National Association of Letter Carriers

National Labor Relations Board - Board Decisions

Feb 5, 1979

240 N.L.R.B. 519 (N.L.R.B. 1979)

NATIONAL ASSOCIATION OF LETTER CARRIERS 519 National Association of Lelter Carriers, AFL-CIO and United Stales Postal Service. Case 5 CB 2121(P) Februarv 5. 1979 DECISION AND ORDER BY CHAIRMAN F!N(ii sNI) MM IBI RS Pi \i I I ) \NI) TRtI 151)A1 On June 8. 1978. Administrative Law Judge Nanc\ M. Sherman issued the attached Decision in this pro- ceeding. Thereafter, both the Respondent and the General Counsel filed exceptions and supporting briefs.' and the Charging Parts filed cross-exceptions and an answering brief to the Respondent's excep- tions. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act. as amended. the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings. and conclusions of the Administrative Law Judge onl\ to the extent consistent herewith. The Administrative Law Judge found that the Re- spondent did not violate the National Labor Rela- tions Act, as amended, by unilaterally imposing, without giving the Charging Party notice and an op- portunity to bargain, a rule which excludes letter car- riers from membership in the Respondent Union for so long as such carriers voluntarily choose to work as temporary supervisors. However. the Administrative Law Judge further found that the Respondent vio- lated Section 8(b)( I )(A). 8(b)( 1 )(B). and 8(h)(3) by unilaterally imposing. without giving the Chalrging Party notice and an opportunity to bargain, a rule which withdraws from letter carriers the option to participate in the Respondent's health benefits insur- 1The Respondent has requested oral rguitcni ]Ilis request i hetch\ denied. as the record. the esceptions. and the briefs aidequal\ pcCentl the issues and the piositiions of the partics the Respoindeni hais iA filed a. nioltin II reopei the reold foI Ihe purpose of admitting .i cop if a.n aigreemcl bet hcleen [tie Respondent andl the (harging Parts in settlement if a c.retiil crl.lllce Ilihe etileilciii agreement. in hich the (Charging Parit acrecd iith lie Repolldnl II thi letter carriers temporirils detailed to a super'i-sr\ positioi Ill il, Io( hbid on aicant I etter ( arrier crafl dim a-signlmtlets ' tile so deltilled . is in compliance Aith a prior airbitration decsion in siich it i ,is iheld lltl under the collectlie-hbargining agreement etshCel l the parlies. , tcIipo.ll\ supersti,or emploee as noit permlttled I hid 1 i .i h; clrgill tillt l h I h. settlement agreement ails proffered h\ the Respondent sll to Colllrctel certain argumenti made h the ( hargig Prts iand the (; iilenci (I ounil n their briefs It Ihe Board. Sitc c hare ch .se ell ntot rei ii MlLI Iuhall- menis in our decision herein. lid inlsitmluh is he uIrhlir.itritlln dlcision Upoll which the proffered settlement aIreeielttl is h.uaed is alread\ . piarl I1 ite record, the motion Is hereh denied 240 NLRB No. 68 ance plan for so long as such carriers voluntarily choose to work as temporary supervisors. The Gener- al Counsel and the Charging Party have excepted to the Administrative Law Judge's finding that the Re- spondent's rule excluding letter carriers from mem- bership while serving as temporary supervisors did not violate the Act. The Respondent has excepted to the Administrative Law Judge's finding that its rule withdrawing from letter carriers the option of partici- palting in the Respondent's health benefits insurance plan while serving as temporary supervisors did vio- late the Act. We find no merit in the exceptions of the General Counsel and the Charging Party. How- ever. we find merit in the Respondent's exceptions to the Administrative Law Judge's finding that the Re- spondent violated Section 8(b)(I)(A). 8(b)(1)(B). and 8(hb)(3) of the Act, for the reasons discussed below. The Respondent. National Association of Letter Carriers. AFL-CIO (hereinafter Respondent or NALC) represents the city letter carriers employed bh the Charging Party. United States Postal Service (hereinafter referred to as Postal Service). in a unit of all carriers, excluding, among others, all managerial and supervisory personnel. At the time of the hear- ing, the NALC and the Postal Service were parties to a multiunion collective-bargaining agreement effec- tive between July 21. 1975 and July 20, 1978. The instant dispute arose out of the Postal Service's use of temporary supervisors. It has been the established practice of the parties that, when tem- porary supervisors are needed, the Postal Service re- quests rank-and-file letter carriers to fill such posi- tions under a "204(b) detail." If a 204(b) detail is to he of short duration, the Postal Service usuallk re- quests a letter carrier in the immediate area to fill it. Flowever. for details of longer duration, the Postal Service utilizes a register consisting of letter carriers who have indicated an interest in becoming supervis- ors. Prior to February 1977. the register consisted of the names of letter carriers who had qualified for supervisors jobs by means of a competitive examina- tion. hereafter, the register consisted of the names of letter carriers who had filled out a resume and passed a course given by the Postal Service. The record is clear that temporary supervisors have the same authority as permanent supervisors and can discipline employees and adjust grievances on behalf of the Postal Service. The record is also clear that the Postal Service never forces a letter car- rier to accept a 204(b) detail against his or her will. and it never imposes a penalty on a letter carrier who declines to accept such a detail. Thile following provision is the onlN one in the 1975 78 collective-bargaining agreement dealing spe- cificallN with temporary supervisors: 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The duty assignment of a full-time carrier de- tailed to a supervisory position in excess of 6 months shall be declared vacant and shall he posted for bid in accordance with this Article. Upon return to the craft. the carrier will become an unassigned regular. A letter carrier tempo- rarily detailed to a supervisory position will not be returned to the craft solely to circumvent the provisions of this paragraph.' However, during negotiations which led up to the 1975 78 agreement, the Respondent proposed the following clause, which was not incorporated into the final agreement: Any employee who is employed as a temporary supervisor or acting temporary supervisor. it- cluding but not limited to employees in training in such positions, or any employee employed as a supervisor, when so employed, is excluded from the bargaining units covered by this agree- ment. No bargaining unit employee may be required to accept work as a supervisor or temporary sup- ervisor or acting temporar\ supervisor. In August 1976. the Respondent held a convention of its members during which a number of changes were made in the membership eligibility provisions of the NALC constitution. Prior to 1976. the NALC(' constitution provided for several types of member- ship. "Regular" members included all nonsuperviso- ry employees in the Postal Service as well as retirees who were regular members at the time of their retire- ment. "Associate" members included former regular members of the NALC(' who left the Postal Service or were promoted to supervisory status, but their mem- bership was only for the purpose of participating in the NALC health benefits plaln. Tlhus, an associate member had no voice in the affairs of the NAIC. except as to matters pertaining to the ick benefits. Art 41. sec. I, p. 2. lhe NAI.(' operate a h ilth cnclit, isrlicc pi ul xII I 1..l ' l Ser l ice emploeccs hiae the orplion if participlilin if. hut il \ ll I iif ithc ;i NAI( niebhers. )f N\.I( 's 225.XX) membenihrs. a.1hmt 1820.(}il .rc .Ia,.ic cnplo, ees in Ihe letcr arriers' harillllli2 u nll t 11d ath 11tt J3{til l (HiiIId ing .111 unrldll scd nurllher oI retiree,,) p.rticip te ii litC \Al ( hclht i h1 i- efii, plan. Ihe plan is ;adnlnl-lered in the till lel IC N Al ( s', pIcl, dent director. and assllant directl r I the healtih hcncis . ill h.o, id of trustees All If hcxc indiduls rc elecled hi Ih N \1 ( InlllheClllsi ()II the lcal level the plan is dnilnistered h Ieli i A h ill Ian ch hclil heItnetIs rcprscnilalt. c uh, it cIlected hi Iltelllhles or tie bhi cll l Ilh cers re subjelit ti rcillro.al lioi ofitce Il othter pi ltic l 1I 1ccl Ct o sdu I or kilatlol ofi thi, cotliiitillon" hb icLtIs of 1 pi s10 stii p "1es1Cd h' the NAI( ctinslitutlioni . I)IsussliIn oi[ thie plltl is pll ot echi l bi.lltls Illretic' ICgulifr irdeir f llhlsi . lie dlrector and tile . '.ll 1isi . ,rI L ,hi ,rf health benefits "rite . onie-pagc Tcpil fr cich issuc o ti le 'oi/ Rs,' .Prl I le Posld Ser'.ice onitribttes 75 percent to the l(sl I1 the hcltl h heiefits pliln, I lhe plan itself Is rstie o, 52 rt iICra ed h11lili lsltlil. C p1 , gr'am. appro'uscd h, the ( il Sllic ( niliil stlfl flr clp t Io\ cc iof (le I c r;ll (o,clienlct and Ih Pal Se ic. health benefits, and life insurance plans, as well as to any proposition involving increases in dues for asso- ciate members. In addition, an associate member was not eligible to serve in an NALC office, or as a dele- gate to a convention. Finally a regular member who accepted a temporary or permanent supervisory posi- tion was deemed ineligible for election to any NALC office for I ear, and he was required to vacate any NAI(' office he held at the time of his elevation to a supervisor? status. Pursuant to a vote of the delegates at the August 1976 convention, the membership eligibility provi- sions were amended to read as follows: as of January 1,. 1977. any regular member of the NAL.(' who is temporarily or permanently promoted to a supervisory position within the Postal Service. or any member voluntarily termi- nating his employment with the Postal Service .will not be eligible to continue their mem- hership in the NALC. Thus. the effect of the amendment was to abolish the associate membership classification as of Januar: 1. 1977, although those who were associate members prior to Januars 1, 1977. could remain associate members for the purpose of participating in the NAL.( health benefits plan.4 In addition, in an interpretation given the constitu- tional amendment in an NALC bulletin dated Sep- tember 17. 1976. and in an article in the November 1976 issue of the Postal Record, it was stated that an, member accepting a supervisory position of any duration after JaInuarv 1, 1977. was no longer eligible to participate in the NAL(' health benefits plan.5 Following the filing of charges by the Postal Ser- vice in the instant case, the Respondent issued a bul- letin on )ecember 6. 1976. announcing that the amendmient regarding the membership eligibility of supervisors would be inoperative until a final deci- sion was rendered by the National Labor Relations Board. Ilowever. the bulletin also stated that in the e cnlt the final decision supports the legality of the i idi .liudl i. lI iter o pro .ideC lit r rlollpo,,tia Federal e c plIcc, sitlh the opi .1 .lipari iIlIre 11 h N AI ( health berefis plail, he cI.\CI - Illl dl sCpi ld , eplaie 1ilde pICrtlrlll n lip-stlal I cderal crplioc tin hee,nic (lie cqir.U\tIcIll of IsI- Lc rilc in hers. Ih.11 e CtiilurCilici f tihel lIlet . diileldllicl Iais l cfl ,I I locail hbr.anth ,Ifil- ii.ln .h, ,ec i, ,nol\ the R esp ideiit's headqua.rr that the eriplorree's r I,2ihClIIl l hould hcb tCrlllrl.icd I lie crpl. e sotuld theII he ierl 31 dl\ 1 ,o CIeI .1 II l I Ic.lltil Isii.i ca rrier 1 he e. iarricr ., Irequirecl h\ ( l Set- ic ( ioilru ll In . II le .tlltIlls s, II cct'p l IlC enipl,\c ind tir plou ,di ' i inilitiiil of henlefits ,o Ilaii there u.sild he lu 1ss t thle crnpl r - cc I ie eIIpls.rxec s a, alo, eligible t) ipplN for re:ldrltsiorn t, thie I tion ,.sIcl lie ca Cd ersll i, telnporar.r stiperisir lios.vter. t lc.asl ole ,cal hi.nill Illi Artlllo.illo .I is. i l ClrCs il le l CIa nllll IrC )ilee rllTler Il erIllehl , JI11 .I1)1l\ [fr r.rlrtlliNm ll t .l outuJl itle i Ii, eidcll e Ir tlie lteC"Id I' ItllI. tIC Il it he e11 llAt.ie'llCetl cCC s riuld ippl}\ I1 l, erriplr,,cc ,.1it, ,.'. ul, ,Ied tn11 nllheir h cr l Pr ec 1t'1C he hd serscd a, a tcIllposrIr, 'UpC IS 1 NATIONAL ASSOCIATION OF LETTER CARRIERS 521 amendment, implementation would be retroactive to January I1 1977. In the May 1977 issue of the Postal Record, the Respondent clarified its December 1976 announcement regarding retroactive application of the rule by stating that a retroactive termination of membership would not result in a retroactive loss of health benefit coverage. The record further reveals that, followine the an- nouncement of the constitutional amendment re- garding temporary supervisors, a number of letter carriers who had previously served as temporary sup- ervisors refused to accept such positions after Janu- ary i. 1977. because they did not want to lose their NALC health benefits. In addition, several postmas- ters testified that they experienced difficulty in filling temporary supervisors positions because letter car- riers were unwilling to give up their NAL(' health benefits. The Administrative Law Judge found that the Re- spondent. by amending its constitution in the man- ner described above, violated Section 8(b)( )(A). 8(b)( I )(B). and 8(b)(3) of the Act because the amend- ment had the effect of withdrawing from letter car- riers the option of participating in the NALC health benefits insurance plan for so long as they) volun- tarily chose to serve as temporary supervisors. and the amendment was enacted without giving the Postal Service notice and an opportunity to bargain. However, the Administrative l.aw Judge further found that the Respondent did not violate the Act to the extent that its constitutional amendment exclud- ed letter carriers from nicmber.hip in the NAL(' for so long as they voluntarily chose to work as tempo- rar 5 supervisors. Thus, the Administrative L.aw Judge's Decision in essence finds that the Respon- dent was forbidden bh Section 8(b)( I )(A) 8(b)( I (B), and 8(b)(3) of the Act from eliminating the associate membership classification from its constitution. I'o support her findings and conclusions, the Adminis- trative Law Judge relied upon the Board's decision in Brotherhoodl of Painter. Decorators and Pplc'rhangerl,' of America. A F-L-('IO. Disrici (oluncil ,No. 9 of Ntew York ('it ($ Hest aIe Paintingl and Decorating (Cop'.). Contrary to the Administrative Law Judge. we find that our decision in If;'c. ,gale Paitling,. svpra,. does not require that an) violation be found in the instant case. That case dealt with a resolution adopt- ed b a union requiring that no member employed in city housing repaint work should paint more than 10 rooms per week. Prior to the adoption of the uion resolution, the average number of rooms painted per 6' 18( NI RR 4h4 (197()) ( Ilil-\elihcr .lnilC dI cIlihil) card id, nom . /'* /.r I ( 'U / / X, i It t //'d %t I'I 1 A 411,d lradc,. 41 1 /O C I R H 4'1 [ 2d 783 2d ( r I7 1) ,t' deied 406 t S 130 (1'2 week per employee was 11.5, but the collective-bar- gaining agreement contained no provisions regarding production quotas or ceilings. Employees were paid on a salary basis for a 35-hour workweek pursuant to the collective-bargaining agreement. During subse- quent negotiations for a new collective-bargaining agreement, both parties proposed language regarding production ceilings, but no agreement on that matter was reached. Following the signing of a new collec- tive-bargaining agreement, the union enforced its resolution through threats of fines. The Board judged the union's conduct under Section 8(b)(3) and. thus. the key issue was whether the union rule unilaterally changed a term or condition of employment of union members without the acquiescence of the employer. Since the record revealed that the union rule did cause a reduction in the average number of rooms painted per week per man. and, further, that mem- bers were actuall stopping work after completing 10 rooms even though they had worked less than the full workweek. the Board found that the union rule ef- fected changes in wages paid to employees and in the workveek which were neither sanctioned b the con- tract nor accepted by the employer. The Board rea- soned that "the Union. by its action after the neyw agreeiment was executed thus sought to secure with- out bargaining what it had failed to achieve in bar- gaini ilg. In the instant case. however, there is no evidence that the Respondent's constitutional amendment uni- latera-;ll changed an\ term or condition of emplo\- ment. he collectie-bargaining agreement permitted the Postal Service to utilize letter carriers as tempo- rary supervisors, but it was completel x silent as to whether such carriers could maintain their NALC membership or NALC health benefits while serving as ternporarN supervisors.8 Thus, it was only because of an NALC rule setting out the various qualifica- tions for membership that letter carriers were permit- ted to retain their NALC membership while serving as temporart or permanent supervisors. When the NAL(' changed its membership rule, it changed no term or condition of employment, as the Postal Ser- vice is still permitted under the collective-bargaining agreemnent to utilize letter carriers as temporary sup- er isors. In addition. those letter carriers who choose to serve as temporary supervisors are not deprived of an, benefit pro ided by the collective-bargaining agreement. because it is only coverage b an ap- pro ed health plan which is required b the contract. and not coverage b the N'A .C healtl plan. The only bargained-for contract right which all Postal Service h/ . ')((, 1·hic.c . 1II .,ihlllil lo 11r h, .lit 1 c. II e * h.lrlill .11dCII1C i ItI I IC [ .rlt l F ct i fil .I Ic lllrp.Prx r lpcrIior, aire ot) perilitcd hi 11q o, 1v.f .llllltl t11111 Itt 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees have with regard to health benefits is that the Postal Service is required to make a flat rate con- tribution, at the level prescribed by the contract, to the cost of ant health benefit plan which te emplos- ee. at his personal option. selects.' Since the Respondent's amendment does not alter the Postal Service's right to utilize letter carriers as temporary supervisors nor the amount of the contri- bution the Postal Service must make to each employee's health benefit coverage, and inasmuch as individual employees will continue to receive unin- terrupted health benefit coverage, it is clear that the amendment effected no unilateral change in terms and conditions of employment in violation of Section 8(b)(3) of the Act. Thus, unlike the situation in i4 - gate Painting, this is not a case in which the Respon- dent has "sought to secure without bargaining what it had failed to achieve in bargaining." 10 Pursuant t a memrandunl if unldcr,landiln cnlaillc d nl III the 197 78 collective-bargaining agremecnt the Pox aI Serice', conlrih h ollln cil It 75 percent off the aerage of he high op on prr iua cost of ri cl lcd plans specified in the agreemen . [ hus. the Postal Scr mcc', ccl oI tonlli ,l- Iln is the same regardless f he health plan c hoell b til cn ploc ce m As noted above, during the negotiatins , hich led o the 1975 7 cIol lective-hbarganlng agreement. the part es did enLg i ge I ,,tim hIIIIIIni ahou I [he Postal Service's ue of Iernporar? and per lllcll IiprC T\ilx Ih I I nion proposed a twi-part pro, iiin lsttin that aI Clp;o\ec O I d liil he required t ser e as a leporarS or permanen t uper i or ;and Ilia. I h l i serving s a lempolar , or permanent xUiper or. all clploec o u iuld bc excluded from the bargaining unit I he record i, clear t hai ithe I'ostl Sil- vice tteCer requires an emplioee to ser ax i Ic nlprarr or perlllll l l .i - visr. he record i,. also clear that the coilectlie-huargailnlii igrct areelcl cx- c ildes permanent supersior, rom he bargaining ulil Iand. in addilion. that the Postal Service has repea tedlb takecn the pistoil( l that ICIIpolal\ supervisors are not part of he bargaining unit hus. the NAI ( , propo- al was m erelN an attempt to codi , hat were alrteadc Ihe IIloillari\ Pl [- ices of he Potal Serice inl rcgard Io Icinlplialr i and pcrilc xlll Ilpc[ i- ors. Nevertheless. Ihe Postal Ser, ice cxcicixedi ti iught Io I clCCl hc \AI( propoxal and. thus. no change xas nia.de I te llCcl\c-baIgIll/In I"I'CC- ment regarding temporar or pcrnlaenlctl uprsx orx ltouclt. tIc ( rule which was enacted at the Auguit 1976 (tincellUiol nicickl ciudcd temprarI and permanlent superlsor Ir oni iliullut'ihlt/ iiT Ihc \1 AI( which is complete distllict and sep.laralt from excluding tellporall xupc l- visors from the hitiiltnii allIl W e lso notle tha the Board's Idecsioni il ( i l tlmliHIi II *J/ I A .4etriua 4t . ( 10. .- al J/ 7) (Ri/itl usir 1l.I/il.,m ('.ii . at,,,ii. 194 NRB 872 I 1972). does not support a findin oiii an 1 b131 .h3) alitll i tili instant case. as argued h Ihc (icencral ( 1l cl Itail caic. ii e Blli foiund a viollion oI Sec 8(bi)13 of the Act hecre a unil adopied dni enforced a ruleprllihiitin unit emplo! ees from ai cceptin tenpolar i IIpc - visor, assignments. he Bard fund that tile UllLtl haId Uliiiitci.ll changed the lerms of the co llecle-h; rgailining agreelenii hbcaxc ll c ipall i- ties had bargained about the use of unit enploeeccs acI lr;ll! r: Ilpex i,i, and had reached an agreemenl i coltnuac he eliplor', x'"I" p l;ticc lhe Board rationale. ho. eer. partlail dni ished I i P l m ,/i because. in wcivtulu Plllliiu. the paric had ar.iliecd hut hiad l.ilcud o reach agreement On prduction quoltas I htli, in finding ia ltollUil OI SCt 8(b)(31 in Wu-iigafle Patiing. the Board found tilh.t cruiit /ic lClix o ti c collective-hargaining agreemenl had been unlll tcrall, diled h hle tinion's production quiota In findin a lulatliuon ol Sec 8h)l I3) R0ll /,i 7lelphumle. the Board found that anll atual Igrecilenllt rcgarding tile use ot tempiorarx supervisors had heeu uilaer.alix ltered h thIe uill I11' h;at 1II accepting lemporar! superximsor ;asiglnirlt In te I1ti;11Il cisC. the pall- lies had not bargained ahbout ltnor realched ln a;lre nllclenl s Ic) 'llthciher I1IIIl- porarx supervisors could realit Itheir NAI.( nlciinberhip or llcir lightI To participate in the N 1.( health henlitx Inilr.linte pla;in. II dduitni. II1C NAL(' amendment did not unialteralk idlcr ails Olti , r ii Oi CillI. oin i I It is further alleged that the Respondent's amend- ment violates Section 8(b)( I )(A) and (B) of the Act. T'he Administrative Law Judge found a violation of those sections because "the threat of exclusion from the {healthl plan had the natural tendency to deter letter carriers from accepting 204(b) details, and there is affirmative evidence that some letter carriers in fact refused 204(b) details fro this reason .... We agree with the Administrative Law Judge's factu- al finding that the NALC amendment deterred some letter carriers from accepting 204(b) details. We also find that the amendment actually made it more diffi- cult for the Postal Service to fill 204(b) details. How- ever, contrary to the Administrative Law Judge, we find that the Respondent's amendment to its consti- tution did not violate either Section 8(b)(I)(A) or 8(b)( I )(B) of the Act, for the reasons discussed be- Section 8(b)(I)(A) makes it "an unfair labor prac- tice for a labor organization or its agents . . . to re- strain or coerce . . . employees in the exercise of the rights guaranteed in Section 7 ... .. The proviso to that Section, however, guarantees the "right of a la- bor organization to prescribe its own rules with re- spect to the acquisition or retention of membership therein." The Supreme Court in N.L.R.B. v. Allis- (lnuerl-s Malnufacturing C('.." in interpreting Section 8(b)( I )(A) and its proviso, held that "Congress did not propose any limitations with respect to the inter- nal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status." Thus, although it is unlawful for a union to cause an employer to discharge or disci- pline an emp/lo'vee for violating a union rule (except for the failure of an employee to meet his or her financial obligations under a lawful union-securit a reenment) , it is lawful to subject an employee to /tin/in discipline as a anion member for violating a union rule. However. as noted by the Supreme Court in Scofie/hl/ v. N.L.R.B. 12 there are certain circum- stances under which a union rule which does not af- fect a union member's employment status may still violate Section 8(b)( I )(A), such as where a union rule requires a member to exhaust internal union proce- dures before filing an unfair practice charge with the Board. Thus, the Court in Sofiel(l (at 430) analyzed the application of Section 8(b)(1) in the following manner: . .§8(b)( I) leaves a union free to enforce a properly adopted rule which reflects a legitimate tilce act llc- t u .lcbi ri Igiccrenit .al ld ill t did li prohibit NA I.(' ltcnl- hels iioill iccpillc posilitions tlen porarr xapeilisoirs Tus. under tIhe til clt i ci lc(~t t Pt'lt nl /'tilm, r it Ri ihi2 l 'lel, Iclli.ti. t ix clear hat the RcepondiclIt ias ino t iuiolaled Sec 81h)1) f tile Act 188 1 S 175. 195 1967 lIt-4 S5 423. 429 430 11 9119 t -- NATIONAL ASSOCIATION OF LETTER CARRIERS 523 union interest, impairs no policy Congress has imbedded in the labor laws. and is reasonably enforced against union members who are free to leave the Union and escape the rule. .. The union rule in Sctofield dealt with a union member's right to earn additional wages beyond the "ceiling" rate set by the parties during collective-har- gaining negotiations. The rule permitted a uniol member to produce as much as he liked on a piece- work basis each day. but the member was restricted from drawing pay up to the ceiling rate. The addi- tional wages due for work performed over the ceiling rate was "banked" by the employer and paid to the employees on days when the employee failed to meet the piecework ceiling because of machinery break- down. However, if the unionn member demanded to be paid for all work he performed beyond the piece- work ceiling, the employer complied with his request, but the member was then subject to a union fine and in some cases expulsion. Thus, the Supreme Court. in applying its rationale, noted that the enforcement of the union rule, although purely an internal union matter, "has and was intended to have an impact beyond the confines of the union organization. But . . .it does not follow from this that the enforcement of the rule violates §8(b)( I)(A). unless some impair- ment of a statutory labor policy can be sown." 14 The Court then found that the union rule did not impede the statutory policy of collective bargaining because the union had always stood ready to bargain over the piecework ceilings, and the employer had repeatedly sought an agreement eliminating the ceil- ings. Therefore. the Court reasoned that the em- ployer should not be permitted a "better bargain than he has been able to strike at the bargaining ta- ble." 15 Nor did the union rule violate the collective- bargaining agreement, as the contract "leaves in the hands of the employee the option of taking full ad- vantage of his allowances. performing only as an av- erage worker and not reaching even the ceiling rate." 6 Finally, the Court rejected the argument that, inasmuch as the union had failed successfully to bargain for a mandatory. contractually imposed ceil- ing covering all employees in the bargaining unit, it could not impose one only on its members through a union rule. The Court concluded as follows: That the choice to remain a member results in differences between union members and other employees raises no serious issue under X8(b)(2) and §8(a)(3) of the Act. because the union has Id ,at 430 i hi 1 412 ' Id at 433 M Id not induced the employer to discriminate against the member but has merely forbidden the member to take advantage of benefits which the employer stands willing to confer. Those sec- tions are not aimed at completely internal union discipline of union members. even though the discipline may result in the member's refusal to accept work offered by the employer. Alli.s-Chal- mrews makes this quite clear.' In our view, the legality under Section 8(b)( I)(A) of the Act of the Respondent's conduct in the instant case is mandated by the criteria enunciated by the Supreme Court in Scofield. The NALC rule in this case was enacted pursuant to a constitutional amend- ment. and there is no evidence that it is not a "prop- erly adopted rule." In addition, the rule reflects the 'legitimate union interest" of protecting itself from members whose loyalties are clearly not bound to the NALC, since an NALC member who accepts a posi- tion as a temporary supervisor clearly aligns himself with the interests of management. Further, since compulsory union membership is not permitted for employees of the United States Postal Service, an employee is free to leave the NALC at any: time and to seek health benefits coverage by a plan other than that offered by the NALC so that, if and when the employee decides to accept a temporary supervisory position, he will not be inconvenienced by the neces- sity to change health plans. Finally, and of most im- portance, we can perceive no policy in the labor laws which is impaired by the NALC rule. For, as found above. the Respondent was under no obligation to bargain with the Postal Service concerning the imple- mentation of the rule. In addition. the rule did not violate the collective-bargaining agreement between the parties. because a letter carrier is still permitted to accept a position as an temporary supervisor and. while serving as a temporary supervisor. is not de- prived of any contractual benefits.'8 Neither does the NALC rule pose a danger of inducing employer dis- crimination against NALC members, inasmuch as the Respondent has merely restricted a letter carrier's I d al 4s 436 1In .ridliln, . C nolte ilal ihe Rcppndent', rule doc 11,11 Ioil .11110 reftc l 11lJ ,I lll . .lll h..lll c , 1 l lpor.lrr .npCII'CI' (0Iit¢ J1¢ hc - rile, ., lcnollrpl.lr' ptlpl li. Ixn h1 ni ] ntIiplo l "cniploincc" [ lthrhc i1lll. ll 'f Scc 2S I 3) o tile .I I huIu. the Rpondllcilll' riule '1ll 111 n 1, n tt.'xlriltll oI l c lCI plOJmec'x I-n -i tolniOI f Set S (b}( i }(A). tih111,h -in 11 'Ipp '. lic , r d ,' t lln, ld\u 111 Poi't1.III. m S1 e In r h I )X.) 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