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BULLOCK v. RUNYON

June 2, 1997

MARSHALL BULLOCK, SR., Plaintiff,
v.
MARVIN RUNYON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.



The opinion of the court was delivered by: GREENAWAY

 GREENAWAY, JR., District Judge

 INTRODUCTION

 This matter is before the Court on defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). All papers submitted in support of and in opposition to the motion have been considered. The Court did not hear oral argument. Fed.R.Civ.P. 78. For the reasons stated below, defendant's motion is granted.

 FACTS

 Plaintiff Marshall Bullock, Sr. is an employee of defendant United States Postal Service ("USPS)". He worked on the "Tour 2" shift at defendant's Hackensack Processing and Distribution Center located in Hackensack, New Jersey. In September 1992, defendant terminated the Tour 2 shift due to increased automation of the mail processes. Defendant created new job slots for the affected Tour 2 employees. Employees obtained the new job slots by way of a voluntary bidding process. If no bids were submitted for a particular job slot then that slot became a "residual vacancy." *fn1"

 The collective bargaining agreements between the USPS, and the American Postal Workers Union, AFL-CIO ("APWU") and the National Association of Letter Carriers, AFL-CIO (the "Agreements") govern residual vacancies. Per the Agreement, residual vacancies were first assigned to "unassigned employees," i.e., an employee who has been unassigned to a specific job for more than ninety days. An unassigned employee is classified as either "senior" or "junior." Pursuant to the 1987 to 1990 Agreement, senior employees obtained residual vacancies first. After the adoption of the 1990-1994 Agreement junior employees received residual vacancies first. The USPS finalized and distributed the 1990 to 1994 Agreement to the nation's Post Offices in 1993. Prior to the publication and distribution of the 1990-1994 Agreement, the APWU published the "Arbitration Proceedings and Collective Bargaining Agreement." This publication conflicted with the actual language of the 1990-1994 Agreement by incorrectly stating that senior employees would be the first to obtain residual vacancies.

 On June 14, 1993, Ben Nowacky ("Nowacky"), a Customer Services Supervisor, unilaterally assigned Bullock to residual vacancy Number 5563236. Nowacky made the assignment pursuant to the Arbitration Proceedings and Collective Bargaining Agreement publication. However, Bullock, at the time an unassigned senior clerk, should not have received the assignment pursuant to the 1990-1994 Agreement. Nowacky asserts that at the time of the assignment he was neither aware of the "senior" to "junior" change in the 1990-1994 Agreement, nor aware of plaintiff's gender or race. Nowacky states that he acted pursuant to his understanding of the APWU publication and the 1987-90 Agreement. Both documents required that he assign senior employees first to residual vacancies. Dissatisfied with the assignment, Bullock filed a grievance.

 On or about July 20, 1993, the APWU opined that the procedures used to place Bullock in the residual vacancy did not violate the Agreement. Thereafter, the APWU withdrew its grievance on Bullock's behalf. Bullock started his employment in the residual vacancy on July 24, 1993. He remained in the position until October 30, 1993. He left at that point to accept another postal position.

 On July 26, 1993, Bullock filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") alleging that the North Jersey Area Local of the APWU caused his employer to reassign his job Tour and assignment in violation of Sections 8(a)(1) & (3), and 8(b)(1)(a) and (2) of the National Labor Relations Act. 29 U.S.C. ยง 158 (1973). Bullock also alleged that in June of 1993 his employer changed his job Tour and assignment due to his membership in and activities on behalf of the APWU. Bullock filed an amended complaint on September 24, 1993. The amended complaint charged the defendant with changing Bullock's job assignment and Tour because of his lack of membership in the APWU. *fn2"

 On December 22, 1993, the NLRB dismissed the charges against the USPS having found that:

 
The evidence adduced by the investigation is insufficient to establish your contention that the Employer, United States Postal Service, reassigned your job duties upon the request of your Union, North Jersey Area Local, American Postal, Workers Union, AFL-CIO. Rather, the investigation disclosed that your reassignment resulted from the Employer's need to fill a residual vacancy at the facility in which you are employed. Furthermore, your reassignment appears to be consistent with the terms of the Employer's collective bargaining agreement with the Union. In addition, there is insufficient evidence that your reassignment was unlawfully motivated, rather than as contended by the Employer, due to staffing considerations done in accordance with the terms of the collective bargaining agreement.
 
With regard to that aspect of your charge against the Union, alleging that it failed to process a grievance over your job reassignment, the evidence adduced by the investigation is insufficient to establish your contention that the union [sic] breached its duty of fair representation. Rather, the investigation disclosed that the Union investigated the circumstances of your job reassignment and determined that your grievance was not meritorious. Thereafter, the Union advised you by letter of its determination that your reassignment did not constitute a violation of the collective bargaining agreement and that further consideration of your grievance was unwarranted. There is insufficient evidence that the ...

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