Letter Carriers (Postal Service)

National Labor Relations Board - Board Decisions

Dec 30, 1994

315 N.L.R.B. 1176 (N.L.R.B. 1994)

1176
315 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The article stated:
The Union would be smart to remind themselves of simple
equality and simple respect. Same union. Same job. Same Union
deduction. Same respect. I am a PTF and I belong to the Union.
I pay the same dues a regular carrier pays. The regular carrier
gets protection which is in the contract. The PTF gets a $12.00
deduction every pay period. Many regulars do understand the
PTF’s problems. They give some good advice, but only off the
record. One of the problems is with seniority. Seniority is good.
Seniority helps keep a supervisor honest. It keeps them from fa-
voring one carrier over another. But this, seemingly, is only for
regular carriers. This should also be for PTFs and should be in
the contract, and not just left up in the air so a supervisor uses
it when he or she feels like it. Another problem is respect. A
new employee should start from the bottom, that’s only fair. But
respect should be given as they are still human beings. What is
wrong with a supervisor letting a PTF know a day ahead of time
if he or she has a collection, a long day, a short day? If this
were done, the PTF could have some way to arrange their per-
sonal lives. Many times a supervisor knows what a PTF is
working the next day, but doesn’t tell the PTF because he
doesn’t have to. PTFs and Regular carriers are no different ex-
cept for the way they are treated by the Post Office and the
Union. PTFs need to respect the Union and the Union must re-
spect us and get PTFs some rights.
3 The Respondent contacted Davis in order to use his name and
work hours in a grievance. Under the applicable contract, the senior
PTF employee (Davis was not in this position) might be promoted
to an FTR employee when he worked the hours Davis was working
for extended periods. The Respondent filed a grievance on this issue.
4 All dates are in 1991 unless otherwise indicated.
National Association of Letters Carriers, Branch 86,
AFL–CIO (United States Postal Service) and
Michael Davis. Case 34–CB–1477(P)
December 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On January 8, 1993, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a sup-
porting brief.
The National Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions only to the extent consistent
with this Decision and Order.
1. The Respondent represents the letter carriers at
the United States Postal Service’s (the Employer) Mur-
phy Road facility in Hartford, Connecticut. The facility
is split into three discrete zones which have separate
seniority lists for full-time regular (FTR) employees.
These lists control bidding on routes, overtime, other
work assignments, and vacations.
Michael Davis is a part-time flexible (PTF) em-
ployee. PTF employees are guaranteed only 4 hours of
work per pay period but many work at least 56 hours
a week. Davis is a member of the Respondent but he
has been critical of it. He placed an article in the Re-
spondent’s June/July 1990 newsletter complaining that
the Respondent failed to represent PTF employees fair-
ly, given that they paid the same dues to the Respond-
ent as the FTR employees.2
Davis normally worked the day shift from 7:30 a.m.
to 4 p.m. By the end of 1990, Davis had averaged 40
hours or more weekly for a 6-month period.3 However,
during the first 3 months of 1991,4 Davis noticed that
he was not being assigned his customary overtime
hours. At this time, Davis complained to Chuck Corso
and Mike Bedard, the Respondent’s two stewards for
his shift and zone. In April, Davis also sought permis-
sion from his supervisors to work on his off day, Tues-
day, in order to accumulate overtime hours. Subse-
quently, the Employer scheduled Davis for work every
Tuesday.
On April 23, Davis informed Corso and Bedard that
he was working on Tuesdays and that ‘‘[he] thought
[he] could do better on [his] own than with the union
and [he was] thinking about getting out of the union.’’
Bedard referred Davis to a bulletin board posting about
scabs and said Davis would be a scab ‘‘if [Davis] were
to get out of the union.’’ Davis repeated that he
thought he would get out of the Union since he was
a PTF employee, and maybe when he became a FTR
employee he would think about rejoining the Union.
Bedard responded by saying he had no respect for
those who did this. Bedard then said that he would tell
Davis’ supervisor that Davis ‘‘[took his] breaks at the
end of the day, not when [he was] supposed to.’’
Davis responded by saying that ‘‘[he was] going to get
out of the union, and [he would] take care of [him-
self].’’ Corso was present during this exchange.
The judge found that Bedard’s threat about Davis’
breaks did not violate the Act. He noted that the Re-
spondent, as the employee representative, consistently
maintained the position that employees must take their
breaks as scheduled and that the Respondent neither
did nor could threaten employer disciplinary action
based on this issue. We disagree. We find that
Bedard’s threat about Davis’ breaks would tend to re-
strain and coerce employees in the exercise of their
right to resign from the Union.
It is clear that Steward Bedard’s remarks were a re-
sponse to Davis’ stated contemplation of leaving the
Union. Davis told the Respondent’s stewards that he
planned to relinquish his membership in the Respond-
ent. Steward Bedard responded by implying that Davis
1177LETTERS CARRIERS (POSTAL SERVICE)
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 The complaint states the following:
9. On or about May 16 and 20, 1991, Respondent, by Chuck
Corso, requested that the Employer discipline its employee Mi-
chael Davis.
10. On or about May 30, 1991, Respondent, by Thomas
Cronin, requested that the Employer cease providing overtime
work to Michael Davis.
11(a) By the acts and conduct described above in paragraphs
9 and 10, Respondent attempted to cause the Employer to dis-
cipline Davis and to cease providing Davis with overtime work.
(b) By the acts and conduct described above in paragraph 10,
Respondent caused the Employer to cease providing overtime
work to Michael Davis.
12. Respondent engaged in the conduct described above in
paragraphs 9, 10 and 11 because Davis indicated his intention
to withdraw from membership in Respondent.
13. By the acts and conduct described above in paragraphs 9,
10, 11 and 12, and by each of said acts, Respondent has caused
and attempted to cause, and is causing and attempting to cause,
an employer to discriminate against its employees in violation
of Section 8(a)(3) of the Act, and Respondent thereby has been
engaging in unfair labor practices within the meaning of Section
8(b)(2) of the Act.
14. By the acts and conduct described above in paragraphs 6,
7, 8, 9, 10, 11 and 12, and by each of said acts, Respondent
has restrained and coerced, and is retraining and coercing, em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act, and Respondent thereby has been engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) of the
Act.
7 The Board has previously applied Wright Line to conduct alleg-
ing violations of Section 8(b)(1)(A) and (2) of the Act, as alleged
here with respect to the Respondent’s conduct concerning Michael
Davis’ overtime. At issue is motivation: a union is alleged to have
restrained and coerced an employee and caused the employer to dis-
criminate against the employee for reasons condemned by the Act;
the union asserts it acted for legitimate reasons. See Teamsters Local
287 (Consolidated Freightways), 300 NLRB 539, 548 fn. 20 (1990),
and cases cited there.
was a ‘‘scab,’’ a term of opprobrium, and by saying
that he would lose respect for Davis if he left the
Union. Steward Bedard then said that he would tell the
Employer that Davis did not take his breaks at the
scheduled times. This immediate sequence of events—
Davis’ threat to resign from the Union and the Union’s
prompt statement that it would report Davis’ break
conduct—take this conduct well beyond the Union’s
mere expression of a consistent position on breaks, as
found by the judge. Contrary to the judge, the Re-
spondent’s threat cannot be deemed noncoercive mere-
ly because the Respondent had previously agreed with
the Employer that employees must take breaks at the
designated times. Regardless of the Respondent’s gen-
eral position on breaks, an individual employee could
reasonably fear that the Employer, armed with particu-
lar information about the individual that it would not
have but for the Respondent’s action, might take dis-
ciplinary measures. Further, an employee could reason-
ably believe that the Employer would act with respect
to conduct to which it might otherwise turn a blind eye
if the conduct were officially brought to its attention
by the bargaining representative. True, the Respondent
itself could not impose Employer discipline for breaks
not taken at the correct time. However, the Respond-
ent’s threat to bring the information to the attention of
the party that could impose discipline is coercive. In
these circumstances, the Respondent’s threat to Davis,
in response to Davis’ statement about resignation,
would tend to chill him in the exercise of his statutory
right to resign from the Union. This threat violates
Section 8(b)(1)(A) of the Act. See, generally, Steel-
workers Local 1397 (U.S. Steel Corp.), 240 NLRB
848, 849 (1979).
2. The judge found that the Respondent violated
Section 8(b)(1)(A) of the Act by threatening Davis
with the loss of his overtime work and requesting the
Employer to stop scheduling Davis for overtime work.
We agree. The judge also found that the Respondent
violated Section 8(b)(2) of the Act by causing the Em-
ployer to stop scheduling Davis for overtime work.
The judge’s theory was that the Respondent’s conduct
in this respect violated its duty of fair representation.
In its exceptions, the Respondent argues that this the-
ory of violation was neither alleged in the complaint
nor litigated at the hearing. We agree with the Re-
spondent. We nonetheless reach the same result as the
judge. We note that the General Counsel alleged a
Wright Line5 theory in the complaint6 and that the
judge’s findings satisfy the analytical objectives of
Wright Line.7 As detailed below, the judge found that
the Respondent’s conduct was prompted by animus to-
ward Davis arising from Davis’ contemplated exercise
of his Section 7 right and that the Respondent’s de-
fense was ‘‘pretextual.’’ The General Counsel alleges
that Davis’ stated intention to withdraw from the Re-
spondent was a motivating factor in the Respondent’s
request to the Employer to curtail Davis’ overtime
work. The Respondent asserts that it merely sought to
ensure that the Employer abided by applicable rules re-
garding overtime.
As discussed in section 1, supra, Michael Davis en-
gaged in protected activity on April 23, when he an-
nounced his intention to withdraw from the Respond-
ent. On that date the Respondent, as we have found,
unlawfully threatened to tell the Employer that Davis
did not take his breaks at the prescribed times, in vio-
lation of Section 8(b)(1)(A) and thus displayed its ani-
mus toward Davis’ protected activity. Thereafter,
Davis and Steward Chuck Corso were involved in a
series of incidents which reflected a growing animosity
between the two men. In a conversation with employee
Sylvie Gervais, that was relayed to Davis by Gervais,
Corso said he would ‘‘get [Davis’] ass’’ if Davis mis-
takenly used his jeep, unlike his reaction to another
employee’s use of the jeep. Corso then complained to
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The term ‘‘casing’’ refers to the preparation of mail for delivery
by a letter carrier.
9 We agree with the judge’s dismissal of the allegation that these
incidents, in which Corso complained to supervisors, violated the
Act. Like the judge, we are satisfied that they would have occurred
even without Davis’ protected activity in April. In the ‘‘happy
faces’’ incident, Corso was merely expressing the Union’s legitimate
interest in having forms, which were used for grievance processing,
free from unwanted embellishments. In the initial route ‘‘casing’’ in-
cidents, the weight of the evidence negated any showing of discrimi-
natory motivation. Corso had a long history of complaining about
the inadequate casing of his route. He had even filed a successful
grievance about it only a few months earlier. Thus his complaints
about Davis’ poor casing of his route were simply consistent with
his past practice.
10 The judge found, and we agree, that Corso acted to have the
Union demand that Davis’ overtime be ended because of Corso’s
‘‘animosity’’ toward Davis. Significantly, that animosity began with
the April 23 incident in which the Respondent, through Steward
Bedard in the presence of Steward Corso, expressed animus toward
and unlawfully threatened Davis. Though Corso’s animosity subse-
quently escalated because of his personal disputes with Davis, we
view Corso’s animosity, in the absence of a contrary showing not
provided here by the Respondent, as based on Corso’s animus to-
ward Davis’ protected activity.
11 We find a nexus between the Respondent’s actions and the pro-
tected activity. The May events (the Respondent’s request to the Em-
ployer to cease scheduling Davis for overtime) had their genesis in
the April events (the Respondent’s threat to tell the Employer that
Davis failed to take breaks at the prescribed time). Thus the lapse
of 1 month is without significance.
12 A pretextual defense supports an inference of unlawful motive.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
13 The Respondent’s own newsletter noted that the overtime lists
for each of the zones applied only to FTR employees and not PTF
employees and that PTF employees might be used in lieu of FTR
employees to work any overtime anytime. The Respondent and the
Employer jointly acknowledged that:
The Overtime Desired Lists control the distribution of over-
time only among full-time regular letter carriers. Management
may assign overtime to a PTFS or casual employees rather than
to full-time regular employees who are either signed up for
‘‘work assignment’’ overtime or OTDL.
The Respondent acknowledged that the Employer saved money by
using PTF employees rather FTR employees in this manner.
the Employer’s supervisors about Davis drawing
‘‘happy faces’’ on forms and about Davis’ inadequate
‘‘casing’’8 of Corso’s route.9 Finally, on May 27 or
28, Davis was ‘‘casing’’ Corso’s route which that day
included samples of the cereal ‘‘Cheerios.’’ Davis
wrote addresses for the deliveries on a slip of paper
and concluded by repeating ‘‘Cheerios’’ three times.
When Corso saw this, he told Davis that Davis was
just trying ‘‘to aggravate’’ him. Corso then said that
‘‘[he] wasn’t going to do anything before, but because
of these Cheerios, Cheerios, Cheerios, [he was] going
to put an end to [Davis’] overtime on Tuesdays.’’
Corso then reported to Steward Tom Cronin that Davis
was working overtime and asked Cronin to check into
it. Cronin told Superintendent Robert Pilkington that
the Respondent would file a grievance over Davis’
overtime. Subsequently, Pilkington informed Davis that
he would no longer be working overtime.
The evidence thus shows that the personal animosity
between Corso and Davis and the animosity toward
Davis’ protected activity became inextricably inter-
twined.10 The Respondent’s April threat unequivocally
displayed its animus toward Davis’ protected activity.
Only a month later, the Respondent again threatened
Davis. Despite the passage of time and the intervening
clashes between Corso and Davis, the totality of the
circumstances warrant an inference that the Respond-
ent’s motivation was unlawful in May just as it was
in April. The General Counsel thereby made a prima
facie showing that Davis’ protected conduct was a mo-
tivating factor in the Respondent’s request to the Em-
ployer to cease scheduling Davis for overtime.11 More-
over, in this context, Corso’s statement to Davis that
‘‘[he was] going to put an end to [Davis’] overtime on
Tuesdays’’ was coercive and in violation of Section
8(b)(1)(A) of the Act. The judge so found and we
agree.
Finally, like the judge, we find that the Respondent
failed to demonstrate that it would have taken the same
actions against Davis and his overtime even in the ab-
sence of his protected activity. The judge found that
the Respondent’s explanations were pretextual.12 We
agree. The Respondent did not complain about Davis’
performing the overtime prior to the end of May even
though Davis had been performing this work for about
a month. Moreover, the Respondent asserted that it
merely sought to require that the Employer abide by
applicable rules. Yet those rules applied to FTR em-
ployees rather than PTF employees like Davis. Further,
despite the Respondent’s contentions, no documentary
evidence was produced to support the existence of the
alleged agreement to maximize the hours of FTR em-
ployees before the Employer used PTF employees. In-
deed, the documentary evidence showed that the Em-
ployer could use PTF employees, like Davis, just as it
had.13
We find that this analysis of the judge clearly satis-
fies the analytical test of Wright Line, supra, and estab-
lishes the 8(b)(1)(A) and (2) violations. See Limestone
Apparel Corp., 255 NLRB 722 (1981).
ORDER
The National Labor Relations Board orders that the
Respondent, National Association of Letter Carriers,
Branch 86, AFL–CIO, Hartford, Connecticut, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening a bargaining unit employee that it
will inform the Employer that the employee does not
take required breaks as scheduled, because of the em-
ployee’s protected activity.
1179LETTERS CARRIERS (POSTAL SERVICE)
14 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.’’
1 All dates are in 1991 unless otherwise noted.
(b) Threatening a bargaining unit employee with
loss of overtime work because of the employee’s pro-
tected concerted activity.
(c) Demanding that the Employer take away an em-
ployee’s overtime work, thereby causing the employee
to lose the overtime work, because of the employee’s
protected activity.
(d) In any like or related manner restraining or co-
ercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Michael Davis whole for any losses he
may have suffered by virtue of the Respondent’s un-
lawful actions against him, in the manner set forth in
the remedy section of the judge’s decision.
(b) Post at its office and meeting place and at the
U.S. Postal Service Murphy Road Facility in Hartford,
Connecticut, on bulletin boards furnished for the Re-
spondent’s use, copies of the attached notice marked
‘‘Appendix,’’14 on forms provided by the Regional Di-
rector for Region 34. After being signed by Respond-
ent’s authorized representative, the notice shall be
posted for 60 consecutive days in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken to en-
sure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Sign and return to the Regional Director suffi-
cient 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 Re-
spondent has taken to comply.
APPENDIX
NOTICE TO 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 threaten a bargaining unit employee
with informing the Employer that the employee does
not take his breaks as scheduled and with loss of over-
time work, because of the employee’s protected activ-
ity.
WE WILL NOT demand that the Employer discrimi-
nate against an employee by taking away the employ-
ee’s overtime work, thereby causing the employee to
lose the overtime work, because of the employee’s
protected activity.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL make Michael Davis whole for any losses
he may have suffered by virtue of our actions against
him, with interest.
NATIONAL ASSOCIATION OF LETTER
CARRIERS, BRANCH 86, AFL–CIO
Thomas E. Quiqley, Esq., for the General Counsel.
Michelle Dunham Guerra, Esq., of New York, New York,
for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
May 29, 1991,1 Michael Davis, an individual, filed a charge
alleging that the National Association of Letter Carriers,
Branch 86, AFL–CIO (Union or Respondent) had violated
Section 8(b)(1)(A) of the National Labor Relations Act (Act).
The charge was amended on June 20 to include an alleged
violation of Section 8(b)(2) of the Act. The Regional Direc-
tor for Region 34 issued complaint and notice of hearing on
July 26, and Respondent filed a timely answer admitting,
inter alia, the jurisdictional allegations of the complaint, but
denying the commission of any unfair labor practices.
Hearing was held in these matters in Hartford, Connecti-
cut, on August 3 and 4, 1992. Briefs were received from the
parties on or about September 17, 1992. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, and after consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
It was admitted and I find that the United States Postal
Service is now, and has been at all times material to this pro-
ceeding, an employer and subject to the Board’s jurisdiction
pursuant to Section 1209 of the Postal Reorganization Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues Presented for Determination
Michael Davis has worked at the Employer’s Murphy
Road facility in Hartford, Connecticut, for over 3 years. This
facility encompasses three separate stations or zones within
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 A hold-down position is one vacated by a regular employee gen-
erally because of permanent separation from the Postal Service.
While the bidding process to select a permanent replacement for the
position is conducted, another employee can hold down or fill the
position temporarily. Such hold downs usually have a duration of 4
to 8 weeks. PTF’s can bid on these positions. If a PTF gets the hold-
down position, he or she works the same schedule as did the em-
ployee who vacated the position, including hours and days of work.
one building: Wethersfield, Barry Square and Station A.
Davis works as a ‘‘part-time flexible’’ employee (PTF) and
has worked in all three zones. Davis works primarily out of
the Wethersfield zone, and has always been a PTF during his
employment career with the Postal Service. For the past two
years, Davis has been supervised by David Cattanach, who
has been the Delivery and Collection Supervisor for the
Wethersfield zone for the past 3 or 4 years. Robert
Pilkington is the overall superintendent for the Murphy Road
facility, which employs about 200 postal employees.
The letter carriers at the Murphy Road facility are rep-
resented by the Union. Each of the three stations which com-
prise the facility has a separate seniority list which covers
only those carriers who work in that station. The list is used
for bidding on permanent routes, vacation scheduling, and
bidding on duration (hold-down) assignments as well as the
distribution of overtime.2 Work assignments are made from
the zone seniority list. PTFs, like Davis, are not on these
lists, but are on separate PTF seniority lists.
Davis joined the Union shortly after joining the Postal
Service, but has never run for or held union office. During
the spring of 1991, the relevant time period in this case, the
union stewards in the Wethersfield station were Charles
(Chuck) Corso and Mike Bedard. Tom Cronin was the sta-
tion A steward at that time. Mike Willadsen is the Union
President. Corso became the Union’s vice president in No-
vember.
For the past 2 years, Davis has been the sole PTF at the
Wethersfield station. PTFs have no fixed schedule and are
guaranteed only 4 hours a pay period. The only restriction
on the maximum hours a PTF can work is that management
tries to avoid working a PTF more than 56 hours in a week.
PTFs are promoted to the ranks of full-time regular mail car-
riers under certain conditions set out in the National Agree-
ment between the Union and the Employer. As a PTF, Davis
fills in holes for the regular carriers. He ‘‘cases’’ or
‘‘routes’’ routes, sometimes delivers, and collects mail. Cas-
ing or routing a route are Postal Service terms that encom-
pass the preparation of mail for actual delivery by a carrier.
It involves sorting the mail assigned to a carrier’s route in
the order to be delivered. It also involves noting address
changes on the carrier’s route so that mail will not be mis-
delivered. This job was a relatively new one in the spring
of 1991 and evidently subject to problems.
For reasons which will be discussed in detail, Davis threat-
ened to withdraw from the Union in a confrontation with
Stewards Corso and Bedard in April. The General Counsel
asserts that this threat prompted the Union to retaliate and
discriminate against Davis in a number of ways. Specifically,
the complaint alleges that Respondent violated Section
8(b)(1)(a) of the Act by:
(a) On or about April 23, through Steward Bedard, threat-
ening Davis that it would cause the Employer to discipline
him because Davis refused to support the Union;
(b) Since on or about April 23, through Steward Corso,
harassing Davis because he refused to support the Union;
(c) On or about May 28, through Steward Corso, threaten-
ing Davis with loss of overtime work because he refused to
support the Union.
The complaint alleges that the Respondent violated Section
8(b)(2)(a) of the Act by:
(a) On or about May 16 and 20, through Steward Corso,
requesting that the Employer discipline Davis;
(b) On or about May 30, through Steward Cronin, request-
ing that the Employer stop providing overtime work to
Davis, thus attempting to cause the Employer to discipline
Davis and stop providing overtime work to Davis;
(c) Causing the Employer to discriminate against Davis in
violation of Section 8(a)(3) of the Act by causing the Em-
ployer to stop providing overtime work to Davis because of
Davis’ stated intention to Respondent that he wished to with-
draw his union membership.
B. The Legal Principles Involved
In Miranda Fuel Co., 140 NLRB 181 (1962), the Board
recognized that the ‘‘privilege of acting as an exclusive bar-
gaining representative derives from Section 9 of the Act, and
a union which would occupy this statutory status must as-
sume the responsibility to act as a genuine representative of
all the employees in the bargaining unit.’’ Id. at 184. The
Board cited the Supreme Court in Wallace Corp. v. NLRB,
323 U.S. 248, 255 (1944), for the principle that ‘‘[by] its se-
lection as bargaining representative, it has become the agent
of all employees, charged with the responsibility of rep-
resenting their interests fairly and impartially.’’ Miranda
Fuel, 140 NLRB at 184. In Miranda Fuel, the Board set out
the broad standard to judge union action which impacts on
employees’ employment rights:
Section 7 thus gives employees the right to be free
from unfair or irrelevant or invidious treatment by their
exclusive bargaining agent in matters affecting their
employment. This right of employees is a statutory lim-
itation on statutory bargaining representatives, and we
conclude that Section 8(b)(1)(A) of the Act accordingly
prohibits labor organizations, when acting in a statutory
representative capacity, from taking action against any
employee upon considerations or classifications which
are irrelevant, invidious or unfair.
Id. at 185.
The Board in Miranda Fuel also established that an em-
ployer which participates in a union’s arbitrary action vio-
lates the Act. ‘‘We further conclude that a (union) and an
employer also respectively violate Section 8(b)(2) and 8(a)(3)
when, for arbitrary or irrelevant reasons or on the basis of
an unfair classification, the union attempts to cause or does
cause an employer to derogate the status of an employee.’’
Id. at 186. The Board observed that a violation turns upon
the finding that the action taken encourages membership in
a labor organization. The Board also noted that an ‘‘8(a)(3)
or 8(b)(2) violation does not necessarily flow from conduct
which has the foreseeable result of encouraging union mem-
bership, but that given such ‘foreseeable result’ the finding
of a violation may turn upon an evaluation of the disputed
conduct ‘in terms of legitimate employee or union pur-
1181LETTERS CARRIERS (POSTAL SERVICE)
3 Though Davis offered this evidence which would tend to support
a finding of a violation of the Act by the employer, no such viola-
tion is alleged in the complaint. The matter was not thoroughly liti-
gated, the employer was not on notice that it should defend itself
in this regard and the matter appears time barred. Therefore, I will
not make findings with respect to such a possible violation, but will
consider the evidence in relation to the complaint allegations.
4 This alleged statement by Corso was not mentioned by Davis in
his affidavit given to the Board during the investigation of this case.
On the other hand, neither Bedard nor Corso denied that this ex-
change took place during their testimony. Corso did deny generally
being told by Davis about his station A work between January and
April 1991. As the matter of knowledge of Davis’s work in station
A is important in this proceeding, I do not find that the two stew-
ards’ failure to deny the exchange is merely an oversight and credit
Davis’ testimony in this regard. Consequently, I find that both Corso
and Bedard had knowledge of Davis’ work in station A from the
April 23 meeting.
poses.’’’ 140 NLRB at 187–188. Thus, the Board established
the rule that a union must have a legitimate purpose when
it demands that an employer reduce an employee’s work sta-
tus.
The Supreme Court has also recognized that a union owes
its members a duty of fair representation. Vaca v. Sipes, 386
U.S. 171 (1967). The Court has also acknowledged that a
union, as long as it used good faith and honesty of purpose
is allowed a ‘‘wide range of reasonableness’’ in representing
unit employees. Ford Motor Co. v. Hoffman, 345 U.S. 330,
338 (1953). In Teamsters Local 692. (Great Western
Unifreight System), 209 NLRB 446, 448 (1974), the Board
observed that not every union’s negligent action by itself will
constitute a breach of the duty of fair representation: ‘‘Some-
thing more is required.’’ Ibid.
With these legal principles in mind, the Union’s actions
toward Davis will be considered.
C. The Events Leading to the Confrontation of April
1991 and That Confrontation
Davis normally works a day shift, from 7:30 a.m. to 4:00
p.m. In December 1990, he was working over 40 hours per
week, regularly receiving some overtime work. He testified
that during December, Union Steward Bedard approached
him and inquired if Davis had worked 40 hours or more
weekly for a 6-month period in the last 12 months. Bedard
explained that under the Postal Agreement if a PTF works
this many hours, the senior PTF can be promoted to a regu-
lar letter carrier position. In January, Davis met with Stew-
ards Bedard and Corso to give them his pay slips so they
might determine how many hours Davis had worked in the
last year. Davis expressed his concern that his hours might
be cut by this investigation that Bedard was conducting.
Corso told him that management could not cut his hours for
this reason. As a result of the check into Davis’ hours, the
Union filed a grievance seeking to have the senior PTF pro-
moted to regular status. Although Bedard lead Davis to be-
lieve that such would not happen, Davis’ name is promi-
nently noted on the grievance.
Beginning at the end of January, after the filing of the
grievance, Davis found that he was receiving overtime as-
signments only for emergencies and not on a regular basis
as before. He complained to Corso about the cut in his hours,
and was told by Corso that management could not keep
doing it as they needed Davis. Nonetheless, his hours contin-
ued to be cut. In April, Davis was working in a hold down
position in the Wethersfield station. He approached a super-
visor in station A and asked if he could work in that station
on Tuesdays, a normal off day for him in his hold down po-
sition. This station was backed up and the supervisor indi-
cated that he could use Davis, if Davis’ supervisor would
allow it. This conversation took place on Monday, April 22.
Davis went to his then supervisor, Val Farley, who told him
he could not work in the other station. Davis inquired why
Farley was denying his request and she said, ‘‘Because of
your involvement with those guys,’’ indicating the Union
stewards. Farley also indicated that she had been instructed
by higher management to keep Davis’ hours down, mention-
ing that Davis’s name was on a class action grievance filed
with the Employer by the Union. According to Davis, Farley
said that the only way management could get back at the
Union was through the PTFs.3
Davis testified that he told Farley that this was not fair,
that he only provided the Union with information about his
hours to help a fellow PTF get promoted to a regular posi-
tion and his action had nothing to do with the Union. Ac-
cording to Davis, Farley believed him and changed her mind
about his request to work in the other station on his off day,
granting the request without checking with other manage-
ment. Thus the next day, a Tuesday, he worked in the other
station, casing routes.
According to Davis, the source of his subsequent problems
with the union leadership can be found in a conversation
with Stewards Bedard and Corso which took place on this
day. He saw Bedard and Corso and approached them and
told him of his meeting with Farley the day before. Davis
testified that Corso had told him to report to him about his
hours being down and for that reason had wanted to relate
the Farley conversation to Corso. Davis testified that Corso’s
reaction to this news was, ‘‘You should be lucky you’re get-
ting forty hours.’’ Davis was upset because the Union had
done nothing about the cut in his hours and mentioned to
Bedard and Corso that he could do better on his own than
with the Union as he had found Tuesday work in station A
on his own. According to Davis, Corso told him that the
Union had no problem with his Tuesday work in station A.4
According to Davis, Bedard got upset and pointed to an arti-
cle on the bulletin board that spoke about scabs, telling
Davis that he would be a scab if he got out of the Union.
Davis replied that he thought he would get out of the Union
while he was a PTF and think about getting back in again
when he became a regular mail carrier. Bedard mentioned a
carrier by the name of John Onsager who had been out of
the Union for 8 years and had been carried by the Union.
He also threatened Davis that he could tell Davis’ supervisor
that Davis takes his breaks at the end of the day rather than
when he is supposed to take them. Davis became really upset
and told Bedard that he was going to get out of the Union
and take care of himself. He then left the conversation.
Bedard and Corso remembered this meeting differently.
Both also testified that this was not the first instance in
which Davis had expressed his dissatisfaction with union
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 On this point, Davis admitted that the April 1991 meeting with
Bedard and Corso was probably not the first time he had spoken to
them about his desire to get out of the Union. He had placed an arti-
cle in the Union’s newsletter dated June/July 1990, which states:
The Union would be smart to remind themselves of simple
equality and simple respect. Same union. Same job. Same Union
deduction. Same respect. I am a PTF and I belong to the Union.
I pay the same dues a regular carrier pays. The regular carrier
gets protection which is in the contract. The PTF gets a $12.00
deduction every pay period. Many regulars do understand the
PTF’s problems. They give some good advice, but only off the
record. One of the problems is with seniority. Seniority is good.
Seniority helps keep a supervisor honest. It keeps them from fa-
voring one carrier over another. But this, seemingly, is only for
regular carriers. This should also be for PTFs and should be in
the contract, and not just left up in the air so a supervisor uses
it when he or she feels like it. Another problem is respect. A
new employee should start from the bottom, that’s only fair. But
respect should be given as they are still human beings. What is
wrong with a supervisor letting a PTF know a day ahead of time
if he or she has a collection, a long day, a short day? If this
were done, the PTF could have some way to arrange their per-
sonal lives. Many times a supervisor knows what a PTF is
working the next day, but doesn’t tell the PTF because he
doesn’t have to. PTFs and Regular carriers are no different ex-
cept for the way they are treated by the Post Office and the
Union. PTFs need to respect the Union and the Union must re-
spect us and get PTFs some rights.
6 In an affidavit given during the investigation of this case, Corso
admits the April 1991 conversation with Davis, but does not mention
any other occasion that Davis threatened to get out of the Union.
7 Bedard testified that he made reference to an arbitration decision
which held that management has to make sure employees take their
breaks. He also testified that he has shown this decision to other
routers. Facility Superintendent Pilkington testified that it would not
be a disciplinary offense for an employee to fail to take a break.
Evidently, a grievance could be filed to force management to require
an employee to take scheduled breaks.
8 As will be discussed in more detail later, it is Corso’s view that
Davis became upset with him in the spring of 1991 because Corso
complained to management about Davis’ job performance. He be-
lieved that Davis was trying to retaliate against him or ‘‘get his
goat’’ because of these complaints.
representation of him and other PTFs.5 Corso testified that
he had talked with Davis since 1989 or 1990 about Davis’s
feelings that the Union did not properly represent PTFs and
that they should not have to pay the same dues as regular
full-time employees. He also testified that Davis had threat-
ened to get out of the Union on a number of occasions prior
to the spring of 1991.6
With regard to the April conversation, Corso testified that
Davis was complaining about not getting fair representation
from the Union. According to Corso, it was in this conversa-
tion that Davis mentioned that he had noticed a reduction in
his hours and thought it was management retaliation for his
participation in union activities. Corso testified that he told
Davis that if Davis could show in any way that this was the
case, the Union would file a grievance and an unfair labor
practice charge. According to Corso, Davis was fearful of
further retaliation and said he did not want to pursue it.
Corso testified that in response to Davis’s threat to get out
of the Union, Bedard pointed to a nearby poster with a mes-
sage about scabs, and told Davis, ‘‘Mike, like I said in many
of our conversations, ultimately you will be a regular and
you will get all the benefits you claim you don’t have now,
and you know.’’
Like Corso, Bedard testified that he had had a number of
conversations with Davis over Davis’s dissatisfaction with
the Union’s representation of PTFs. In the April conversa-
tion, Bedard testified that he took the union position that
Davis should stay in and that the conversation was friendly.
He did not remember speaking to Davis about breaks at this
meeting. He does remember telling Davis on another occa-
sion that when he was working as a router, he must take
breaks because it puts pressure on every other employee if
one of them works through breaks.
Though Bedard denies threatening to tell Davis’s super-
visor about Davis’s apparent practice of not taking breaks at
this meeting, he does acknowledge warning Davis that he
must take breaks in accordance with approved practice.7 I
credit Davis assertion that Bedard did threaten him at the
April 23 meeting, but I cannot find this threat violates the
Act. It does not and could not threaten disciplinary action,
and is consistent with the Union’s position with respect to
employees’ taking breaks. Thus, I will recommend that this
complaint allegation be dismissed.
The complaint also alleges that on April 23, Corso har-
assed Davis because of his threatened withdrawal from the
Union. I cannot find any evidence to support this allegation
and will recommend that it be dismissed.
With regard to the issue of Davis’s threat to withdraw
from union membership providing motivation for the Union’s
subsequent treatment of Davis, I do believe it played a part,
though I believe that an equal part was a growing personal
animosity between Steward Corso and Davis. All of the re-
maining adverse actions which were directed toward Davis
originated with Corso. As I will find hereinafter, I believe
that Corso abused his position of authority with the Union
in his actions toward Davis. Whether he took such actions
out of retaliation for Davis’s threat to withdraw from the
Union, or entirely personal reasons, or as I believe, a mixture
of the two motivations, I believe his actions constitute unfair
representation, and were irrelevant to any legitimate Union
interest.
D. Corso’s Alleged Request that Management
Discipline Davis
After the April meeting, Davis’ problems with Steward
Corso began in earnest. In mid-May, Davis had a conversa-
tion with coworker Sylvie Gervais. Gervais told him that she
had taken a jeep assigned to Steward Corso out on deliveries
by mistake the day before. On her return, Corso had been
angry about the mistake, but forgave her. Corso also com-
mented that if it had been Davis who had taken his jeep, he
would have ‘‘gotten his ass.’’ Gervais testified and corrobo-
rated Davis’s testimony on this point. Corso did not deny the
comment to Gervais, testifying that he thought it was Davis
who had taken his jeep because he believed that Davis was
trying to ‘‘get his goat.’’8
On May 17, on reporting to work, Davis was asked by his
supervisor if he had drawn a happy face on a work assign-
ment form, noting that Corso had shown him such a form
and wanted to file a grievance because of the drawing. Davis
admitted that he had drawn the happy face. Corso joined this
conversation and asked if Davis had made the drawing and
what was its meaning. Davis thought the whole thing was
1183LETTERS CARRIERS (POSTAL SERVICE)
9 Corso considers his route a ‘‘problem’’ route because it contains
a number of apartment complexes that experience a high turnover in
residents and, accordingly, a high change of address rate. Davis be-
came the router on Corso’s route in mid-March 1991. Prior to this
time, Corso was also having problems with the people performing
this job and, in February 1991, had filed a formal grievance over
the problem. The grievance was sustained.
silly and said that the drawing was on the supervisor’s copy
of the form, not Corso’s, and walked away.
A day or two later, Davis drew another happy face on an-
other form in the presence of coworker John Onsager, com-
menting that the stewards were after him for this. His super-
visor spoke to him about this, saying not to draw any more
happy faces because Corso wanted to file grievances over it.
Nothing more was said about these happy face incidents.
Corso testified that he thought putting happy faces on official
forms was inappropriate and that Davis was again doing it
to get his goat. I do not believe Corso’s complaint about
Davis’ drawings violates the Act. The forms on which Davis
drew are official forms and are used in grievance proceed-
ings. Corso could have had a legitimate concern about pre-
serving the formality of the forms in his position as Union
steward.
During this time frame, Davis regularly cased Corso’s
route. Toward the end of May, Corso complained to Davis’
supervisor that Davis was not properly doing one of his du-
ties, pulling so called markovers or address changes on
Corso’s route.9 According to Davis, the supervisor, David
Cattanach, asked Davis about this and after hearing Davis’
explanation, agreed with Davis that he was doing his job
properly. Cattanach testified that after Corso complained, he
spoke to Davis and told him he had to do the markovers, and
from that time forward has had no problem with Davis’ per-
formance in this regard.
Corso disagreed. He testified that he discussed the situa-
tion with Davis telling him that his route needed more time
and attention. He also spoke to Superintendent Pilkington
about the problem, telling Pilkington that though he had pre-
viously spoken to Davis and Cattanach about the situation,
nothing had improved.
The matter of Corso’s complaint to Pilkington came to
Davis’ attention a day or two after Cattanach spoke to him
about it. Davis was in the middle of casing Corso’s route
when he was stopped by his supervisor, who told him to de-
liver some mail and finish casing Corso’s route later. On the
next day, Davis was told to see Superintendent Pilkington.
Pilkington told Davis that Corso had complained that Davis
had failed to pull markovers the previous day. Davis ex-
plained that he had been pulled off the job of casing Corso’s
route and that Corso had done it himself. Pilkington said he
knew that Davis was a good worker and that Corso was just
trying to get Davis written up.
Pilkington testified that after Corso complained to him
about Davis’ job performance, he checked into the matter
and found that the problem was not Davis’ fault. Prior to this
incident, Corso had never before complained to Pilkington
about an individual employee nor has he so complained
since. He corroborated Davis’ assertion that he told Davis
that Corso was trying to get Davis written up.
The complaint alleges that on May 16 and 20, Corso re-
quested the employer discipline Davis. I can find nothing in
the evidence adduced, set forth above, to support this allega-
tion. Though the evidence reflects a high degree of animosity
toward Davis by Corso, it does not reflect that he asked that
any disciplinary action be taken against Davis either over the
happy face incidents or the alleged incidents of Davis’ failure
to properly route Corso’s mail. Although Superintendent
Pilkington told Davis that Corso was trying to get him writ-
ten up, neither Pilkington nor Cattanach testified that Corso
sought discipline against Davis. One of the reasons that I
agree with the General Counsel that Davis’ threatened with-
drawal from the Union played a part in Corso’s actions is
the difference in Corso’s responses to real or perceived prob-
lems with Davis before and after the April 23 meeting. Davis
had begun routing Corso’s mail in March and Corso testified
that he had spoken to and worked with Davis about the man-
ner in which he performed the job, indicating he was not sat-
isfied with Davis’ performance from the outset. It was only
after the April 23 meeting that he began to go beyond Davis
and complain to management about Davis’ performance
However, I do not find that the proof supports the Complaint
allegations. Though management obviously considers Davis
an outstanding employee, Corso’s displeasure with his job
performance seemed genuine. Corso had a past history of
complaining about his route, seeking to have it designated as
a ‘‘problem’’ route, and complaining about the lack of ade-
quate support to handle the route. His complaints about
Davis’s performance are entirely consistent with his past ac-
tions in this regard, except for the more personal nature of
the complaints, which, as I have said, support the General
Counsel’s theory of motivation.
As Corso’s complaints about Davis in regard to Davis’ job
performance are consistent with Corso’s past complaints
about the support he received on his route, and as he did not
ask or request that Davis be disciplined for his alleged lack
of performance, I will recommend that this complaint allega-
tion be dismissed.
E. Corso’s Threat to Take Away Davis’ Overtime Work
and Cronin’s Request of Management that it Cease
Providing Overtime Work to Davis in Station A
On May 27 or 28, Davis was casing Corso’s route, which
on this day included delivering a sample of Cheerios cereal
to each residence on the route. As the sample cereal box
would not fit in each of Corso’s case slots, Davis wrote on
a slip of paper the addresses that were to receive the sample.
On the bottom of this slip, he wrote and underlined the
words, ‘‘Cheerios, Cheerios, Cheerios.’’ Corso approached
Davis later in the day, waving a piece of paper at Davis, say-
ing ‘‘What’s the meaning of this?’’ Davis said it was a list
of the names and addresses of the persons who were to get
the Cheerios. Corso yelled, ‘‘What’s this? Cheerios, Cheer-
ios, Cheerios. You just want to aggravate me.’’ Corso contin-
ued, ‘‘I wasn’t going to do anything before, but because of
these Cheerios, Cheerios, Cheerios, I’m going to put an end
to your overtime on Tuesdays.’’
This outburst was overheard by Davis’ coworker Paul
Serrano, who asked Davis what the yelling was about and
was Corso going to put an end to Davis’ Tuesday overtime?
Serrano testified that he heard Corso yelling out real loud,
saying Cheerios, Cheerios, Cheerios. He could not make out
all of what Corso was saying, but did hear him say that he
was going to make sure that Davis doesn’t go to station A
and work on his comp day. Serrano later asked Davis why
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Though the complaint in its conclusionary paragraphs alleges an
8(a)(3) violation by the Employer, it does not seek to hold the Em-
ployer responsible for the losses Davis suffered by virtue of being
taken off the Tuesday overtime work. I can find no evidence of dis-
criminatory motivation on the part of the Employer and see no use-
ful purpose in making it jointly liable for Davis’ losses. Moreover,
Pilkington had been in his postion as superintendent only about 2
months at the time of this incident and was not sure of his legal
stance in the face of the Union’s threats to file grievances over
Davis’ overtime. On the other hand, the Employer’s acquiesence in
the Union’s demand would have the foreseeable effect of intimidat-
ing not only Davis, but other employees as well, and thus have the
foreseeable effect of encouraging membership in the Union and cur-
rying favor from its officials.
Corso was mad, and Davis said it was because he wrote
Cheerios on the routing slip.
Corso testified that he does not like to deliver samples and
thought that by underlining the word ‘‘Cheerios,’’ that Davis
was again trying to get his goat. As noted earlier, Corso de-
nies being told by Davis in April that Davis was working in
station A on his day off. He testified that he first learned of
the situation from a regular employee, Mike Calabro, on the
day of the Cheerios incident. He claims that he was on his
way to tell Davis that he was going to have Station A Stew-
ard Cronin investigate the matter when he saw the Cheerios
note. He went to Davis and spoke first to him about the
Cheerios matter, asking Davis if he was trying to get his
goat. He testified that Davis just shrugged his shoulders.
Corso said ‘‘fine,’’ and walked away. Then he remembered
the station A work and returned to Davis, telling him, ‘‘By
the way, I just want you to know that I’m going to Station
A. I’m speaking to Tom Cronin, to ask him to do an inves-
tigation, to see if anybody is working there, any PTFs, or
anybody is working there in an overtime status from
Wethersfield.’’ He said he did this as a courtesy. He denies
yelling at Davis, but admits being a bit agitated.
I credit Davis’ version of this conversation over that given
by Corso to the extent that they differ. I have heretofore
found that Corso had knowledge of Davis’s overtime work
in station A since the April 23 meeting, so I discredit his tes-
timony about discovering this fact from employee Mike
Calabro. Calabro was not called to testify.
Corso testified that he then went to Station A Steward
Cronin and told him that he had learned that Davis was
working in station A on Tuesdays, and asked Cronin to
check to see if his overtime list was maximized. He denies
speaking to management about the situation. He claims there
was a management union agreement made in April that man-
agement would not use employees in from one station in an-
other station unless the employees’ overtime list in the af-
fected station had been utilized to the maximum degree.
Davis learned that he was being taken off the Tuesday
work from Pilkington. Pilkington told Davis that another
steward, Tom Cronin had told him that he wanted Davis to
stop working on station A on Tuesdays because Davis had
a hold-down job in the Wethersfield station. Cronin said the
Union would file a grievance over this situation. Pilkington
told Davis he did not know what to do because of the pecu-
liar situation with three separate stations in one facility, and
said that for the time being, he was going to stop the Tues-
day work.
Davis went to the NLRB to file a charge over this incident
and shortly thereafter had another conversation with
Pilkington wherein Pilkington repeated that Cronin had
threatened to file a grievance over Davis’ Tuesday work in
station A. At this point, Davis had been working Tuesdays
in station A for about a month. He was not allowed to work
in station A for the next four or five Tuesdays although he
was available to work those days. After this period, his job
assignment in the Wethersfield station changed and he was
assigned regular work on Tuesdays.
I find that Corso, because of his previously discussed ani-
mosity toward Davis, caused Cronin to demand that manage-
ment stop Davis’ station A overtime work causing the em-
ployer to discriminate against Davis in violation of Section
8(a)(3) of the Act.10 I further find that Cronin acted on
Corso’s request for no legitimate union reason. The Respond-
ent Union asserts that its request that Davis’s overtime work
in station A be stopped is consistent with its position about
use of carriers in stations other than the ones to which they
are assigned unless the overtime lists in the affected station
have been maximized. The overtime list in station A had not
been maximized during the time that Davis was working
Tuesdays in that station. I do not find this to be a valid posi-
tion because of the timing of the Corso—Cronin request that
Davis be taken off the station A work and because of Davis’
status as a PTF as opposed to regular carrier status.
I believe it is clear that the Union has consistently taken
the position that a regular full-time employee cannot be used
to perform work in a station other than the one to which he
is assigned unless the employees assigned to the other station
have had the opportunity to perform the work as overtime.
This position has contractual support. However, the situation
with respect to PTFs does not seem to be the same.
Union President Willadsen testified that the Union has had
a longstanding agreement with management that before they
attempted to shift PTF employees from one station to an-
other, they would make every attempt to maximize the over-
time desired list which exists in that station. The agreement
also contemplated that management would first notify the
Union if they found it necessary to shift PTFs.
According to Willadsen, Murphy Road management, in-
cluding Pilkington, met with the Union in April 1991 and
agreed that management would not continue to utilize PTFs
across station lines until management had attempted to maxi-
mize the overtime desired list to its fullest in the station af-
fected. Union Vice President Vernon Tyler offered similar
testimony. However there is no written record of this alleged
agreement insofar as it relates to PTFs and such an agree-
ment appears to me to be contrary to all written provisions
regarding PTFs in this record.
Pilkington testified that this meeting involved the use of
regular carriers from other stations to work in station A. This
practice had been the subject of a number of grievances filed
by the Union. However, Pilkington testified that there were
no restrictions on the use of PTFs in this regard, even those
in hold-down positions, in the contract or any other agree-
ment between the Postal Service and the Union. He testified
that he took Davis off the station A work for a period of
time while he made sure of his legal position on this point.
Pilkington’s version of the agreement comports with all of
1185LETTERS CARRIERS (POSTAL SERVICE)
11 Both Davis and his supervisor, Cattanach, testified that both be-
fore the events here involved and after them, Davis has been as-
signed work outside the Wethersfield station. No grievances were in-
troduced to reflect that the Union objected to this practice. More-
over, the Union held the meeting with Pilkington at a time when
Davis was already working in station A and grievances were filed
at this time about regular employees from other stations working in
station A. See U. Exh. 8. and 9. Surely, Cronin, the station A stew-
ard, would have been aware of the situation, yet nothing was done
about it until the Cheerios incident, and Corso’s angry request of
Cronin that Davis be removed from the station A work. Strangely,
Steward Cronin did not testify in this proceeding. Thus no reason
is given for his waiting more than a month to complain about Davis’
work in his station. Equally strange, if one believes the Union’s de-
fense, is the fact that no grievance was filed by the Union to force
the Employer to make whole the station A employees for the hours
that Davis did work in station A, nor was any grievance filed over
the failure of management to give notice of Davis’ assigned work
in stations other than Whethersfield.
the written pronouncements regarding PTFs in the record
which predated the current controversy.11
Written documentation issued by the Union to support the
position of management in this regard. A Newsletter issued
by the Union’s president (Jt. Exh. 2) states:
There are two overtime desired lists; the Own Work
Assignment List and the Overtime Desired List itself.
The Own Work Assignment List entitles a carrier to
work overtime only on the workdays that he or she is
normally scheduled to work. Being listed on the Own
Work Assignment List does not entitle the carrier to
come in on his or her non-scheduled day and any over-
time worked because of the application of the Own
Work Assignment List is not listed for purposes of
overtime distribution equitability.
The Overtime Desired List entitles a carrier consid-
ered for a call-in on his or her non-scheduled day. All
overtime worked as a result of effecting the Overtime
Desired List is recorded and is subject to equitability
considerations at the end of the quarter. A carrier hav-
ing listed themselves on the Overtime Desired List
must be available to work overtime on any given day
up to 12 hours. The Overtime Desired List applies only
to full-time regulars, not PTF employees. [Emphasis
added.]
Important Things to Remember
If you are listed on either overtime list and on a cer-
tain day you are not able to work late, you must notify
your supervisor immediately upon clocking in for con-
sideration.
Despite widespread beliefs, management is under no
obligation to assign overtime on a seniority or rotating
basis.
PTF’s can be used in lieu of full-time regulars to
work any overtime anytime: even if the overtime occurs
on a carrier’s own assignment and he or she is listed
on the Own Time Work Assignment List. [Emphasis
added.]
A joint statement on overtime (Jt. Exh. 3) states, inter alia:
The Overtime Desired Lists control the distribution
of overtime only among full-time regular letter carriers.
Management may assign overtime to a PTFS or casual
employees rather than to full-time regular employees
who are either signed up for ‘‘work assignment’’ over-
time or OTDL. [Emphasis added.]
At a PTF meeting conducted by Union President
Willadsen in June shortly after Davis went to work at the fa-
cility, Willadsen told the PTF’s that management would be
stupid not to use PTFs for overtime before using regular em-
ployees because it was cheaper.
As the Union’s own written documentation does not sup-
port its position with respect to Davis’ work in station A, I
do not find that its arguments in this regard are valid and
instead are pretextual, designed solely for the purposes of
this hearing. Moreover, as the timing of the demand to re-
move Davis from the station A work came almost a month
after grievances were filed over regular employees from
other stations working in station A, yet immediately after the
Cheerios incident, I find that the request was motivated by
Corso’s animosity and no other reason. As Corso’s request,
and Cronin’s followup to that request serve no legitimate
purpose, but to the contrary, appear entirely irrelevant to any
legitimate purpose the Union might have, I find that through
their actions as agents of the Union, the Union violated Sec-
tion 8(b)(1)(A) and (2) of the Act. See Postal Service, 240
NLRB 1198 (1979).
CONCLUSIONS OF LAW
1. The United States Postal Service is an employer subject
to the Board’s jurisdiction pursuant to Section 1209 of the
Postal Reorganization Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening a bargaining unit employee with loss of
overtime work and requesting the employer to take away that
employee’s overtime work, the Respondent Union has
breached its duty of fair representation in violation of Sec-
tion 8(b)(1)(A) of the Act.
4. By causing the Employer to take away a bargaining unit
employee’s overtime work by threatening to file meritless
grievances, the Respondent Union has violated Section
8(b)(2) of the Act.
5. The Respondent did not otherwise violate the Act as al-
leged in the complaint.
THE REMEDY
Having found that the Respondent Union has engaged in
activity in violation of Section 8(b)(1)(A) and (2) of the Act,
I recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act.
As I have found that the Respondent Union has unlawfully
caused the Employer to remove employee Michael Davis
from certain overtime work, I recommend that the Respond-
ent be ordered to make Davis whole for any losses he may
have suffered by virtue of Respondent’s unlawful actions.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed as
set forth in New Horizons for the Retarded, 283 NLRB 1173
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1987). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
[Recommended Order omitted from publication.]