Letter Carriers Branch 529

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 879 (N.L.R.B. 1995)

879
319 NLRB No. 113
LETTER CARRIERS BRANCH 529
1 We shall modify the judge’s recommended Order to require that,
if the Employer wishes, the notice shall also be posted at the Em-
ployer’s Port Huron facility.
2 Transitional employees are noncareer unit employees who serve
on limited-term assignments of up to 359 calendar days. These as-
signments can be, and usually are, renewed upon expiration, follow-
ing a mandatory 6-day break in employment.
3 All dates are 1993, unless otherwise stated.
4 Tudor testified that she believed that she had been denied re-
appointment to a TE position in retaliation for her filing of the griev-
ance. She filed an unfair labor practice charge against the Employer
based on this belief, but she withdrew the charge in January 1994,
and was rehired as a letter carrier the next month, in February 1994.
Branch 529, National Association of Letter Car-
riers, AFL–CIO and Susan Ellyn Tudor. Case
7–CB–9937(P)
November 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On September 29, 1994, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
For the reasons set forth below, we affirm the
judge’s finding that the Respondent violated Section
8(b)(1)(A) of the Act by refusing to provide the Charg-
ing Party with copies of her grievance forms.
I. FACTS
The National Association of Letter Carriers (NALC),
AFL–CIO, by virtue of Section 9(a) of the Act, has
been at all material times the exclusive collective-bar-
gaining representative of a unit of all full-time and reg-
ular part-time city letter carriers employed by the Em-
ployer, the United States Postal Service, at various fa-
cilities throughout the United States (including the Port
Huron, Michigan facility involved in this case). NALC
maintains and enforces a collective-bargaining agree-
ment with the Employer covering the above unit.
NALC itself, however, is not a party to this proceed-
ing. Rather, Branch 529, NALC is the Respondent.
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act. It is affiliated with
NALC, and is NALC’s designee for the purpose of
processing grievances through step 2 of the contractual
grievance procedure.
Charging Party Susan Tudor was a transitional em-
ployee (TE)2 at the Employer’s Port Huron facility.
Her TE assignment was due to expire on November
21, 1993.3 On November 5, she filed a grievance with
her union steward, claiming that the Employer had im-
properly failed to merge her most recent entrance ex-
amination score on the current register of applicants
for permanent career letter carrier positions in accord-
ance with a July 30 memorandum of understanding be-
tween the Employer and NALC (set forth in full in the
judge’s decision). The grievance was summarily denied
on the grievance form itself, at step 1 of the grievance
procedure, and was appealed to step 2 on November
9.
On November 17, the Respondent’s president, Ken
Harris, engaged in a step 2 discussion of Tudor’s
grievance with the Employer’s Port Huron officer in
charge, Jill Moreillon. They agreed on a settlement of
Tudor’s grievance, under which she was placed on the
Port Huron letter carrier register of applicants retro-
actively to October 15, for consideration along with
other applicants for a career position.
Also on November 17, Moreillon notified Tudor in
writing that, due to an operational need to reduce the
complement of TE letter carriers, Tudor would not be
reappointed to a subsequent TE assignment following
the expiration of her current one on November 21.
On November 19, Moreillon and Harris signed the
written settlement of Tudor’s grievance, to which they
had agreed on November 17. Harris mailed a copy of
the settlement agreement to Tudor at her home ad-
dress.
On November 22 (the day after the expiration of her
TE assignment), Tudor telephoned Harris after receiv-
ing the November 19 settlement agreement, and asked
him to provide her with copies of her ‘‘grievance
forms’’ so that (as she told Harris) she could try to get
her job back. Tudor did not explain to Harris, nor did
Harris ask Tudor, why Tudor felt that she needed cop-
ies of her grievance forms in order to get her job back.
Harris testified that at the time he knew nothing about
Tudor’s planned unfair labor practice charge against
the Employer, and that he did not know why Tudor
believed that she needed the requested documents.4
Harris testified that although employees have fre-
quently asked him for information about the posture
and processing of pending grievances, he could not re-
call anyone, before Tudor, requesting copies of their
grievance forms. In any event, Harris told Tudor that
he did not know if she could receive these copies, that
he would have to ‘‘check,’’ and that he would let her
know.
As far as the record shows, Tudor’s grievance file
consisted of (1) her November 5 step 1 grievance, on
a one-page NALC ‘‘Grievance Worksheet,’’ and the
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Tudor at this point believed that her grievance had been denied
at step 2 on November 17, and then settled on November 19. 6 None of these documents are in evidence.
Employer’s November 5 denial of the grievance at step
1, on the bottom of the same grievance worksheet; (2)
the Respondent’s November 9 appeal of this denial to
step 2, on a one-page NALC ‘‘Standard Grievance
Form’’; and (3) the November 19 one-page written set-
tlement of the grievance, signed by Harris and
Moreillon, a copy of which had already been provided
to Tudor by Harris.
Harris, the Respondent’s president, telephoned the
office of the NALC regional business agent, and spoke
to the business agent’s administrative assistant, Jim
Korolowicz. Harris asked him if the Respondent had to
give union documents to a grievant. Korolowicz told
Harris that he did not have to. He told Harris that Har-
ris had no obligation other than to give Tudor a copy
of the grievance settlement—which Harris had already
done. Korolowicz also told Harris that ‘‘it’s the policy
that we stay consistent with, that we do not give out
copies of grievance forms.’’ Korolowicz, however, left
it to Harris’ discretion whether to give Tudor the re-
quested documents.
In a letter dated November 30, Harris wrote to
Tudor, stating in full:
Dear Sue:
As per your request for grievance forms. These
are the property of the NALC Branch 529. I can-
not release these documents to you.
I suggest you request management’s copy and
their step 1 form.
Cordially
Ken Harris
In a letter dated and postmarked December 1, Tudor
wrote to Harris, stating in pertinent part:
Please be advised that I am officially requesting
under the Privacy Act Requirements, Privacy Act
of 1974, that I be provided with a copy of the
step one grievance and step two denial5 with re-
gards to my grievance.
Citing a particular provision of the employee labor re-
lations manual, Tudor asserted in this letter that she
was permitted, inter alia, to be informed whether the
Postal Service had records filed or cross-indexed under
her name, and to have access to and have copies made
of most such records pertaining to herself.
Tudor’s letter continued:
This information is required for a charge that is
being filed with the United States [sic] Labor Re-
lations Board. It is imperative that this informa-
tion be provided to me in a timely manner. If I
have not received this information within seven
working days from the date of this letter I will be
forced to add another charge to the one already
being filed with regards to being denied this infor-
mation.
Harris did not provide Tudor with the requested in-
formation. He testified that he denied Tudor’s request
for copies of her step 1 grievance worksheet and the
Respondent’s step 2 standard grievance form (appeal-
ing the Employer’s step 1 denial of the grievance),
‘‘upon the advice of our national business agent,’’ be-
cause ‘‘they are property of the union.’’ He further tes-
tified that he did not know (1) why Tudor needed the
requested documents; (2) that the charge referred to in
Tudor’s letter as being filed with the Labor Relations
Board was being filed against the Employer; and (3)
what Tudor was referring to by ‘‘step two denial,’’ be-
cause Harris considered the grievance settlement to
have essentially sustained Tudor’s grievance. Harris
further testified that it would have mattered to him
why Tudor wanted the documents, because he would
have talked to his national business agent and dis-
cussed the merits of her request. Harris also testified
that he was not aware of any provisions in the collec-
tive-bargaining agreement, the labor relations manual,
or the Respondent’s constitution and bylaws6 that ei-
ther required the Respondent to give Tudor the re-
quested documents or prohibited it from doing so. Fi-
nally, he testified that the Respondent’s practice was to
provide grievants with copies of the settlements or de-
nials of grievances, and that he could not recall anyone
other than Tudor asking for a copy of the standard
grievance form.
Korolowicz testified that NALC’s consistent, albeit
unwritten, policy is that ‘‘we do not provide grievants
with standard grievance forms, Step 3 appeals,’’ be-
cause ‘‘[i]t’s our opinion that it’s the property of the
union and there is no rule governing us to give it. We
just don’t give it.’’ Korolowicz explained that NALC’s
policy against giving out copies of grievance forms
was consistently conveyed to any branches that called
the NALC regional office for advice on such a matter,
but ‘‘[i]f they don’t call for our advice, I wouldn’t
have any idea of knowing what they’re doing. I can
only tell you what happens if they call us and what’s
the policy in our office at the Step 3 level.’’
Korolowicz further explained that while his regional
office becomes directly involved only at step 3 and be-
yond in the grievance-arbitration procedure for
branches in Michigan, Indiana, and Kentucky, the
above policy ‘‘concerns all steps.’’
II. ANALYSIS AND CONCLUSION
The judge found that Tudor’s request for copies of
her first and second step grievances was reasonable
881LETTER CARRIERS BRANCH 529
7 316 NLRB 235 (1995). See also Mine Workers Local 17, 315
NLRB 1052, 1062 (1994).
8 316 NLRB at 236, quoting in part Air Line Pilots Assn. v.
O’Neill, 499 U.S. 65, 78 (1991).
9 Id., citing Air Line Pilots Assn. v. O’Neill, supra; Steelworkers
v. Rawson, 495 U.S. 362, 376 (1990); Vaca v. Sipes, 386 U.S. 171,
177, 190 (1967); Miranda Fuel Co., 140 NLRB 181 (1962).
10 As seen, however, Tudor was rehired by the Employer 3 months
later, in February 1994.
11 Member Cohen rejects the Union’s defense, albeit for different
reasons. In this regard, he notes that Tudor was denied reappoint-
ment on November 17 because of an operational need to reduce the
number of TE letter carriers. There is nothing in the record to estab-
lish that this was a consequence of, or in connection with, the griev-
ance. Thus, he disagrees with the majority’s rationale. In his view,
the important point is that the grievance was filed and settled at a
time when Tudor was a unit employee. In these circumstances,
Member Cohen agrees that the Respondent must represent her fairly,
even if this extends the representation into postemployment periods.
12 Merk v. Jewel Cos., 848 F.2d 761, 765 (1988). See also Caputo
v. Letter Carriers, 730 F.Supp. 1221, 1233 fn. 10 (E.D.N.Y. 1990)
(former employees who have left work because of a labor dispute
or unfair labor practice are still considered employees and are owed
the duty of fair representation).
In this regard, Harris first testified, on redirect examination, that
the Respondent had an obligation to continue to represent employees
who have been terminated for cause ‘‘even though they are no
longer an employee of the post office.’’ Harris further testified ini-
tially that the Respondent also had an obligation to represent em-
ployees who have been removed or terminated for nondisciplinary
reasons. On further redirect questioning, however, Harris modified
his testimony by denying that the Respondent had an obligation to
represent TEs who quit or are not rehired. Harris further testified
that because Tudor was not reappointed to a follow-on TE appoint-
ment, ‘‘under the collective bargaining agreement and the arbitrator’s
award’’ the Respondent had no obligation to represent her. Neither
the collective-bargaining agreement nor any arbitration awards are in
evidence, however, and Harris was unable to be more specific about
this matter.
under the circumstances, and that the Respondent vio-
lated Section 8(b)(1)(A) of the Act in refusing to pro-
vide Tudor with the requested documents. We agree.
The fundamental general principles that govern this
case have recently been restated and affirmed by the
Board in Letter Carriers Branch 6070 (Postal Serv-
ice).7 A union owes all unit employees the duty of fair
representation, which extends to all functions of the
bargaining representative. When a union’s conduct to-
ward a unit member is arbitrary, discriminatory, or in
bad faith, it breaches its duty of fair representation.
But a union must be allowed a wide range of reason-
ableness in serving the unit employees, and any subse-
quent examination of a union’s performance must be
‘‘highly deferential.’’8 Mere negligence does not con-
stitute a breach of the duty of fair representation. And
a union’s conduct is arbitrary only if, in light of the
factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a wide
range of reasonableness as to be irrational.9
Applying these principles to the facts in this case,
we find, in agreement with the judge, that the Re-
spondent acted arbitrarily in refusing to provide Tudor
with copies of her grievance forms, and that the Re-
spondent has thus breached its duty of fair representa-
tion to her and violated Section 8(b)(1)(A) of the Act.
The Respondent first argues that it did not owe
Tudor a duty of fair representation. The Respondent
argues that because Tudor’s TE appointment had ex-
pired on the day before she made her request to the
Respondent for copies of the documents in question,
and because she had been told by the Employer that
she would not be appointed to another term,10 she was
no longer an employee or unit member at the time of
her request, and thus not owed a duty of fair represen-
tation by the Respondent. We find no merit in this ar-
gument.
Section 2(3) of the Act provides that ‘‘[t]he term
‘employee’ shall include . . . any individual whose
work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any un-
fair labor practice . . . .’’ (Emphasis added.) On No-
vember 22, after being notified (1) that her grievance
had been settled and (2) that she would not be re-
appointed to another follow-on 359-day term as a TE
letter carrier, Tudor called Harris and asked for copies
of her grievance forms, telling him that she needed
them so that she could try to get her job back. A week
later, on December 1, Tudor wrote to Harris, renewing
her request for copies of her grievance forms, and ad-
vising him that she needed them for a charge that she
was filing with the ‘‘United States [sic] Labor Rela-
tions Board.’’ Just on the basis of those two commu-
nications alone, we find that Tudor reasonably and ef-
fectively asserted to Harris that she was an individual
whose work had ceased as a consequence of or in con-
nection with her grievance, and that she was therefore
well within the scope of the term ‘‘employee’’ under
Section 2(3).11 The Respondent is certainly not being
required to tread new ground in meeting its duty of
fair representation to Tudor under these circumstances.
As succinctly stated by the Seventh Circuit Court of
Appeals, ‘‘[u]nions represent ex-employees all the time
when trying to obtain their reinstatement under an
agreement, or when pressing other claims connected
with their departures.’’12
We agree with the judge that the Respondent
breached its duty of fair representation to Tudor by re-
fusing to provide her with copies of her grievance
forms. In so finding, we note especially that (1) the
grievance documents in question specifically pertained
to the grievance filed by Tudor herself; (2) her legiti-
mate general interest in obtaining copies of these docu-
ments was therefore self-evident on that basis alone;
(3) her asserted legitimate particular interest in obtain-
ing the documents (trying to get her job back) was ef-
fectively and reasonably communicated to Harris; (4)
the Respondent has raised no substantial countervailing
interest in refusing to provide Tudor with copies of her
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See Law Enforcement & Security Officers Local 40B (South Jer-
sey Detective Agency), 260 NLRB 419 (1982) (failure to provide
employee with copies of collective-bargaining agreement and health
and welfare plan falls short of fulfilling duty of fair representation
and constitutes violation of Sec. 8(b)(1)(A) of Act).
14 Although the complaint does allege that the Respondent refused
to provide Tudor with her requested copies of her grievance forms
for reasons that are ‘‘unfair [and] invidious’’ as well as ‘‘arbitrary,’’
there is ultimately no claim advanced, and in the final analysis no
showing made, that the Respondent acted in bad faith or
discriminatorily in denying Tudor’s request for copies of her griev-
ance forms.
15 See Teamsters Local 282 (Transit-Mix Concrete), 267 NLRB
1130, 1131 (1983) (affirmative decision not to deviate from ‘‘normal
practice’’; ‘‘never done that [before] . . . no need to do it now,’’
is not a rational basis for deciding specifically not to notify laid-off
drivers of arbitration award directly affecting their seniority and re-
call rights, and thus constitutes arbitrary conduct in breach of duty
of fair representation and in violation of Sec. 8(b)(1)(A) of Act),
enfd. 740 F.2d 141 (2d Cir. 1984).
settled grievance; (5) Harris’ simple assertion to Tudor
that her grievance forms were the Respondent’s ‘‘prop-
erty,’’ and that Harris could not ‘‘release these docu-
ments’’ to her raises no substantial reason for Harris’
asserted inability to provide Tudor with copies of the
documents, which are all that Tudor ever asked for (in-
deed, Harris’ suggestion to Tudor that she ask the Em-
ployer for a copy of the requested documents shows
that Harris was well aware that Tudor was only asking
for copies of her grievance forms, not the originals);
and finally (6) the extremely limited amount of docu-
mentation (two pieces of paper) sought by Tudor, and
the corresponding ease with which the Respondent
could have provided her with those pieces of paper.
Applying the principles set forth above to these
facts, we find that the General Counsel has established
that the Respondent was indeed acting arbitrarily, in
breach of its duty of fair representation, in denying
Tudor’s request for her grievance forms.13 We are un-
able to fit the Respondent’s refusal to provide Tudor
with copies of the forms within even the wide range
of reasonableness that must be allowed a statutory col-
lective-bargaining representative. Even the Respond-
ent’s arguably good-faith, nondiscriminatory reliance
on NALC’s asserted ‘‘policies’’14 of not providing
grievants with standard grievance forms and not giving
out copies of grievance forms, and the Respondent’s
ignorance of the underlying reasons for Tudor’s re-
quest cannot rescue its conduct from drifting beyond
the borders of reasonableness, into arbitrariness. This
is particularly so in light of the fact that, notwithstand-
ing NALC’s asserted policies, Korolowicz ultimately
left it up to Harris’ discretion whether to grant Tudor’s
request for copies of her grievance forms, and that in
exercising this discretion, Harris relied simply on the
wobbly footings of the ‘‘advice of our national busi-
ness agent,’’ and the assertion that Tudor’s grievance
forms were the ‘‘property’’ of the Respondent.
Thus, we find that in light of the factual and legal
landscape at the time of the Respondent’s denial of
Tudor’s request, the Respondent’s conduct was suffi-
ciently outside the range of reasonableness as to be ac-
curately characterized as arbitrary, and that by such
conduct the Respondent violated Section 8(b)(1)(A) of
the Act.15
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Branch 529, National Association of Letter Carriers,
AFL–CIO, Port Huron, Michigan, its officers, agents,
and representatives, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraph.
‘‘(c) Deliver to the Regional Director for Region 7
signed copies of the notice in sufficient number for
posting by the Employer at its Port Huron facility, if
it wishes, in all places where notices to employees are
customarily posted.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 refuse to provide copies of grievance
forms to Susan Ellyn Tudor or to other employees rep-
resented by Branch 529, National Association of Letter
Carriers, AFL–CIO, when requested to do so.
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 provide Susan Ellyn Tudor with copies of
the grievance forms requested by her.
BRANCH 529, NATIONAL ASSOCIATION
OF LETTER CARRIERS, AFL–CIO
Andre F. Mays, Esq., for the General Counsel.
Peter D. De Chiara, Esq. (Cohen, Weiss & Simon), of New
York, New York, for the Respondent.
883LETTER CARRIERS BRANCH 529
1 Following amendment of the complaint of the hearing, Respond-
ent admitted jurisdiction and its status as a labor organization under
the Act.
2 Hereinafter, all dates are in 1993 unless noted otherwise.
DECISION
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on June 2, 1994, in Detroit, Michigan.
The complaint issued on February 9, 1994, based on a charge
filed by Susan Ellyn Tudor (Tudor), an individual, on De-
cember 21, 1993, against Branch 529, National Association
of Letter Carriers, AFL–CIO (Respondent or the Union), al-
leging that Respondent violated Section 8(b)(1)(A) of the Act
by refusing to provide Tudor with copies of the grievance
forms she had executed in connection with a grievance she
had filed earlier against her Employer, the United States
Postal Service (the Employer or Postal Service). The Union
filed a timely answer in which it denied the commission of
any unfair labor practices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and argument.
On the entire record in this case, from my observation of
the witnesses, and after due consideration of the briefs filed
by the parties, I make the following
FINDINGS OF FACT1
Tudor was hired by the U.S. Postal Service, Port Huron,
Michigan, as a transitional employee-letter carrier (TE) on
November 28, 1992. As a transitional employee, her assign-
ment was limited to a period of 359 days. Hers was due to
expire November 21, 1993.2 Under the existing collective-
bargaining agreement, on expiration of each term of employ-
ment, transitional employees were forced to take a 6-day
break in service, after which they were usually reappointed
for another term.
The summer of 1993 was extremely busy at the Port
Huron location. The transitional employees, including Tudor,
were working 12 hours per day, 6 days per week, and some-
times an additional 4 hours some Sundays. Management was
aware of this situation and was attempting to hire additional
help either through transfers from other branches or by can-
vassing the registers, that is calling applicants whose names
appeared on existing registers to come in for interviews. Ap-
plicants chosen from the top of the register, following their
interviews, go through drug screening, take physicals and
driving examinations, and then are hired if the postmaster so
decides.
As a result of the need for additional help, Tudor and
other transitional employees approached management, seek-
ing permanent career employment as letter carriers. On July
30 the following memorandum was posted:
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE UNITED STATES POSTAL SERVICE
AND
THE NATIONAL ASSOCIATION OF
LETTER CARRIERS, AFL–CIO
In the interest of enhancing career employment op-
portunities for NALC transitional employees, the Postal
Service and the NALC agree as follows:
1. NALC transitional employees (TEs) who have
completed 180 days of employment as a TE and are
still on the TE rolls may take the entrance examination
for career letter carrier positions upon request. Only one
such opportunity will be provided each eligible TE pur-
suant to this memorandum.
2. Eligible TEs who wish to take the examination
must submit their request to the appropriate personnel
office. The examination will be administered to eligible
TEs who have submitted a request on a periodic basis,
but no less than once each quarter.
3. The TEs’ exam results will be scored, and passing
scores will be merged with the existing letter carrier
register. Thereafter, normal competitive selection proce-
dures will apply in making career letter carrier appoint-
ments.
4. Eligible TEs who already have a passing test score
on the letter carrier register may take the examination
again pursuant to this memorandum and will have the
option of merging the new test score with the existing
register in lieu of their old test score.
lllllll lllllll
Sherry A. Cagnoli Vincent R. Sombrotto
Manager President
Contract Administration National Association of
(NALC/NRLCA) Letter Carriers, AFL–CIO
Labor Relations
July 30, 1993
On September 30, Tudor took the examination again and
obtained a higher score than she had the first time she took
it, 5 years before. Unfortunately, the same day she took the
examination, a new register was drawn and her name was
not on it.
On October 15, Tudor was sent a confirmation letter that
she had passed the test and had been placed on the existing
register for the clerk carrier’s position at the Port Huron post
office. This was the register dated September 30. It was
Tudor’s understanding that under the July 30 memorandum,
a new register should have been drawn, closer to the date her
name was placed on it, i.e., October 15. Despite her dis-
satisfaction, Tudor did not immediately do anything about it.
On October 29, Margo McKibben, another TE, filed a
grievance complaining:
Exam results have not been merged with existing letter
carrier register, therefore normal competitive selection
procedures cannot be followed.
McKibben requested that:
Results be merged as per memorandum effective 10–
15–93.
On November 5, Tudor filed a grievance with her union
steward, Steve Miller. She explained the basis for her griev-
ance and inasmuch as it was admittedly the same as
McKibben’s, Miller did not describe it but simply wrote in
the word ‘‘same’’ and attached it to McKibben’s grievance
form. He then explained to Tudor that her grievance would
be denied at step 1 because her supervisor that day, Ron
Newton, had no authority to do anything with it, so he was
denying it just to move it on. In the ordinary course, a step
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 grievance, which is denied, is moved to step 2 in 10 or
15 days. Miller presented McKibben’s and Tudor’s griev-
ances to Ken Harris, president of Branch 529 for processing
at step 2.
On November 9, Harris filed a step 2 grievance form to
appeal Tudor’s grievance to the officer in charge, Jill
Moreillon. The grievance states:
The grievant has taken [the] test to become a PTF
carrier and her score has not been merged on existing
roster.
The memorandum requires test scores be merged on
existing rosters. This admittedly has not been done.
This is a violation to not honor memorandum.
The corrective action requested:
Ms. Tudor be merged on existing PTF roster retro-
active to Oct. 15, 1993 and Ms. Tudor be interviewed
for a PTF position.
Any other remedy deemed necessary.
According to Harris, Tudor’s grievance was sustained at the
second step.
On November 17, Harris met with Moreillon to discuss
McKibben’s and Tudor’s grievances and to support their po-
sitions. Moreillon advised Harris that she would get back to
Harris with a decision later, according to Harris’ testimony.
Moreillon was not called to testify.
The same day, November 17, Moreillon wrote the follow-
ing letter to Tudor:
Your appointment as a Transitional Letter Carrier ex-
pires on November 21, 1993. At the current time it is
operationally necessary for us to reduce our com-
plement of Transitional Letter Carriers.
Therefore you will not be reappointed. Your last day
of work will be November 20, 1993.
At about 6 p.m., after McKibben and Tudor had completed
their rounds and returned to the post office, McKibben asked
Harris what had occurred at his step 2 meeting with
Moreillon. Harris replied that Moreillon had denied the
grievances at the second step and that he could now go to
personnel and get the information he needed to proceed to
the next step.
When Tudor arrived at home on the evening of November
17, the letter from Moreillon was there. She already knew
that her grievance had been denied earlier that day and as-
sumed that she had been refused reappointment because she
had filed the grievance. She also assumed that the reasons
why her grievance had been denied had been put in writing
on the step 2 grievance form.
When the number of TEs are increased or decreased the
postmaster of the Port Huron post office and the president
of Branch 529 customarily meet to determine the division of
hours to be made among the TEs. Ronald Dombroski, the
postmaster, met with Ken Harris on November 18, the day
after Tudor received the letter from Moreillon denying her
reappointment, and signed a memorandum of understanding.
This document stated:
The maximum number of Transitional Letter Carriers
allowed in Port Huron under the DSSA are 10. The of-
fice work hour cap for these TEs is 300 per week bro-
ken down as follows.
The document then listed eight TEs by name, divided into
two units with 113 hours assigned to the three TEs in the
north unit and 187 hours assigned to the five TEs in the
south unit. Thus, each TE was to receive approximately 37
hours of work per week. The agreement was to become ef-
fective November 27, 1993. If the maximum 10 TEs were
kept on the payroll, each would have received 30 hours per
week.
On November 19, Moreillon forwarded to Harris a pro-
posed settlement of Turdor’s grievance which states:
The grievant was placed on the Port Huron register on
10–15–93. When she appears on future hiring work-
sheets generated by the personnel office, she will be
considered along with the other applicants for a career
position.
On receipt of the proposed grievance settlement, Harris ap-
pended the following handwritten note:
Sue:
Please note. We cannot force management to hire.
We can make sure they follow process correctly. Ac-
cording to our NBA, this is being done.
Both Moreillon and Harris signed this grievance settlement
as sustained since in Harris’ view the placement of Tudor’s
name on the October 15 roster was precisely what she had
requested as had McKibben. Copies of the settlement agree-
ments were supplied to McKibben and Tudor.
On or about November 22, after receiving her copy of the
settlement agreement, Tudor called Harris on the telephone
and asked him if she could have copies of her grievance
forms so she could try to get her job back. Harris promised
to check into the matter and get back to her.
Following Tudor’s discussion with Harris, Harris contacted
James Korolowicz, one of his superiors, to ask about Tudor’s
request. Korolowicz advised Harris that he did not have to
give Tudor a copy of her grievance but it was up to Harris,
whether or not he wanted to do so.
Following his discussion with Korolowicz, on November
30, Harris wrote a letter to Tudor which states:
Dear Sue:
As per your request for grievance forms. These are
the property of the NALC Branch 529. I cannot release
these documents to you.
I suggest you request management’s copy and their
step 1 form.
On December 1, Tudor wrote a letter to Harris requesting
copies of her step 1 grievance and the step 2 denial. She ex-
plained that she needed these documents in order to file a
charge with the National Labor Relations Board (NLRB).
She requested further that the information requested be pro-
vided to her within 7 working days of the date of her letter.
She closed with the admonition that she would file a charge
against the Union if she were denied the information re-
quested.
Harris received Tudor’s request on or about December 2,
but decided not to provide her with the information requested
885LETTER CARRIERS BRANCH 529
3 Past practice is irrelevant.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 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
National 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.’’
because there was no requirement anywhere in writing that
he had to do so and because no one had ever made such a
request before.
Despite the fact that she did not receive the documents
from the Union which she intended as evidence to support
her unfair labor practice charge against the Respondent,
Tudor proceeded to file her charge. Her theory of the case
was based on the fact that of all of the TEs working at the
time, she was the only one who was not reappointed and she
was denied reappointment the same day she filed the griev-
ance. She therefore concluded that she was denied reappoint-
ment because she had filed a grievance. If her allegation
were proven, there would have been a prima facie unfair
labor practice case. To help win her case with the NLRB,
Tudor felt that as evidence she would need copies of her
grievance to prove she did, in fact, file a grievance and, de-
pending on the language contained on the step 2 form, per-
haps prove the reasons why her reappointment was denied.
If the unfair labor practice charge proved meritorious, Tudor
would have gotten her job back.
Tudor’s charge was eventually found by the Region to be
without merit and she withdrew it. In February 1994, Tudor
was reappointed to her job with the post office.
Analysis and Conclusion
I find that Tudor’s request for copies of her first and sec-
ond step grievances, under the circumstances of this case,
was a reasonable one and the Union should have complied
with her request. A union owes its membership a certain de-
gree of support when a dispute arises between employees it
is supposed to represent and their employer. To refuse the
very minimal request from an employee-member for a copy
of her own grievance strikes me as wrong;3 to tell her to
seek a copy of this grievance from the employer, the very
party against whom she is proceeding strikes me as arrogant.
I find that Respondent Union violated Section 8(b)(1)(A)
when it refused to provide a copy of her grievance to Tudor.
CONCLUSIONS OF LAW
1. United States Postal Service is subject to the jurisdiction
of the National Labor Relations Board by virtue of 39 U.S.C.
§ 1209(a).
2. Respondent is a labor organization as defined in Section
2(5).
3. By refusing to provide to Susan Ellyn Tudor copies of
her grievance forms, Respondent has failed to represent her
for reasons that are unfair, arbitrary, and invidious and has
breached the fiduciary duty it owes the employees it rep-
resents.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the
Act. I recommend that Respondent provide to Susan Ellyn
Tudor copies of the grievance forms she was denied in the
instant case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Responent, Branch 529, National Association of Let-
ter Carriers, AFL–CIO, Port Huron, Michigan, its officers,
agents, and representatives, shall
1. Cease and desist from refusing to provide to Susan
Ellyn Tudor copies of her grievance forms or by any like or
related manner restraining or coercing Tudor or any other
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide to Susan Ellyn Tudor copies of the grievance
forms discussed in the instant proceedings.
(b) Post at its Port Huron facility, copies of the attached
notice marked ‘‘Appendix.’’5 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent 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) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.