National Assn. of Letter Carriers

National Labor Relations Board - Board Decisions

Feb 23, 2000

330 N.L.R.B. 667 (N.L.R.B. 2000)

LETTER CARRIERS BRANCH 47 (POSTAL SERVICE) 667
National Association of Letter Carriers, Branch #47
(U.S. Postal Service) and Dale Carroll. Case 27–
CB–3733–P
February 23, 2000
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On October 1, 1998, Administrative Law Judge Albert
A. Metz issued the attached decision. 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, National
Association of Letter Carriers, Branch #47, Denver,
Colorado, its officers, agents, and representatives, shall
take the action set forth in the Order as modified.

1 Contrary to our dissenting colleague, we agree with the judge that
the Respondent violated Sec. 8(b)(1)(A) when it told the Charging
Party that it would not provide him with the overtime desired list
(OTDL) because he wanted the list in order to file charges against the
Respondent, and not for a grievance. Our dissenting colleague main-
tains that the Respondent was simply explaining that it would not assist
the Charging Party in prosecuting a charge against itself, and was not
threatening him that it was refusing to provide the information in re-
taliation for filing a charge. The test for a violation of Sec. 8(b)(1)(A),
however, does not depend upon an examination of a respondent’s moti-
vation. Rather, it depends on whether or not the respondent’s statement
or conduct would have a reasonable tendency to restrain or coerce an
employee in the exercise of statutory rights, including the right of ac-
cess to the Board’s processes. Boilermakers Local 686 (Boiler Tube
Co. of America), 267 NLRB 1056, 1057 (1983). We adopt the judge’s
finding that the Respondent’s statement violated Sec. 8(b)(1)(A) be-
cause such a statement demonstrated to the Charging Party the Respon-
dent’s retaliatory motive in refusing to provide the list and thus would
reasonably tend to restrain or coerce an employee from filing charges
with the Board.
We further agree with the judge’s conclusion that the allegations
contained in the amended charge and complaint are sufficiently related
to the allegation in the original, timely filed charge, to satisfy the re-
quirements of Sec. 10(b). The allegations involve the same section of
the Act (Sec. 8(b)(1)(A)) and the same legal theory (the Union’s duty
of fair representation owed to all unit employees). Further, the charge,
amended charge, and complaint allegations all involve the same se-
quence of events: the Charging Party’s efforts to determine the accu-
racy of his overtime rights under the collective-bargaining agreement.
See Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989). Further,
the Respondent was given adequate notice to prepare and present evi-
dence to defend against the complaint allegations, which were fully
litigated at the hearing. Cf. Carpenters Local 35 (Construction Em-
ployers Assn.), 317 NLRB 18 (1995).
Member Hurtgen finds his colleagues’ analysis of this issue to be
consistent with his own analysis in his dissent in Ross Stores, 329
NLRB 573 (1999). He, therefore, agrees that the allegations contained
in the amended charge and complaint are sufficiently related to the
allegation in the original, timely filed charge, to satisfy the require-
ments of Sec. 10(b).
2 We have modified the judge’s recommended Order to reflect the
appropriate injunctive language.
Substitute the following for paragraph 1(c).
“(c) 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.”

MEMBER HURTGEN, dissenting in part.
I do not agree that the Respondent Union threatened
Carroll that its refusal to supply the information was in
retaliation for his filing of a charge with the Board. The
facts show that the Respondent explained to Carroll that
it would supply information to support a grievance
against the employer, but would not supply information
to support a charge against itself. In essence, the Union
would not assist the prosecution of a case against itself.
Rather, Carroll should get the information from the em-
ployer. I agree that this explanation is not a valid basis
for refusing the information. But that explanation is a far
cry from threatening the employee that the refusal to
supply information is a retaliatory punishment for
charge-filing. In these circumstances, the General Coun-
sel has not shown that Carroll would reasonably interpret
the Respondent’s explanatory remark to mean that the
Respondent was retaliating against him for charge-filing.
Accordingly, I dissent.

Barbara E. Greene, Esq., for the General Counsel.
Michelle Dunham Guerra, Esq., for the Respondent Union.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case in-
volves issues of whether the Respondent has violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act).2 On
the entire record, including my observation of the demeanor of
the witnesses, and after consideration of the parties’ briefs, I
make the following findings.
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits that it is a labor organization within
the meaning of Section 2(5) of the Act, and that the Board has
jurisdiction over the United States Postal Service (USPS) under
the terms of the Act.
II. BACKGROUND
The Respondent is the collective-bargaining agent for postal
letter carriers at the Denver, Colorado, Sullivan post office.
The Respondent’s stewards at Sullivan are Linda Wishon and
Jack Hart. Larry Miles is an alternate steward. The Charging
Party, Dale Carroll, is a unit employee represented by the Re-
spondent. Carroll had been a union steward, but at the time of
the relevant events, no longer held that position.
1 This case was heard at Denver, Colorado, on June 15–16, 1998.
All dates refer to 1997 unless otherwise stated.
2 29 U.S.C. § 158(b)(1)(A).
330 NLRB 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
III. THE OVERTIME DESIRED LIST
The collective-bargaining agreement between the Respon-
dent and the USPS provides that overtime work shall be equita-
bly distributed among employees desiring to perform such
work. In an effort to efficiently distribute such work an over-
time desired list (OTDL) of interested employees is maintained
in the USPS supervisor’s office. Employees are individually
named and their hours worked per day, including overtime, is
stated on this list. A final determination of the equitable distri-
bution of overtime is made at the end of each calendar quarter.
The overtime opportunities, however, are tracked on a daily
basis so that inequities may be detected before the end of a
quarter.
Steward Linda Wishon maintained a list of overtime hour
opportunities on her personal home computer as a check against
any mistakes on the OTDL. She also shared her software for-
mula with Supervisor Rick Pruess who maintained his calcula-
tions on a USPS computer. When Wishon discovered what she
believed to be an error on the OTDL, she would give this in-
formation to USPS supervision.
Part of the agreement between the USPS and the Respondent
requires that if an employee has asked for overtime but ulti-
mately refuses such work he is nonetheless charged with having
worked the overtime hours for purposes of calculating equitable
distribution.
In the late summer of 1997 Carroll had questions about his
being charged for overtime work not performed when he was
on vacation. He also had doubts as to whether Respondent’s
steward, Jack Hart, had received preferential treatment regard-
ing overtime work calculations. As a result Carroll filed unfair
labor practice charges against the Respondent and a grievance.
The Respondent ultimately settled the grievance but Carroll
continued to have doubts about the accuracy of his overtime
hours. On September 2 Carroll sent a routing slip to four union
stewards requesting that the Respondent give him, “day to day
reports on both OTDL’s for the third quarter.” When he did not
immediately get the information, Carroll sent a second request
to the Respondent’s stewards on September 3. Carroll noted in
each request that he was acting as his own steward in the mat-
ter.
Stewards Wishon and Hart talked to Carroll about his request
for information. They asked if he wanted to file a grievance in
conjunction with his request for the OTDL. Carroll told them
he needed the information for a charge that he had filed with
the NLRB. They asked if he had specific dates in mind and he
told them he did not but wanted to see all the hours he was
being charged with for overtime. The stewards told Carroll that
since he wanted the information for a charge with the NLRB
and not a grievance he should see management about getting
the list from them. Within a few days the Respondent did give
Carroll a copy of the official OTDL but never gave him Wis-
hon’s computer calculations regarding employees’ overtime
hours.
IV. ANALYSIS
The Government alleges that the refusal of the Respondent to
provide Carroll with the Respondent’s list regarding overtime
violates its duty to fairly represent Carroll. The Respondent
contends that Wishon’s personal notes were not required to be
produced because its duty of representation does not extend
beyond representation under the contract.3
A union has the duty to fairly represent employees for whom
it possesses collective-bargaining rights under the Act. The
Board holds that a union may breach its duty of representation,
and thus violate the Act, if it fails to provide employees with a
wide range of requested information. Auto Workers Local 909
(General Motors Corp.-Powertrain), 325 NLRB 859 (1998)
(refusal to account to its members for the disparity in grievance
settlement money distribution.); Letter Carriers Branch 529,
319 NLRB 879, 880 (1955) (copies of a grievance.); Teamsters
Local 282 (General Contractors), 280 NLRB 733 (1986) (job
referral information in the operation of an exclusive hiring
hall); Security Personnel of Hospitals (Church Charity Foun-
dation of Long Island), 267 NLRB 974, 980 (1983) (status of
grievance); Security Officers Local 408 (South Jersey Detec-
tive Agency), 260 NLRB 419 (1982) (copies of collective-
bargaining agreement and health and welfare plan). The duty
includes the obligation to supply information when the request
is reasonably directed toward ascertaining whether the em-
ployee has been fairly treated in receiving work assignments.
Operating Engineer Local 3, 324 NLRB 1183 (1997).
The Respondent, in its representative capacity, used Wis-
hon’s list to check on the equitable distribution of overtime
work. This was the same reason Carroll asked for the Respon-
dent’s list. The Respondent’s OTDL would be helpful to Car-
roll in determining if he had been incorrectly charged with
hours or if he was being treated disparately. This information
was useful to him regardless of ultimate intended purpose–
processing a Board charge or filing a grievance. Carroll could
not know what final use the information would be to him until
it was received and analyzed. The Respondent did not give any
legitimate reason the requested information should not be sup-
plied. Although Carroll was given the USPS’ OTDL, he did
not receive the Respondent’s list as a check on the accuracy of
his overtime rights under the collective-bargaining agreement.
The Respondent regularly used its own list to have changes
made in the USPS’ overtime calculations. I find that the Re-
spondent’s refusal to give Carroll its OTDL was “sufficiently
outside the range of reasonableness as to be accurately charac-
terized as arbitrary.” Letter Carriers Branch 529, supra. I find
that such refusal is contrary to Respondent’s duty of fair repre-
sentation and is a violation of Section 8(b)(1)(A). Operating
Engineers Local 3, supra.
The Board has further alleged that Carroll was threatened by
the Respondent when the Union’s OTDL list was refused him
because he had filed charges with the Board. The statement to
that effect by the Respondent’s agents did tend to have a re-
straining and coercive effect on an employee. I find that the
refusal to provide the information because Carroll filed charges
with the Board is an additional violation of Section 8(b)(1)(A)
of the Act.
CONCLUSIONS OF LAW
1. The United States Postal Service is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

3 The Respondent also argues the original charge does not encom-
pass the conduct alleged to be a violation of the Act. I find the language
of the original and amended charges is sufficient to incorporate the
conduct litigated at the hearing and alleged in the complaint.
LETTER CARRIERS BRANCH 47 (POSTAL SERVICE) 669
2. The National Association of Letter Carriers, Branch #47 is
a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has violated Section 8(b)(1)(A) of the Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
The Respondent, National Association of Letter Carriers,
Branch #47, its officers, agents, and representations, shall
1. Cease and desist from
(a) Refusing to supply information from the Union’s over-
time desired list to employees represented by the Union.
(b) Telling employees it will not provide them with informa-
tion because they have filed charges with the National Labor
Relations Board.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Supply to Dale Carroll the Union’s overtime desired list
information he requested on September 2 and 3, 1997.
(b) Within 14 days after service by the Region, post at its
business offices and meeting halls copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 27, after being signed by

4 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.”
the Respondent’s authorized representative, 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) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT refuse to supply information from the Union’s
overtime desired list to employees represented by the Union.
WE WILL NOT tell employees we will not provide them with
information because they have filed charges with the National
Labor Relations Board.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL supply to Dale Carroll the Union’s overtime desired
list information he requested on September 2 and 3, 1997.

NATIONAL ASSOCIATION OF LETTER
CARRIERS, BRANCH #47