United States Postal Service

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and National Association of Letter Carriers, AFL-CIO, Branch 4901. Case 5-CA-5533(P) November 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 15, 1973, Administrative Law Judge Charles W. Schneider issued the attached Order Dismissing Complaint in this proceeding. Thereafter, the Charging Party filed exceptions, a request for review and reversal, and a brief in support thereof. The General Counsel filed a memorandum in reply to the Charging Party's exceptions, request, and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Order Dismissing Complaint in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: The Board shall retain jurisdiction of this proceed- ing for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, been either resolved by amicable settle- ment in the grievance procedure or submitted promptly to arbitration; or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBER JENKINS, dissenting: For the reasons expressed in my dissents in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837, Radioear Corporation, 199 NLRB 1161, and related cases, I would determine the case on the merits instead of deferring it to an arbitrator. ORDER DISMISSING COMPLAINT 1. On June 8, 1973, at the hearing, and over objection by the Charging Party, I orally dismissed section 10(a) of the complaint in the above-captioned case, subject to later written order. The instant order, confirming that dismissal, is issued at the request of the Charging Party, in accordance with the terms of the oral order of dismissal. The circumstances and the rationale for the dismissal are set out below. II. On December 7, 1972, upon motion of the Respon- dent, and over objection by the General Counsel and the Charging Parties, during the course of a consolidated hearing in the instant case and in Case 5-CA-5517(P), I orally dismissed the complaint in both cases, upon the presumed authority of Collyer Insulated Wire, 192 NLRB 837. At the request of the General Counsel the oral order was confirmed in a later written order dated December 19, 1972. Thereafter the General Counsel and the Charging Parties filed exceptions with the Board to that order of dismissal. On April 12, 1973, the Board issued its Order overruling the dismissal of the complaints and remanding the proceeding for further hearing and decision. The ground stated by the Board for the overruling of the dismissal was that: In the opinion of the Board, the record is insufficient to determine, at this time, whether or not deferral to arbitration under Collyer, supra, and subsequent cases is proper or appropriate as to any part or all of the issues herein. The purpose of the remand was stated by the Board to be: ... for further hearing and for the preparation and issuance of a Decision by the Administrative Law Judge, containing findings of fact, conclusions of law, and recommendations to the Board. In conclusion the Board order stated: IT IS FURTHER ORDERED that, upon conclusion of the hearing, the Administrative Law Judge shall prepare and serve upon the parties his Decision containing findings, conclusions, , and recommendations based upon the evidence received and that following service of such Decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. III. The unfair labor practices alleged are as follows: The complaint in Case 5-CA-5533(P) alleged violations by the Respondent of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, specifically that the Respondent (1) refused to bargain by (a) refusing to sign a memo of understanding agreed to during bargaining negotiations (paragraph 9(a)), (b) failing to notify Branch 4901 that Respondent's bargaining representatives lacked authority to reach agreement (paragraph 9(b)), (c) unilater- ally eliminating postal carrier routes (paragraph 10(a)), and (d) failing to furnish Branch 4901 with maps of the postal carrier routes unilaterally eliminated (paragraph 10(b), (c)); (2) interfered with, restrained, and coerced employees by the action of its supervisor, the superintendent of mails, in requesting an officer of Local 4901 to discontinue his union activities and to support Respondent (paragraph 207 NLRB No. 5 UNITED STATES POSTAL SERVICE 399 11); (3) discriminated against four named members of Local 4901's negotiating committee by eliminating their carrier routes because of their union membership and activities (paragraph 12). The complaint in Case 5-CA-5517(P) alleged a violation of Section 8(a)(1) and (5) of the National Labor Relations Act by the Respondent in (1) refusing to reduce to writing and sign a memorandum of understanding incorporating matters agreed, to during negotiations, and (2) failing to notify Branch 4066 that Respondent's bargaining repre- sentatives lacked actual authority to reach agreement. IV. Pursuant to the Board's remand order of April 12, 1973, a further hearing was held on June 8, 1973. At that hearing, with the exception of one item (the subject of the instant Order), all allegations of both complaints were settled and withdrawn by agreement of the parties. In Case 5-CA-5517(P) the entire complaint was withdrawn, and the case severed and closed . The allegation of unfair labor practices not settled and withdrawn is that in paragraph 10(a) of Case 5-CA-5533(P). That allegation is as follows: 10. (a) At all times material herein, specifically since on or about March 15, 1972, March 31, 1972, and April 2, 1972, Respondent has refused, and continues to refuse, to bargain in good faith with NALC and its duly designated agent, Branch 4901, by unilaterally elimi- nating postal carrier routes. This action is alleged as violative of Section 8(a)(1) and (5) of the Act. As has been seen, the independent 8(a)(1) and the 8(a)(3) allegations in the proceeding have been withdrawn. V. At the hearing on June 8, 1973, in addition to the agreed upon disposition of the allegations of the com- plaints noted above, the General Counsel, over objection by the Charging Party, moved to dismiss paragraph 10(a) of Case 5-CA-5533(P), on the authority of Collyer Insulated Wire, supra. The basis for the General Counsel's motion, concurred in by the Respondent, to dismiss paragraph 10(a) is that the policies of the Collyer case require that that issue be submitted to the arbitral processes of the parties' collec- tiv2-bargaining contract, reserving jurisdiction in the Board, upon appropriate invocation, to adjudicate section 10(a) if there is not an arbitral disposition consistent with the National Labor Relations Act. The Charging Party contends that the issue is not one appropriate for disposition under the principles of Collyer. In addition the Charging Party asserts that deferral on Collyer grounds is inconsistent with the Order of the Board remanding the case for hearing, findings and decision by the Administrative Law Judge for the reason that the record was insufficient to determine whether or not deferral on Collyer grounds was appropriate as to "any part or all of the issues." As to this, the General Counsel and the Respondent reply that the settlement and withdrawal of the other allegations of the complaints have resulted in a substantial alteration of the nature of the proceeding, such as to make inapplicable prior objections to "Collyerizing" the matter. Thus it is pointed out that the sole issue remaining-unilateral action by the Respondent on conditions of employment , is one involving essentially, and unavoidably, an interpretation of mutual rights and obligations under the collective-bargaining contract. VI. The Respondent's defense to section 10(a) is twofold: (1) a denial that it engaged in unilateral action and (2) that, in any event, the contract permits the Respondent to take unilateral action of the nature alleged. Thus the Respondent asserts that the legislative history of the contract negotiations will establish the intent of the contracting parties to authorize the Respondent to elimi- nate postal carrier routes unilaterally. Beyond that the Respondent asserts that the Postal Reorganization Act of 1970 also contemplated lodgement of such authority in the postal service.' The General Counsel and the Respondent state that, if hearing before the Administrative Law Judge on section 10(a) is required, a substantial period of time will be involved. VII. Among the contractual provisions bearing on the issue are the following: article III, management rights; article IV, technological and mechanization changes; article V, prohibition of unilateral action ; and article XIX-a "zipper" clause. Thus section 1, D, of article III provides that the Respondent shall have the "exclusive right, subject to the provisions of this Agreement and consistent with applicable laws and regulations .... to determine the methods, means, and personnel by which ... operations are to be conducted." Section 2, of article IV provides for the establishment of a Joint Labor- Management Committee composed of management and union representatives to discuss the impact of proposed technological and mechanization changes upon affected employees. The section specifies that notice to the committee of proposed changes satisfies notice require- ments as to the Union. It further provides that any questions not resolved within a reasonable time within the committee may be submitted by the Union to arbitration under the grievance arbitration procedure. Section 3 of article IV specifically states that, "The obligation herein above set forth shall not be construed to in any way abridge the right of the Employer to make such changes." Article V of the contract binds the Respondent not to take any action affecting conditions of employment as defined in Section 8(d) of the National Labor Relations Act which violate the terms of the agreement or "are otherwise inconsistent with its obligations under law.- In article XIX all parties acknowledged that each had opportunity to submit proposals on "all collective bargain- ing subjects," and further agreed that, for the life of the agreement, no party is obligated to bargain on any subject not covered in the agreement or reserved therein for later negotiation. It is conceded by the Charging Party that the issue raised by paragraph 10(a) is one which may be resolved under the grievance and arbitration machinery of the contract. The basis of the Charging Party's opposition to such disposition is, as I understand it, that the contract does not evince a clear waiver by the union, and that in such circumstances the Respondent's unilateral action constituted so funda- i Public Law 91-375, 91st Cong_ H.R. 17070, Aug. 12, 1970, 84 Stat. 719. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental an impairment of statutory policy as to make inappropriate its private resolution. In this connection it points to the specific language of article V. Whether the contract is to be construed to grant the Respondent such authority involves construction and accomodation of the language of paragraphs III, IV, V, and XIX of the contract, and ascertainment of the intent of the parties as manifested in that language and, perhaps, as manifested in the negotiations. Those are problems peculiarly appropriate for initial arbitral disposition pur- suant to the procedures of the agreement. In the case of Radioear Corp., 199 NLRB 1161, a case involving the legality of unilateral termination of a traditional holiday bonus, the Board held, applying Collyer, that the arbitrator should decide whether a "zipper" clause in the contract permitted such action, and whether the committment constituted a "clear and unequivocal" waiver by the Union. That holding seems apposite here. In agreement with the General Counsel and the Respondent, I hold that the situation has been so substantially altered by the reduction of issue since the Board's remand order, as to make appropriate deferral of the remaining issue pursuant to Collyer. In summary, it being conceded that the subject of paragraph 10(a) of the complaint is capable of being resolved pursuant to the contract procedures, and it appearing that resolution of that controversy is substantial- ly dependent upon the construction of the contract, I conclude that deferral on Collyer grounds is presently appropriate. It is so ordered. Section 10(a) of the complaint in Case 5-CA-5533(P) is dismissed, reserving jurisdiction in the Board to review the issue in accordance with the conditions generally applica- ble in Collyer and Spielberg situations.