American Postal Workers (Postal Service)

National Labor Relations Board - Board Decisions

Apr 16, 1984

269 N.L.R.B. 995 (N.L.R.B. 1984)

AMERICAN POSTAL WORKERS (POSTAL SERVICE)
American Postal Workers Union, AFLCIO (United
States Postal Service) and Abel P. Arteaga.
Case 23-CB-2750(P)
16 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 25 November 1983 Administrative Law
Judge Richard J. Linton issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a brief in support thereof and of the
judge's decision.
The National Labor Relations Board has delegat-
ed its authority 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 rul-
ings, findings,' and conclusions2 and to adopt the
recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. 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 re-
versing the findings.
t The judge relies on the pretrial affidavit of union officer Gilbert
Uriegas to find that Union President Mary Mackay told him that employ-
ee Abel Arteaga had resigned from the Union. However, because it is
undisputed that both Uriegas and Mackay knew that Arteaga had re-
signed when on 30 November 1982 Uriegas finally informed Arteaga that
the Union would not file his grievance, the source of Uriegas' knowledge
that Arteaga resigned is irrelevant. We therefore find it unnecessary to
rely on Uriegas' pretrial affidavit.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in San Antonio, Texas, on
August 9, 1983, pursuant to the April 22, 1983 complaint
issued by the General Counsel of the National Labor Re-
lations Board through the Regional Director for Region
23. The complaint is based on a charge filed March 9,
1983, by Abel P. Arteaga, an individual (Arteaga or
Charging Party) against American Postal Workers
Union, AFL-CIO (Respondent, Union, or APWU).
t All dates are for 1982 unless otherwise indicated.
269 NLRB No. 171
In the complaint, as amended at the hearing, the Gen-
eral Counsel alleges that Respondent violated Section
8(b)(1)(A) of the Act by informing Arteaga on Novem-
ber 30 and December 1, 1982, that it would not file a
grievance on his behalf, and by thereafter failing to file
such grievance, because he was not a member of the
Union.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The United States Postal Service (Postal Service or
USPS), an independent establishment of the Executive
Branch of the Government of the United States, operates
various facilities throughout the United States in the per-
formance of its basic function to provide postal service
to the nation. In furtherance of its basic function, the
Postal Service, at all material times, has operated a gen-
eral mail facility, known as the GMF station, for the
processing of mail and the furnishing of postal service in
and around San Antonio, Texas. The GMF station is the
only one directly involved in this proceeding. The USPS
is now, and has been at all times material herein, subject
to the jurisdiction of the Board in unfair labor practices
under the Act pursuant to the provisions of Section
1209(a) of the Postal Reorganization Act (PRA).
II. THE LABOR ORGANIZATION INVOLVED
Respondent APWU admits, and I find, that it is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Settlement of the McGlothing grievance
Around February 22-26, 1982, the USPS and the
Union settled a rather complex grievance involving the
upgrading of B.D. McGlothing from wage grade PS-6 to
PS-7 in the Mail Classification Center (Center).2 As part
of the settlement, McGlothing withdrew his EEO
charge. Also as part of the settlement, a PS-7 position in
the Weighing Section, where Charging Party Arteaga
worked, was declared vacant and replaced with a new
classification at grade PS-6. The PS-7 position formerly
had been held by Leland Mueller who had been serving
for several months as an acting supervisor.
In short, it appears that in the settlement process of
McGlothing's grievance, a PS-7 ranking (formerly held
by Leland Mueller) was dropped from Arteaga's Weigh-
' The settlement was made effective as of March 6, 1982 (G.C. Exh.
3).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Section and used to settle the McGlothing grievance
and EEO charge.
On February 26, 1982, Arteaga, classified as a grade or
level 5, learned of the settlement and the fact that
Mueller's old level 7 position (now no longer in exist-
ence, having been replaced with a level 6 job classifica-
tion) would not be posted for bid. Arteaga complained to
Donald E. Gignac, clerk craft president and also a shop
steward, that the failure to post violated article 37, sec-
tion 3, of the collective-bargaining agreement. Gignac
explained the Union's reasons for the settlement, includ-
ing the fact that the Postal Service had the option to
revert Mueller's former position, that USPS apparently
intended to revert it, and that arbitration offered no
guaranteed result. Arteaga persisted and aksed if the
Union would file a grievance on his behalf. Gignac re-
plied that he would not do so because the Union would
not be acting in good faith (in light of the McGlothing
settlement) and because there was no contract violation
(Tr. 136).
Arteaga then telephoned Mary Jonell MacKay, gener-
al president of the Union's local, and inquired about the
settlement and told her he wanted to file a grievance.
MacKay told Arteaga that she had approved the settle-
ment of McGlothing's grievance, and that the Union
would not file a grievance over a failure to post
Mueller's old position level 7 for to do so would be to
abrogate the agreement the Union had made with the
USPS regarding the McGlothing grievance. Even if the
job had been posted, MacKay continued, McGlothing
had more seniority and would have gotten the job if he,
McGlothing, bid on it (Tr. 153, 177). At trial, MacKay
confirmed these reasons (Tr. 161-163).
According to Arteaga he asked MacKay to notify him
of the Union's answer in writing, and MacKay said she
would send him something (Tr. 21). Apparently nothing
was sent. It appears that Arteaga has confused this por-
tion of the conversation with his early November 1982
conversation with MacKay.
On March 3 Arteaga spoke with Guadalupe Torres,
director of labor relations for the USPS in San Antonio,
who confirmed the fact of the settlement. That same day
Arteaga again asked Gignac to file a grievance over the
failure to post, but Gignac declined (Tr. 23).
2. Arteaga files EEO charges
On March 12, 1982, Arteaga filed a charge with the
Equal Employment Opportunity Commission (EEOC)
against the Union alleging discrimination based on na-
tional origin, Mexican-American, by denying him "the
opportunity to file a grievance against the USPS (R.
Exh. 1). The EEOC dismissed Arteaga's charge on May
11, 1982, for lack of reasonable cause to believe that the
allegations were true. The dismissal letter advised Ar-
teaga of his right to file suit in U.S. District Court.
In the meantime, on March 25, 1982, Arteaga initiated
informal EEO steps under the internal procedures of the
USPS (R. Exh. 2). By May these steps reached the
formal stage when, on May 4, 1982, Arteaga, with the
assistance of Gilbert Uriegas,3 filed a formal EEO com-
plaint alleging national origin discrimination as follows
(G.C. Exh. 4):
I feel that I was discriminated against by the U.S.
Postal Service. By Management agreeing with the
Union to upgrade clerk Bill McGlothing job from
level 6 to level 7, it deprived me of an opportunity
to bid on clerk Leland Mueller's level 7 seven posi-
tion. Clerk Mueller's job should have been posted
for bid. Clerk Mueller had been on 204B detail
[acting supervisor] for over 4 months. See Article
37 Sec. 7 of the National Agreement.
Management upgraded McGlothing's job and did
not put for bid Mueller's job, who had since retired.
By letter dated October 18, 1982, the USPS notified
Arteaga that his EEO claim was rejected because the
Postal Service viewed the issue as a "contractual matter"
(G.C. Exh. 6). Arteaga was advised of his right to appeal
to the Equal Employement Opportunity Commision or
to file a civil action in an appropriate United States Dis-
trict Court.
Arteaga apparently elected not to proceed further
with either EEO claim. As earlier noted, he filed the
charge in this case on March 9, 1983.
3. Arteaga resigns from the Union
On May 20, 1982, Arteaga went to the local personnel
office of the USPS and signed a form revoking the
checkoff authorization of his union dues (G.C. Exh. 5).
There seems to be no dispute that the revocation form
had to be held by the USPS unitl September 1982 before
being processed. Arteaga testified that the personnel
office (clerk) so told him (Tr. 67). Apparently September
was the anniversary period of his checkoff authorization.
Eventually the Union's computer department in Min-
neapolis, Minnesota, was advised by the USPS of Artea-
ga's checkoff cancellation, and on October 20, 1982, that
department issued a computer printout of the dues-
checkoff roster (G.C. Exh. 7). Arteaga is shown as
having canceled. Union President MacKay candidly con-
cedes that such a revocation is commonly interpreted as
the equivalent of a resignation from the Union (Tr. 159).
MacKay asserts, however, that the printout would not
have been received in San Antonio until about early No-
vember because such printouts are sent in bulk to the
treasurer's office in Washington, D.C., where a a check
is prepared for sending with the appropriate pages of the
printout to the various locals (Tr. 160). Her secretary,
MacKay testified, informed her around mid to late No-
vember 1982 of the fact that Arteaga had resigned from
the Union (Tr. 1701-172, 183).
As we shall see in a moment, the timing of MacKay's
knowledge is relevant to the issue of animus.
3 Although Uriegas is a union officer and shop steward, Arteaga does
not contend that Uriegas was acting in his union capacity in so assisting
(Tr. 26).
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AMERICAN POSTAL WORKERS (POSTAL SERVICE)
B. Events of October 1982
There is agreement that on October 28, after Arteaga
had received the October 18 letter from the USPS advis-
ing him that his complaint was a "contractual matter,"
Arteaga contacted Gilbert Uriegas and requested that
Uriegas, as a union representative, file a grievance for
Arteaga regarding the subject they had discussed 8
months earlier (Tr. 32, 62, 98). Uriegas said he would
have to check with MacKay. Later that same day he
made a copy of the letter Arteaga had received to give
to MacKay.
The next day, October 29, Uriegas submitted the copy
to MacKay. She said she would contact Uriegas after she
had checked with National Vice President Tom Neill.
Around November 1, after conferring with Neill,
MacKay called Uriegas at home and informed him that
she and Neill were in agreement that Mueller's old level
7 was part of the McGlothing settlement and that no
greivanCe would be filed (tr. 155. 167, MacKay). 4
As a witness, MacKay testified that she takes full re-
sponsibility for the decision not to file a grievance in Oc-
tober-November 1982 (Tr. 182). No grievance was filed
at that time, MacKay testified, because nothing had
changed since February, except, she added, that now the
contractual time limits for filing a grievance had long
since expired. (Tr. 164-165).5
At this point there is a significant difference in the tes-
timony regarding the dates. Arteaga places the conclud-
ing conversations (in which he learned the Union's
answer) around November 30-December 1, 1982. This is
so, Arteaga testified, because Uriegas was on annual
leave and then jury duty for nearly the whole month of
November. Without contradicting Arteaga regarding the
lengthy absence of Uriegas, MacKay and Uriegas, in
similar testimony, include all the conversations in one
series beginning October 29 and concluding about No-
vember 1.6
I credit Arteaga's trial version of the date sequence. I
note that his reference to Uriegas' absence from work
was not directly contradicted. The date is significant be-
cause of the motivation issue.
When Uriegas returned to work on November 30,
1982, Arteaga asked him if he had given the October 18
4 The testimony of Uriegas is similar to MacKay's. The dates and
events to this point also are consistent with the testimony of Arteaga.
s MacKay apparently did not interpret the "contractual matter" phrase
in the October 18 rejection by the USPS of Arteaga's EEO complaint as
a suggestion that a grievance could be filed. Nor would I. The more rea-
sonable conclusion is that the USPS considered Arteaga's claim to be a
matter which was controlled by the collective-bargaining agreement.
Arteaga could have filed a grievance himself at the first step of the
grievance procedure (Tr. 69, 165; G.C. Exh. 2, art. 15, sec. 2, p. 52). His
testimony that he did not do so because that is what he was paying union
dues for is rather strange (Tr. 69-70). His dues cancellation, signed in
May, became effective in September. His testimonial reason, therefore,
could apply only to February-March, not to October-November. Final-
ly, I should note that Arteaga is very familiar with contractual matters.
During his 31 years with the USPS Arteaga served I year, 1972, as presi-
dent of Respondent's local union (Tr. 37, 68, 69, 99, 117). He unsuccess-
fully opposed MacKay for president in 1980 (Tr. 40). That year was one
of her three terms (Tr. 152).
6 In his pretrial affidavit of March 11, 1983, Arteaga's sequence is also
confined to a single series of conversations beginning October 28 and
ending November I (R. Exh. 2).
letter to MacKay. Uriegas replied that he had done so on
October 29. When Arteaga inquired whether the Union
was going to do anything, Uriegas said he wanted to call
MacKay. 7 He left to do so. Moments later Uriegas re-
turned. Arteaga testified that Uriegas began by saying
that MacKay had told him that Arteaga was no longer a
union member and that therefore the Union was not
going to file a grievance or get involved at all. Arteaga
responded by saying he would have to go to the Labor
Board. Uriegas supposedly asked that Arteaga wait a day
or two to give Uriegas a chance to talk to MacKay
again. The following day Uriegas reported that
MacKay's position was the same plus she was not going
to give Arteaga anything in writing (Tr. 35-36, 65).
Uriegas denied saying to Arteaga anything like a state-
ment that the Union would not represent Arteaga be-
cause he was not a member of the Union (Tr. 106). With
persuasive demeanor, Uriegas testified that he told Ar-
teaga that the Union would not file a grievance because
the issue had already been resolved, that the time limits
had expired, and that if the Union were to proceed it
would be talking out of both sides of its mouth (Tr. 104).
Arteaga became upset and said he wanted something in
writing from MacKay or Neill. Uriegas said he would
make a request for that. Later that day, Uriegas relayed
the request for a written statement to MacKay. Declin-
ing to furnish a written statement, MacKay told Uriegas
that if Arteaga called her she would explain the reasons
to him. Uriegas reported this to Arteaga who said he
would take care of the matter himself. (Tr. 105).
Before departing from Arteaga to ask MacKay for the
written statement, Uriegas asked Arteaga why he had
dropped out of the Union. Because, Arteaga answered,
the Union had not done anything for him (Tr. 105). Urie-
gas testified that he asked his question because he was
shocked to learn of Arteaga's withdrawal from the
Union. He was curious as to Arteaga's reason, for Ar-
teaga "had been my general president at one time," had
done a lot for Mexican-Americans, had helped get Urie-
gas reinstated once, and "so I was surprised, you know,
shocked that he would withdraw from the Union.
Myself, I just wanted to know the reason" (Tr. 117).
This brings us to the question of how and when Urie-
gas learned of Arteaga's resignation from the Union.
Such inquiry leads into the motivation evidence. Uriegas
testified that when Union President MacKay called him
the day after he had given her a copy of the October 18
letter Arteaga had received from the USPS, MacKay
first informed him of the reasons the Union could not file
a grievance on Arteaga's behalf (Tr. 103). In his pretrial
affidavit of March 21, 1983, Uriegas records (G.C. Exh.
8): "MacKay then informed me that Arteaga had
dropped out of the Union because of this issue." On
cross-examination Uriegas testified that he was not sure it
was MacKay who told him, that it could have been
MacKay's secretary, and that he merely told the investi-
gating Board Agent he thought it was MacKay (Tr. 109,
In crediting Arteaga's version on this point, I find that Unegas had
been informed a month earlier of the Union's position. Uriegas' call to
MacKay at this point was, I find, simply to confirm that there had been
no change while he was away from work
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111, 114). Although Uriegas generally exhibited a persua-
sive demeanor, on this point he was unconvincing, and I
do not credit him as to this. I therefore find that the ver-
sion quoted above, set forth in his March 1983 pretrial
affidavit, is the more accurate account. Although it is un-
clear whether Respondent admits that Uriegas is its
agent, the pretrial affidavit here is affirmative evidence.
Alvin J. Bart & Co., 236 NLRB 242 (1978).
C. Analysis and Conclusions
I find, as just discussed,. that MacKay did tell Uriegas
that Arteaga had dropped out of the Union over this
issue. However, I further find that it was not October 29
that MacKay told him this, but the occasion when Urie-
gas telephoned her on November 30 after returning to
work. Although MacKay was not asked about this testi-
monial assertion of Uriegas, and therefore neither con-
firmed nor denied it, I note that the date sequence, as
found above, is consistent with her testimony that she
learned around mid-November, from her secretary, that
Arteaga had resigned from the Union.
Having found that MacKay did make the November
30 statement attributed to her by Uriegas, I further find
that it was nothing more than a factual observation
which followed her expression of the reasons the Union
would not file a grievance. I also credit her denial that
she ever said the Union would not represent Arteaga be-
cause he was not a member of the Union (Tr. 158).
At page 6 of his brief, counsel for the General Counsel
argues that Respondent demonstrated its animus by ad-
mitting that it maintains a "scab" list. The force of that
argument is greatly undercut by the fact it was counsel's
question which contained the word "scab," and the wit-
ness, MacKay, answering in the affirmative, explained
that such a list (of nonmembers) is maintained for the
purpose of organizing (Tr. 179). I attach no significance
to MacKay's confirmation of a "scab" list.
The crucial linchpin of the General Counsel's case is
Arteaga's testimony that Uriegas quoted MacKay as
saying the Union would not file a grievance because he
had resigned from the Union. I do not credit Arteaga. I
find that he embellished upon Uriegas' sincere question
asking why Arteaga had dropped out of the Union.$
8 It is clear that Uriegas greatly respected Arteaga for all that the
former president had done for Uriegas, for all Mexican-American em-
ployees, and for the Union. He was a sincere and believable witness. It is
Having substantially credited the testimony of Uriegas
and MacKay, I find that the reasons MacKay elected not
to file a grievance in October-November 1982 on behalf
of Arteaga were those they described at trial and which
Uriegas relayed to Arteaga on November 30, 1982.
These reasons had nothing to do with the fact Arteaga
had resigned from the Union. Accordingly, I shall dis-
miss the complaint.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the United States
Postal Service pursuant to the provisions of the Postal
Reorganization Act.
2. Respondent American Postal Workers Union, AFL-
CIO is a labor organization as defined in Section 2(5) of
the Act.
3. Respondent APWU did not violate Section
8(b)(lX)(A) of the Act by refusing on November 30, 1982,
to file a grievance pertaining to the failure of the Postal
Service to post a certain job for bidding in February-
March 1982 on behalf of Charging Party Abel P. Ar-
teaga, allegedly because of Arteaga's nonmembership in
Respondent Union.
On these findings of fact and conclusions of law and
on the entire record in this case, I issue the following
recommended9
ORDER
The complaint is dismissed.
a mark of his sincerity, and not evidence of relevant animus, that he ad-
vised Arteaga the week before the instant hearing that he cold not repre-
sent Arteaga in another EEO matter. Uriegas testified that he felt the
pressure of a conflict of interest, defending himself from Artega's allega-
tions in this case, while having to represent Arteaga in the pending EEO
matter. That conflict prevented Uriegas from mustering the wholehearted
enthusiasm which he felt was necessary for the role of representing Ar-
teaga, and he therefore turned over certain documents to Arteaga in that
case and asked him to obtain another representative (Tr. 113). This dis-
closure to Arteaga of a conflict of interest reflects candor and ethical
conduct, not animus.
g If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
998