N.L.R.B. v. American Postal Workers Union, St. Louis, Mo. Local AFL-CIO
| Citation | 103 LRRM 3045,618 F.2d 1249 |
| Decision Date | 31 March 1980 |
| Docket Number | No. 79-1349,AFL-CIO and U,79-1349 |
| Parties | 103 L.R.R.M. (BNA) 3045, 88 Lab.Cas. P 11,976 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN POSTAL WORKERS UNION, ST. LOUIS, MISSOURI LOCALnited States Postal Service, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Lafe Solomon, Atty., N. L. R. B., Washington, D. C., for petitioner; John H. Ferguson, Atty., John S. Irving, Gen. Counsel, John E. Higgin, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief.
D. Richard Froelke, Regional Labor Counsel, U. S. Postal Service, Chicago, Ill., for respondents.
Stephen E. Alpern, Associate Gen. Counsel, Jesse L. Butler, Asst. Gen. Counsel, U. S. Postal Service, Washington, D. C., and D. Richard Froelke, Chicago, Ill., on brief for respondent, U. S. Postal Service.
Mose Lewis III, Cafferky, Powers, Jordan & Lewis, Washington, D. C., on brief for respondent, American Postal Workers, etc.
Before LAY, Chief Judge, * McMILLIAN, Circuit Judge, and HARPER, ** Senior District Judge.
This case is before us on the application of the National Labor Relations Board (the Board) for enforcement of its order 1 issued against the American Postal Workers Union, St. Louis, Missouri Local, AFL-CIO (the Union) and the United States Postal Service (the Postal Service) on March 5, 1979. Both the Postal Service and the Union have petitioned for review and set aside of the order. This court has jurisdiction pursuant to § 10(e) of the National Labor Relations Act (the Act), 29 U.S.C. § 160, and § 1208(a) of the Postal Reorganization Act of 1970, 39 U.S.C. § 1208(a). We uphold the Board's finding that the Union violated § 8(b)(1)(A) of the Act by arbitrarily revoking its assent to employee Mary Berry's request for a temporary shift change and violated § 8(b)(2) of the Act by causing the Postal Service to terminate Berry's temporary assignment. We set aside the Board's finding that the Postal Service violated § 8(a)(3) and (1) of the Act by acquiescing in the Union's actions.
This case is set against the background of the Postal Service's struggle with overtime costs. At least since 1971, the Union has represented all the employees at the Postal Service's St. Louis facility in the craft units: Clerk, Special Delivery, Maintenance and Motor Vehicle. The overtime provision, Article VIII, Section 4(B), 2 in the parties' collective bargaining agreement provided that employees were entitled to overtime when they worked outside their regular schedule at the Postal Service's request. The Postal Service had attempted to secure "volunteers" who were willing to work outside of their shifts at straight time rates, but the Union contended that such work did not fall within the "employee convenience" exception to the overtime provision. On July 27, 1975, arbitrator Howard G. Gamser issued an award (the Gamser Award) interpreting the overtime provision. The arbitrator concluded that the "volunteers" were actually being permitted to work out of schedule because the Postal Service needed to cover vacancies, rather than for their own convenience. Because the Postal Service's use of such "volunteers" created a danger of circumventing the overtime provision and making individual agreements with employees that were in conflict with the collective bargaining agreement, the Gamser Award specified that, in order to be relieved of the obligation to pay overtime to employees working outside their regular schedules for their own personal convenience, the Postal Service had to secure the Union's approval of such "employee convenience" assignments. Pursuant to the Gamser Award, the Union and the Postal Service devised a form entitled "Request for Temporary Schedule Change for Personal Convenience" 3 to be filled out and signed by employees requesting temporary shift changes. If approved and signed by the Union, the request could be granted by the Postal Service without liability for overtime. The requesting employee's signature and the signature of the steward assigned to the employee's work location 4 were accepted as satisfying that requirement.
In 1977, as a part of the Union's efforts to police the seniority and job-bidding rights of its members, the Postal Service agreed to find job assignments for about 160 unassigned regular employees. At the completion of all the bidding, unassigned regulars were "drafted" to the unfilled positions.
In the meantime, the Postal Service continued to have high overtime costs. 5 Local management was repeatedly admonished to set limits on overtime. Also, Manager of Distribution Malcolm Dearing's own merit pay increases were made contingent on his cutting costs.
The conflict here emanated from Berry's efforts to defer changing her work hours from Tour II to Tour I. Since December, 1975, Berry had been employed by the Postal Service as an unassigned clerk on Tour II (7 a. m. to 3:30 p. m.). By letter dated November 16, 1977, the Postal Service notified Berry that she had been "drafted" to definite assignment on Tour I (10:30 p. m. to 7 a. m.), effective November 26. Because she was solely responsible for the care of her blind mother, Berry requested 6 deferral of her new assignment until she could arrange for a companion for her mother during the night. She was told to put her request in writing, which she did by a letter dated November 18. On November 23, she was advised by Andrew Johnson, the Operations Analyst in charge of Tour II, to fill out a "Request for Temporary Schedule Change for Personal Convenience," 7 which she did immediately. She took the form and an attached copy of her November 18 letter to the office clerk who handled grievances and union papers and gave the papers to the clerk to present to the Union for signature. The form was signed and dated on November 23 by Michael Amann, General President of the Union. On November 30, the Postal Service notified Berry that her reassignment had been approved and she would not have to report to Tour I until February 5.
Sometime thereafter, her reassignment came to the attention of William D. Mooney, President of the Clerk Craft division of the Union, who had been active in enforcing the Gamser Award. On December 23, 1977, without any attempt to contact Berry, Mooney wrote the following letter to Manager Dearing:
This is to inform you that the detail of full-time Regular Clerk Mary Berry will be terminated on 1/1/77 (sic). She had requested a 60 day detail.
When her request for change of schedule was filled out it was not stipulated as to how long it was to run for. Therefore, it should not have been allowed to be for more than one day. But, since it was for a legitimate reason and since it has gone this long it will be considered approved.
Should the employee continue on tour two after 1/1/77 (sic) management will be libel (sic) for overtime pay for all hours worked outside of her regular schedule.
Your prompt attention to this matter will be greatly appreciated.
Upon receipt of this letter, Dearing instructed Johnson to terminate Berry's Tour II detail. He told Johnson to explain to her that the Postal Service had "no other option" because the revocation was "a unilateral Union action over which we have no control." On December 28, Johnson advised Berry that her Tour II detail would be terminated effective December 30.
On December 29 and again on December 30, Berry consulted with Dearing about her situation. Because of his sympathy for her, he personally tried to find a solution. At Dearing's suggestion, Berry applied for twenty-four hours of annual leave and up to twenty-seven days of leave without pay, which would allow her to remain at home during the month of January so she could find a new companion for her mother. On December 30, Dearing approved her application, placing her on leave-without-pay status from January 4 until February 8. Berry did not, however, ever report to her drafted Tour I position because in January she bid on and received a permanent position on Tour II.
The National Alliance of Postal and Federal Employees, a rival labor organization to which Berry belonged, filed a charge with the Board on her behalf, alleging that the Union had violated §§ 8(b)(1)(A) and 8(b)(2) of the Act.
Based on the foregoing facts, the Board affirmed the rulings, findings and conclusions of the Administrative Law Judge that the Union, through Clerk Craft President Mooney, breached its duty of fair representation toward Berry, thereby restraining Berry's § 7 rights and violating § 8(b)(1)(A) of the Act. In the Board's view, Mooney's revocation of General President Amann's assent to Berry's temporary shift change, solely because of Mooney's personal views, constituted an arbitrary and capricious exercise of power by the Union in violation of its duty of fair representation. The Board further found that the Union violated § 8(b)(2) of the Act by causing the Postal Service to terminate Berry's temporary Tour II detail and that the Postal Service violated §§ 8(a) (3) and (1) of the Act by acceding to the Union's arbitrary demand and terminating Berry's temporary detail.
The Board's order requires the Union and the Postal Service to cease and desist from the unfair labor practices found and from in any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed in § 7 of the Act. Affirmatively, the order requires the Union and the Postal Service to post appropriate notices and to make Berry whole for any loss of earnings she may have suffered by reason of the discrimination. After weighing the equities and the degree of responsibility borne by the parties, the Board determined that the Union should be primarily liable for the loss of earnings.
On review, the Board's findings must be sustained if they are...
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