United States Postal Service

UNITED STATES POSTAL SERVICE 413 United States Postal Service and Everett D. Adams. Case 9-CA-6400 (P) November 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 31, 1972, the Regional Director for Region 9 of the National Labor Relations Board issued a Complaint and Notice of Hearing in the above-entitled proceeding, alleging that the Respon- dent has engaged in and is engaging in certain un- fair labor practices as defined in Section 8(a)(1) and (3) of the National Labor Relations Act, and within the meaning of the Postal Reorganization Act'. Thereafter, on May 15, 1972, the Respondent filed with the Board in Washington, D.C., a Motion to Transfer Proceedings to the Board and Motion for Summary Judgment, and a brief in support thereof, asserting that there is no dispute as to the facts, that the Board lacks jurisdiction over the subject matter alleged in paragraph 6 of the complaint, and that Respondent was deprived of due process with respect to the allegation in paragraph 5. On May 18, 1972, the Board issued an Order Transferring Proceeding to the Board and Notice To Show Cause why Respondent's Motion for Summary Judgment should not be granted. Thereafter, the General Counsel filed an opposition to Respondent's motion. Pursuant to the provisions of Section 3(b)of the National Labor Relations Act, as amended, the National Relations Board has delegated its authority in this proceeding to a three-member panel. The Board having duly considered the matter, including the briefs, finds as follows: Paragraph 5 of the complaint alleges that Respon- dent violated Section 8(a)(3) and (1) of the Act by refusing to permit an employee to have a union steward present when he was reprimanded. With respect to this allegation, Respondent maintains that it was denied due process of law because it was not informed of the charge during the investigation thereof or given an opportunity to present its position or evidence prior to the issuance of the complaint. In its brief, the General Counsel contends inter alia, that Respondent was, in fact, informed of the charge and given an opportunity to present evidence. The contentions of the parties raise factual issues which cannot be resolved with a hearing. We therefore deny Respondent's Motion for Summary Judgment with respect to paragraph 5. However, nothing herein shall prejudice the rights of any party to renew such contention, or to present evidence in support thereof, during further proceedings in this matter. Paragraph 6 of the complaint alleges, in essence, that Respondent violated Section 8(a)(3) and (1) of the Act by the action of its board of appeals and review, on November 25, 1971, in suspending Charging Party Adams because he had engaged in protected activity. Respondent contends that such allegation should be dismissed for lack of jurisdic- tion. For the following reasons, we find merit in Respondent's contention. According to the uncontroverted facts, Adams, a postal clerk since 1959, was designated union steward of Local 252, United Federation of Postal Clerks, in September 1970. On January 13, 1971, Adams, allegedly acting in his capacity as union steward, protested the assign- ment of a postal assistant employee to perform certain work. When Fisher, Adams' foreman, ex- plained that the assignment was necessary because of an emergency, Adams protested that he did not give a "god damn if the mail never got out" and suggested that Fisher do the work himself. After a further exchange of words, Fisher registered a complaint against Adams. On February 3, 1971, pursuant to the "Adverse Action and Appeal Procedure" of the 1968-70 national agreement between the Post Office Depart- ment and several unions representing postal employ- ees, Adams was served with a "notice of proposed adverse action" which proposed Adams' removal from the Postal Service. Adams filed a written response. On February 26, 1971, the officer-in-charge of the Dayton Post Office issued a decision sustain- ing the charge and Adams' proposed removal from the Postal Service. Adams chose to appeal the decision to the Postal Service's regional director,2 and a hearing was held on April 1, 1971, before a hearing officer appointed by the Postal regional director. The hearing officer issued his report; Adams filed objections; and on May 24, 1971, the Postal Regional Director issued his decision sustaining the officer-in-charge's decision, and ordering Adams' removal.3 On June 28, 1971, 1 39 U S C § 1 01, et seq 3 Under the contract, any adverse action rendered is imposed at this 2 Under the contract, at this stage the individual may appeal to the Civil stage of the proceedings In case of a discharge, the employee ', ceases his Service Commission or he may continue to pursue his appeal through Postal employment at this time, even though the individual may elect to proceed Service channels In the event of an appeal, the discipline is not imposed further, either before (a) the Civil Service Commission , (b) the Postal (Continued) 200 NLRB No. 56 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Adams was removed from his position in the Postal Service. On July 1, 1971, Adams filed an appeal with the Postal Service's board of appeals and review (BAR). On November 25, 1971, the BAR issued its decision modifying the discharge to a suspension, effective until December 24, 1971. On the basis of these facts, Respondent contends that the Board lacks jurisdiction over its discipline of Adams because "the `operative facts' necessary to make out a violation herein occurred prior to July 1971, a date when . . . the 1971, Board assumed jurisdiction over the Postal employees."4 Counsel for the General Counsel contends that, while the discharge of Adams occurred prior to July 1, Respondent's disciplinary action was not final until ruled on by the BAR, on November 25, and thus, any charge is timely if filed within 6 months of that date, and the Board has jurisdiction over any such charge. Prior to July 1, 1971, all cases involving labor- management relations in the Postal Service were acted on by the Department of Labor under the provisions of Executive Order 11491. Section 19(a)(2) of that Executive Order makes it an unfair labor practice for any agency subject thereto to "encourage or discourage membership in a labor organization by discrimination in regard to hiring, tenure, promotion, or other conditions of employment." Section 19(d) of the Executive Order further provides that when an alleged violation of Section 19(a)(2) is subject to an established grievance or appeals procedure, that procedure is the exclusive procedure for resolving the matter. In the present case, it is uncontroverted that the alleged altercation between Adams and his foreman, and Adam's removal from his job, occurred at a time when the parties were subject to the provisions of the Executive Order. Following that altercation, Adams resorted to the elaborate grievance procedure provid- ed for in the extant collective-bargaining agreement. Thereafter, each step taken by Adams, and each response thereto by the Postal Service, was in conformity with the remedial procedures set forth in that agreement, as sanctioned by the provisions of the Executive Order. Nothing in the Postal Reorganization Act invests in this Board the power to remedy an alleged wrongdoing resulting from action which occurred at a time when we did not have jurisdiction and which therefore is clearly beyond the scope of our authori- ty. Here, all of the operative facts occurred at a time when the parties were subject to the provisions of the Executive Order. The only event which occurred after July 1, 1971, was the appeal to the BAR. In our view, the attempt to overturn Respondent's already effectuated discharge action does not detract from the fact that we had no jurisdiction over that discharge when it occurred. Accordingly, we find that we do not have jurisdic- tion over the subject matter alleged in paragraph 6 of the complaint. We have already found that para- graph 5 of the complaint raises substantial and material issues which cannot be resolved without a hearing. Thus, we shall grant Respondent's Motion for Summary Judgment with respect to paragraph 6 of the complaint and shall deny the Motion for Summary Judgment with respect to paragraph 5 of the complaint. ORDER Pursuant to the provisions of Section 10(b) of the Act, it is hereby ordered that Respondent United States Postal Services' Motion for Summary Judg- ment be, and it hereby is, granted in part and denied in part, and that paragraph 6 of the complaint herein be, and it hereby is, dismissed. It is further ordered that this proceeding be, and it hereby is, remanded to the Regional Director for Region 9 for such further action as he may deem appropriate consistent with this Decision. 4 The National Labor Relations Act was made applicable to postal effective within 1 year after the enactment of the PRA on the date or dates employees by virtue of Section 1209(a) of the Postal Reorganization Act established therefore by the board of governors of the Postal Service. (PRA), 39 U.S C. § 101 , et seq. Section 15(c) of the PRA provides that chapter Pursuant to resolution no. 71-9 of the board of governors, July 1, 1971, was 12 of the PRA, dealing with employee-management relations, shall become established as the effective date of chapter 12.