Letter Carriers Local 3825 (Postal Service)

National Labor Relations Board - Board Decisions

Feb 20, 2001

333 N.L.R.B. 343 (N.L.R.B. 2001)

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 343
National Association of Letter Carriers, Local 3825,
AFL–CIO (United States Postal Service) and
Howard K. Gross. Case 5–CB–8347(P)
February 20, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On September 18, 1998, Administrative Law Judge
Earl E. Shamwell Jr. issued the attached decision.1 The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
adopt the judge’s rulings, findings, and conclusions to
the extent consistent with this decision.
1. The judge found that Shop Steward Leslie Gaynair
refused to provide Charging Party Howard Gross re-
quested grievance documents because he was not a
member of the Union and that he made statements to
Gross to this effect. For the reasons stated in the judge’s
decision, we agree that this conduct violated Section
8(b)(1)(A) of the Act.3
2. In his decision, the judge further found that Gay-
nair’s article in the Respondent’s March 1996 “Unity”
newsletter, circulated to members, conveyed unlawful
threats of unspecified reprisal or retaliation, which could
include refusing to represent employees who complain
about union officers or who cooperate with the em-
ployer’s investigation of union officials. The judge found
that in so doing the Union violated Section 8(b)(1)(A) of
the Act. Contrary to the judge, we find that the newsletter
article written by Gaynair did not convey any unlawful
threat, and for the reasons set forth below, we shall dis-
miss this complaint allegation.

1 The judge also issued an Erratum to the decision on October 14,
1998. Correction has been noted and corrected.
2 In the absence of exceptions, we adopt the judge’s dismissal of the
complaint allegation that the Union unlawfully refused to represent
Gross in a grievance and to answer his letter requests for representation.
3 Contrary to our colleague, we find no denial of due process in find-
ing that the statements made by Shop Steward Gaynair, when he unlaw-
fully refused to allow employee Gross to have access to grievance
documents, were themselves unlawful. The Respondent fully examined
Gaynair on his statements, provided other corroborative evidence of the
Respondent’s policy on access to grievance documents, and briefed the
legality of the statements made to the judge. Under these circum-
stances, we find, contrary to our dissenting colleague, that the issue was
fully and fairly litigated, despite the General Counsel’s failure to amend
the complaint at the hearing. “It is well settled that the Board may find
and remedy a violation even in the absence of a specified allegation in
the complaint if the issue is closely connected to the subject matter of
the complaint and has been fully litigated. This rule has been applied
with particular force where the finding of a violation is established by
the testimonial admissions of the Respondent’s own witnesses.” Per-
gament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990). The refusal to provide the grievance documents was
specifically alleged as unlawful, and the statements made by Gaynair
are obviously closely related to that refusal. The statements were also
thoroughly litigated, and in fact were established by the testimony of
the Respondent’s own witness.
The judge found that the Union violated Sec. 8(b)(1)(A) by failing to
provide Gross copies of his grievance documents but he failed to in-
clude this finding in his conclusions of law. We modify the conclusions
of law to include this finding.
The core allegation raised in the complaint regarding
Gaynair’s article is whether the Respondent violated Sec-
tion 8(b)(1)(A) “[b]y impliedly threatening in the union
newsletter that employees who make complaints against
union officers and who cooperate in Employer investiga-
tions of union officers will not be represented by it.”
In presenting his case, the General Counsel relied ex-
clusively on the text of the newsletter article written by
Gaynair to establish the violation. The following is the
full text of Gaynair’s article found unlawful by the judge:

Same old, same old here at the “Hell-hole.” New faces,
same old bullsh—!! Management has sunken to an all
time low. Management has taken statements from two
union brothers and used them to issue discipline to a
union officer. All this because some scab-ass had a
complaint against the union officer. The discipline
came from none other than the station manager who
“during the investigation” found cause for discipline.
What a WIMP!! He is not a station manager, but a fool
running scared for his job!! When things are brought to
management’s attention about the scab-ass, nothing is
done. What a whitewash!! To my brothers that wrote
the statements, remember what goes around come
around. These same two so called union brothers are
always in my face making sure that their grievances are
being taken care of. I just finished saving one of them
from two Letters of Warning and am getting him back
pay for Sick Leave that was denied. This is how he re-
pays us.

As background for his consideration of this article, the
judge noted that Charging Party Gross had complained to
his employer, the Postal Service, about the conduct of
fellow employee Rick Sullivan, the Respondent’s vice-
president. This complaint, supported by additional in-
formation provided by two other employees, who were
members of the Union, resulted in the Postal Service’s
imposition of discipline on Sullivan. The judge further
noted that Gross was the individual referred to as “the
scab-ass” and that he was not a member of the Union
during this period.
333 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
Contrary to the judge, we do not read this article as a
threat not to represent employees who report misconduct
by union members. Rather it is merely name calling
against Gross, and it criticizes as ungrateful the union-
member informants who provided information against a
fellow member who was also a union officer. They were
called ungrateful because their grievances were always
duly processed by union officers. The “what goes around
comes around” statement is somewhat obscure, but, in
our view, it is reasonably construed as what Gaynair tes-
tified he meant it to say—that the two members might
find themselves the victims of reports by someone like
Gross in the future.4 We therefore do not find that Gay-
nair’s article represented an implied threat of retaliation
in violation of Section 8(b)(1)(A) of the Act.5
AMENDED CONCLUSIONS OF LAW
1. The United States Postal Service is subject to the ju-
risdiction of the Board by virtue of 39 U.S.C. § 1209(a)
(the Postal Reorganization Act).
2. The Respondent is a labor organization as defined in
Section 2(5) of the Act.
3. By informing Howard Gross, an employee of the
unit of employees it represents, that nonmembers were
not entitled to copies of their grievance documents, the
Respondent has failed to represent him for reasons that
are unfair, arbitrary, and invidiously discriminatory, and
has breached the fiduciary duty it owes Howard K. Gross
and has interfered with rights guaranteed employees un-
der the Act.

4 We note that the Board has held that a union has a legitimate inter-
est in promoting harmony within its ranks, and except in two specific
sets of circumstances, it may lawfully seek to protect this interest even
to the point of imposing internal union discipline pursuant to a properly
adopted rule prohibiting members from reporting misconduct by fellow
members to their employer. Communications Workers Local 5795
(Western Electric Co.), 192 NLRB 556 (1971). Accord: Letter Carriers
(Postal Service), 316 NLRB 1294, 1303–1304 (1995); Electrical Work-
ers IBEW Local 1547 (Redi Electric), 300 NLRB 604, 607 (1990).
There is no evidence or contention here that the Respondent threatened
or imposed internal discipline, so there is no occasion to consider
whether the reports made by the criticized union members fell within
either of the two exceptions to the general rule permitting union disci-
pline for informing. See, e.g., Cement Workers D-357 (Southwestern
Portland Cement), 288 NLRB 1156 (1988) (union fine for employee’s
signing witness statement that was used against a fellow member was
unlawful because the statement was foreseeably part of the grievance
process); Oil Workers Local 7–103 (DAP, Inc.), 269 NLRB 129, 130–
131 (1984) (union fine for employee report unlawful both because
employee was required by his employer to make such a report and
because the report was linked to the grievance process even though a
grievance had not been filed).
5 Our dissenting colleague oversimplifies the above fact pattern in
order to reach the conclusion that Gaynair’s article conveyed that the
Union would no longer handle grievances of employees who had as-
sisted in the Employer’s disciplinary proceedings against a union offi-
cial. In the context of a clear reference to Employer discipline of a unit
employee based on information provided by other unit employees, the
reference in the newsletter to “what goes around, come(s) around,”
cannot, in our view, be fairly read to mean something other than that
further Employer discipline could be anticipated, given a pattern of
employees informing on other employees.
4. By failing to provide Howard Gross with copies of
his grievance documents, the Respondent has failed to
represent him for reasons that are unfair, arbitrary, and
invidiously discriminatory, and has breached the fiduci-
ary duty it owes Howard K. Gross and has interfered
with rights guaranteed employees under the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
The Respondent, National Association of Letter Carri-
ers, Local 3825, AFL–CIO, Rockville, Maryland, its of-
ficers, agents, and representatives, shall
1. Cease and desist from
(a) Advising Howard K. Gross and other employees
that nonmembers are not entitled to copies of their griev-
ance documents and refusing to provide them with such
requested documents.
(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) Provide copies of the grievance documents re-
quested by Howard K. Gross on April 1, 1996, if that has
not been done and the documents are available.
(b) Within 14 days after service by the Region, post at
its facility in Rockville, Maryland, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Furnish signed copies of the notice to the Regional
Director of Region 5 for posting by the United States
Postal Service (USPS), if willing, at all locations where
notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 345
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT advise Howard K. Gross and other
employees that nonmembers of the Respondent are not
entitled to copies of their grievance documents and re-
fuse to provide them with such requested documents.
WE WILL NOT in any like or related manner restrain
or coerce Gross or any other employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL provide copies of the grievance documents
requested by Howard K. Gross on April 1, 1996, if that
has not been done and documents are available.
NATIONAL ASSOCIATION OF LETTER
CARRIERS, LOCAL 3825, AFL–CIO

MEMBER HURTGEN, dissenting in part.
I disagree with my colleagues in two respects. First, I
would affirm the judge, essentially for the reasons he sets
forth, that the Respondent unlawfully threatened an em-
ployee that it would not represent him. Second, for pro-
cedural reasons, I would not find that the Respondent
unlawfully informed a unit employee that he could not
have certain documents because he was not a union
member.
In regard to the threat, I agree with the judge that the
Respondent Union’s newsletter conveyed an unlawful
threat. My colleagues and the judge quote the article,
which was authored by Shop Steward Les Gaynair. The
article was a response: (1) to a unit employees (Howard
Gross) who had complained about a union offi-
cer/employee to the Employer and (2) to other unit em-
ployees who cooperated with the Employer in the subse-
quent investigation of the union officer/employee’s al-
leged misconduct. The article referred to Gross as a
“scab-ass.” The article also reminded those “union broth-
ers” who had cooperated with the Employer that “what
goes around comes around.” Immediately following this
remark was a statement that, in the past, the Union had
helped the same “union brothers” with their grievances.
Like the judge, I conclude that the Respondent went
beyond mere name calling. The Respondent’s not-so-
subtle message was that it would refuse in the future to
represent the “union brothers.”
My colleagues rely on Gaynair’s after-the-fact expla-
nation (at trial) that he meant only that the two members
might someday find themselves to be the victims of re-
ports by Gross. However, the judge found the violations,
obviously discrediting Gaynair’s after-the-fact explana-
tion. Indeed, the explanation itself is quite lame. There is
nothing in the context of the remark to even remotely
support it. And, the very placement of the remark in con-
text shows that it was meant to convey the thought that
the two members could no longer expect the Union to
handle grievances for them as it had done in the past.
Finally, even if Gaynair were credited, the article itself
creates the reasonable impression set forth above, i.e.,
that grievances would no longer be handled.
My colleagues assert that the quoted remark is a refer-
ence to future Employer discipline. The assertion does
not withstand analysis. There is no reason to believe that
the Employer would wish to discipline the employees
who complained about union officers. Rather, it is far
more reasonable to believe that the Union would disci-
pline employees who complained about the union offi-
cers.
The judge further found, and my colleagues agree, that
Respondent violated Section 8(b)(1)(A) by telling a unit
employee he could not have certain grievance documents
because he was not a union member. The complaint did
not allege this violation. At trial, Shop Steward Les Gay-
nair testified, in response to questions from Respondent’s
counsel, that he told unit employee Howard Gross that
“when he was a non-member I told him that he could not
have copies of his grievances.” However, at trial, the
General Counsel did not move to amend the complaint.
Rather, on brief to the judge, the General Counsel moved
to amend the complaint. In my view, if the General
Counsel wishes to amend the complaint, he should do so
at trial, so that a respondent can offer any defense that it
might have. That is fundamental due process. Since fun-
damental due process was not accorded, I would not find
the violation.
My colleagues say, inter alia, that the matter was
“fairly litigated.” It is difficult to say that an allegation is
fairly litigated where, as here, the allegation is made after
the trial.

Thomas J. Murphy, Esq., for the General Counsel.
Michelle Dunham Guerra, Esq. (Cohen, Weiss & Simon), of
New York, New York, for the Respondent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge.
This matter was heard by me on May 21, 1998, in Washington,
D.C. Based on an unfair labor practice charge filed on July 5,
1996, by Howard K. Gross against the National Association of
Letter Carriers, Local 3825, AFL–CIO (the Respondent or the
Branch), the Regional Director for Region 5 of the National
Labor Relations Board (the Board) issued a complaint dated
September 25, 1997. The complaint alleges that the Respon-
dent violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act) by threatening employees, failing to provide
employees grievance documents, and refusing to process the
grievance of Gross.1 The Respondent filed an answer to the
complaint denying the commission of any unfair labor prac-
tices.
On consideration of the entire record, including posthearing
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service (the Employer) provides
postal and mail services for the United States of America and
operates various facilities throughout the country in perform-
ance of its functions, including several facilities in Rockville,
Maryland, which include the Potomac and Pike stations. The
Board has jurisdiction over the Employer’s operations in this
matter by virtue of Section 1209 of the Postal Reorganization
Act (the PRA).
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent, an affiliated local or branch of the National
Association of Letter Carriers, AFL–CIO, and the National
Association of Letter Carriers, AFL–CIO, are now, and have
been at all material times, labor organizations within the mean-
ing of Section 2(5) of the Act.

1 At the hearing, the General Counsel orally moved to amend the
complaint in par. 7 to include the allegations contained in par. 5 as
violations of Sec. 8(b)(1)(A) of the Act. Counsel for the Respondent
opposed the amendment and in her brief argues that the amendment is
time barred by Sec. 10(b) of the Act. I allowed the amendment at the
hearing over the Respondent’s objection, because I viewed the omis-
sion of reference to par. 5 allegations in the charging paragraphs as a
technical deficiency, possibly an oversight in the drafting of the com-
plaint by the Regional Director. I noted at the hearing that the Respon-
dent was clearly on notice of the charges and had in fact denied the
allegations in its answer. Moreover, on the issue of notice, the Respon-
dent was or should have been aware that it was being charged with
possible violations of the Act involving threats to employees since
January 11, 1996 (see GC Exh. 1(a); the allegations in par. 5 relate to
alleged conduct—threatening of the Respondent—occurring on or
about March 1996. Therefore, the Respondent could not justifiably
claim unfair surprise or prejudice by the allowance of the amendment.
Similarly, it cannot be gainsaid that on the authority of 1(b) of the Act,
the charge is time barred. Finally, I note that it is well settled that par-
ticularity of pleading is not required of a complaint issued by the
Board, Bob’s Casing Crews, Inc. v. NLRB, 458 F.2d 1301, 1304–1305
(5th Cir. 1972), especially where the Respondent was on notice of the
nature of the charges for months prior to the hearing date.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background Facts
Howard K. Gross has been continuously employed by the
Postal Service as a city letter carrier for almost 19 years; he has
always worked out of the Employer’s Potomac station. Gross
joined the union sometime prior to 1984 but quit in that year;
he rejoined in October 1996 and currently is a member of
Branch 3825. At one point, he was appointed as an assistant
shop steward at Potomac.
Branch 3825 maintains an office in Rockville, Maryland, but
its official mailing address is a post office box located a short
distance away at the Employer’s Pike station facility. Kathy
Schultz, a full-time letter carrier, serves as president of the
Branch, a position she has held continuously for the last 7
years; she is also chief steward for the Branch. The Branch’s
other principal officers are Rick Sullivan, vice president, and
Leslie Gaynair, sergeant-at-arms and shop steward. Sullivan
and Gaynair are also full-time letter carriers who work out of
Potomac. Neither Schultz, Sullivan, nor Gaynair has any re-
sponsibility or role regarding the handling of Branch mail, par-
ticularly with respect to picking it up from the Branch’s post
office box. Ken Lerch (vice president in 1996) and Shirley
McFadden (recording secretary), themselves full-time letter
carriers, performed this function as their time and convenience
permitted.2 The Respondent admits, and I find, that both
Schultz and Gaynair are agents of the Respondent within the
meaning of Section 2(13) of the Act.
The National Association of Letter Carriers (National Asso-
ciation) has a fairly extensive history, going back 20 years or
more with the United States Postal Service, and is and has been
the exclusive bargaining representative of all unit employees—
city letter carriers—who are free to remain nonmembers. The
pertinent and current collective-bargaining agreement between
the National Association and the Employer covers the period
1996 through November 20, 1998, and includes a progressive
grievance procedure culminating in final and binding arbitra-
tion.3
In step 1 of the grievance procedure, an aggrieved employee
must discuss the grievance with his immediate supervisor
within 14 days of the date on which the employee learned of its
cause. The employee at his option may be represented by a
union representative at this stage. If no resolution of the griev-
ance is reached through “discussion,” the employee’s supervi-
sor must render an oral decision stating reasons therefore; the
2 Neither party called Lerch or McFadden as witnesses. However,
Schultz credibly testified that the Branch mail generally was picked up
once per week if Lerch picked it up; if McFadden was assigned the
mail pickup, pickup was less frequent, and on occasion McFadden kept
the mail in the trunk of her car for a while (as long as a week) before
bringing it to the office. According to Schultz, Lerch picked up the
Union’s mail in April 1996.
3 This agreement is contained in GC Exh. 3. This contract is referred
to as the 1994 National Agreement which is binding on all affiliated
letter carrier branches; the agreement was entered into by the parties
pursuant to an arbitration award issued August 19, 1995.

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 347
decision must be given generally no later than 5 days after the
decision is rendered to the employer or his union representa-
tive. Appeals beyond step 1 must be undertaken by the Union
on behalf of the aggrieved employee within 14 days (at step 2)
of the date the employee (or the Union) first learned or may
reasonably have been expected to have learned of the adverse
decision.
At all material times, either Kathy Schultz as chief steward
or Leslie Gaynair as steward, but most principally Gaynair,4
was responsible for handling member and nonmember em-
ployee grievances at either step 1, step 2, and beyond.5 Gener-
ally, if Gross wanted to grieve a matter, he would advise his
supervisor that he (Gross) needed to talk to the shop steward—
Gaynair—and the supervisor would then approach Gaynair who
would then consult with Gross about the matter at issue. The
Branch successfully represented Gross in seven grievance pro-
ceedings for the period covering March 30, 1993, through Feb-
ruary 27, 1998; three of these grievances were processed by the
Union to the arbitration level.6
The Branch at its expense published generally on a monthly
basis a newsletter entitled “Unity,” which was distributed only
to members (active and retired) to keep them informed of mat-
ters of interest to the membership and to advocate for union
causes and concerns.7 During 1996, Rick Sullivan served as
editor of the newsletter and occasionally wrote articles on top-
ics of interest for the Branch. Schultz and Gaynair also were
regular and fairly longtime contributors whose columns dealt
with various issues of topicality to the Branch and its mem-
bers.8 Gaynair submitted his articles to Sullivan, but generally
Sullivan made no changes in the articles unless he consulted
with Gaynair. The newsletter was generally passed out to the
members by the shop stewards at the five stations coming under
the Branch’s jurisdiction or mailed to retired members.
B. The Charges
The General Counsel has alleged that the Respondent vio-
lated Section 8(b)(1)(A) of the Act:

4 As will be discussed later herein, Gross and Schultz did not get
along with each other very well at all. To say this relationship was
hostile is a dramatic understatement. Accordingly, Schultz never repre-
sented Gross in any grievance proceedings, nor did he ever ask her to
represent him.
5 Based on the credible evidence, it appears that employees at the
Potomac station generally asked Gaynair to represent them in all griev-
ance matters. Gaynair, in turn, reported to Schultz and kept her ap-
prised of all the cases on which he was working.
6 The parties stipulated and agreed that the Branch had represented
Gross in these proceedings, the last of which was resolved on February
27, 1998. Gaynair himself represented Gross in grievances commenced
on April 19 and August 9, 1995, and November 19, 1996. It is note-
worthy that the March 30 and August 13, 1993 grievances against
Gross were handled by the Branch and related to Gross’ alleged physi-
cal attacks on Schultz.
7 For reasons not disclosed on the record, the newsletter was not al-
ways published monthly.
8 Schultz’ column was entitled “The President’s Report.” Gaynair’s
column carried the byline “Tales from the Potomac.” See Exhs. 2, 4,
and 5. Gaynair has been contributing to the newsletter since 1990;
Schultz evidently wrote her column ex officio.
1. By impliedly threatening in the union newsletter that em-
ployees who make complaints against union officers and who
cooperate in Employer investigations of union officers will not
be represented by it.
2. By arbitrarily and discriminatorily refusing to represent
Gross in a grievance, answer his letter requests for representa-
tion, and provide him copies of his grievance documents.
Based on testimony adduced at the hearing, the counsel for
the General Counsel in his brief contends that the Respondent
on or about April 1, 1996, also violated Section 8(b)(1)(A) by
and through its agent’s (Gaynair) telling Gross that because he
was a nonunion member, he could not have copies of his griev-
ance documents. Consequently, the General Counsel seeks
posthearing an amendment of the complaint to reflect this
charge. He contends that the matter was fully and fairly liti-
gated at the hearing and should be allowed.
The Respondent denies any violations of the Act as alleged
specifically in the complaint. In its brief, the Respondent, in
essence, denied any violation of the Act with respect to Gross’
request for grievance documents on April 1.9
C. Applicable Legal Principles
Section 8(b)(1)(A) of the Act provides, in pertinent part, that:

(b) It shall be an unfair labor practice for a labor or-
ganization or its agents—(1) to restrain or coerce (A) em-
ployees in the exercise of the rights guaranteed in section
7: Provided, That this paragraph shall not impair the right
of a labor organization to prescribe its own rules unless
with respect to the acquisition or retention of membership
therein . . . .

As a general proposition, violations of Section 8(b)(1)(A) es-
sentially involve unlawful union conduct including economic
threats, coercion, or reprisal against unit employees or breach
of the union’s duty of fair representation.
The Board in Steelworkers Local 1397, 240 NLRB 848
(1979), enunciated what now may be considered controlling
legal principles regarding coercive statements alleged to be
violative of Section 8(b)(1)(A). In Steelworkers, the Board
states as follows:

[T]he test of misconduct is not what [a union official] may
have subjectively intended by his comments, nor whether any
employee was, in fact, coerced or intimidated by the remarks.
Rather, the test is whether the alleged offender engaged in
conduct which tends to restrain or coerce employees in the
rights guaranteed them in the Act. That an employee’s right
to engage in intraunion activities in opposition to the incum-
bent leadership of his union is concerted activity protected by
Section 7 is, or course, elementary. Thus, we have previously
held that a threat to have an employee discharged in retalia-
9 The complaint does not contain the specific allegation, and the re-
quest for amendment was never raised at any time in the hearing by the
General Counsel. Inasmuch as the General Counsel raised the amend-
ment in question for the first time in his brief, the Respondent pre-
sumably did not have the opportunity to state its position regarding the
requested amendment. I will assume then that the Respondent would
oppose this amendment; accordingly, I will sua ponte interpose its
opposition prior to my ruling which follows herein.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
tion for that employee’s dissent over intraunion matters vio-
lates Section 8(b)(1)(A). We have likewise held that union
threats to employees that the union would not represent them
also violates Section 7, particularly when made by a union of-
ficer with the apparent capability of effectuating the actions
threatened. [Citations omitted.]

Similarly, in cases where the union has been charged with
failing to honor or uphold its duty of fair representation in vio-
lation of Section 8(b)(1)(A), the Board has established funda-
mental general principles governing these cases. In Letter Car-
riers Branch 6070,10 the Board proclaimed:

A union owes all unit employees the duty of fair repre-
sentation, which extends to all functions of the bargaining
representation. When a union’s conduct toward a unit
member is arbitrary, discriminatory, or in bad faith, it
breaches its duty of fair representation. But a union must
be allowed a wide range of reasonableness in serving the
unit employees, and any subsequent examination of a un-
ion’s performance must be “highly deferential.” Mere
negligence does not constitute a breach of the duty of fair
representation. And a union’s conduct is arbitrary only if,
in light of the factual and legal landscape at the time of the
union’s actions, the union’s behavior is so far outside a
wide range of reasonableness as to be irrational.

The duty of fair representation has been likened to the duty
owed by other fiduciaries, e.g., trustee/trust beneficiaries; attor-
ney/client; corporate officers; and directors/shareholders. A
union officer thus owes employees a duty to represent them
adequately as well as honestly and in good faith. Airline Pilots
Association International v. O’Neill, 500 U.S. 913 (1991).
Consequently, the union must show a legitimate union inter-
est with regard to its policies, bans actions, or failures to act as
these relate to rules governing its internal procedures. Carpen-
ters Local 35, 317 NLRB 18 (1995).
D. The March 1996 Newsletter Article
It is undisputed that Gaynair authored the following passage
in his March 1996 “Unity” newsletter column, “Tales from
Potomac”:

Same old, same old here at the “Hell-hole”, New faces, same
old bullsh—!! Management has sunken to an all time low.
Management has taken statements from two union brothers
and used them to issue discipline to a union officer. All this
because some scab-ass has a complaint against the union offi-
cer. The discipline came from none other than the station
manager who “during the investigation” found cause for dis-
cipline. What a WIMP!! He is not a station manager, but a
fool running scared for his job!! When things are brought to
management’s attention about the scab-ass, nothing is done.
What a whitewash!! To my brothers that wrote the state-
ments, remember, what goes around come [sic] around.
These same two so called union brothers are always in my
face making sure that their grievances are being taken care of.
I just finished saving one of them from two Letters of Warn-
ing and am getting him back pay for Sick Leave that was de-
nied. This is how he repays us.11

10 316 NLRB 235, 236 (1995).

This article owes it genesis to an incident occurring on or about
January 12, 1996, involving Gross and Rick Sullivan. Gross
testified about the matter. According to Gross, a problem de-
veloped on the working floor at the Potomac facility and Sulli-
van, in the presence of others, called him a “m— f—g scab.”
Later that day, Sullivan slammed a door in Gross’ face and
tried to prevent him from using a doorway. Gross returned to
work the next day and the situation between Sullivan and him
worsened; Gross then decided to call the local police. On their
arrival at that station, the police advised him that the matter was
noncriminal and suggested to Gross that he pursue appropriate
administrative remedies. According to Gross, that same day,
Schultz, who worked next to him, called him an “asshole,”
presumably, for calling the police in on the matter. On or about
January 15 or 16, 1996, Gross wrote letters to the National
Association’s business agent, A. P. Martinez, and the Rockville
postmaster, Thomas Allshouse, complaining about his treat-
ment by both Sullivan and Schultz.12 On or about February 27,
Postmaster Allshouse, by letter, responded to Gross’ complaint
and advised that some corrective action (not disclosed) had
been taken.13 The “Unity” article by Gaynair was published in
the aftermath of whatever action the postmaster had taken with
respect to Gross’ complaint.
Gaynair testified about the March article. Gaynair freely
admitted that the union officer referred to in the article was
Sullivan; the two referenced cooperating union members were
Kevin Norman and John Sutherland; and it was Kevin Norman
in particular that he was referring to in terms of having been
“saved” from letters of warning issued by the Employer.14
Gaynair admitted that, in his view, Sullivan was disciplined as
a result of Gross’ complaint and that the “scab ass” referred to
in the article was Gross.
Gaynair explained what he meant by the statement, “what
goes around comes around.” First, the statement was directed
to the union members (Norman and Sutherland) and, second, he
was merely warning them that what happened to Sullivan could
happen to them. That is, as Gaynair testified:

11 See. GC Exh. 4. The passage above appeared on p. 4 of the March
1996 “Unity” Newsletter.
12 See GC Exh. 8. Gross wrote a followup letter to Martinez and
Allshouse on February 13, 1996, expressing his displeasure at not hav-
ing received a response to his January letter and reiterating his concerns
about issues raised in the earlier letter. (See GC Exh. 9.)
13 See GC Exh. 11. Allshouse indicated that some “appropriate cor-
rective action” was being undertaken but due to “confidentiality is-
sues,” he could not disclose what specific actions had been taken
against Sullivan.
14 The parties stipulated and agreed that the Employer issued a letter
of warning to Kevin Norman on February 13, 1996, for failure to fol-
low instructions. It was also agreed that a step 1 grievance was handled
by Gaynair on Norman’s behalf, and the letter of warning was reduced
to an official discussion. [Note: the collective-bargaining agreement
includes a progressive discipline procedure; discussion is a first level
disciplinary device prescribed for minor offenses; a discussion type of
resolution is not considered discipline and is not grievable. See GC
Exh. 3, art. 16.]

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 349
On [sic] other words, John Sutherland and Kevin
Norman, anybody else could’ve [sic] write statements
against them and management can take the course to dis-
cipline them. [Tr. 178.]

According to Gaynair, his focus was not on Norman and Suth-
erland’s union membership status.15
According to Gaynair, he did not intend to threaten the
members but was warning them that “if you are going to write a
statement against a brother or sister [union member], that in the
future if somebody does this against you, you can expect the
same result of [sic] management.” This “warning,” according
to Gaynair, had nothing to do with his duty to represent the
members, which he acknowledged he had to fulfill regardless;
and he did not intend to threaten to withhold representation
from any member because of their cooperation with manage-
ment or for any reason.16
Consistent with the aforementioned governing principles and
Board precedent, I find that Gaynair’s article conveyed unlaw-
ful threats of unspecified reprisal or retaliation, which could
include refusing to represent employees who complain about
union officers or who cooperate with the employers in investi-
gation of union officials. I would conclude that in so doing, the
Respondent violated Section 8(b)(1)(A). My reasons are as
follows:
First, contrary to the argument of the Respondent, I do not
deem Gaynair’s article to be protected speech. I recognize, as
pointed out by the Respondent in its brief, that Gaynair is enti-
tled to express his views about union matters or the Employer
and that he may use acrimonious, offensive, and even provoca-
tive language in so doing. In my view, calling Gross or other
nonmembers scabs or even the more vituperative “scab ass” is
permissible under the Act. I also recognize, as does the Re-
spondent, that all speech is not protected either by the Courts or
by the Act itself.17 In my view, Gaynair in the March article
went considerably beyond the pale of protected speech, as he
admitted “warning” both members and nonmembers alike, that
he clearly did not approve of unit employees, but especially
union members, either complaining about a union official or
assisting management in the investigation of the union official
who ultimately was disciplined by management based on that
complaint and the cooperation of two members. While Gaynair
denied that he intended not to represent complaining or cooper-
ating unit employees, or in other ways discriminate against or
threaten or coerce them, I find that in the total context of mat-
ter, the legal and factual landscape as it were, Gaynair’s lan-
guage could reasonably coerce or intimidate employees in the
free exercise of their Section 7 rights, which I conclude in-
cludes their making complaints about union officials’ behavior
and giving statements to management about or regarding the
complaint in question. As instructed by the Board, I am not
bound by or, in Gaynair’s case, convinced of his explication of
the meaning of the article or his expressed intent not to threaten
unit employees or deprive them of their contractual right to
union representation. In my view, both the tone and tenor of
the offending passage is clearly threatening and coercive.

15 Gaynair testified that he had also represented Norman in a griev-
ance matter before he joined the Union. Neither Norman nor Suther-
land testified at the hearing.
16 Gaynair admitted, however, that he did not think it appropriate for
union members to give statements against other union members. (Tr.
207.)
17 “Free speech” under the Act as a guarantee for both employers and
unions is included in Sec. 8(c) of the Act. It provides as follows:
The expressing of any views, argument, or opinion, or the dissemina-
tion thereof, whether in written, printed graphic, or visual form, shall
not constitute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains no threat of re-
prisal or force or promise of benefit.
Notably, in NLRB v. Gissel Packing Co., 395 U.S. 575 (1947), the
Supreme Court held that this provision implemented the First Amend-
ment of the Constitution. There, the Court noted, however, the protec-
tions afforded to speech by Sec. 8(c) are not absolute.
Significantly, what with the name calling, coupled with
Gaynair’s undisguised pique over the members’ seeming dis-
loyalty and lack of gratitude for the Union’s (his) successful
representation of one of the cooperating members, Gaynair’s
words have, to me, a magnified coercive effect because he,
beyond a doubt, was a person with the apparent and actual au-
thority and capability of acting on his threats. It is also of some
note that the contretemps between Gross and Sullivan was
probably well known at the station, considering Gross’ volatile
history with the Branch and its officers, the public use of foul
language, the high emotion, the police involvement, and Sulli-
van’s ultimately being disciplined by the Employer mere weeks
before the publication of the article. Thus, the article cannot
reasonably be viewed as having a neutral or benign context or,
as the Respondent contends, a mere expression of Gaynair’s
personal opinion. On the contrary, Gaynair was the person
whom the unit employees turned to vindicate their Section 7
rights, particularly for grievance assistance. Clearly discernible
from the article was Gaynair’s anger with Gross and the two
union members for their roles in Sullivan’s discipline. In fact,
in my view, the article clearly evinced Gaynair’s vehement
disapproval of Gross’ complaint and an even stronger disap-
proval of the two union members who gave statements to the
Employer. Moreover, in the article, Gaynair brought up his
prior successful representation of a cooperating union member
and with evident bitterness says, “This is how he repays us [the
Union].” In context of the entire affair, Gaynair’s article im-
plied (or it could, with certainty, be reasonably inferred) that
the Union might not represent members, Gross, or other unit
employees who complained about union officers or who coop-
erated with the Employer in the investigation of union officers,
or that the Union might retaliate against such employees in
other ways. In my view, on this record, the General Counsel
has well established a violation of Section 8(b)(1)(A) of the Act
with regard to Gaynair’s March article.
E. The April 12 and 24, 1996 Requests for Grievance
Assistance and Documents
Gross testified that on or about April 9, 1996, he received a
notice of suspension from the Employer for allegedly failing to
comply with its safety rules and regulations.18 According to
18 The suspension notice is contained in GC Exh. 12. It was issued
by Gross’ supervisor, Terri Vanover, who set out the nature of the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
Gross, on April 12, 1996, he prepared a letter to the Branch
requesting representation in several grievances that were pend-
ing and copies of all related papers and procedural grievance
forms where he was designated as the grievant.19 Gross
claimed to have mailed this letter by regular first class mail on
about April 13, to the Branch at its post office box address.
After mailing the letter, Gross claimed to have a conversation
in the station parking lot with Schultz in which he advised her
that he wanted representation for the grievance, and that he had
not gotten a response from the Branch regarding his letter.20
According to Gross, Schultz told him he was a “scab,” that he
cost the Branch a lot of money (in representing him), and that
the Branch would get to his grievance when it had time. After
this conversation with Schultz, Gross then spoke to his supervi-
sor, Vanover, pursuant to the step 1 grievance procedure. The
following week (a week to 10 days after receipt of the suspen-
sion), Vanover responded to his grievance and denied it.21
As Gross had not received a response from the Branch, he
testified that he called the Board and was advised by an em-
ployee (the information officer) to send the Union a certified
letter requesting representation. Acting on this advice, Gross,
on April 26, mailed a letter—dated April 24—identical in
wording to his prior letter by certified mail to the Branch post
office box. However, this letter was ultimately returned to him
by the postal service because it was never claimed by the ad-
dressee22 on about May 31. However before receiving the un-
claimed letter, Gross filed a lost mail report with the postal
service on May 30, in attempt to trace the certified letter.23
Gross acknowledged that after the April 24 letter was returned
to him, he did not approach anyone from the Union about the
matter.

violation and advised Gross of his right to file a grievance pursuant to
the collective-bargaining agreement within 14 days of his receipt of the
notice.
19 See GC Exh. 13, which incorporates a copy of Gross’ letter.
20 Gross and Schultz are assigned carrier routes 47 and 46, respec-
tively; their delivery vehicles occupy designated lot spaces correspond-
ing to the route numbers and are parked side by side. Gross and
Schultz have parked next to each other for a number of years.
21 According to the collective-bargaining agreement, at step 1 of the
grievance process, the grievant must discuss the grievance with his
immediate supervisor within 14 days; the grievant may represent him-
self. The supervisor has authority to settle the grievance at this stage,
but if she does not, she must render an oral decision to the grievant
stating her reasons therefore no later than 5 days thereafter. Within 5
days after the supervisor’s decision, the supervisor, at the request of the
union representative, must initial a standard step-2 grievance form
confirming the date on which the decision was rendered. The Union is
entitled to appeal this decision to step 2 of the grievance procedure
within 10 days after receipt of the supervisor’s decision. (See GC Exh.
3, pp. 66–67.) Vanover did not testify at the hearing. Vanover’s ini-
tialed decision (assuming one exists) was not produced at the hearing.
22 This letter is contained in GC Exh. 14; GC Exh. 15 is the envelope
in which this letter was sent. Notations on the envelope by the postal
service indicate that the first delivery was attempted on April 29 and
again on May 7, and it was returned to Gross on May 17 as unclaimed.
Gross’ return address, but not his name, is visible on the return receipt.
The green card with his name and address was taped face down on the
envelope.
23 The Mail Loss Report filed by Gross is contained in GC Exh. 17
and indicates that Gross received a reply from the Postal Service on
June 12, 1996, stating that the mail was returned to sender on May 24,
unclaimed. It is significant to note at this juncture that Gross never put
in a mail trace for the April 12 letter, although clearly the mail loss
form would permit a trace of regular first class mail.
As to the suspension notice, Gross testified that he felt that it
was improperly and unfairly issued on the one hand and on the
other, the penalty was excessive, calling as it did for a loss of a
week’s pay. Thus, he wanted seriously to contest it.
Regarding the processing of his grievances, Gross admitted
that the Branch had processed his grievances on occasions be-
fore April 1996 as well as afterwards, and that Gaynair had
assisted him with most of these grievances. According to
Gross, he did not speak to Gaynair about his April 8 suspension
because Gaynair had written the allegedly threatening article
about him, and he did not feel “comfortable” in dealing with
Gaynair.
However, Gross conceded that after receiving the April 8 no-
tice, he approached Gaynair about other grievance matters such
as the July 1996 grievance he had filed. Gross further testified
that he never spoke to Schultz or Sullivan about the letters he
sent to the Branch and, specifically, never mentioned to Schultz
that he had received a suspension notice in the previously men-
tioned parking lot conversation.
Gaynair and Schultz testified regarding Gross’ two letters
and both denied having ever received the letters. Moreover,
both denied any knowledge of Gross’ April 8 suspension or his
request for union representation and assistance in that matter.
According to Gaynair, he has filed grievances on behalf of
members and nonmember unit employees, including Gross, and
has never refused to represent any employees. Gaynair recog-
nized that he is in fact obliged to represent nonmembers be-
cause the Employer does not require employees to belong to the
Union. According to Gaynair, as shop steward he did not have
any responsibilities for the union mail.
Schultz testified about her relationship with Gross both per-
sonally and with regard to union matters. According to
Schultz, although she was the president and chief steward for
the Branch, Gross never came to her regarding union manage-
ment issues; in fact, he avoided her “like the plague,” although
they park side by side.24 As far as she was concerned, Gross
always went to Gaynair for grievance representation if he did
not elect to represent himself at the step-1 level.
Schultz denied talking to Gross in the parking lot or any-
where else regarding the April 8 notice, essentially because of
their poor and uncommunicative relationship. She specifically
and emphatically denied telling him that the Union would han-

24 As noted earlier herein, Gross was accused on two occasions of
having assaulted Schultz. In fact, they both have undertaken legal
action, criminal and civil, against one another at various times over the
years. For instance, Schultz brought criminal charges against Gross for
a pushing incident; however, the case was dismissed. Gross then filed a
civil action against her. In her August 1995 newsletter article, Schultz
mentioned Gross’ suit against her and its costs to the Branch. She also
mentioned other problems and matters critical of Gross. Schultz testi-
fied that she mentioned Gross’ lawsuit in the article to let the members
know how their dues were being spent, that is, in defense of and what
she views as his frivolous suits. (See GC Exh. 2.)

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 351
dle his grievance when it had time;25 and that Gross never men-
tioned the grievance or its status to her. Regarding mailing
procedures at the Branch, Schultz had no responsibility for mail
pickup, which duties were shared by the Branch vice president
(Lerch) or the recording secretary (McFadden).26 According to
Schultz, during April 1996, Lerch was also responsible for
opening the mail and he never informed her of any mail from
Gross or any certified mail delivery notices for which he would
be responsible. Schultz acknowledged that the Branch receives
its certified mail at the post office box and in fact has received
on other occasions certified mail from Gross. However, the
mail pickup by the Branch is not always prompt or timely, that
mail pickup delays are not unusual.27 Schultz testified that she
never saw Gross’ April 12 or 24 letters, during the time of their
alleged mailing and was unaware of whether the Branch ever
received them until the instant unfair labor practice charges
were filed.
In essence, the General Counsel contends that the Respon-
dent discriminatorily and arbitrarily and, hence, unlawfully
refused to process Gross’ grievance and provide him with
grievance documents. He argues that the Respondent’s hostil-
ity toward nonmembers generally, and Gross specifically was
clearly proven and, as such, supplies the motive for not proc-
essing his April 12 and 26 grievance requests, or acting on his
request for grievance documents. The General Counsel con-
tends that Gross’ first-class April 12 letter, was never returned
to him, suggesting that it was received by the Branch, and the
certified letter was returned because the Branch arbitrarily re-
fused to pick it up. These facts, it is argued, indicate prima facie
arbitrary, unreasonable, and discriminatory conduct on the Re-
spondent’s part. That is, in short, the Respondent actually re-
ceived the first letter but ignored it and the request for assis-
tance; the Respondent then willfully and arbitrarily refused to
claim the certified letter.
In my view, the resolution of this charge redounds, as is of-
ten the case, to credibility. First, it must be noted that Gross
and the Branch and its officials were charitably not on good
terms, but the hostility that existed between them was a two-
way street. Second, the ill will between them did not stand in
the way of the Branch’s representation of Gross (even where he
was disciplined for alleged physical assaults by him against the
Branch president) prior to the instant unfair labor charges, and
afterwards. Thus, in my view, contrary to the General Counsel,
I am not persuaded that the animosity between Gross and the
Respondent in any meaningful way supports a finding of a
violation. In my view, the charge rises and falls on one point
with several parts—that is the Union’s awareness of the April 8
notice of suspension, and its awareness that Gross wanted the
Union to represent or assist him in resolving the charge; and, if
it was aware, whether the Branch arbitrarily or discriminatorily
refused to act on that knowledge in breach of its duty of fair
representation. First, I would conclude that based on the credi-
ble testimony of both Gaynair and Schultz, the Branch was not
aware of Gross’ receipt of the April 8 suspension notice.28 I
would further conclude that the Respondent was not at any
material time aware of Gross’ requests (in either of the two
letters); therefore, I cannot find that the Respondent violated
the Act with respect to Gross’ request for representation and
grievance documents. My reasons are as follows:

25 I pointedly and repeatedly asked Schultz whether she had any
conversations with Gross during the period covering April 1 through
24, 1996; she responded no, pointing out that “he [Gross] avoids me” or
“he doesn’t approach me.” (Tr. 232.) To my pointed questioning,
Schultz also admitted that she didn’t care for Gross either; theirs was a
mutual dislike. (See Tr. 240.)
26 Lerch and McFadden work at Pike station where union mail is
sent.
27 As an example of this, Schultz related that the Branch received a
subpoena to Gaynair in the instant case addressed to its post office box
and it was not picked up immediately. A notice was left in the box and
the Branch secretary picked it up and later brought it to the Branch
office.
Starting nonchronologically, it is undisputed that the Branch
did not receive the April 24 certified letter. On this record, I do
not believe that the Branch acted out of wrongful motive in not
claiming the letter. It seems to me that the Branch’s mail-
handling procedures were somewhat haphazardly performed.
Of course, the persons charged with these duties were not
called as witnesses, so what actually may have happened can-
not with accuracy be known. In any event, I do not attribute
any ulterior motive to the Branch with regard to the April 24
letter’s not being claimed. Therefore, I conclude that the Gen-
eral Counsel has not established that the Branch acted arbitrar-
ily, unreasonably, in bad faith or, more pointedly, out of retalia-
tion for Gross’ complaints against a union officer in not claim-
ing the letter in question. I note that Gross chose the certified
mail method to contact the Branch. However, this was not the
only avenue open to him. He could have put sense before pride
and actually spoken to Gaynair and even Schultz, both onsite
and available, to protect matters evidently of serious concern to
him—namely, his job and his pocketbook. Gross could also
have taken a copy of his request to the Branch offices. This
would especially seem sensible in light of his claim that he had
received no response to a letter he claims to have sent 2 weeks
earlier and his claimed unwillingness to deal with the Branch’s
onsite stewards at the time. Instead, Gross elected to call the
Board for advice, not his union; he then sends a certified letter
to a post office box not personally addressed to a union official.
Gross then undertakes a mail trace instead of going to the Un-
ion and getting the matter attended to directly. In my view,
Gross was well acquainted with the grievance procedures and
was equally aware that his appeal rights under the grievance
procedures were time-sensitive. Yet he took a very convoluted
approach fraught with potential delay to vindicate his rights.
The Branch’s mail-handling procedures are seemingly inade-
quate; however, this inadequacy does not rise to the level of an
unlawful failure to represent employees. Thus, I would con-
clude that the April 24 certified letter was not claimed by the
Branch through negligence or inadvertence, and not out of any
animus toward Gross. Therefore, the Branch was not on notice
of Gross’ request for representation or grievance documents at
that time. Accordingly, the Branch, without having actual or
28 It is undisputed that the Branch did not routinely receive notice of
the Employer’s proposed discipline of unit employees. Generally, the
Branch only became involved in the grievance after a step-1 denial.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
constructive knowledge of Gross’ requests, cannot be said to
have breached its duty to him. In reaching this conclusion, I
have credited the testimony of both Gaynair and Schultz re-
garding their denials of knowledge of Gross’ suspension notice,
his request for grievance assistance. I also find credible their
lack of involvement with the Branch’s mail-handling (pickup)
procedure.
Regarding the April 12 first-class letter Gross claims to have
mailed to the Branch, I am not convinced that he mailed this
letter at all. First, the Branch officials called to testify credibly
disavowed any knowledge of the Branch’s having received this
letter and they had no knowledge otherwise of his request con-
tained in the letter. Second, the letter has never been returned
to Gross as undeliverable as would be the seemingly usual case.
These factors alone cast much doubt on Gross’ testimony
which, as he admits, is the only “proof” of his having mailed
the letter.
I must note that Gross did not impress me as a witness. I
found him to be markedly less than forthright in many of his
responses, and he appeared to be stalling for time to fashion a
response to questions by the Respondent’s counsel by either
offering a nonresponse or asking for the repeating of questions
calling for simple responses. In this regard, on more than one
occasion, I admonished him, as did the Respondent’s counsel.
Gross was also inconsistent in his testimony, offering confusing
accounts of his contacts with the Board and claiming at one
point having never communicated with Schultz, yet confronting
her in the parking lot on one occasion about his grievance.
Also, Gross claimed he was uncomfortable in dealing with
Gaynair, yet he approached Gaynair on April 1, about griev-
ance documents. In addition to his being less than credible
testimonially, my doubts about his not having mailed the letters
are buttressed by his failure to seek a mail trace of this April 12
letter, as he did with the aforementioned certified letter. Surely,
if he had actually mailed this letter and had gotten no response
from the Respondent, logic and common sense suggest that he
would undertake a trace of both letters at the same time; yet he
did not. In any event, the General Counsel’s burden is to estab-
lish this material fact by the preponderance standard, and I
cannot, for the foregoing reasons, credit Gross’ testimony re-
garding his mailing of the letters, especially in the face of credi-
ble denials by the Branch’s officers.
Accordingly, I would find that the counsel for the General
Counsel has in total failed to meet his burden of proof regard-
ing the Union’s alleged breach of its duty of fair representation
stemming from Gross’ letters requesting representation and
grievance documents, and I would recommend dismissal of this
part of the complaint.
F. Gross’ April 1, 1996 Request for Grievance Documents
In spite of being “uncomfortable” with Gaynair in the after-
math of Gaynair’s March article on April 1, Gross asked Gay-
nair for copies of documents related to a pending grievance (but
not the April 8 suspension). According to Gross, he made the
request early in the morning on the workroom floor at the sta-
tion. Gaynair told him that he could not have copies of these
documents because he was not a member of the Union.
The Respondent called Gaynair in its case–in–chief and
asked him about this encounter. Gaynair could not remember
whether Gross approached him in April 1996 about grievance
documents, but remembered that Gross had asked for grievance
documents in the past on more than one occasion. According
to Gaynair, he told Gross, consistent with the Branch’s policy
as determined by the Branch’s president, that the Union only
provided grievance-related documents to employees (members
and nonmembers) in settled (final) cases. Gaynair admitted
that he told Gross he could not have copies because he was a
nonmember. (Tr. 190.) Surprised, the Respondent’s counsel
sought clarification of the policy. Gaynair then went on to say
that he told Gross, “When he was a non member, that he could
not [get] copies of his grievances. When he became a member
and his grievances were still active, I told him that he couldn’t
get any copies because [the] grievance was still going on
through the system . . . . The distinction is, ma’am, is that if
you are a non member—okay?—the Union does not have to
give you copies of anything.” (Tr. 191.)29
The Respondent also called Schultz to explain the Union’s
grievance documents policy and procedure.
According to Schultz, normally when employees request
copies of grievance documents, they are asking for a copy of
the settlement (disposition) papers.30 Thus, when members of
the Union request copies, the Branch will make the copies for
them. Nonmembers are allowed access to the requested docu-
ments and may copy them on their own. According to Schultz,
this policy was not generally explained to all the officers.
However, Schultz had at one time explained the policy to Gay-
nair who had inquired of her whether he could provide Gross
(then a nonmember) copies of his grievance papers. Schultz
told Gaynair that Gross was a nonmember, he was free to come
to the Branch office and make copies. Schultz went on to ex-
plain that as a consequence of Gross’ instant charges, the
Branch changed its policy and she was directed by Business
Agent Martinez to make copies for Gross if he so requests.
The General Counsel contends that Gaynair’s informing
Gross, that he could not have documents because he was not a
member of the Union, is clearly violative of Section 8(b)(1)(A).
As noted earlier, this alleged violation was not charged in the
complaint, but was sought by way of a request for amendment
by the General Counsel in his brief.
This gives rise to important issues relating to notice, preju-
dice, and basic fairness to the Respondent.

29 Based on extensive questioning by me about the Union’s policy
regarding providing copies of grievances documents, Gaynair at-
tempted to clarify further the operative policy. On balance, after admit-
ting some confusion on his part, Gaynair seemed to say that the Un-
ion’s policy was to provide members and nonmembers alike copies of
grievance documents in settled cases. According to Gaynair, no em-
ployee could obtain copies of grievance documents in cases that were
ongoing or unresolved because, in his view, it would be premature.
30 This assertion by Schultz was not challenged. However, I recog-
nize that grievance documents could very well include information
other than the settlement documents, for example, information provided
by witnesses or various reports generated by management of the matter
being grieved.

LETTER CARRIERS LOCAL 3825 (POSTAL SERVICE) 353
I have considered the propriety of allowing this late hour
amendment, giving due consideration of the policies of the Act,
and the possibility of unduly prejudicing the Respondent, and
have concluded that considering the totality of circumstances
that I will allow the amendment. My reasons include, first,
recognition that the offending statement was expressed by an
important union official—the shop steward and sergeant-at-
arms, and the statement itself is on its face discriminatory, arbi-
trary, and irrational. While not charged in the complaint, the
Respondent, probably sensing that it had stepped on a land
mine, addressed the statement and the Union’s policy underly-
ing it fairly extensively in the hearing. Also, because of my
sensitivity to the issue in terms of the policies of the Act, I con-
ducted my own interrogation of both Gaynair and Schultz re-
garding the Union’s handling of requests for grievance docu-
ments. Then, too, in her brief, the Respondent’s counsel exten-
sively dealt with and contested the issue and charges, thus indi-
cating that the Respondent considered the issue of legal signifi-
cance, albeit not specifically charged in the complaint. Finally,
the statement itself was clearly related both in time, circum-
stance, and substance to the original complaint. Clearly, the
Respondent was on notice that it was being charged with violat-
ing its duty of fair representation (to Gross) and that an integral
aspect of the charges related to the Respondent’s alleged failure
to provide Gross, a nonmember at the time of the alleged viola-
tion, with grievance documents. At the center of the contro-
versy was, of course, Gaynair who admittedly strongly disap-
proved of nonmembers. Thus, in sum, it cannot be gainsaid
that the Respondent would be prejudiced or unfairly surprised
by the lateness of the requested amendment nor that it had been
given an opportunity, fully and fairly, to litigate the matter.
Moreover, because of the patently discriminatory nature of the
statement and out of my concern for administrative judicial
economy, the amendment is allowed. Koons Ford of Annapo-
lis, 282 NLRB 506 (1986).
Directing myself to the on-the-record statement by Gaynair, I
would conclude that in the context of the totality of the factual
and legal circumstances of this cause, the Respondent violated
Section 8(b)(1)(A) of the Act by and through Gaynair’s state-
ment to Gross. I am aware that Gaynair was not the architect of
the Respondent’s policy for providing grievance documents and
in fact may have misconstrued and misapplied the policy gen-
erally and specifically as to Gross out of confusion or for other
extenuating reasons. To her credit, Schultz’ explication and
interpretation of the policy makes some sense, all things being
equal. However, as Schultz testified, even the Respondent
itself evidently felt the policy was problematic and saw fit to
change it, although only after Gross filed the instant unfair
labor practice charge.31
Gaynair seemed to realize his mistake and, in a feeble and
stumbling way, attempted to extricate himself. However, the
record is clear that Gaynair harbored a strong disapproval, even
animus, toward nonmembers. This animus, combined with
Gaynair’s important representative position and role with re-
spect to all unit members and his clear authority to act on and
implement the policies of the Branch, gives his statements re-
garding the grievance process special weight. Gaynair’s state-
ment to Gross clearly conveyed to me the idea that with mem-
bership there was privilege, and with a nonmembership a det-
riment to the employees. In my view, this created a potentially
coercive effect on the unit employees in the exercise of their
rights to participate in the grievance process and/or to join or
refrain from joining the Union.32

31 It would seem that as matters stand today, as explained by Schultz,
Gross, then a nonmember of the Branch, was granted a sole exception
to the policy of having nonmembers make their own copies of griev-
ance documents. This arguably is discriminatory in itself. However, I
need not reach this issue as it was not made a part of the request for
amendment.
Additionally, Gaynair’s statement to the extent it reflects
Branch policy is not only discriminatory but is arbitrary and
irrational. In fact, neither Schultz nor Gaynair provided a ra-
tionale for not providing copies of grievance documents to
nonmembers. While there may be some credible and reason-
able basis for the policy, it was not articulated. Thus, for this
reason also, the Respondent has violated the Act. Letter Carri-
ers Branch 529, 319 NLRB 875 (1995).
CONCLUSIONS OF LAW
1. United States Postal Service is subject to the jurisdiction
of the National Labor Relations Board by virtue of 39 U.S.C.
§1209(a) (the Postal Reorganization Act).
2. The Respondent is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. By publishing in its monthly newsletter an article ex-
pressly or impliedly threatening to refuse to represent Howard
K. Gross and other employees who made or make complaints
against its officers and officials, and/or cooperate in Postal
Service investigations of its officers and officials, and/or pro-
vide information against its officers and officials, the Respon-
dent has failed to represent Howard K. Gross and other em-
ployees for reasons that are unfair, arbitrary, and invidiously
discriminatory, and has breached the duties it owes the employ-
ees it represents.
4. By informing Howard Gross, an employee of the unit of
employees it represents, that nonmembers of the Respondent
were not entitled to copies of their grievance documents, the
Respondent has failed to represent him for reasons that are
unfair, arbitrary, and invidiously discriminatory, and has
breached the fiduciary duties it owes Howard K. Gross, and has
interfered with rights guaranteed employees under the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The Respondent has not violated the Act in any other re-
spects.
32 I note that Gaynair’s rendition of Branch policy regarding the pro-
viding of grievance documents may not have been reflective of the
policy of the Branch at the time. However, irrespective of what the
policy was or is, Gaynair clearly, in my view, made a statement that is
discriminatory and must be redressed to effectuate the policies of the
Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
THE REMEDY
Having found that the Respondent has engaged in and is en-
gaged in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the Act.
I recommend that the Respondent cease and desist threatening,
impliedly or expressly, in its newsletter not to represent unit
employee Howard Gross and other unit employees who make
or made complaints against or cooperate in Postal Service in-
vestigations of its officers and officials, and/or who provide
information to the Postal Service against its officers and offi-
cials. I further recommend that the Respondent provide to
Howard Gross copies of the grievance documents he was de-
nied in the instant case.
[Recommended Order omitted from publication.]