U.S. Postal Service

U.S. Postal Service and Aaron Wright. Case 10-CA 13363(P) October 27, 1978 DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND REMANDING PROCEEDING TO REGIONAL DIRECTOR FOR HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 2, 1978, the Regional Director for Re- gion 10 of the National Labor Relations Board is- sued a complaint and notice of hearing in the above- entitled proceeding alleging that the Respondent has engaged in, and is engaging in, certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, and within the meaning of the Postal Reorganization Act.' Subsequently, the Re- spondent filed an answer admitting in part, and de- nying in part, the allegations of the complaint and submitting affirmative defenses. Thereafter, on June 27, 1978, the Respondent filed a Motion for Summary Judgment and a memoran- dum in support thereof, with exhibits attached. The Respondent moves that summary judgment be grant- ed on the grounds that (1) under Jubilee Manufactur- ing Companye, 202 NLRB 272 (1973), the Board lacks jurisdiction over certain allegations in the complaint. (2) this case is analogous to the situation in Dubo Manufacturing, 142 NLRB 431 (1963), hence the matter should be deferred to the Equal Employment Opportunity (EEO) administrative procedures of the Civil Service Commission, and (3) pursuant to Elec- Ironic Reproduction Service Corporation. 213 N LR B 758 (1974), and Spielberg Manufacturing Comnpany , 112 NLRB 1080, (1955), the complaint should be dis- missed in deference to an arbitral award concerning the Charging Party's suspension on September 24. 1977, and a settlement agreement signed by the Charging Party and his Union concerning his dis- I The complaint alleges. inter alia. that the Respondent denied lilt' ('hrg- ing Party's request for union representalton at a disciplinars inter, lew t-I11- ducted on November 21, 1977. and threatened emplo,,ees l th repriralls for engaging in protected concerted activities The complainl further alleges that the Respondent engaged in the following cotnduct in reprisal ;Iatln'l the Charging Parly's concerted activities (a) denied the ( harging Pllrtr break, from August 25 until December 28, 1977: (b) beginning September 14 1977. required the Charging Parts to work osertime (or furnish a docloir's exsuse for each occasion he was unable to do so, ({c) placed Ihe ( harginf Pa.rts on "restricted sick leave" on September IS 1977. (d) suspended Ihe ( harging Parts for varying periods of time on Septemhel 22, ()Oohber 28, an.ld .oern her 21. 1977. (e) issued the ('bharging Parts a counseling report on ()cloher 20, 1977: and (f) discharged the ( harging P;lrit on J.anuars 2). 1978 U.S. POSTAL SERVICE charge on January 20, 1978. On July 7, 1978, the Charging Party filed a motion to strike the Respon- dent's Motion for Summary Judgment. alleging that it was an exrparte communication, inasmuch as it was not served on his counsel. On July 26. 1978, the Re- spondent filed an opposition to that motion to strike asserting that, although it inadvertently failed to serve a copy of its Motion for Summary Judgment on the Charging Party's counsel. it did serve one on the Charging Party himself. On August 8, 1978, the Charging Party filed an opposition to the Respon- dent's Motion for Summary Judgment arguing, inter alia, that Jubilee Malnufacturing Company,, supra. is inapposite here since the events giving rise to the in- stant complaint are not purely racial in nature but rather involved "actions taken against the Charging Party las al result of his attempting to engage in con- certed activity directly protected by section 7 of the [Act]", that the Board should not defer to the (ivil Service Commission's EEO procedures because the instant complaint is not based solely on allegations that the Respondent engaged in racial discrimination and, in any event, those procedures are "largely illu- sory" inasmuch as it is umlccrtain whether the EEO examiner will expand his investigation hbeyond the circumstances of the Charging Party's discharge on Januars 20. 1978. The C('harging Part\ also urges that the Board should not defer to the arbitral award con- cerning one of the Charging Party's suspensions be- cause there is no record upon which the Board can determine whether the Board's standards for postar- bhitral deferral have been met. And. finally. the Charging Part}s maintains the Board should not defer to the settlement agreement regarding tile ('harging Partm's Januars 20, 1978. discharge because, accord- ing to the C(harging Party, there is a substantial dis- pute as to the precise terms of the settlement. On July 12, 1978. the Board issued an order trans- ferring the proceeding to the Board and a Notice To Show Cause whv the Respondent's Motion for Sum- mary Judgment should not he granted. Thereafter. the General C'ounsel filed a response to the Notice To Show Cause arguing. inter alia. that .Jubile', J anlu- f/acluriln ColJmpatll', .slrplra. iS inapposite here for es- sentiall, the same reasons urged by the Charging Party: that the Board should not defer to the ('ivil Service ('ommission's EEO procedures because the Respondent is simultaneousl seeking dismissal of the EEO proceedings on procedural grounds and. in any event. there is no requirement that the Board cede its jurisdiction to EEO administrative proce- dures in disputes involving protected concerted activ- ities which were "rooted in protests of racial discrim- ination": and that the Board should not defer to the parties' grievance-arhitration procedlures for essen- 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tially those reasons advanced by the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has duly considered the matter and has concluded that issues raised by the pleadings can best be resolved at a hearing conducted by an Ad- ministrative Law Judge. ORDER It is hereby ordered that the Respondent's Motion for Summary Judgment in the above-captioned case be, and it hereby is, denied.2 2 In view of our Decision herein, we shall deny Charging Party's motion Ii Is IFUR IHER ORDERED that the above-entitled pro- ceeding be. and it hereby is, remanded to the Region- al Director for Region 10 for further appropriate ac- tion. to strike the Respondcnt's Motion for Summary Judgment. In this connec- tion we also note that the Charging Part) does not controvert Respondent's contention that service was made on the Charging Party himself, although ntlt on his counsel, and that the Charging Party has failed to show why. in these circumstances, he has been prejudiced. In overruling the Respondent's contention that the Board should dismiss the complaint under Jubilee Manufacturing (ompany, supra. we find that case. wherein the Board rejected the theory that sex and other forms of invidious discrimination by an employer are inherently destructive of em- ployees' Sec. 7 rights, inapplicable to this situation. since here the complaint alleges that the Respondent's conduct constitutes reprisal for the Charging Party's having engaged In concerted activity to protest the Respondent's alleged discriminiattor practices Member Jenkins notes, moreover, that he adheres toi his dissent in Jubilee Further, in rejecting the Respondent's argu- ments that the Board should defer to the Civil Service (ommission's EEO and to the parties' grievance-arhitrattii procedures, we note that the Board rejected similar arguments in U S Postal Serice. 228 NL.RB 1235 (1977). and 227 NLRB 1826 (1977) 98