American Postal Workers Union, AFL-CIO, Local 1901 (United States Postal Service)

National Labor Relations Board - Board Decisions

Jan 21, 2020

369 N.L.R.B. 9 (N.L.R.B. 2020)

369 NLRB No. 9
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
American Postal Workers Union, AFL–CIO, Local
1901 (United States Postal Service) and Anthou-
la Contogianni. Case 10–CB–231385
January 21, 2020
DECISION AND ORDER
BY MEMBERS KAPLAN AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that American Postal Workers Union,
AFL–CIO, Local 1901 (the Respondent) has failed to file
an answer to the complaint. Upon a charge filed by An-
thoula Contogiannis, an individual, on November 20,
2018, the General Counsel issued a complaint and notice
of hearing on June 17, 2019, alleging that the Respond-
ent has violated Section 8(b)(1)(A) of the Act.1 The
General Counsel reissued the same complaint on July 8
and issued an amendment to the complaint on August 30.
The Respondent failed to file an answer.2
On August 22, 2019, the General Counsel filed with
the National Labor Relations Board a Motion for Default
Judgment. On August 23, 2019, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent filed no response. The allegations
in the motion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3

1 All dates are in 2019 unless otherwise stated.
2 The General Counsel’s motion for default judgment and attached
exhibits indicate that the complaint, the amendment to the complaint,
and two reminder letters were served on the Respondent by both certi-
fied and regular mail. Although the certified mail receipts show that
the Respondent’s certified mail copies of the complaint and the remind-
er letters were available for pickup but not retrieved, none of the copies
sent by regular mail were returned as undeliverable, and the complaint
was served in person to the Respondent on August 2.
It is well settled that a respondent’s failure or refusal to accept certi-
fied mail or to provide for appropriate service cannot serve to defeat the
purposes of the Act. See, e.g., Cray Construction Group, LLC, 341
NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247
fn. 2 (2003). Further, the failure of the Postal Service to return docu-
ments served by regular mail indicates actual receipt of those docu-
ments by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650
(1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir.
1988).
3 Chairman Ring, who is recused, is a member of the panel but did
not participate in this decision on the merits.
In New Process Steel v. NLRB, 130 S.Ct . 2635 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a
two-member quorum when one of the panel members has recused
himself. Under the Court’s reading of the Act, “the group quorum pro-
vision [of Sec. 3(b)] still operates to allow any panel to issue a decision
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that unless an answer is received on or before July 22,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
Further, the undisputed allegations in the General Coun-
sel’s motion disclose that the Region, by letter dated July
23, advised the Respondent that unless an answer was
received by July 29, the Region may pursue a default
judgment. By letter dated July 25, the Region corrected
the date for receipt of an answer to July 30. By letter
dated August 8, the Region again advised the Respond-
ent that unless an answer was received by August 16, the
Region may pursue default judgment. Nevertheless, the
Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service provides postal ser-
vices for the United States and operates various facilities
throughout the United States in performing that function,
including a post office at issue in this proceeding located
at 201 Piedmont St., Reidsville, North Carolina. We
have jurisdiction over the Postal Service pursuant to Sec-
tion 1209 of the Postal Reorganization Act, 39 U.S.C. §
101 et seq.
We find that the Respondent and American Postal
Workers Union, AFL–CIO (the National Union) are la-
bor organizations within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, John Harris has held the position
of the Respondent’s President and Turnette Chestnut has
held the position of the Respondent’s Shop Steward.

by only two members if one member is disqualified.” New Process
Steel, 130 S. Ct. at 2644; accord NLRB v. New Vista Nursing & Reha-
bilitation, 870 F.3d 113, 127–128 (3d Cir. 2017); D.R. Horton, 357
NLRB 2277, 2277 fn. 1 (2012), enfd. in relevant part, 737 F.3d 344,
353 (5th Cir. 2013); 1621 Route 22 West Operating Co., 357 NLRB
1866, 1866 fn. 1 (2011), enfd. 725 Fed. Appx. 129, 136 fn. 7 (3d Cir.
2018).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Both have been agents of the Respondent within the
meaning of Section 2(13) of the Act.
At all material times, by virtue of Section 9(a) of the
Act, the National Union has been the exclusive repre-
sentative of the following employees of the Postal Ser-
vice:
All employees in the bargaining unit for which each
has been recognized and certified at the national level,
including maintenance employees, motor vehicle em-
ployees, postal clerks, special delivery messengers,
mail equipment shops employees, material distribution
centers employees, and operating services and facilities
services employees; and excluding managerial and su-
pervisory personnel, professional employees, employ-
ees engaged in personnel work other than a purely non-
confidential clerical capacity, security guards as de-
fined in Public Law 91-375, 1201(2), all Postal Inspec-
tion Service employees, employees in the supplemental
work forces as defined in Article 7 of the Collective
Bargaining Agreement, rural letter carriers, mail han-
dlers, and letter carriers.
Since about July 20, 1971, and at all material times,
the Postal Service has recognized the National Union and
its affiliated local unions on behalf of the National Un-
ion, including the Respondent, as the exclusive collec-
tive-bargaining representative of the unit.
At all material times, the National Union and the Post-
al Service have maintained and enforced a collective-
bargaining agreement covering the terms and conditions
of employment of the unit, including a grievance and
arbitration procedure. That collective-bargaining agree-
ment was effective on its face from May 21, 2015
through September 20, 2018. Before its expiration on
September 20, 2018, the parties to the agreement extend-
ed it until agreement or interest arbitration on a successor
contract.
Since about September 11, 2018, the Respondent has
failed to process a grievance that unit employee Anthoula
Contogiannis filed or attempted to file under the provi-
sions of the collective-bargaining agreement described
above, regarding her notice of removal and discharge
from the Postal Service, and has failed to keep Contogi-
annis informed as to the status of her grievance. In doing
so, the Respondent failed to represent Contogiannis for
reasons that are arbitrary, discriminatory, or in bad faith,
and has breached the duty of representation it owes to her
and to the unit.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been restraining and coercing employees in the exercise
of the rights guaranteed by Section 7 of the Act in viola-
tion of Section 8(b)(1)(A) of the Act and within the
meaning of the Postal Reorganization Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent breached its duty of fair repre-
sentation owed to Contogiannis in connection with the
processing of her grievance in violation of Section
8(b)(1)(A) of the Act, we shall provide the remedy pre-
scribed in Iron Workers Local 377 (Alamillo Steel
Corp.), 326 NLRB 375 (1998). Accordingly, we shall
order the Respondent to promptly request that the Postal
Service consider Contogiannis’ grievance and, if the
Postal Service does so, to process the grievance in ac-
cordance with the collective-bargaining agreement, in-
cluding whatever settlement discussions or proposals
may be consistent with the parties’ processing of the
grievance.
In addition, we shall order the Respondent to permit
Contogiannis to be represented by her own counsel at
any grievance proceeding, including any arbitration that
the Respondent authorizes or other resolution proceed-
ings that may follow from the Respondent’s efforts on
Contogiannis’ behalf, and pay the reasonable legal fees
of such counsel. Following exhaustion of any grievance
processing in the prearbitration stage of the grievance
procedure, the Respondent may exercise its discretion,
consistent with its duty of fair representation, and decide
in good faith whether to pursue the grievance to arbitra-
tion. If it is not possible to pursue the grievance based
on the Postal Service’s unwillingness to do so, and if the
General Counsel shows in compliance proceedings that a
timely pursued grievance would have been successful in
arbitration, the Respondent shall (1) make Contogiannis
whole for increases in damages, if any, suffered as a con-
sequence of its failure to process her grievance in good
faith as set forth in Iron Workers Local 377 (Alamillo
Steel Corp.), supra, with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010),4 and (2) compensate Contogiannis

4 The General Counsel seeks a remedy requiring the Respondent to
reimburse Contogiannis for all damages suffered rather than the in-
crease in damages due to the Respondent’s conduct. Because the relief
sought would involve a change in Board law, we believe that the ap-
propriateness of this proposed remedy should be resolved after a full
briefing by the affected parties, and there has been no such briefing in
this case. Accordingly, we decline to order this relief at this time. Cf.
H.O.P.E Program, 362 NLRB No. 128, slip op. at 2 fn. 1 (2015) (not
reported in Board volume) (granting default judgment but denying
POSTAL SERVICE LOCAL 1901 3
for any adverse tax consequences of receiving a lump-
sum backpay award in accordance with Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, American Postal Workers Union, AFL–
CIO, Local 1901, Reidsville, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Breaching its duty of fair representation by repre-
senting a unit employee in connection with her grievance
arbitrarily or in bad faith.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly request the United States Postal Service
to consider Anthoula Contogiannis’ grievance and, if it
agrees to do so, process the grievance with due diligence
in accordance with the collective-bargaining agreement
between the Postal Service and the Respondent.
(b) Permit Anthoula Contogiannis to be represented
by her own counsel at any grievance proceeding, includ-
ing arbitration or other resolution proceeding, and pay
the reasonable legal fees of such counsel.
(c) In the event that it is not possible for the Respond-
ent to pursue the grievance, and if the General Counsel
shows in a compliance proceeding that a timely pursued
grievance would have been successful, make Anthoula
Contogiannis whole for any increases in damages suf-
fered as a consequence of the Respondent’s failure to
process her grievance in good faith, in the manner set
forth in the remedy section of this decision.
(d) In the event that Anthoula Contogiannis is award-
ed backpay pursuant to paragraph 2(c) above, compen-
sate her for the adverse tax consequences, if any, of re-
ceiving a lump-sum backpay award.
(e) Within 14 days after service by the Region, post at
its union office and all other places where notices to
members are customarily posted copies of the attached
notice marked “Appendix.” Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to members are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such

consequential damages as that remedy would require a change in Board
law).
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Within 14 days after service by the Region, deliver
to the Regional Director for Region 14 signed copies of
the notice in sufficient number for posting by the Postal
Service at its Reidsville, North Carolina facility, if it
wishes, in all places where notices to employees are cus-
tomarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. January 21, 2020
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT breach our duty of fair representation by
representing a unit employee in connection with her
grievance arbitrarily or in bad faith.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL promptly request the United States Postal
Service to consider Anthoula Contogiannis’ grievance
and, if it agrees to do so, process the grievance with due
diligence in accordance with our collective-bargaining
agreement with the Postal Service.
WE WILL permit Anthoula Contogiannis to be repre-
sented by her own counsel at any grievance proceeding,
including arbitration or other resolution proceeding, and
WE WILL pay the reasonable legal fees of such counsel.
WE WILL, in the event that it is not possible for us to
pursue the grievance, and if the General Counsel shows
in a compliance proceeding that a timely pursued griev-
ance would have been successful, make Anthoula Con-
togiannis whole for any increases in damages suffered as
a consequence of the our failure to process her grievance
in good faith, plus interest.
WE WILL, in the event that Anthoula Contogiannis is
awarded backpay pursuant to the paragraph above, com-
pensate her for the adverse tax consequences, if any, of
receiving a lump-sum backpay award.
AMERICAN POSTAL WORKERS UNION,
AFL–CIO, LOCAL 1901
The Board’s decision can be found at
www.nlrb.gov/case/10-CB-231385 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.