United States Postal Service

UNITED STATES POSTAL SERVICE United States Postal Service and National Alliance of Postal and Federal Employees, Local 912 and National Alliance of Postal and Federal Employ- ees, Local 604. Cases 14-CA-6611(P) and 14-CA-7058(P) [formerly Case 8-CA-6821(P)] January 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On July 18, 1973, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, both the General Counsel and the Charging Parties filed exceptions and supporting briefs, Respondent filed an answering brief, and the National Association of Letter Carriers filed a brief in support of the Administrative Law Judge's Decision and in opposition to the exceptions. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings,2 findings,3 and conclusions of the Administrative Law Judge4 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, concurring: I agree with my colleagues that Respondent did not violate Section 8(a)(1) of the Act and that the complaint herein should be dismissed on the merits. 1 America Postal Workers Union, AFL-CIO; National Association of Letter Carriers, AFL-CIO: National Rural Letter Carriers Association: and National Post Office Mail Handlers . Watchmen, Messengers and Group Leaders Division of the Laborers' International Union of North America. AFL-CIO, were listed in the consolidated complaint and notice of hearing as Parties in Interest. 2 We find no merit in the Charging Parties' contention that the Admmistiztive Law Judge was biased , prejudiced, and hostile or that the hearing was not fairly conducted 3 Inasmuch as we agree with the Administrative Law Judge 's finding on the menu of this case that Respondent did not violate Sec. 8 (a)(1) of the Act, we do not find it necessary to reach the issue of whether the present case is barred by the doctrines of res judicata or collateral estoppel. The General Counsel has excepted, inter alto, to the Adnumstrative Law Judge's finding that the transitional period is not created by the Postal Reorganization Act. While the first full explication of the length of that period may have been made by the U.S. District Court for the District of Columbia in National Postal Union v. Blount, 341 F.Supp. 370 (D.C D.C., 145 I disagree with the observation of the Administra- tive Law Judge insofar as he concluded that the decision in National Postal Union v. Blount, 341 F.Supp. 370 (D.C.D.C., 1972), affd. 409 U.S. 808 (1972), is dispositive of the instant case on principles of res judicata or collateral estoppel. The Board intervened in the Blount case to preserve its jurisdic- tion over the subject matter of the Alliance's amended complaint. In my view, the rejection by the court of the Board's motion to dismiss that proceed- ing on the ground that the amended complaint invaded the primary jurisdiction of the Board does not now deprive the Board of its authority to consider and determine the merits of the alleged unfair labor practice in the instant case. The court's decision in the Blount case is no more binding upon the Board with respect to the merits than the unreported decision of the district court denying 10(j) injunctive relief. Certainly the district court's ruling that there was not reasonable cause to support the General Counsel's theory of violation does not now foreclose a resolution on the merits by the Board. See N. L.R.B. v. Denver Building & Construc- tion Trades Council [Gould & Preisner], 341 U.S. 675 (1951); see also Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America [Pilot Motor Freight Carriers], 479 F.2d 778 (C.A. 5, 1973). In view of the decision to dismiss the complaint herein on the merits, it appears that the earlier decision of the majority to intervene in the Blount case and urge that the Alliance had the right to represent employees during the "transitional period" was ill advised. Similarly, the authorization by the majority of the Board to institute 10(j) proceedings and urge that same contention was imprudent. In this proceeding, however, we are obliged to review the record and decide the case on the merits independent of any "preliminary proceedings for interlocutory relief." In my judgment, we are not obliged to perpetuate earlier erroneous judgments and we are not bound by the earlier court decisions 1972), affd. 409 U.S 808 ( 1972), it is clear to us that the intent of Congress was that Sec. 10(a) of the Postal Reorganization Act would provide for such an interim period. In addition, we note that the Administrative Law Judge found that prior to January 3, 1972, the right of a minority union to represent employees in grievances was conferred upon employees by Executive Orders 10988 and 11991 and art IX(E) of the 1968 national agreement, but, at another point in his analysis, he found that this provision expired with the contract on March 8. 1970. In view of his previous finding, which is supported by the record, that the 1968 contract was extended beyond its 1970 expiration date, we correct this error Accordingly, it follows that the 1968 contract was "preserved" by Sec 1203(b) of the Postal Reorganization Act until it was superseded by the transitional contract executed July 20, 1971. The Administrative Law Judge's statement that the 1971 contract is "preserved" by that section of the Postal Reorganization Act is therefore not adopted. 4 The Charging Parties' request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. 208 NLRB No. 58 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the doctrine of res judicata or collateral estoppel. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: These are two unfair labor practice cases which have been consolidated for the purpose of trial . The consolidated case was tried under the provisions of Section 10(b) of the National Labor Relations Act, herein called the Act, 29 U.S.C. § 160(b). Said Act was extended to the United States Postal Service by Chapter 12 of the Postal Reorganization Act of August 12, 1970, 84 Stat. 719; 39 U.S.C. § 101, et seq. The effective date of such extension is July 1, 1971. See Section 15(a) of the PRA. In Case 14-CA-6611(P) a charge was filed on January 3, 1972, by National Alliance of Postal and Federal Employ- ees, Local 912 (herein called Local 912); and in Case 14-CA-7058(P) a charge and an amended charge were filed on January 20 and 24, 1972, respectively, by Local 604 of said National Alliance (herein called Local 604). Each charge and the amended charge names United States Postal Service (herein called Postal Service) as the Respondent . Upon such charges and the amended charge the General Counsel of the National Labor Relations Board. by the Regional Director for Region 14, on October 2, 1972, ordered said cases consolidated and also issued a consolidated complaint . Said complaint was amended on October 3, 1972. Said complaint as amended in substance alleges that Respondent committed unfair labor practices violating Section 8(a)(1) of the Act and affecting commerce and the free flow of commerce . Respondent has answered admitting some facts but denying that it engaged in any unfair labor practices. Pursuant to due notice this consolidated case came on to be heard and was tried before me at St . Louis, Missouri, on May 21 , 1973. Respondent, the Charging Parties, National Association of Letter Carriers, and the General Counsel were represented at and participated in the trial , and had full opportunity to adduce evidence , examine and cross- examine witnesses, file briefs, and present oral argument. Counsel for the Charging Parties argued orally at the close of the hearing. Briefs have been received from'those parties which were represented at the trial. The motion of National Association of Letter Carriers, AFL-CIO, herein called NALC, to dismiss the complaint for failure to state a cause of action was denied at the hearing, as was its motion to take official notice of the record in National Postal Union v. Blount, 341 F.Supp. 370 (D.C.D.C., 1972). Upon the entire record in this consolidated case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent provides postal services for the United States of America. Although its main offices are located in Washington, D.C., it operates various facilities throughout the United States in performing said function. Jurisdiction over Respondent and this proceeding is conferred on the National Labor Relations Board by the above-mentioned Postal Reorganization Act, Section 1209. 39 U.S.C. § 101, et seq. For purposes of this case, the relevant provisions of the Postal Reorganization Act, insofar as they relate to the National Labor Relations Act, became effective on July 1, 1971, in accordance with the authority granted to the board of governors of the Postal Service by Section 15(a) of said Act. Ii. THE LABOR ORGANIZATIONS INVOLVED The following organizations are labor organizations within the meaning of Sections 2(5) and 8(a) of the Act: National Alliance of Postal and Federal Employees and its Locals 912 and 604; American Postal Workers Union, AFL-CIO ; National Association of Letter Carriers, AFL-CIO; National Rural Letter Carriers Association; and National Post Office Mail Handlers, Watchmen, Messengers, and Group Leaders Division of the Laborers' International Union of North America , AFL-CIO. III. THE UNFAIR LABOR PRACTICES In this consolidated case the issues are: 1. Whether Respondent has refused to permit its employees to be represented by National Alliance, its Locals 912 and 604, and other labor organizations, although not recognized as exclusive bargaining represent- atives, which such employees have selected to represent them in grievance proceedings or "appellate action" during the "transitional period" hereinafter set forth. 2. If the preceding issue is answered in the affirmative, whether such refusal violates Section 8(a)(1) of the Act. A. General Counsel's Evidence Frederick D. Hogan, a window clerk in the main St. Louis, Missouri, post office, and president of Local 912, testified substantially as follows . Prior to the enactment of the Postal Reorganization Act on August 12, 1970 (herein called PRA), Local 912 was informally recognized at the St. Louis post office. As a result thereof Local 912 until January 3, 1972, was "allowed to represent employees" in all grievances, adverse actions, equal employment opportu- nity cases, and veteran preference cases. On said January 3 the Postal Service put into effect Article 15 "of the contract" which "barred the National Alliance from representing" employees regarding their grievances "in relation to the contract," but did not restrict Local 912 from representing such employees as to the other matters enumerated in the preceding sentence . Said contract is in evidence as General Counsel's Exhibit 2, is for the period of 2 years from July 20, 1971, and recognizes seven unions (see article I thereof), none of which is the National Alliance. But it stated that a "moratorium " was placed upon its grievance and discipline procedures. Apparently said moratorium expired on January 3, 1972. As of January 3, 1972, Local 912 had employee grievances pending before the St. Louis post office. However, the said post office did not prevent said Local UNITED STATES POSTAL SERVICE from processing such grievances after said January 3. Nevertheless, although Local 912 attempted to represent employees concerning their grievances arising after said January 3, the St. Louis post office refused to deal with said Local on such grievances. Matthew Smith, Jr., a distribution clerk in the post office at Cleveland, Ohio, and president of Local 604 of the National Alliance, also gave evidence for the General Counsel. A summary of his testimony is recited at this point. Smith also had been a vice president of said Local. Said Local 604 has members in the Cleveland post office. In his said capacity as vice president and president he practically daily represented the Cleveland members of the National Alliance "in adverse actions, grievances, et cetera." With respect to such grievances Local 604 handled the grievances of and represented employees from 1969 to January 1972 "under the old grievance procedure of the old agreement"; i.e., the contract which was in force from March 9, 1968, to March 8, 1970. Under the contract aforesaid Local 604 was allowed by the postal officials to be present at, and represent employees at, meetings with management concerning grievances of such employees who were members of Local 604. But on January 5, 1972, Smith was advised by an official of the Cleveland post office that the National Alliance would no longer be recognized in handling employee grievances, and that Smith could no longer continue to attend to union business during his working hours as he had done prior to this. As a result of being denied the privileges heretofore accorded to him and the National Alliance, Smith complained thereof to Mr. Mizick, another official of the Cleveland post office. Mizick replied that beginning January 3, 1972, the National Alliance, "according to what ... was the national agreement . . . no longer had the right to represent its members in grievance procedures." Notwith- standing that Smith took issue with this position, Mizick adhered to it. Then on January 13, 1972, Smith, accompanied by Powell, the labor relations director of Local 604, met with Postmaster Sullivan on the controversy over the rights or privileges of the National Alliance. Sullivan replied that he .,was under his instructions" to deny said rights and privileges of the National Alliance as to grievances other than those relating to Equal Employment Opportunity, and that "the issue of representational rights . . . had to be settled by the courts." But Sullivan added that the National Alliance would be able to represent employees in all grievance cases which had been filed before January 3, 1972. He concluded by reiterating that he "would not honor" the National Alliance's requests to represent employees on grievances filed after said January 3. Later on January 13, 1972, Smith wrote to Sullivan. This letter was not admitted into evidence on the ground it was a self- serving declaration. (See G.C.Exh. 3.) Thereafter on a "number of occasions" Smith attempted to represent members of Local 604 in grievance proceedings in I Said crdcr provides in part that "Recognition in whatever form accorded shall not (1) preclude any employee . from choosing his own representative in a grievance or appellate action ..:' 27 Fed Reg. 551 (1962) 2 In pertinent part this subsection provides that "The Postal Service shall 147 Cleveland but such gneva. ices were not entertained by the Postal Service. The General Counsel's last witness, Herbert L. Powell, a distribution clerk in the Cleveland, Ohio, post office, testified substantially as follows. (For some unexplained reason Powell's testimony has been inserted in the transcript following the testimony of Robert L. White, the last witness for the Charging Parties.) Powell is president of District 6 of the National Alliance, comprising Ohio, Indiana, and Kentucky. In this latter capacity he processed grievances "to their conclusion" for members of the National Alliance employed by the Postal Service. During the period prior to the effective date of the PRA the Postal Service granted Local 604 "informal recognition" pursuant to Executive Order 109881 to process said grievances. Local 604 represents clerks, carvers, mail handlers, and other crafts, but the National Alliance was not a party to the collective-bargaining contracts of 1968 and 1971 between the Postal Service and certain national unions. On the other hand, prior to the enactment of PRA Local 604 had contracts with the Cleveland post office covering clerks, special delivery messengers, and mail handlers and represented such employees in those crafts on grievances. About January 13, 1972, Postmaster Sullivan of the Cleveland post office notified Powell that the National Alliance and its locals would no longer be allowed to process grievances for its members who were employees of said post office. Matthew Smith, Jr., then president of Local 604, was also present on this occasion. Powell disagreed with Sullivan, relying on section 1001(b)2 of the PRA, but Sullivan contended that only those organizations whom the Postal Service recognized as "exclusives" (among which the National Alliance was not included) could represent employees in grievance proceedings. At this point the General Counsel rested. Thereupon the Charging Parties introduced additional evidence, set forth below, to support the complaint. B. Evidence by the Charging Parties Michael Wheeler, an employee of the St. Louis post office and first vice president of Local 912, gave evidence as a witness for the Charging Parties. A conspectus of his testimony follows. Prior to January 3, 1972, Local 912 represented St. Louis postal employees on grievances "under the national agreement between management and the national craft unions." In such cases no other craft union was present at or attended the meetings where said grievances were considered by management. However, since said January 3 the St. Louis post office has refused to entertain or receive any grievances of employees when represented by Local 912. Another witness who appeared for the Charging Parties is Robert L. White, the National President of the National Alliance. An adequate summary of his testimony follows. The National Alliance has 147 locals in 39 States, divided into 10 districts. (At this point Respondent admitted that establish procedures. in accordance with this title, to assure . . its employees full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions, with representatives of their own choosing - 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said National Alliance was a labor organization within the meaning of Section 2(5) of the Act, and that it had been certified by the National Labor Relations Board "as a representative of a group of Postal Service employees.") Prior to January 3, 1972, the Postal Service had a "series of national agreements" with seven labor organizations, none of which was the National Alliance. Said seven are set forth in General Counsel's Exhibit 2. The agreement for the period March 9, 1968, to March 8, 1970, was extended (see G.C. Exh. 2). The PRA went into effect on August 12, 1970. Thereafter, as well as prior thereto, and until January 3, 1972, the National Alliance and its locals processed grievances of employee members of the Postal Service in grievance proceedings pursuant to the agreement in evidence as General Counsel's Exhibit 2 and its predeces- sors. But after said January 3 Respondent refused to entertain such grievances when processed by the National Alliance, or its locals, or both. C. Concluding Findings and Discussion Upon the evidence introduced by the General Counsel and the Charging Parties, which I hereby credit, it is patent. and I find, that until January 3, 1972, Respondent's employees were allowed to select any representative to represent them in grievance proceedings regardless of whether or not such representative was connected with the craft unions then accorded national exclusive recognition. This practice was sanctioned in the St. Louis and Cleveland post offices. Although the National Alliance was not one of the unions enjoying such national exclusive national recognition, it did handle grievances for postal employees at the St. Louis and Cleveland post offices notwithstanding the craft unions had collective-bargaining agreements with said post offices and the National Alliance did not. Further, I find that on and after January 3, 1972, Respondent refused to continue such practice and insisted that only craft unions signatory to the 1971 National Agreement would be permitted to handle grievances for employees of the St. Louis and Cleveland post offices, and denied such employees the right to select the National Alliance as their representative in grievance proceedings except as to grievances pending on January 3, 1972. Prior to January 3, 1972, such right was conferred upon postal employees by Executive Orders 10988 and 11991 and article IX(E) of the 1968 collective-bargaining agreement between Respondent's predecessor, the Post Office-Depart- ment, and the labor organizations mentioned in the complaint as parties in interest. The question then is whether Respondent's abrogating said rights on January 3, 1972, to employees who were not members of said parties in interest constitutes an unfair labor practice under the National Labor Relations Act. It is my opinion, and I find, that Respondent did not commit any unfair labor practices on the record developed at the trial of this case. This is because in my judgment the rights of the National Alliance's members to have their grievances processed by it are to be ascertained pursuant to Section 9(a) of the National Labor Relations Act; that the PRA so provides in section 1209(a) thereof; that the PRA extended to the National Alliance no separate or special right to process the grievances of its members inconsistent with said Section 9(a); and that the parties in interest in this case are the only labor organizations which may process grievances under said Section 9(a). The reasons for this conclusion are briefly elucidated in the remainder of this Decision. 1. Initially, I am impressed with the contention, advanced by Respondent and National Association of Letter Carriers, that the district court's opinion and decision in National Postal Union v. Blount, 341 F.Supp. 370 (D.C.D.C., 1972), affd . 409 U .S. 808 (1972), require a finding for Respondent either on the ground of resjudicata or collateral estoppel. Partmar Corp. v. Paramount Corp., 347 U.S. 89, 90-91, 103, fn. 9. And, of course, the Board and the National Alliance , as parties to the Blount case, are bound by anything decided therein and affirmed on appeal. Safir v. Gibson, 432 F.2d 137, 143-144 (C.A. 2); Commissioner v. Sunnen, 333 U.S. 591, 597-598; Carmicha- el v. Allen, 267 F.Supp. 985, 991 (D.C.N.D. Ga.). Patently the Board, as intervenor, became a party. Galbreath v. Metropolitan Trust Co., 134 F.2d 569, 570 (C.A. 10). In my judgment said Blount case will dispose of the instant case by requiring that it be dismissed. But I believe it is desirable to decide the case on the merits , as I may be wrong in deciding that res judicata or collateral estoppel is dispositive of the instant case. 2. However, I find as lacking in ment the request that the complaint be dismissed because the Regional Director had dismissed part of the charge in Case l4-CA-6609(P) before issuing the complaint herein . On this aspect of the case I am of the opinion, and rule, that the said dismissal involved unrelated alleged violations and did not affect the case which was tried before me. Consequently , I adhere to the ruling which I make at the trial that the dismissal of another aspect of the charge did not touch upon the phase of the charge which was presented to me by the complaint. 3. On the merits I find that the case must be dismissed and I shall so recommend. It is true that, prior to January 3, 1972, post office employees, as alleged in paragraph II of the complaint, enjoyed the right to select any labor organization to represent them in grievance and adverse action proceedings notwithstanding that such labor organi- zation had not representational status and even if another labor organization represented such employees on an exclusive basis. Executive Orders 10988 ( 1962) and 11991 (1969) acknowledged this procedure. Thus, although the post office recognized the parties in interest mentioned in paragraph 5 of the complaint as the exclusive bargaining representatives of its employees, the Charging Parties, although not so recognized, were permitted to be chosen by employees to represent them in grievance and adverse action proceedings during this time. Article IX(E) of the 1968 contract between the post office and the above-described parties in interest continued and preserved the foregoing practice of extending to an employee "the right to select whomever he desires to represent him at each level of the grievance procedure. In the event that the person selected at the various levels is someone other than a representative of the exclusive organization, the exclusive organization at that level has a right to be present." The privilege described in the quoted UNITED STATES POSTAL SERVICE language above, taken from said article IX(E), conferred upon a minority union greater rights than such union would have had under Section 9(a) of our Act, for said Section 9(a) did not grant minority unions the right to represent employees on grievances during the period when their employer lawfully recognized another union as the exclusive bargaining representative of such employees. Nevertheless I find, and the answer admits, that these rights to be represented by a minority union at each level of the grievance procedure "were in full force and effect at the time of the enactment of the PRA." See article XV of the General Counsel's Exhibit 2, which is the July 20, 1971-July 20, 1973, contract between the U.S. Postal Service and seven unions recognized by it. But I find that the rights of employees to select a nonrecognized union to be their representative in grievance proceedings did not continue indefinitely after said contract was executed. The General Counsel and the Charging Parties contend that these rights remained intact during the "transitional period," which period is character- ized in paragraph 9 of the complaint as: ... the period of time from the enactment of the PRA until such time as the Board determines appropri- ate units of Respondent's employees and directs elections therein to determine which, if any, labor organizations shall represent Respondent's employees in such units, or until the expiration date of the [1971-1973] contract, viz., July 20, 1973, whichever event occurs sooner. But nothing in the PRA requires the conclusion that said rights were protected during any period following its enactment. While it is true that sec. 1001 of the PRA provides that the Postal Service "shall establish procedures ... to assure its officers and employees full protection of their employment rights by guaranteeing them an opportu- nity for a fair hearing on adverse actions, with representa- tives of their own choosing," the tenor of said PRA makes clear that "representatives" is intended to mean a labor organization accorded "exclusive recognition" and does not comprehend a minority union. See PRA, chapter 12, secs. 1202-1209. An example suffices; sec. 1209(a) of the PRA commands that the National Labor Relations Act shall govern employee management relations in the Postal Service. Yet the NLRA does not accord a minority union the right to represent employees on grievances when another union enjoys exclusive recogmtion as the repre- sentative of such employees: Meat and Provision Drivers Union, Local No. 626, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, 115 NLRB 890, 892; Federal Telephone and Radio Company, a Division of International Telephone and Telegraph Corporation, 107 NLRB 649, 653. Nor is there any intimation in Blount, 341 F.Supp. 370, that a union not being accorded exclusive recognition would be able to represent employees on grievances during this so-called "transitional period." In fact the opinion in said case expressly states that the complaint therein challenged, on constitutional grounds, that section 10(a) of the PRA granted "during a transitional period the right of exclusive representation in collective bargaining with 149 defendant Postmaster General to the defendant labor organizations, which had been successful under elections last held under the terms of the Executive Orders." Blount, supra at 372. Hence I rule that said "transitional period" is not created by statute, and that, therefore, it is not a period during which the rights of minority unions to represent employees on grievances survived the enactment of the PRA. Notwithstanding that the PRA does not mention a "transitional period," the Postal Service and the unions which are signatories to the National Agreement of July 20, 1971 (see G.C. Exh. 2) themselves agreed upon a "moratorium" as to grievance and discipline procedures before its implementation. (See moratorium in G.C. Exh. 2.) But said parties to said National Agreement agreed that said "moratorium" would terminate, and effectuation of article XV of said agreement would commence, on January 3, 1972 . But I find, as briefly discussed below, that by abolishing said "moratorium" any rights of the charging parties, as nonexclusively recognized unions, existing prior thereto were destroyed. Nothing in the express language of the PRA, or in its legislative history, suggests that it was intended to extend to nonexclusive unions the right to represent employees in prosecuting their grievances contrary to established princi- ples announced in the National Labor Relations Act. One of those principles denies a union the right to act on behalf of employees in grievance procedures when another union is a majority representative entitled to exclusive recogni- tion as such. Section 9(a) of said Act so provides. Patently said Section 9(a) does not grant to nonexclusive unions advantages which are peculiar to majority unions only. Certainly the proviso to said Section 9(a) does not aid the General Counsel, for this does no more than to permit an employee to present his grievances personally "without the intervention of the [majority] bargaining representative"; but it has never been construed to grant such employee the right to select a nonexclusive union to represent him on such grievances. It cannot be denied that section 1001(b) of the PRA in general terms admonishes the Postal Service to "establish procedures, in accordance with this Title, to assure its officers and employees . . . full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions, with representatives of their own choosing." But the word "representatives," fairly construed, must be read in conjunction with the use of said word in Section 9(a) of the National Labor Relations Act, since section 1209 of the PRA requires that "employee-management relations shall . . . be subject to the provisions of" the National Labor Relations Act. And, as mentioned above, said latter Act expressly considers "representatives" to be a majority union which is the "exclusive representative of all the employees in [a] unit." So read, I am convinced, and rule, that the identical language used in both Acts provide the same rights in each Act, for otherwise it would be necessary to attribute to Congress an intent to provide postal employees with greater rights than nonpostal employees. I am aware that it is not unusual that the same work may sometimes connote different meanings even in the same 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statute. See, for example, United States v. Ryan, 350 U.S. 299, 306-307, where the word "representative" in Title I includes only the exclusive bargaining agent but is not so limited when used in Title III of the same statute. But the Court arrived at such a conclusion because it found that the legislative purport of the entire subject matter in Title III and Title II manifested a congressional purpose to cover more ground than Title 1. Plainly the congressional will controls in ascertaining what Congress is regulating. But I am of the opinion that, unlike Ryan, supra, Congress desired the word "representative" in the PRA to have the same meaning which it carried in Title I of the National Labor Relations Act. Cf. N.L.RB. v. Lion Oil Company, 352 U.S. 282, 288 (1957). Section 1203(b) of the PRA does not detract from the foregoing analysis. That section requires that "Agreements and supplements in effect on the date of enactment of this section covering employees in the former Post Office Department shall continue to be recognized by the Postal Service until altered or amended pursuant to law." But no agreement granting rights to the National Alliance is shown to have been in existence when said section 1203(b) was enacted. Article IX(E) of the 1968 contract conferred rights on an employee to select "whomever he desires" to represent him in grievance proceedings, but this provision expired with the contract on March 8, 1970. Moreover the successor contract, i.e., that of July 20, 1971 (see G.C. Exh. 2), unlike its predecessor, does not grant an employee the right to choose any organization he desires to so represent him. Rather, said 1971 contract provides that the employee may handle his grievance alone or "may be accompanied by his steward or a union representative, if he so desires." See article XV. But the word "union" is defined in the preamble to said 1971 contract as only those labor organizations who are parties to the contract, and the National Alliance is not one of them. It follows that the 1968 contract can not be revived by said section 1203(b) of the PRA, but that only the 1971 contract is preserved by said section. But, as set forth above, the 1971 contract cannot aid the National Alliance because it is not mentioned therein as one of the "unions" enjoying the rights specified in said contract. Nor can section 1206(b) of the PRA aid the General Counsel. This part of the statute authorizes collective-bargaining agree- ments to "include any procedures for resolution by the parties of grievances and adverse actions ...." I assume this provision empowers the parties to agree that employ- ees may choose any labor organization to act for them in grievance proceedings. But the 1971 contract between the parties expressly states that only unions which are parties to that agreement-and the National Alliance is not one of them-may represent employees on their grievances. Hence section 1209 of the PRA is controlling. It decrees that the subject matter involved in this case "shall . . . be subject to the provisions of" the National Labor Relations Act. And this latter Act, as found above, fails to bestow upon a nonexclusive union the right to represent employees in grievance transactions. 4. Finally, I do not reach the question of whether a union, such as the National Alliance, may represent employees in grievance proceedings under the National Labor Relations Act when no exclusive bargaining agent represents or is entitled to represent such employees. This is because the record not only is barren of evidence indicating that the parties in interest in this case are not entitled to be exclusive bargaining representatives in their respective bargaining units, but also the complaint in paragraph 8 explicitly acknowledges that said parties in interest "are the exclusive bargaining representatives of Respondent's employees for a period of time known as the `transitional period.' " However, paragraph 7 of said complaint also concedes that said parties in interest have been recognized by Respondent "as the exclusive bargaining representatives of its employees and has negotiated and entered into a 2 year contract effective July 20, 1971, with said labor organiza- tions." Manifestly the General Counsel thus admits that Respondent has lawfully recognized the parties in interest pursuant to Section 9(a) of the National Labor Relations Act. But under said Act such recognition continues for the term of said contract unless affirmative evidence is introduced that such recognition no longer is viable before said 2 years have expired. Further, such recognition does not entitle any other union, such as the National Alliance, to represent employees in grievance proceedings, as only the validly recognized union may so represent employees as of right. Accordingly, Respondent on January 3, 1972, and thereafter lawfully refused to permit its employees to be represented by the National Alliance in grievance and adverse action proceedings. Hence nothing in the record warrants consideration of the question whether Respon- dent had to deal with the National Alliance if no exclusively recognized unions were in the picture. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, which provides postal services for the United States of America, is covered by the National Labor Relations Act and is subject to the jurisdiction of the National Labor Relations Board by virtue of the pertinent provisions of chapter 12 of the Postal Reorgani- zation Act (39 U.S.C. § 1201-1209). 2. The Charging Parties and the Parties in Interest described in the complaint each is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has been under no legal obligation since January 3, 1972, to grant its employees the right to pick the National Alliance and the Charging Parties to serve as their representative or agent in grievance and adverse action proceedings. 4. By refusing to permit its employees on and after January 3, 1972, to designate the National Alliance and the Charging Parties to represent them in grievance and adverse action proceedings (except as to such proceedings which were in the process of being prosecuted on said UNITED STATES POSTAL SERVICE January 3), Respondent has not committed any unfair labor practices. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: ORDERS 151 It is ordered that the complaint be, and it hereby is, dismissed. R In the event no exceptions are filed as provided in Sec 102.46 of the 102 48 of said Rules and Regulations, be adopted by the said Board and Rules and Regulations of the National Labor Rclations Board , the findings. beLorne its findings, conclusions, and order, and all objections thereto shall conclusions, and recommended Order herein shall , as provided in Sec be deemed waived for all purposes