Postal Reporter.com NLRB CAses Against United States Postal Service

Argued May 11, 2004 Decided June 4, 2004

No. 03-1322

AMERICAN POSTAL WORKERS UNION, AFL–CIO,

ATLANTA METRO AREA LOCAL,

PETITIONER

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Summary: GINSBURG, Chief Judge: The American Postal Workers Union petitions for review of an order of the National Labor
Relations Board holding the United States Postal Service did not violate § 8(a)(1) of the National Labor Relations Act, 29
U.S.C. § 158(a)(1), by ejecting two nonemployee union organizers from its Bulk Mail Center in Atlanta, Georgia. Because
the Board had a rational basis for its decision, we deny the petition for review.

Background

One evening in June 2000 three agents of the APWU entered the Postal Service’s Bulk Mail Center to solicit drivers employed by Mail Contractors of America (MCOA), a company that hauls mail by truck for the USPS. They were: Hardy, an MCOA driver; Brown, the president of APWU Local 32; and Grimes, an APWU organizer. These three, none of whom was employed by the Postal Service, went to the lounge used by MCOA drivers waiting for Postal Service employees to load mail into their trucks. Brown left the lounge around 10p.m., and at approximately 10:30p.m. Johnson, a Postal Service employee, joined Hardy and Grimes there. Upon discovering the three men attempting to organize MCOA drivers, a Postal Service supervisor, after consulting with a manager, instructed them to leave the Bulk Mail Center, which they did. The supervisor and the manager acted pursuant to the Postal Service’s Southeast Area Office Policy. Jack Mitchell, the author of the Policy, testified that it states the intention of the Postal Service ‘‘to remain neutral, that this was an effort by the Union to organize a private company that we had no say in, and we were not to aid them nor to hinder them.’’ The Postal Service also had a general policy predating the Southeast Area Office Policy which prohibited solicitation for commercial or charitable purposes.

The Union filed an unfair labor practice charge, and the General Counsel of the NLRB issued a complaint alleging the Postal Service violated § 8(a)(1) of the NLRA, 8 U.S.C. § 158(a)(1), by ‘‘den[ying] its employee Joe Johnson, Mail Contractors of America employee Will Hardy, and Union Organizer Lyle Grimes access to a break room for the purpose of organizing.’’ Section 8(a)(1) of the NLRA makes it ‘‘an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.’’ 29 U.S.C. § 158(a)(1). Section 7 of the NLRA provides that ‘‘Employees shall have the right to self-organization, to form, join, or assist labor organizations.’’29 U.S.C. § 157. After a hearing, an Administrative Law Judge held the Postal Service had violated § 8(a)(1), as alleged.

On review the Board affirmed the decision of the ALJ with respect to the employee, but held excluding union president Grimes and MCOA driver Hardy from the contract drivers’ lounge did not violate § 8(a)(1). In the Board’s view, the General Counsel had failed to prove the Southeast Area Office Policy

prohibited union solicitation while TTT permitt[ing] other solicitationTTTT Without evidence that the [Postal Service] permitted other solicitation by nonemployees, we cannot conclude that the [Postal Service’s] Southeast Area Office Policy, or its denial of access to the Union pursuant to that policy, was discriminatorily confined to Section 7 activity.

The Union appeals, arguing the Southeast Area Office Policy on its face discriminates against union solicitation.

Decision

The Board correctly found no record evidence that ‘‘management had ever been aware of, or permitted, solicitation of any kind in the contract drivers’ lounge.’’ Because there was no evidence the Postal Service ‘‘allow[ed] similar distribution or solicitation by non employee entities other than the union,’’ Lucile Salter Packard Children’s Hospital at Stanford v.NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996), there was no violation of § 8(a)(1).

III. Conclusion

The Board had a rational basis for holding the Postal Service did not violate § 8(a)(1) of the Act. The Union’s petition for review is therefore Denied.

PDF file

Failure to Provide Information as Requested

"The case arises in the Houston district of the Postal Service. The vast majority of the complaints filed by APWU and NALC allege that the Postal Service failed to provide or to provide This case was tried in Houston, Texas, on November 3, 4 and 5, 2003, pursuant to a consolidated complaint that issued on September 29, 2003.The complaint, as amended at the hearing, alleges that the USPS (Houston, Texas) violated Section 8(a)(1) and (3) of the National Labor Relations Act by threatening an employee and changing his working conditions in retaliation for his union activity and that the USPS (Houston, Texas) violated Section 8(a)(5) of the Act by making two unilateral changes and failing and refusing to provide relevant information in a timely manner requested relevant information at various postal facilities in that district to APWU & NALC stewards." The complete case in PDF format can be found by clicking here. The National Labor Relations Board issued the following order . (2/22/04)

ORDER

The Respondent, United States Postal Service, Houston, Texas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening discipline for failure to comply with a unilaterally changed procedure.

(b) Refusing to bargain collectively with American Postal Workers Union by unilaterally altering the procedure by which the APWU maintenance craft steward at the Spring Post Office must obtain union time in order to carry out his representational responsibilities.

(c) Refusing to bargain collectively with National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, by unilaterally ceasing to automatically approve requests for leave that involve employees taking LWOP for Choice Vacation at the Panther Creek branch and other locations of the Spring Post Office.

(d) Refusing to bargain collectively with American Postal Workers Union by failing and refusing to provide requested information that is relevant and necessary to that Union as the collective-bargaining representative of employees in the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All maintenance employees, special delivery messengers, motor vehicle employees, postal clerks, mail equipment shop employees and distribution centers employees; but excluding managerial and supervisory personnel, professional employees, employees engaged in personnel work in other than a purely non-confidential clerical capacity, security guards as defined in Public Law 91-375, 1201(2), all postal inspection service employees, employees in the supplemental work force as defined in Article 7 [of the collective-bargaining agreement], rural letter carriers, mail handlers and letter carriers.

(e) Refusing to bargain collectively with National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, by failing and refusing to provide, or failing and refusing to provide in a timely manner, requested information that is relevant and necessary to that Union as the collective-bargaining representative of employees in the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All letter carriers; but excluding managerial and supervisory employees, professional employees, employees engaged in personnel work in other than a purely non-confidential clerical capacity, security guards, Postal Inspection Service employees, employees in the supplemental workforce as defined in Article 7, rural letter carriers, mailhandlers, maintenance employees, special delivery messengers, motor vehicle employees, and postal clerks.

(f) In any other manner interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Upon the request of the American Postal Workers Union, rescind the unilateral alteration of the procedure by which the its maintenance craft steward at the Spring Post Office must obtain union time in order to carry out his representational responsibilities.

(b) Upon the request of the National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, rescind the unilateral cessation of automatically approving requests for leave that involve employees taking LWOP for Choice Vacation at the Panther Creek branch and other locations of the Spring Post Office.

(c) Promptly furnish the American Postal Workers Union and the National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, with the information found to have been unlawfully withheld from them as set forth in the remedy section of this decision.

(d) Within 14 days after service by the Region, post at all its facilities within the Houston, Texas, district, copies of the attached notice marked “Appendix.”^[6] Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by 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 employees 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at its North Shepard Station at any time since January 10, 2003.

(e) 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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. January 16, 2004

_____________________

George Carson II

Administrative Law Judge

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 had found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

WE WILL NOT threaten you with discipline for failing to comply with a procedure that we have unilaterally changed.

WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by unilaterally altering the procedure by which the American Postal Workers Union maintenance craft steward at the Spring Post Office must obtain union time in order to carry out his representational responsibilities, and WE WILL, upon the request of that Union, rescind the foregoing unilateral change.

WE WILL NOT refuse to bargain collectively with the National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, by unilaterally ceasing to automatically approve requests for leave that involve employees represented by that Union from taking LWOP for Choice Vacation at the Panther Creek branch and other locations of the Spring Post Office, and WE WILL, upon the request of that Union, rescind the foregoing unilateral change.

WE WILL NOT refuse to bargain collectively with the American Postal Workers Union by failing and refusing to provide requested information that is relevant and necessary to that Union as the collective-bargaining representative of the employees it represents, and WE WILL promptly furnish the information it requested on April 24, 2003.

WE WILL NOT refuse to bargain collectively with National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, by failing and refusing to provide, or failing and refusing to provide in a timely manner, requested information that is relevant and necessary to that Union as the collective-bargaining representative of the employees it represents, and WE WILL promptly furnish the information it requested between January 10, 2003, and July 10, 2003, as set forth in the remedy section of the decision.

WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

		UNITED STATES POSTAL SERVICE
		(Employer)

Dated	By
		(Representative) (Title)

NLRB Rules in favor of Letters Carriers on Failure to Provide Info (Simmons Report) The Respondent has a history of violating Section 8(a)(5) and (1) by failing to provide requested relevant information at many of its locations over the past two decades.1 The Respondent has shown a particular tendency to violate Section 8(a)(5) and (1) within its Houston district by failing to provide requested information. See United States Postal Service, JD(ATL)-39-02 (NLRB Division of Judges, 2002) (refusals to furnish information in the Houston district, including the facility at issue in the instant case).2 Because of the similar nature of the violations committed at locations across the district, the judge in that case found it unlikely that the violations were coincidental. In the present case, violations of the same type were committed again by the Respondent at its North Shepherd Station in the Houston district. Union Right to Information (2003)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

United States Postal Service and American Postal Workers Union, AFL–CIO, Atlanta Metro Area Local. Case 10–CA–32518(P)

below are excerpts from of the PDF file located at NLRB.gov

August 21, 2003

DECISION AND ORDER

By Chairman Battista and Members Walsh
and Acosta

On July 18, 2001, Administrative Law Judge Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party 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,1 and conclusions only to the extent consistent with this Decision and Order.2

This case involves access to the Respondent’s property by both employees and nonemployees for the purpose of engaging in union solicitation. At the time of the events alleged in the complaint, the Union already represented the Respondent’s employees, but was seeking to organize drivers employed by Mail Contractors of America (MCOA), a company that provides mail hauling services to the Respondent on a contract basis. Three persons sought access to a room on the Respondent’s premises known as the “contract drivers’ lounge” in order to solicit MCOA drivers.3 Those three persons were Joe Johnson, an off-duty employee of the Respondent; Will Hardy, an off-duty MCOA employee; and Lyle Grimes, a union organizer who was not employed by the Respondent or MCOA. The judge found that the Respondent violated Section 8(a)(1) by denying all three of them access to the lounge. For the reasons stated below, we find that the Respondent violated Section 8(a)(1) by denying access to Johnson, but not by denying access to Hardy and Grimes.

ii. analysis

For the reasons stated below, we agree with the judge that the Respondent violated Section 8(a)(1) by denying access to its employee, Johnson. We do not agree, however, that the Respondent violated Section 8(a)(1) by denying access to Hardy and Grimes, who were not employees of the Respondent.

ORDER

The National Labor Relations Board orders that the Respondent, United States Postal Service, Atlanta, Georgia, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Denying its employees access to the contract drivers’ lounge at the Atlanta, Georgia Bulk Mail Center to solicit on nonworking time on behalf of the American Postal Workers Union, AFL–CIO, Atlanta Metro Area Local, or any other labor organization.

(b) 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 effectuate the policies of the Act.

(a) Within 14 days after service by the Region, post at its Bulk Mail Center in Atlanta, Georgia copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 20, 2000.

(b) 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 with this Order.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. August 21, 2003

______________________________________

Robert J. Battista, Chairman

______________________________________

R. Alexander Acosta, Member