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,
Puget Sound Area Local #298, affiliated with the American
Postal Workers Union, AFL–CIO (
American Postal Workers Union, AFL–CIO (
June 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member L:iebman
On January 18, 2008, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondents filed a reply brief.
The National Labor Relations 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 conclusions[1] and to adopt the recommended Order.[2]
The issue in this case is whether the Respondent Unions violated Section 8(b)(1)(A) of the Act by distributing certain settlement moneys only to union members. The judge found the alleged violation. As set forth below, we affirm.
In 2003, the United States Postal Service (Employer) and the American Postal Workers Union, AFL–CIO (APWU) entered into an agreement to settle grievances, challenging the Respondent’s assignment of nonunit casual employees to perform bargaining unit work. The agreement included a provision that funds intended for former employees who could not be located would “be remitted to the local unions.” However, when Puget Sound Area Local #298 (Local 298) requested the remittance of funds in accordance with this provision, the Employer offered to pay a “greater total amount” if Local 298 would “waive its right to receive payment directly and instead designate employees for direct payment.” The parties subsequently executed a new settlement agreement in 2006, which stated that it was the “final and complete resolution of any and all issues” concerning the 2003 agreement, and which provided that “[c]urrent clerk craft employees,” to be identified by APWU Business Agent Marty Barron, would receive a lump-sum payment. The Respondents decided that the lump sum would be divided equally among unit employees who were also members of Local 298. Nonmember unit employees were excluded from the distribution.
The judge found that the Respondents violated Section 8(b)(1)(A) by discriminating against nonmember bargaining-unit employees in distributing the settlement moneys. Excepting, the Respondents assert that Local 298 had a contractual right under the 2003 settlement agreement to the funds distributed under the 2006 settlement agreement and thus could lawfully assign its rights to those funds as it chose. This argument ignores, however, that the 2006 agreement modified the relevant provision of the 2003 agreement by providing for remittance of the settlement proceeds to the “[c]urrent clerk craft employees” rather than to “the local unions.”
Even assuming that Local 298 retained, under the 2006
agreement, a contractual right to the settlement moneys that it was otherwise
free to assign, it was not free to do so on the basis of union membership. “It is well settled that Section 8(b)(1)(A)
of the Act prohibits unions, when acting in a statutory representative capacity,
from taking action against any employee upon consideration or upon the basis of
classifications that are irrelevant, invidious, or unfair.” See Steelworkers Local
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Puget Sound Area Local #298, affiliated with the American Postal Workers Union, AFL–CIO, and American Postal Workers Union, AFL–CIO, Tacoma, Washington, their officers, agents, and representatives, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge.
Dated,
____________________________________
Peter
C. Schaumber, Chairman
____________________________________
Wilma B. Liebman, 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 fail or refuse to include nonmembers of our Unions among unit employees who share in the distribution of a 2006 lump-sum payment made by the United States 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 employees in the exercise of the rights guaranteed them by Section 7 of the Act.
We will make Li Eagle Ransom and other injured nonmembers whole, with interest, for any loss of earnings and other benefits suffered as a result of the our failure and refusal to include nonmembers among unit employees who share in the distribution of a lump-sum payment made by the United States Postal Service to employees identified by us, in settlement of a class action grievance.
Puget Sound Area Local #298, affiliated
with the American Postal Workers Union, AFL–CIO and American Postal Workers
Ryan
E. Connolly, Esq., Daniel Apoloni, Esq.,
for the General Counsel.
Anton
G. Hajjar, Esq. (O’Donnell, Schwartz & Anderson), of
Li Eagle Ransom,
an Individual, of
DECISION
Statement of the Case
Jay
R. Pollack, Administrative Law
Judge. This case was submitted to me based on a stipulation of facts dated September
17, 2007. On February 13, 2007, Li Eagle Ransom (Ransom) filed the charge in Case19–CB–9568 alleging that Puget Sound Area Local #298, affiliated with
the American Postal Workers Union, AFL–CIO (Respondent Local), committed
certain violations of Section 8(b)(1)(A) of the National Labor Relations Act (the
Act). On April 5, 2007, Ransom filed the charge in Case 19–CB–9593 alleging
that American Postal Workers Union, AFL–CIO (Respondent National) committed
certain violations of Section 8(b)(1)(A) of the Act. On April 26, 2007, the Regional Director for
Region 19 of the National Labor Relations Board issued a complaint and notice of hearing against Respondent
Local, alleging that Respondent violated Section 8(b)(1)(A) of the Act. On July
31, the Regional Director issued a consolidated complaint and notice of hearing
in Cases 19–CB–9568 and 19–CB–9593 alleging that both Respondents violated Section
8(b)(1)(A) of the Act. Respondents filed
timely answers to the complaint denying all wrongdoing.
By stipulation, the
parties have waived their right to a hearing before an Administrative Law
Judge. All parties have been given the opportunity to file briefs.
Upon the stipulated record, including all exhibits thereto, and having
considered the briefs filed by the parties, I make the following
Findings of Fact and Conclusions
i. jurisdiction
The United States
Postal Service (Employer) provides postal service for the
The Board has
jurisdiction over the Employer and this matter by virtue of Section 1209 of the
Postal Reorganization Act, 39 U.S.C. Section 1209.
Respondents are
both and have been, at all times material, labor organizations within the
meaning of Section 2(5) of the Act.
ii. the
alleged unfair labor practices
A. The Stipulated Facts
At all material
times, by virtue of Section 9(a) of the Act, Respondents have been the
exclusive collective-bargaining representative covering employees in an
appropriate unit, including FSM clerks (unit) in and around
In about June 2003,
the Employer and Respondent National entered into a settlement agreement
resolving certain outstanding grievances involving the Postal Service’s assignment
of nonunit casual employees in lieu of regular work force employees. Respondent National designated Respondent
Local to determine the distribution of a portion of the funds provided by the
settlement.
Respondent Local
determined payments would be based on how much a unit employee worked during
the time the grievances had been pending.
Respondent Local made this determination without regard to union
membership. Respondent Local performed
this calculation and provided the information to Martin Barron, national
business agent for Respondent National.
Barron informed the Employer of the amounts each eligible unit employee
was due. The Employer issued payment to
the unit employees consistent with Respondent’s Local’s calculation. Ransom was one of the employees issued a
check in the initial distribution.
Prior to February
of 2005, it became apparent that a number of employees eligible to receive
checks under the initial distribution could not be located. In February of 2005, Respondent Local
requested the Employer pursuant to the settlement agreement, to remit payment
directly to Respondent Local in the amount of the unclaimed checks. The Employer preferred not to issue the money
directly to Respondent Local and was willing to pay a greater total amount if
the Respondent Local were willing to waive its right to receive payment directly
and instead designate employees for direct payment. The Greater Seattle Area Local, which was
covered by the same settlement agreement, insisted on its right to payment
directly to it, and the Employer paid that local directly. Respondent National, by Barron, negotiated
with the Employer regarding the unclaimed amount. These negotiations resulted in an agreement
in February of 2006. Under that 2006 settlement,
unit employees, identified by Barron, would receive a lump-sum payment.
Respondent Local
determined the amount would be divided equally among employees who were members
of Respondent Local during the last payroll period of December 2003, and still
employed at the time of the 2006 Settlement.
The method of distribution conditioned the ability of employees to share
in the distribution upon their union membership. Respondent Local, by Douglas Blakely,
president of Respondent Local, chose this method of distribution based on the
understanding the Employer owed the money directly to Respondent Local under
the 2003 settlement and Respondent Local was free to do with the money as it
wished. Respondent Local, by Blakely,
intended to reimburse members for the cost of pursuing these grievances: the
second distribution was intended as a refund of dues. Respondent Local, by Blakely chose December
2004 as the determination date because it was the mid point of the initial distribution
and as a result, accurate records of membership were readily available for this
period.
Barron and Blakely
discussed this method of distribution in February or March of 2006. Barron told Blakely it was Respondent Local’s
decision which employees would receive money, because the money was due to
Respondent Local under the 2003 settlement and therefore Respondent Local could
do as it pleased.
In March 2006,
Blakely provided a list of employees to Barron, consistent with the criteria
described above. Barron performed the
calculation to determine the amount owing each member and provided the results
to the Employer. Several days later, due
to a calculation error, Barron again submitted the list with his handwritten
corrections to the amount due. In November
of 2006, the Employer made payments directly to the employees consistent with
the information provided.
Ransom is not a
member of Respondents. Other unit employees
are not members of Respondent. Ransom
was employed during the last payroll period of December 20003 and still
employed at the time of the 2006 settlement.
Ransom did not receive any payment in the second distribution. Similarly other unit employee nonmembers of
Respondents did not receive payment in the second distribution. The unit nonmember employees, employed during
the last payroll period of December 2003 and still employed at the time of the
2006 Settlement, did not receive any payment because of their nonmembership.
B. Analysis and Conclusions
Section 8(b)(1)(A)
of the Act provides that it shall be an unfair labor practice for a labor
organization “to restrain or coerce . . . employees in the exercise of the
rights guaranteed in Section 7 of the Act.”
The proviso to Section 8(b)(1)(A) states that the Section “shall not
impair the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership therein.” Section 8(b)(1)(A) creates a duty, when a
union is acting as an exclusive bargaining representative to fairly represent
all employees in the bargaining unit and to refrain from any action against any
employee based upon considerations or classifications which are arbitrary, discriminatory,
or in bad faith. Vaca v. Sipes, 386
In American Postal Workers
In the instant
case, Respondents did not include nonmembers in the distribution based on their
nonmembership in Respondents. Thus, I
find the dues rebate or monetary payment was reasonably calculated to, and did,
interfere with the employees in their freedom of choice in accepting or
rejecting the union-security clause.
Thus, I find the dues rebate and the granting of monetary payments
violated Section 8(b)(1)(A) of the Act.
Respondents argue
that they had a right to assign their contract rights to specific individuals,
i.e., union members. I find that the statutory duty to represent all employees,
not just union members, outweighs the right to assign their contract
rights.
I find that
Respondent National is liable for the unfair labor practices of Respondent
Local. Joint and several liability between
an international and local union is appropriate and necessary where: (1) the
international delegated its own responsibilities to the local, which then
violated the Act, Montgomery Elevator
Co.,278 NLRB 871 (1986); (2) the international instigated, participated in
or subsequently ratified or condoned the local’s conduct, Meat Cutters Local 222 (Iowa Beef Processors), 233 NLRB 839, 849–851
(1977); (3) the action by the local was pursuant to some mandate from or
constitutional requirement of the international. Auto
Workers Local 449 (National Metalcrafters), 283 NLRB 182 (1987); or (4)
successorship principles, Metallic
Lathers Local 46 (Cement League), 259 NLRB 70, 71 (1981), where applicable.
In the instant
case, Respondent National, by Barron, negotiated with the Employer regarding
the unclaimed amount. These negotiations
resulted in an agreement in February 2006.
Under that 2006 settlement, unit employees, identified by Barron, would
receive a lump-sum payment. Respondent National
delegated its authority regarding the settlement to Respondent Local which
violated the Act. Further, Respondent
National failed to object to Respondent Local’s distribution to members only
and thereby ratified or condoned the conduct of Respondent Local. Accordingly, I find that Respondent National
also violated the Act.
Conclusions of Law
1. The Board has jurisdiction over the United
States Postal Service (the Employer) and this matter by virtue of Section 1209
of the Postal Reorganization Act, 39 U.S.C. Section 1209.
2. Puget Sound Area Local #298, affiliated with
the American Postal Workers Union, AFL–CIO (Respondent Local), and American
Postal Workers Union, AFL–CIO (Respondent National) are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondents violated Section 8(b)(1)(A)
of the Act by failing and refusing to include nonmembers of Respondents among
unit employees who shared in the distribution of a 2006 lump-sum payment made
by the Employer to employees identified
by Respondents, in settlement of a class action grievance.
4. The Respondents’ acts and conduct above
constitute unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that
Respondents engaged in unfair labor practices, I recommend that Respondents be
ordered to cease and desist therefrom and, take certain affirmative action
designed to effectuate the policies of the Act. Upon the foregoing findings of
fact and conclusions of law, and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following recommended:[3]
ORDER
The Respondents,
Puget Sound Area Local #298, affiliated with the American Postal Workers Union,
AFL–CIO, and American Postal Workers Union, AFL–CIO, their officers, agents,
and representatives, shall
1. Cease and desist
from
(a) Failing and
refusing to include nonmembers of Respondents among unit employees who share in
the distribution of a 2006 lump-sum payment made by the Employer to employees
identified by Respondents, in settlement of a class action grievance.
(b) In any like or
related manner, restraining or coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Make Li Eagle
Ransom, and other injured nonmembers, whole for any loss of earnings and other
benefits suffered as a result of the Respondents’ failure and refusal to
include nonmembers among unit employees who share in the distribution of a
lump-sum payment made by the Employer to employees by Respondents in settlement
of a class action grievance with interest.
(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 designated by the
Board or its agents, all records in the possession of the Respondents,
including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of back pay due under the terms of this Order.
(c) Within 14 days
after service by the Region, post at their hiring hall, meeting rooms, and
offices, copies of the attached notice marked Appendix.”[4]
Copies of the notice, on forms provided by the Regional Director for Region 19
after being signed by the Respondents’ authorized representative, shall be
posted by the Respondents 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 Respondents to
ensure that the notices are not altered, defaced, or covered by any other
material.
(d) Within 14 days
after service by the Region, sign and return to the Regional Director for
Region 19 sufficient copies of the notice for posting by the United Postal Service,
if willing, at all places where notices to employees are customarily
posted. Further, Respondents shall
duplicate and mail, at their own expense, a copy of the Notice to Employees and
Members, to all former bargaining unit employees employed by the Employer at
any time since November 2006, and to all current bargaining unit employees
employed at any work site at which the Employer is unable for any reason to
post the Notice to Employees and Members.
(e) 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 Respondents have 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 have 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 mutual aid or protection
To choose not to engage in any of these protected concerted activities.
We will not fail or refuse to include
nonmembers of our Unions among unit employees who share in the distribution of
a 2006 lump sum payment made by the United States 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 employees in the exercise of the rights guaranteed by
Section 7 of the Act.
We will make Li Eagle Ransom, and other
injured nonmembers, whole for any loss of earnings and other benefits suffered
as a result of the our failure and refusal to include nonmembers among unit
employees who share in the distribution of a lump sum payment made by the
United States Postal Service to employees by us, in settlement of a class
action grievance with interest.
Puget Sound Area Local, 298 a/w The American Postal
Workers Union, AFL–CIO and American Postal Workers
Ryan
E. Connolly, Esq., Daniel Apoloni, Esq.,
for the General Counsel.
Anton
G. Hajjar, Esq. (O’Donnell, Schwartz & Anderson), of
Li Eagle Ransom,
an Individual, of
DECISION
Statement of the Case
Jay
R. Pollack, Administrative Law
Judge. This case was submitted to me based on a stipulation of facts dated September
17, 2007. On February 13, 2007, Li Eagle Ransom (Ransom) filed the charge in Case19–CB–9568 alleging
that Puget Sound Area Local #298, affiliated with the American Postal Workers
Union, AFL–CIO (Respondent Local), committed certain violations of Section
8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C. Section
151 et seq., herein called the Act). On April 5, 2007, Ransom filed the charge
in Case 19–CB–9593 alleging that American Postal Workers Union, AFL–CIO
(Respondent National) committed certain violations of Section 8(b)(1)(A) of the
Act. On April 26, 2007, the Regional
Director for Region 19 of the National Labor Relations Board issued a complaint and notice of hearing against Respondent
Local, alleging that Respondent violated Section 8(b)(1)(A) of the Act. On July
31, the Regional Director issued a consolidated complaint and notice of hearing
in Cases 19–CB–9568 and 19–CB–9593 alleging that both Respondents violated Section
8(b)(1)(A) of the Act. Respondents filed
timely answers to the complaint denying all wrongdoing.
By stipulation, the
parties have waived their right to a hearing before an Administrative Law
Judge. All parties have been given the opportunity to file briefs. Upon the
stipulated record, including all exhibits thereto, and having considered the
briefs filed by the parties, I make the following
Findings of Fact and Conclusions
i. jurisdiction
The United States
Postal Service (Employer) provides postal service for the
The Board has
jurisdiction over the Employer and this matter by virtue of Section 1209 of the
Postal Reorganization Act, 39 U.S.C. Section 1209.
Respondents
are both and have been, at all times material, labor organizations within the
meaning of Section 2(5) of the Act.
ii. the
alleged unfair labor practices
A. The Stipulated Facts
At all material
times, by virtue of Section 9(a) of the Act, Respondents have been the
exclusive collective-bargaining representative covering employees in an
appropriate unit, including FSM clerks (Unit) in and around
In about June 2003,
the Employer and Respondent National entered into a settlement agreement
resolving certain outstanding grievances involving the Postal Service’s assignment
of nonunit casual employees in lieu of regular work force employees. Respondent National designated Respondent
Local to determine the distribution of a portion of the funds provided by the
settlement.
Respondent Local
determined payments would be based on how much a unit employee worked during
the time the grievances had been pending.
Respondent Local made this determination without regard to union
membership. Respondent Local performed
this calculation and provided the information to Martin Barron, national
business agent for Respondent National.
Barron informed the Employer of the amounts each eligible unit employee
was due. The Employer issued payment to
the unit employees consistent with Respondent’s Local’s calculation. Ransom was one of the employees issued a
check in the initial distribution.
Prior to February
of 2005, it became apparent that a number of employees eligible to receive
checks under the initial distribution could not be located. In February of 2005, Respondent Local
requested the Employer pursuant to the settlement agreement, to remit payment
directly to Respondent Local in the amount of the unclaimed checks. The Employer preferred not to issue the money
directly to Respondent Local and was willing to pay a greater total amount if
the Respondent Local were willing to waive its right to receive payment directly
and instead designate employees for direct payment. The Greater Seattle Area Local, which was
covered by the same settlement agreement, insisted on its right to payment
directly to it, and the Employer paid that local directly. Respondent National, by Barron, negotiated
with the Employer regarding the unclaimed amount. These negotiations resulted in an agreement
in February of 2006. Under that 2006 settlement,
unit employees, identified by Barron, would receive a lump sum payment.
Respondent Local
determined the amount would be divided equally among employees who were members
of Respondent Local during the last payroll period of December 2003, and still
employed at the time of the 2006 Settlement.
The method of distribution conditioned the ability of employees to share
in the distribution upon their union membership. Respondent Local, by Douglas Blakely,
president of Respondent Local, chose this method of distribution based on the
understanding the Employer owed the money directly to Respondent Local under
the 2003 settlement and Respondent Local was free to do with the money as it
wished. Respondent Local, by Blakely,
intended to reimburse members for the cost of pursuing these grievances: the
second distribution was intended as a refund of dues. Respondent Local, by Blakely chose December
2004 as the determination date because it was the mid point of the initial distribution
and as a result, accurate records of membership were readily available for this
period.
Barron and Blakely
discussed this method of distribution in February or March of 2006. Barron told Blakely it was Respondent Local’s
decision which employees would receive money, because the money was due to
Respondent Local under the 2003 settlement and therefore Respondent Local could
do as it pleased.
In March of 2006,
Blakely provided a list of employees to Barron, consistent with the criteria
described above. Barron performed the
calculation to determine the amount owing each member and provided the results
to the Employer. Several days later, due
to a calculation error, Barron again submitted the list with his handwritten corrections
to the amount due. In November of 2006,
the Employer made payments directly to the employees consistent with the
information provided.
Ransom is not a
member of Respondents. Other unit employees
are not members of Respondent. Ransom
was employed during the last payroll period of December 20003 and still
employed at the time of the 2006 settlement.
Ransom did not receive any payment in the second distribution. Similarly other unit employee nonmembers of
Respondents did not receive payment in the second distribution. The unit nonmember employees, employed during
the last payroll period of December 2003 and still employed at the time of the
2006 Settlement, did not receive any payment because of their nonmembership.
B. Analysis and Conclusions
Section 8(b)(1)(A)
of the Act provides that it shall be an unfair labor practice for a labor
organization “to restrain or coerce . . . employees in the exercise of the
rights guaranteed in Section 7 of the Act.”
The proviso to Section 8(b)(1)(A) states that the Section “shall not
impair the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership therein.” Section 8(b)(1)(A) creates a duty, when a
union is acting as an exclusive bargaining representative to fairly represent
all employees in the bargaining unit and to refrain from any action against any
employee based upon considerations or classifications which are arbitrary, discriminatory,
or in bad faith. Vaca v. Sipes, 386
In American Postal Workers
In the instant
case, Respondents did not include nonmembers in the distribution based on their
nonmembership in Respondents. Thus, I
find the dues rebate or monetary payment was reasonably calculated to, and did,
interfere with the employees in their freedom of choice in accepting or
rejecting the union-security clause.
Thus, I find the dues rebate and the granting of monetary payments
violated Section 8(b)(1)(A) of the Act.
Respondents argue
that they had a right to assign their contract rights to specific individuals,
i.e., union members. I find that the statutory duty to represent all employees,
not just union members, outweighs the right to assign their contract
rights.
I find that
Respondent National is liable for the unfair labor practices of Respondent
Local. Joint and several liability between
an international and local union is appropriate and necessary where: (1) the
international delegated its own responsibilities to the local, which then
violated the Act, Montgomery Elevator
Co.,278 NLRB 871 (1986); (2) the international instigated, participated in
or subsequently ratified or condoned the local’s conduct, Meat Cutters Local 222 (Iowa Beef Processors), 233 NLRB 839, 849–851
(1977); (3) the action by the local was pursuant to some mandate from or
constitutional requirement of the international. Auto
Workers Local 449 (National Metalcrafters, Inc.), 283 NLRB 182 (1987); or
(4) successorship principles, Metallic
Lathers Local 46 (Cement League), 259 NLRB 70, 71 (1981), where applicable.
In the instant
case, Respondent National, by Barron, negotiated with the Employer regarding
the unclaimed amount. These negotiations
resulted in an agreement in February 2006.
Under that 2006 settlement, unit employees, identified by Barron, would
receive a lump sum payment. Respondent National
delegated its authority regarding the settlement to Respondent Local which
violated the Act. Further, Respondent
National failed to object to Respondent Local’s distribution to members only
and thereby ratified or condoned the conduct of Respondent Local. Accordingly, I find that Respondent National
also violated the Act.
Conclusions of Law
1. The Board has jurisdiction over the United
States Postal Service (the Employer) and this matter by virtue of Section 1209
of the Postal Reorganization Act, 39 U.S.C. Section 1209.
2. Puget Sound Area Local #298, affiliated with
the American Postal Workers Union, AFL–CIO (Respondent Local), and American
Postal Workers Union, AFL–CIO (Respondent National) are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondents violated Section 8(b)(1)(A)
of the Act by failing and refusing to include nonmembers of Respondents among
unit employees who shared in the distribution of a 2006 lump sum payment made
by the Employer to employees identified
by Respondents, in settlement of a class action grievance.
4. The Respondents’ acts and conduct above
constitute unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that
Respondents engaged in unfair labor practices, I recommend that Respondents be
ordered to cease and desist therefrom and, take certain affirmative action
designed to effectuate the policies of the Act. Upon the foregoing findings of
fact and conclusions of law, and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following recommended1
ORDER
The Respondents,
Puget Sound Area Local #298, affiliated with the American Postal Workers Union,
AFL–CIO, and American Postal Workers Union, AFL–CIO, their officers, agents,
and representatives, shall
1. Cease and desist
from
(a) Failing and
refusing to include nonmembers of Respondents among unit employees who share in
the distribution of a 2006 lump sum payment made by the Employer to employees
identified by Respondents, in settlement of a class action grievance.
(b) In any like or
related manner, restraining or coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Make Li Eagle
Ransom, and other injured nonmembers, whole for any loss of earnings and other
benefits suffered as a result of the Respondents’ failure and refusal to
include nonmembers among unit employees who share in the distribution of a lump
sum payment made by the Employer to employees by Respondents in settlement of a
class action grievance with interest.
(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 designated by the
Board or its agents, all records in the possession of the Respondents,
including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of back pay due under the terms of this Order.
(c) Within 14 days
after service by the Region, post at their hiring hall, meeting rooms, and
offices, copies of the attached notice marked Appendix.”2 Copies of the notice, on forms provided by
the Regional Director for Region 19 after being signed by the Respondents’
authorized representative, shall be posted by the Respondents 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 Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Within 14 days
after service by the Region, sign and return to the Regional Director for
Region 19 sufficient copies of the notice for posting by the United Postal Service,
if willing, at all places where notices to employees are customarily
posted. Further, Respondents shall
duplicate and mail, at their own expense, a copy of the Notice to Employees and
Members, to all former bargaining unit employees employed by the Employer at
any time since November 2006, and to all current bargaining unit employees
employed at any work site at which the Employer is unable for any reason to
post the Notice to Employees and Members.
(e) 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 Respondents have 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 have 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 mutual aid or protection
To choose not to engage in any of these protected concerted activities.
We will not fail or refuse to include
nonmembers of our Unions among unit employees who share in the distribution of
a 2006 lump sum payment made by the United States 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 employees in the exercise of the rights guaranteed by
Section 7 of the Act.
We will make Li Eagle Ransom, and other
injured nonmembers, whole for any loss of earnings and other benefits suffered
as a result of the our failure and refusal to include nonmembers among unit
employees who share in the distribution of a lump sum payment made by the
United States Postal Service to employees by us, in settlement of a class
action grievance with interest.
Puget Sound Area Local, 298 a/w The American Postal
Workers Union, AFL–CIO and American Postal Workers
[1] In concluding that the Respondents violated Sec. 8(b)(1)(A), the judge relied in part on Postal Workers Local 735 (Postal Service), 342 NLRB 545 (2004). However, there were no exceptions in that case to the judge’s unfair labor practice findings, so that decision is not relevantly precedential. We also find it unnecessary to rely on Red Bank Local Postal Workers, 344 NLRB No. 89 (2005), not included in bound volumes, also cited by the judge. Instead, in adopting the judge’s finding of a violation, we rely on the precedent cited herein.
[2] We shall substitute a new notice to conform to the Board’s standard remedial language and to our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Section 3(b) of the Act.
[3]
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 purposes.
[4]
If this Order is enforced by a judgment of a
1 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 purposes
2 If this Order is
enforced by a judgment of a