pursue their meritorious grievances whether those employees are dues-paying members of the Union or not. Vaca v. Sipes, 386 U.S. 171 (1967). Although the issue of so-called freeloaders may be one of growing concern to Respondent it is not a novel issue. Over the years the Board has addressed this issue in a number of cases to include Hughes Tool Co., 104 NLRB 318 (1953); Plumbers Local 141, 252 NLRB 1299 (1980), Exxon Co. U.S.A., 253 NLRB 213 (1980); Machinists Local 697 (H.O. Canfield), 223 NLRB 832 (1976); and Electrical Workers Local 396 (Central Telephone Co.), 229 NLRB 469 (1977). From a study of these cases it is clear that, in the absence of a valid union-security clause, a union may not charge nonmembers for the processing of grievances or other services. Although arguments can be made to the contrary, the law is clear that a union violates Section 8(b)(l)(A) of the Act by charging or threatening to charge non- members the costs of processing any grievances they may file. Charging nonmembers the cost of providing a service which members get free (even though they pay dues) has a coercive effect on nonmembers in the exer- cise of their right to join or refrain from joining a union. It is noted that it would take over 4 years' worth of dues to pay for the cost of one single grievance taken to arbitration. This would necessarily have a coercive effect on nonmembers in the exercise of their right to join or refrain from joining a union. It is also noted that a union member who is prone to grieve more than his fellow em- ployees4 would himself become a so-called freeloader. If Respondent wants a change in the law in this area it will have to secure it from the Board or higher author- ity. 6 The Supreme Court recently held that a union could be held finan- cially liable for breaching its duty of fair representation by failing to ade- quately pursue a meritorious grievance. Bowen v. Postal Service, 459 U S. 212(1983) 4 Evidence at the hearing reflected that less than 10 percent of the bar- gaining unit employees ever grieved a matter and that some bargaining unit employees grieved substantially more often than others 543 Because I find that Respondent has committed the unfair labor practices noted above, I will recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Columbus Area Local, American Postal Workers Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 2. By informing nonmembers that, they would be re- quired to pay expenses Respondent incurred in process- ing the grievances of nonmembers, and by commencing a lawsuit against nonmember John D. Harsunye for failing to pay expenses Respondent incurred in processing his grievance, Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Columbus Area Local, American Postal Workers Union, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Notifying nonmembers of Respondent that they will be billed for expenses incurred by Respondent in representing such employees in grievance proceedings. (b) Requiring John D. Harsunye or any other non- member of Respondent to pay to Respondent expenses incurred by Respondent in processing grievances they file. (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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Dismiss the lawsuit Respondent filed against John D. Harsunye in Franklin County Municipal Court. (b) Post copies of the attached notice marked "Appen- dix."6 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by 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 and em- ployees 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. 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 6 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT charge or threaten to charge non- members of the Union for expenses incurred by the Union in representing such employees in grievance pro- ceedings. WE WILL NOT threaten to file suit or file suit against any nonmember seeking to collect expenses from non- members for processing grievances. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them in the National Labor Relations Act. WE WILL dismiss the lawsuit we filed against John D. Harsunye in Franklin County Municipal Court. COLUMBUS AREA LOCAL, AMERICAN POSTAL WORKERS UNION , AFL-CIO