NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
June 29, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On January 2, 2007, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a supporting brief, to which the Respondent filed an answering brief. The Respondent filed cross-exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.1
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the record and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order.3
The General Counsel excepts, among other things, to the judge’s failure to find that the Respondent violated Section 8(b)(2) by filing a May 9, 2006 grievance against the Employer for assigning George O’Malley 8 hours of overtime work on April 4, 2006. Although we agree that the consolidated complaint includes this allegation, we find it unnecessary to decide whether the May 9 grievance separately violated the Act, because such a finding would not materially affect the remedy. Accordingly, we find it unnecessary to pass on this 8(b)(2) allegation.4
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Long
Island New York Area Local, American Postal Workers Union, AFL–CIO,
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Dennis P. Walsh, Member
(seal) National Labor Relations Board
APPENDIX
Notice To Employees and
Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 behalf 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 cause or attempt to cause the United States Postal
Service to deny overtime assignments to George O’Malley because he has chosen
not to be a member of the Union.
We will not 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.
We will make George O’Malley whole for any loss of earnings
and benefits he may have suffered as a result of the discrimination against him.
Nancy Reibstein, Esq., for the General Counsel.
Anton G. Hajjar, Esq., for the Respondent.
DECISION
Statement of the Case
Raymond P. Green,
Administrative Law Judge. I heard this
case in
In substance, the consolidated alleged as follows:
1. That on or about April 5, 2006, the Respondent, for discriminatory reasons, caused or attempted to cause the Employer to refuse to allow Dralus and O’Malley to be on the “Overtime Desired” list and thereby cause them to lose overtime work.
2. That on or about April 6, 2006, the Union, for arbitrary and unfair reasons and because Dralus and O’Malley were not union members, refused to process their grievance regarding the Employer’s failure to place them on the “Overtime Desired” list for the second quarter of 2006.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the brief filed, I make the following
Findings of Fact
i. jurisdiction
The United States Postal Service and the Respondent are subject to the jurisdiction of the National Labor Relations Board (the Board) pursuant to Section 1209 of the Postal Reorganization Act of 1970.
ii. alleged unfair labor practices
This case involves
clerks employed at the post office in
In the case of
O’Malley, he was a member of the
Article 15 of the
contract contains a grievance procedure providing for a multiple-step procedure
culminating in arbitration. At step 1,
the contract provides that any employee “who feels aggrieved” must discuss his
or her grievance with the immediate supervisor within 14 days of the date when
the employee learned or could reasonably have expected to learn of the incident. Step 1 grievances also can be initiated by
the
Article 8 deals generally with hours of work and article 8, section 5, deals with overtime assignments. The latter provision provides for a system whereby “two weeks prior to the start of each calendar quarter, full-time regular employees desiring to work overtime during that quarter shall place their names on an ‘Overtime Desired’ list.” Basically, this is designed so that the employees can self-select who will be available for overtime work during the ensuing 3-month period. It therefore is designed to give overtime to those employees who want it and excuse from overtime assignments, to the extent possible, those employees who do not want them.
Before the second quarter of 2006, the system operated by having a signup sheet posted before each quarter. Supervisor William Lombardo would then take the completed signup sheet and transpose those names onto a second list that he generated and maintained at his office. This second list, which contained the names of the people who had signed up for overtime, was generated for each week during the quarter and indicated who was eligible for and who was given overtime assignments during the week, and how many hours each person worked. The employees on the second list were categorized by their normal days off because those were the days that they would be eligible to work overtime. Thus, if a set of employees normally took their days off on Tuesday, then they would be eligible to get overtime assignments for Tuesdays. If another set of employees normally took their days off on Wednesday, then they would be eligible for overtime assignments on Wednesday.
In any event, Lombardo testified that in utilizing the second list, he used seniority to make only the initial assignment of overtime to a person on that list. For example, if overtime was available on the first Monday of the new quarter, the highest qualified person on the second list, whose normal off day was Monday, would be the first person offered that overtime assignment. After that first day, and for the remaining 3 months, the employees on the list who were eligible for Monday overtime would be offered overtime on a rotating basis. Over a 3-month period, this tended to result in rough equality in overtime assignments.
On January 25, 2005, a
labor-management meeting was held at the Valley Stream Post Office. A number of items were discussed including
the “Overtime Desired list.” According
to Postmaster James Meade (who had recently come into this office), the
An overtime signup sheet was posted sometime between 12 and 15 days before April 1, 2006, which is the start of the next quarter. During at least some part of that time, Dralus was on leave to take care of a sick family member and apparently telephoned Lombardo and asked him to do him a favor and place his name on the signup sheet. Lombardo testified that he forgot to do this and as a result, Dralus’ name did not appear on the signup sheet when Marzocchi made up the list that she and Sharkey were going to use to make the overtime assignments during the second quarter of 2006. (In making the new list, she essentially followed the pattern and practice that Lombardo had done before.)
As for O’Malley, testified that during the open period, he signed the signup sheet in the presence of another employee and near where Lombardo was situated. However, the signature that O’Malley identified as his own, bears no resemblance to his or anyone else’s signature. He testified that he signed the sheet this way because on two or three occasions, some years ago, someone had written “scab” next to his name. In any event, the signature that he identified has no relationship to O’Malley’s normal signature and is completely illegible.
Marzocchi testified that on March 30, 2006, she took down the signup sheet and using a copy from the previous quarter’s list prepared by Lombardo, whitened out the names of Dralus and O’Malley because their names (which were on the previous quarter’s list) were not on the signup sheet. She testified that she then left the new list in the office and when she next found it on or about April 1, 2006, she noticed that Lombardo had written in the names of Dralus and O’Malley. She testified that since their names were not on the signup sheet, and inasmuch as Lombardo no longer was supposed to be responsible for taking care of the “list” she took a magic marker and blacked out these two names. She testified that she received a written note from Lombardo stating that Dralus had called him on March 23 and asked that Lombardo put his name on the sign-up sheet and that it was Lombardo had forgotten to put his name on the list. As to O’Malley, Lombardo’s note asserted that he and Bruce Roettinger saw O’Malley sign the signup sheet.
According to Marzocchi, she did not believe that the procedure allowed for an employee to have someone else sign his or her name. She also testified that looking at the signup sheet, she could not see any signature that bore even the slightest resemblance to the signature of O’Malley and she didn’t believe Lombardo’s statement that he saw O’Malley sign the sheet. (Marzocchi testified that for many years, she took care of the timecards and was very familiar with the employees’ signatures.)
At a meeting held on
April 5, 2006, the Union’s representatives, at the end of the meeting,
complained that Lombardo had disregarded the
As a result of the April 5 meeting, Lombardo was told by Meade not to assign overtime to Dralus or O’Malley for the remainder of the quarter and he complied. Also, it appears that the parties agreed that when employees signed the signup sheet, they would have to print their names in addition to writing their signatures. This new procedure was implemented starting with the next quarter (July to October). In this regard, Dralus and O’Malley signed and printed their names and were put on the “Overtime Desired List.” Therefore, the only overtime loss that is claimed in this case is overtime for the period between April 1 and June 30, 2006.
At some point, probably after the April 5 meeting, O’Malley asked Assistant Shop Steward Sharkey to file a grievance against the Employer for its refusal to assign him overtime. O’Malley testified that he sat down with Sharkey who wrote down what he had to say and he thought that this was tantamount to the filing of a grievance. (The record does not show if Dralus actually filed a grievance.)
In early May 2006, Dralus and O’Malley asked Shop Steward Marzocchi to process grievances regarding the Company’s failure to give them overtime. She refused and told them that she had killed the grievance.
The General Counsel
asserts that the
iii. analysis
Section 8(b)(2) makes a union liable if it causes or attempts to cause an employer to discriminate against an employee in violation of Section 8(a)(3) of the Act or to discriminate against an employee with respect to whom membership has been denied or terminated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership.
If a union causes the discharge of an employee because he or she has chosen not be a union member or because of his union activity (or lack thereof), this would constitute a violation of Section 8(b)(2). Except in circumstances where there is a valid union-security clause and the employee has not been denied union membership because of his failure to pay the uniformly required union dues and fees (or their equivalent), a union violates this section of the Act if makes an efficacious demand that an employer discharge, or otherwise discriminate against an employee because of his or her nonmembership. Letter Carriers Branch 86 (Postal Service), 315 NLRB 1176, 1177–1178 (1994).[1]
Similarly, a union’s efficacious attempt to cause an employer to discharge an employee because of his internal dissident union activities is also a violation of the Act. USF Red Star, Inc., 330 NLRB 53, 57–58, (1999). Moreover, the violation relates to any form of discrimination and not just to “causing” a discharge. Thus, in Letter Carriers Branch 3126 (Postal Service), 330 NLRB 587 (2000), the Board held that there was a violation of Section 8(b)(2) when a union, through its shop steward, demanded that an employer refuse to allot overtime to an employee because he had resigned his membership in the union.
In essence, Section 8(b)(1)(A) prohibits a union from restraining or coercing employees in the rights guaranteed by Section 7 of the Act. When a union violates Section 8(b)(2) by causing an employer to discriminate against an employee because the employee has withdrawn his union membership or has engaged in dissident union activity, this is also a derivative violation of Section 8(b)(1)(A) because the union’s actions constitute restraint or coercion on the rights of employees to refuse to engage in protected concerted activity, including the right to refrain from joining a union.
There is also a line
of cases that hold that a union violates Section 8(b)(1)(A) if it fails to
fairly represent the employees for whom it is the designated bargaining
representative. Vaca v. Sipes, 386
The situations
involving O’Malley and Dralus are similar to the extent that they both had
resigned from the
But their situations are different because in order to be eligible for overtime during the period in question, they would have had to have signed the required signup sheet for the “Overtime Desired List.” And in this case, while O’Malley may very well have signed up for this overtime, Dralus did not.
A. O’Malley’s Case
As described above, in
order to be placed on the “Overtime Desired List” and be considered for
overtime assignments, the contract requires that any employee desiring overtime
for a given quarterly period, sign up for these assignments. In the past, a signup sheet was put up about
12 to 15 days before the beginning of the quarter and the supervisor was the
person who transposed the names of the people who signed up to a second list
that was then used to assign overtime.
By mutual agreement, in January 2006, that procedure was slightly
changed so that instead of the Company’s supervisor doing it, the
In March 2006, O’Malley signed the signup list, albeit he did so in a way that his signature could not be read.
Union Steward Elaine Marzocchi testified that when she received the signup sheet, she did not put O’Malley’s name on the overtime assignment list because she didn’t see his name on the signup sheet. This was understandable. She also testified that on the following day, she noticed that Supervisor Lom-bardo had inserted O’Malley’s name on the overtime assignment list whereupon she crossed his name out. In my opinion, Marzocchi reasonably concluded that Lombardo was interfering with the agreement that had just been reached where she, and not Lombardo, was responsible for making up the overtime list from the names that appeared on the signup sheet.
At a meeting held on
April 5, 2006, a number of other subjects were first discussed. However, at the end of the meeting, the Union’s
representatives complained that Lombardo had interfered with the previous
agreement that the
In light of the
statement by Peeples at the April 5 meeting, made in the context of the Union’s
position that O’Malley was not entitled overtime, I infer that the decision to
insist that O’Malley not be assigned overtime for the 3-month period starting
on April 1, 2006, was motivated mainly by his nonmembership in the Union and
the feeling by union representatives that O’Malley had been insufficiently
grateful for some help that the Union had given him in the past. In this instance, O’Malley had signed the
signup sheet and the
On the basis of this
record, I conclude that in O’Malley’s case, the Union effectively caused the
Employer to refuse to give him overtime assignments for the period from April 1
to June 30, 2006, primarily because O’Malley had chosen not to be a member of
the
B. The Dralus Affair
Dralus did not sign
the signup sheet. The claim is that Lombardo
had agreed to put his name on the signup sheet but forgot to do so. The bottom line is that neither Dralus, nor anybody
on his behalf, put his name on the signup sheet. And, as this was a contractual prerequisite
for being given overtime assignments for the quarter starting on April 1, 2006,
there is simply no basis for finding that Dralus was eligible for those assignments.[2]
Accordingly, when the
The statement made by Peeples at the April 5 meeting regarding O’Malley does not, in my opinion, necessarily apply to Dralus. And even if there was some ill feeling regarding the fact that Dralus had chosen, at some time in the past, to resign from union membership, the facts in this case convince me that the Union’s representatives were correct in insisting that the agreed upon procedure should be followed, without an exception being made for Dralus.
Accordingly, I
conclude that the
Conclusions of Law
1. By causing the Valley Stream office of United States Postal Service to deny overtime assignments to George O’Malley for the period from April 1 to June 30, 2006, the Union has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) of the Act.
2. The unfair labor practices found above, affect commerce within the meaning of Section 2(6) and (7) of the Act.
3. Except to the extent found herein, I conclude that the Respondent has not violated the Act in any other manner encompassed by the complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Union has caused the Employer to not assign certain overtime to O’Malley, I shall recommend that it be ordered make him whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him less any net interim earnings, the amount of back pay to be calculated in accordance with F. W. Woolworth., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (l987).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[3]
ORDER
The Respondent, Long
Island NY Area Local, American Postal Workers Union, AFL–CIO,
1. Cease and desist from
(a) Causing or
attempting to cause the United States Postal Service to deny overtime
assignments to George O’Malley because he has chosen not to be a member of the
(b) 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 effectuate the policies of the Act.
(a) Make George O’Malley whole for any loss of earnings and benefits he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision.
(b) Post at its office copies of the attached notice marked "Appendix.”[4] Copies of the notice, on forms provided by the Regional Director for Region 29, 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 employees and 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) Sign and return to the Regional Director sufficient copies of the notice for posting by the Employer if willing, at all places where notices to employees are customarily posted.
(d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees and Members
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
We will not cause or attempt to cause the United States
Postal Service to deny overtime assignments to George O’Malley because he has
chosen not to be a member of the Union.
We will not 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.
We will make George O’Malley whole for any loss of earnings
and benefits he may have suffered as a result of the discrimination against
him.