American Postal Workers Union Local 238 (United States Postal Service)

National Labor Relations Board - Board Decisions

May 22, 2020

369 N.L.R.B. 87 (N.L.R.B. 2020)

369 NLRB No. 87
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 Local 238 (United
States Postal Service) and Jana Kerley. Case 14–
CB–253322
May 22, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that American Postal Workers Union,
Local 238 (the Respondent) has failed to file an answer to
the complaint. Upon a charge and an amended charge
filed by Jana Kerley (the Charging Party) on December
13, 2019 and February 12, 2020, respectively, the General
Counsel issued a complaint and notice of hearing on Feb-
ruary 27, 2020, against the Respondent, alleging that it has
violated Section 8(b)(1)(A) of the Act. The Respondent
failed to file an answer.
On April 1, 2020, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on April 7, 2020, the Board issued
an order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
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 stated that unless
an answer was received by March 12, 2020, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the un-
disputed allegations in the General Counsel’s motion dis-
close that the Region, by letter dated March 13, 2020, ad-
vised the Respondent that unless an answer was received
by March 19, 2020, the Region would file a motion for
default judgment. Nevertheless, the Respondent failed to
file an answer.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true, and we grant the General Counsel’s
Motions to Transfer Case to and Continue Proceedings
Before the Board and for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service (the Employer) pro-
vides postal services for the United States and operates
various facilities throughout the United States in perform-
ing that function, including the Network Distribution Cen-
ter located at 4900 Speaker Road, Kansas City, Kansas
(Speaker Road Facility), the only facility involved in this
proceeding.
The Board has jurisdiction over the Employer and this
matter by virtue of Section 1209 of the Postal Reorganiza-
tion Act (PRA), 39 U.S.C. § 101 et seq.
We find that the Respondent and the American Postal
Workers Union, AFL–CIO (National Union) are labor or-
ganizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held the
positions set forth opposite their respective names and
have been agents of the Respondent within the meaning of
Section 2(13) of the Act:
Michelle Fitzpatrick Local President
Mark Dempsey – Steward
Crystal Herriage - Steward
At all material times by virtue of Section 9(a) of the Act,
the National Union has been the exclusive collective-bar-
gaining representative of the following employees of the
Employer, herein called the unit:
All maintenance employees, motor vehicle employees,
postal clerks, including special delivery messengers
merged into the clerk craft by memorandum of under-
standing dated November 20, 1997, mail equipment
shops employees, material distribution centers employ-
ees, and operating services and facilities services em-
ployees employed by the Employer, but excluding man-
agerial and supervisory personnel, professional employ-
ees, employees engaged in personnel work in other than
a purely non-confidential clerical capacity, security
guards as defined in Public Law 91-375, 1201(2), all
Postal Inspection Service employees, rural letter carri-
ers, mail handlers, and letter carriers.
At all material times, the Respondent has been an agent
of the National Union for purposes of servicing unit em-
ployees employed at the Employer’s Speaker Road facil-
ity in Kansas City, Kansas.
At all material times, the National Union and the Em-
ployer have maintained and enforced a collective-bargain-
ing agreement, covering conditions of employment of the
unit and containing, among other provisions, a grievance
and arbitration procedure, the most recent of which was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
effective by its terms from May 21, 2015, through Sep-
tember 20, 2018.
Beginning on or around June 13, 2019, and continuing
to date, the Respondent has failed to process a class action
grievance concerning Line H for fiscal year 2018 under
the provisions of the collective-bargaining agreement.
Beginning on or around June 13, 2019, and continuing
to present, the Respondent has misinformed employees
about the status of the fiscal year 2018 Line H grievance
in response to employee requests about the status of the
grievance.
The Respondent’s conduct described above was arbi-
trary and perfunctory.
CONCLUSIONS OF LAW
By the conduct described above in connection with its
representative status, the Respondent has failed to repre-
sent the Charging Party and other unit employees for rea-
sons that are arbitrary, perfunctory, discriminatory, or in
bad faith and has breached the fiduciary duty it owes to
said employee and the unit.
By the conduct described above, the Respondent has
been restraining and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act in violation
of Section 8(b)(1)(A) of the Act and within the meaning
of the PRA.
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 fiduciary duty of
fair representation owed to the Charging Party and other
unit employees by failing to process the class action griev-
ance concerning Line H for fiscal year 2018 and misin-
forming unit employees about the status of the grievance,
in violation of Section 8(b)(1)(A) of the Act, we shall pro-
vide the remedy prescribed in Iron Workers Local 377
(Alamillo Steel Corp.), 326 NLRB 375 (1998). Accord-
ingly, we shall order the Respondent to promptly request
that the Employer consider the class action grievance and,
if the Employer does so, to process the grievance in ac-
cordance with the collective-bargaining agreement be-
tween the National Union and the Employer, including
whatever settlement discussions or proposals may be con-
sistent with the parties' processing of the grievance.
In addition, we shall order the Respondent to permit the
unit employees who are members of the class to be repre-
sented by their own counsel at any grievance proceeding,
including any arbitration that the Respondent authorizes
or other resolution proceedings that may follow from the
Respondent's efforts on their behalf, and pay the
reasonable legal fees of such counsel. Following exhaus-
tion of any grievance processing in the prearbitration stage
of the grievance procedure, the Respondent may exercise
its discretion, consistent with its fiduciary duty of fair rep-
resentation, and decide in good faith whether to pursue the
grievance to arbitration. If it is not possible to pursue the
grievance based on the Employer’s unwillingness to do so,
and if the General Counsel shows in compliance proceed-
ings that a timely pursued grievance would have been suc-
cessful in arbitration, the Respondent shall (1) make the
unit employees who are members of the class whole for
increases in damages, if any, suffered as a consequence of
its failure to process their 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).
Having found that the Respondent has been restraining
and coercing employees and members in the exercise of
the rights guaranteed in Section 7 of the Act in violation
of Section 8(b)(1)(A) of the Act and within the meaning
of the PRA by misinforming unit employees about the sta-
tus of the fiscal year 2018 Line H grievance in response to
employee requests about the status of the grievance, we
shall order the Respondent to inform unit employees about
the status of the grievance in response to their requests
made since June 13, 2019.
ORDER
The National Labor Relations Board orders that the Re-
spondent, American Postal Union Workers Local 238,
Kansas City, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Breaching its fiduciary duty of fair representation,
as an agent of the American Postal Workers Union, AFL–
CIO (the National Union), that is owed to employees and
members in the unit below, by failing, in a manner that is
arbitrary, perfunctory, discriminatory or in bad faith, to
process a class action grievance concerning Line H for fis-
cal year 2018 under the provisions of the collective-bar-
gaining agreement between the National Union and the
United States Postal Service (the Employer), effective
from May 21, 2015, through September 20, 2018. The
unit is:
All maintenance employees, motor vehicle employees,
postal clerks, including special delivery messengers
merged into the clerk craft by memorandum of under-
standing dated November 20, 1997, mail equipment
shops employees, material distribution centers employ-
ees, and operating services and facilities services em-
ployees employed by the Employer, but excluding
AMERICAN POSTAL WORKERS LOCAL 238 (POSTAL SERVICE) 3
managerial and supervisory personnel, professional em-
ployees, employees engaged in personnel work in other
than a purely non-confidential clerical capacity, security
guards as defined in Public Law 91–375, 1201(2), all
Postal Inspection Service employees, rural letter carri-
ers, mail handlers, and letter carriers.
(b) Misinforming unit employees about the status of a
class action grievance concerning Line H for fiscal year
2018 in response to employee requests about the status of
the grievance.
(c) In any like or related manner restraining or coercing
employees and members in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly request, as an agent of the National Union,
the Employer to consider the class action grievance con-
cerning Line H for fiscal year 2018 and, if the Employer
agrees to do so, process the grievance with due diligence
in accordance with the collective-bargaining agreement
effective May 21, 2015, through September 20, 2018.
(b) Permit the unit employees who are members of the
class to be represented by their own counsel at any griev-
ance proceeding, including 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 Respondent
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 the unit employ-
ees who are members of the class whole for any increases
in damages suffered as a consequence of the Respondent’s
failure to process their grievance in good faith, with inter-
est, in the manner set forth in the remedy section of this
decision.
(d) Promptly inform employees about the status of the
fiscal year 2018 Line H grievance in response to employee
requests about the status of the grievance.
(e) Post at its Kansas City, Kansas facility copies of the
attached notice marked “Appendix.”1 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 14, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
1 If the facility involved in these proceedings is open and accessible
to a substantial complement of employees and members, the notices must
be posted within 14 days after service by the Region. If the facility in-
volved in these proceedings is closed due to the Coronavirus pandemic,
the notices must be posted within 14 days after the facility reopens and a
substantial complement of employees and members have regained ac-
cess, and the notices may not be posted until a substantial complement
of employees and members have regained access. Any delay in the
including all places where notices to employees and mem-
bers are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an inter-
net site, and/or other electronic means, if the Respondent
customarily 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 21 days after service by the Region, file with
the Regional Director for Region 14 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 22, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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
physical posting of paper notices also applies to the electronic distribu-
tion of the notice if the Respondent customarily communicates with its
members by electronic means. 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT breach our duty of fair representation, as
an agent of the American Postal Workers Union, AFL–
CIO (the National Union), by failing to process a class ac-
tion grievance concerning Line H for fiscal year 2018 for
reasons that are arbitrary or in bad faith.
WE WILL NOT misinform unit employees about the sta-
tus of a class action grievance concerning Line-H for fis-
cal year 2018 in response to employee requests about the
status of the grievance.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL promptly request, as an agent of the National
Union, the Employer to consider the class action griev-
ance concerning Line H for fiscal year 2018 under the pro-
visions of the collective-bargaining agreement and, if the
Employer agrees to do so, process the grievance with due
diligence in accordance with the collective-bargaining
agreement effective May 21, 2015, through September 20,
2018.
WE WILL permit the unit employees who are members
of the class to be represented by their own counsel at any
grievance proceeding, including arbitration or other reso-
lution proceeding, and 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 grievance
would have been successful, make the unit employees
who are members of the class whole for any increases in
damages suffered as a consequence of our failure to pro-
cess their grievance in good faith, with interest.
WE WILL inform employees about the status of the 2018
fiscal year Line H grievance in response to their requests
about the status of the grievance.
AMERICAN POSTAL WORKERS UNION
LOCAL 238
The Board’s decision can be found at
https://www.nlrb.gov/case/14-CB-253322 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.