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Carrie L. Zepperi-Lomanto v. American Postal Workers Union--Afl-Cio and American Postal

January 19, 2012

CARRIE L. ZEPPERI-LOMANTO, PLAINTIFF,
v.
AMERICAN POSTAL WORKERS UNION--AFL-CIO AND AMERICAN POSTAL
WORKERS UNION--AFL-CIO--NORTHWEST ILLINOIS AREA LOCAL 7140,
DEFENDANTS.



The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo

MEMORANDUM OPINION AND ORDER

Carrie Zepperi-Lomanto has filed a claim against the American Postal Workers Union -- AFL-CIO ("APWU") and the Northwest Illinois Area Local 7140 ("Local" or "NWIAL") under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). Lomanto alleges that the defendants (referred to collectively as "the union") breached their duty of fair representation when they filed two grievances with management, one of which resulted in Lomanto's loss of her bid job. The union has filed a motion for summary judgment, which I grant.*fn1

I.

Lomanto was employed by the United States Postal Service ("USPS") in its Palatine, Illinois Processing and Distribution Center ("Palatine P&DC") as a custodian. The APWU is the collective bargaining representative of USPS employees in several bargaining units, including the maintenance craft. The NWIAL provides representation to employees at various USPS sites, including the Palatine P&DC.

Lomanto's position as a custodian was a bid job, a job with a set schedule of work days and shifts, in the maintenance craft. The terms and conditions of Lomanto's employment were governed by the collective bargaining agreement ("CBA") between APWU and USPS. Beginning in 2005, Lomanto worked as a temporary maintenance supervisor, or "204B supervisor," on an as-needed basis. A 204B supervisor is a non-bargaining unit position, and is paid at the supervisory rate. Article 38.7.E of the CBA sets limits on these appointments:

The duty assignment of a full-time maintenance employee detailed to a non-bargaining unit position, including a non-bargaining unit training program, in excess of four (4) months shall be declared vacant and shall be posted and filled in accordance with the provisions of this Article. Upon return to the Maintenance Craft, the employee will become an unassigned regular. An employee detailed to a non-bargaining unit position must return to the craft for a minimum of one continuous pay period to prevent circumvention of the intent of this provision. (Emphasis in original.)

Article 38.7.E also states that the USPS should use Form 1723 to inform the union that a temporary assignment has been made to a non-bargaining unit position.

On at least two prior occasions, NWIAL investigated and filed grievances for enforcement of Article 38.7.E. In 2006, NWIAL successfully grieved a violation of Article 38.7.E involving Henry Gibson, who had worked in a temporary supervisor status for more than four months. Gibson lost his bid job as a result. He then filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") regarding the grievance, but the NLRB declined to proceed to a complaint. In 2008, NWIAL filed a grievance regarding Carl Lloyd, who had worked in a non-bargaining unit for over six months. The resolution of that grievance resulted in USPS management declaring the employee's position vacant. In fact, in December of 2008, NWIAL Steward Robert LaFoe met with Lomanto to discuss a violation of Article 38.E.7. LaFoe explained that Lomanto needed to return to her bargaining unit position for a full pay period and not just any two consecutive weeks in order to avoid violating Article 38.7.E. LaFoe did not pursue a grievance against Lomanto at that time.

On January 3, 2009, Lomanto was once again assigned as a 204B temporary supervisor. Her assignment was to run to March 13, 2009. During her assignment as a 204B temporary supervisor, Lomanto had an encounter with Rick Szczesny, the Chief Union Steward for the Maintenance Craft at the Palatine P&DC. Lomanto wrote a report informing her supervisor about the incident, and USPS management decided to pursue disciplinary action against Szczesny, at least in part based on Lomanto's report. Lomanto also provided a witness statement for the incident involving Szczesny. Initially, Szczesny was fired, but he successfully grieved his discharge and it was reduced to a written warning.

There is disagreement among the parties as to what happened toward the end of Lomanto's assignment. The parties agree that Lomanto attended supervisor training in Norman, Oklahoma from February 28 to March 13, 2009. Lomanto traveled home on March 14, 2009, which was the first day of pay period 7. In a handwritten note, Lomanto informed management that she was traveling on March 14, and she requested she be paid at the supervisory rate for the dates of March 13 and 14. The USPS corrected Lomanto's pay to the supervisory rate for March 13, which was the last day of pay period 6, but not for March 14, the first day of pay period 7. Subsequently, the USPS submitted a form 1723 indicating Lomanto was again assigned temporary supervisor duties from March 28 through June 19. During pay period 7, from March 14 through March 27, Lomanto claims that she worked exclusively in the maintenance craft.

In April 2009 LaFoe filed a grievance with management alleging that the USPS had submitted conflicting information to the NWIAL regarding Lomanto's 204B assignments and that Article 38.7.E had likely been violated. Though Lomanto did not prompt LaFoe to file the grievance, the grievance sought back pay for Lomanto for the days she allegedly worked as a temporary supervisor. That grievance was withdrawn after USPS management denied it. On the Step 1 summary, the Management Official, Robert Gotsch, reported that during the Step 1 meeting LaFoe commented that "this is what happens when you issue action on a fellow steward."

About one month later, in May 2009, LaFoe filed another grievance, this time alleging that Lomanto had not returned to her bargaining unit position as a custodian for a full pay period since January 3, 2009, in violation of Article 38.7.E. The grievance also alleged that while Lomanto had been paid at her bargaining unit pay rate during all of pay period 7, she had been seen working in the supervisors' office, and therefore not performing bargaining unit work for the full pay period. In contrast to the April grievance, the May grievance did not seek back pay for Lomanto. In fact, at Step 2, the USPS Step 2 Representative, Michael Fuechtmann, reported that the union's position was that Lomanto was not entitled to any back pay. Also in contrast to the April grievance, the May grievance specifically sought to terminate Lomanto's bid job. At Steps 1 and 2, USPS management denied the grievance. However, it was advanced to Step 3 and the Maintenance Craft National Business Agent Vance Zimmerman determined that there had been a violation of Article 38.7.E, leading to Lomanto's loss of her shift bid. At the final stage, Step 3, the union included another employee's Form 1723 among the documents it submitted in support of its grievance.

The union filed the grievances without Lomanto's knowledge and pursued them without her participation. Lomanto first learned about the grievances in December 2009, when she was informed that she had lost her bid job. Plaintiff now vigorously denies that she performed any supervisory tasks during pay period 7. However, Lomanto admits that during pay period 7 she had access to and used computer software normally utilized by supervisors for making assignments. Lomanto also admits that two USPS work assignment forms for pay period 7, specifically for March 19 and 20, were signed by someone other than Lomanto and both submitted on March 20. The defendants contend that these forms are typically signed by the employee and submitted on the day the work is performed.

Since Lomanto's bid job was declared vacant, she has been in a 204B position, earning a supervisory pay rate. While Lomanto has lost her ability to bid on shifts in her previous bargaining unit position, she has ...


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