United States Postal Service

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and National Association of Letter Carriers, AFL-CIO, Local 283. Case 23- CA-4323(P) August 21, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO related grievances. In view of the above facts, it is evident that this case now concerns an abstract issue having no impact upon the day-to-day relations between Respondent and the Union and that there is virtually nothing of substance for the Board to remedy. We therefore shall direct that the complaint be dismissed in its entirety? See American Federation of Musicians, Local 76, AFL- CIO, 202 NLRB No. 80. ORDER On February 26, 1973, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 considered the record and the at- tached Decision in light of the exceptions and brief and finds merit in certain of Respondent's exceptions. Accordingly, we have decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The issue here is whether Respondent violated Sec- tion 8(a)(5) of the Act by suspending the processing of employee Henry Piotrak's grievance pending adju- dication of both an unfair labor practice charge and an employment discrimination complaint which the grievant had filed on the same subject. The grievance, charge, and complaint all related to a warning letter which Piotrak's foreman had placed in his personnel file. When the charge and complaint were dismissed, Respondent processed the grievance and removed the warning letter. The grievance and employment discrimination complaint were both processed pursuant to the provi- sions of the 1968 bargaining agreement between Re- spondent and the National Association of Letter Carriers. Respondent believed certain of those provi- sions authorized its suspending the processing of Piotrak's grievance pending adjudication of his relat- ed employment discrimination complaint.' The provi- sions on which it relied were not incorporated in the superseding 1971 bargaining agreement and so will not lead to further similar instances of suspension of the grievance process. At the hearing before the Administrative Law Judge the parties stipulated that Respondent had pro- cessed other of Piotrak's grievances although he had concurrent unfair labor practice charges pending. The import of that stipulation is that Respondent no lon- ger relies on the pendency of unfair labor practice charges as grounds for suspending the processing of Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' The contract provides that claims of employment discrimination, based on race, creed , color, national origin , or sex , shall be adjudicated under United States Postal Service and Civil Service Commission regulations, but this will not prohibit the Department from processing the grievance to a conclusion prior to and/or simultaneously with the investigation and adjudi- cation of the complaint of discrimination 2 In view of their disposition of the complaint , Chairman Miller and Mem- ber Kennedy find it unnecessary to pass on Respondent 's contention that certain aspects of this proceeding should be deferred to arbitration under Collyer Insulated Wire, 192 NLRB 837 DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: On De- cember 14, 1972,' this case was tried before me in Houston, Texas, upon a complaint by General Counsel 2 alleging that Respondent violated Section 8(a)(5) and (1) of the Act. Briefs were submitted by General Counsel and Resondent. Upon the entire record,' I make the following:? FINDINGS OF FACT I JURISDICTION Under the authority of the Postal Reorganization Act, 39 U.S.C. Sec. 1209(a), effective July 1, 1971, Respondent is subject to the jurisdiction of the Board. Respondent oper- ates a facility, solely involved herein, at Hobby Airport, Park Place Station, Houston, Texas. 11 THE LABOR ORGANIZATIONS INVOLVED National Association of Letter Carriers, AFL-CIO, here- 1 All dates are in 1972, unless otherwise noted 2 The original charge was filed April 26 and amended June 6; the com- plaint issued November 13 3 Pursuant to motion, without objection , the transcript at 32,1 25 is hereby corrected to read-"late October of 1972 " Respondent's motion to dismiss is disposed of in accordance with the findings below 205 NLRB No. 98 UNITED STATES POSTAL SERVICE in called NALC, and its Local 283, herein called the Charg- ing Party or Union, are each labor organizations within the meaning of Section 2(5) of the National Labor Relations Act, herein called the Act. III THE UNFAIR LABOR PRACTICES A. Issue Whether Respondent, subject to the grievance procedure in a collective-bargaining contract, violated Section 8(a)(5) by refusing to process a grievance, and so notifying the grievant,-until there were adjudications of pending charges filed with the instant Board, and with the "EEO" (an internal complaint procedure within the U.S. Postal Service). B. Undisputed Facts 5 On December 15, 1971, Henry P. Piotrak , a mail carrier, was issued a letter of warning by his foreman . Piotrak, in conjunction with the Union , filed a grievance , evidenced by a formal letter dated January 18, requesting inter alia that the letter of warning be removed from his personnel file. Theretofore, the Union had filed an unfair labor practice charge on January 14 (Case 23-CA-4215(P)),6 and an EEO 7 complaint within Respondent's organization. Dated January 25 , a letter was sent to Piotrak on behalf of the Houston postmaster , stating: Reference is made to your letter received January 20, 1972, stating you are filing a grievance because of a letter of warning issue to you... . I have received information you have filed an Unfair Labor Charge and an E. E . O. Complaint regarding this same subject. In that both of these complaints are un- der investigation I am deferring a decision on your grievance until these complaints have been adjudicat- ed. The foregoing letter, containing Respondent's explicit posi- tion, which it subsequently carried out, presents the essen- tial basis for General Counsel's complaint. On March 7 , the Regional Director refused to issue a complaint in Case 23-CA-4215(P), and thereafter an appeal was denied .8 In late October , after receiving a disposition on the EEO complaint, Respondent notified the Union that it had processed Piotrak's grievance and withdrawn the warn- ing letter from his file. 5 Virtually all the relevant evidence was admitted by stipulation 6 Alleging in substance excessive observation and harassment of Piotrak by his supervisors, since September 1, 1971, in violation of Section 8(a)(1) and (4) of the Act Distinguished from the U S Equal Employment Opportunity Commis- sion 8 The formal dispositions of this charge, offered by Respondent, were rejected at the hearing They are in any event matters in which official notice may be taken so far as they may be relevant For the purpose of describing these instruments upon which Respondent relies, the exhibits marked R-2 through R-5 are hereby admitted C. Conclusions 625 Respondent does not generally question its obligation to the Union to process grievances and otherwise to engage in bargaining within the terms of a collective-bargaining agreement as it affects the Houston installation? The controlling law, involving fundamental collective- bargaining principles, has been long and clearly established. "The duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor man- agement relations during the term of a contract."10 "The grievance procedure is . . . a part of the continuous collec- tive-bargaining process." (Emphasis added.) I I The employ- er may not refuse to process a grievance 12 or otherwise failed to bargain,13 during the pendency of unfair labor practice charges. Similarly, the continuity of the statutory bargaining obligation may not be suspended by the employer's unilateral deferral of the grievance procedure until it obtains an adjudication of a related complaint by some other forum, such as the EEO in the present case. The various arguments in Respondent's brief have been considered and found without merit. That the Union's charges do not specifically allege the issue of Respondent's deferral of the Piotrak's grievance does not present a fatal variance with General Counsel's complaint.) Respondent's insistent position reflected in the January 25 letter to Piot- rak in itself refutes its further claim that it satisfied all bargaining obligations by certain procedural discussions re- lating to the grievance prior to January 25. Thereafter, nei- ther side attempted to confer with the other concerning the deferred grievance. In the circumstances, the Union was under no obligation to press beyond the January 25 letter, and its failure to do so cannot serve Respondent as a de- fense. Perhaps a clearer understanding of Respondent's con- duct lies in its contention that a practice existed wherein the processing of certain grievances was deferred pending adju- dication of complaints under the EEO procedure. This as- serted defense is misconceived factually and legally. There is no evidence that the Union was a party to such a prac- tice-outside the applicable collective-bargaining con- tract 15 or within it. More significantly, it is not contended 9 Respondent recognized and entered into successive contracts with NALC and other national labor organizations Piotrak's grievance was filed and accepted pursuant to the grievance procedures of the March 1968 con- tract by reason of a "moratorium" provision in the current contract entered into as of July 20, 1971 10 N L R B v. Acme Industrial Co, 385 U S 432, 436 (1967) 11 United Steelworkers of America v Warrior & Gulf Navigation Co, 363 U S 575, 581 12 E g., Winchester Electronics, Inc, 128 NLRB 1292, 1317 13 E g , Ray Brooks v N L R B, 348 U S 96, 103, Screen Print Corporation 151 NLRB 1272 (and court cases cited) 14 It is sufficient, as I would find, that the allegations in the complaint are related to, and "grew out of" General Counsel's investigation of, the unlawful refusal to bargain alleged in the charges See N L R B v Fant Milling Co, 360 U S 301 (1959). 15 The sole basis of such practice proffered by Respondent, and rejected, are letters from agents of the U S Civil Service Commission pertaining to action taken in two individual cases of alleged discrimination in 1970 and 1971 The letters refer to a "policy" of suspending the "adverse action" or grievance appeals until receipt of an "investigative report" or an "adjudica- tion" on the particular EEO complaint It was not shown that the Union was aware of these letters or involved in those cases 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor does it appear that the contract contains any binding agreement to adopt such a deferral procedure as described by Respondent. Indeed, the contract specifies time limita- tions of 3 to 10 days for each party to invoke the successive steps in the grievance machinery. Further, the contract pro- vides: V. Discrimination 1. When an employee alleges in his grievance appeal that the action complained of is based in whole or in part on discrimination because of race, creed, color, national origin, or sex, the claim of the discrimination shall be adjudicated under the regulations of the Civil Service Commission and Departmental regulations. 2. However, this will not prohibit the Department from processing the grievance to a conclusion prior to and/or simultaneously with the investigation and adju- dication of the complaint of discrimination. It is of no assistance to Respondent to show that it has utilized an independent EEO procedure in handling certain claims of discrimination, e.g., those based on race or sex, however commendable in purpose. After the effective date of the Postal Reorganization Act, on July 1, 1971, any prac- tice of deferring the processing of grievances would not properly supersede specified procedures of the bargaining agreement, or operate as a waiver 16 of the representation rights of employees or those of the recognized union under the National Labor Relations Act, as shown above. But wholly apart from any practice as to EEO complaints, there could be nojustification for the failure to process grievances because of the pendency of unfair labor practice charges before the Board. There is no substance to the further contention that the issues herein have been mooted or that a remedial order is unnecessary, for the reason that Respondent decided, in November, to grant the grievance and remove the letter of warning from Piotrak's file. By withholding its action until such time, Respondent only demonstrated its adherence to the deferral position, stated in the January 25 letter, for a period of 10 months until "adjudications" occurred as to both the unfair labor practice charges and the EEO com- plaint. That Respondent's agents acted in good faith in construing internal regulations, although erroneous in law, does not detract from the serious impact of its conduct relating not only to Piotrak's grievance but to future rela- tions of all affected parties to the collective-bargaining con- tract. Upon all the evidence, I am constrained to conclude that Respondent violated Section 8(a)(5) by refusing and failing to process Piotrak's grievance, in each and in both respects, pending disposition of the unfair labor practice charge, and pending disposition of the EEO complaint. Upon the foregoing findings of fact, and upon the entire record of this case, I make the following: 16 See Rockwell-Standard Corporation, 166 N LRB 124, 132, and court cases cited, to the effect that, even when a waiver is expressed in a contract, it must appear that the particular matter was fully discussed or consciously explored and the union consciously yielded or clearly and unmistakably waived its interest in the matter CONCLUSIONS OF LAW 1. Respondent, United States Postal Service, is subject to the Board's jurisdiction by virtue of the Postal Reorganiza- tion Act, 39 U.S.C. Sec. 1209(a). 2. NALC, and its Local 283, are each labor organizations within the meaning of Section 2(5) of the Act. 3. All city letter carriers employed by Respondent, ex- cluding managerial personnel, professional employees, em- ployees engaged in personnel work in other than a purely nonconfidential clerical capacity, postal inspection service employees, Christmas casual employees, guards, and super- visors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, NALC has been, and is now, the exclusive representative for the purposes of collec- tive bargaining of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. By refusing and failing, on and after January 25, 1972, to process the grievance of Henry P. Piotrak until it ob- tained a disposition of a pending unfair labor practice charge, and a disposition of a pending EEO complaint (within its own internal organization), Respondent has en- gaged in a refusal to bargain with NALC, and its duly delegated and recognized agent, Local 283, as the exclusive representative of the employees in the aforesaid appropriate unit, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER17 Respondent, United States Postal Service, its officers and its agents, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with NALC, or its duly designated agent, Local 283, as the exclusive bargain- ing representative of the employees in the appropriate unit, described above, by deferring or suspending the processing of grievances of employees employed at its Park Place Sta- tion, Houston, Texas, until there has been a disposition of any pending unfair labor practice charge before the Board, or until there has been a disposition of any pending EEO complaint (within Respondent's internal organization). (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. [7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes UNITED STATES POSTAL SERVICE 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with NALC, or its duly designated agent, Local 283, in processing grievances of the employees in the appropriate unit. (b) Post at its Park Place Station, Hobby Airport, Hous- ton, Texas, copies of the attached notice marked "Appen- dix."18 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent, shall be posted immediately upon receipt thereof in conspicuous places, and be maintained for a peri- od of 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 18 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Na- tional Association of Letter Carriers, AFL-CIO, or its 627 duly designated agent, Local 283, as the exclusive rep- resentative of the employees in the appropriate unit, by deferring or suspending the processing of grievances of employees employed at the Park Place Station, Hous- ton, Texas, until there has been a disposition of any pending unfair labor practice charge before the Na- tional Labor Relations Board, or until there has•been a disposition of any pending EEO complaint. WE WILL, upon request, bargain collectively with Na- tional Association of Letter Carriers, or its duly desig- nated agent, Local 283, in processing gnevances of the employees in the appropriate unit, as follows: All city letter carriers, excluding managerial person- nel, professional employees, employees engaged in personnel work in other than a purely nonconfiden- tial clerical capacity, postal inspection service em- ployees, Christmas casual employees, guards and supervisors as defined in the Act. Dated By UNITED STATES POSTAL SERVICE (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Dallas-Brazos Building, 1125 Bra- zos Street, Houston, Texas 77002, Telephone 713-226-4296.