United States Postal Service

M0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and New Haven, Conn. Local, American-Postal-Workers Union,- AFL- CIO. Case 1-CA-8858(P) May 10, 1974 DECISION AND ORDER On October 12, 1973, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Charging Party and Counsel for the General Counsel filed exceptions and supporting briefs. Respondent filed an answering brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 except that jurisdiction is retained as detailed in said recommended Order. MEMBERS FANNING AND JENKINS, dissenting: If ever a case revealed the quagmire of legal technicality and nice distinction to which the Collyer2 policy of deferral has led it is this case. In Collyer and its progeny our colleagues repeatedly assert the principle that a close examination of the relationship between the parties is highly relevant to the question of whether deferral is appropriate. In United Aircraft Corporation, 204 NLRB No. 133, for example, the majority stated that 'iwihere the facts show a sufficient degree of hostility, either on the facts of the case at bar alone or in the light of prior unlawful conduct of which the immediate dispute may fairly be said to be simply a continuation, there is serious reason to question whether we ought to defer to arbitration." In much the same vein in Joseph T. Ryerson & Sons, Inc., 199 NLRB 461, our colleagues appeared to accept the proposition that deferral is not appropri- 1 We do not find it necessary to respond to those portions of the dissent which merely once again reiterate our dissenting colleagues' continuing frenetic unhappiness with our Collyer policy, despite its approval by every reviewing court which has had an opportunity to pass upon it. To the extent that the dissenters base their views on Joseph T Ryerson & Sons, Inc, 199 NLRB 461, we note that the contentions of General Counsel based on that case were carefully and exhaustively considered by the Administrative Law Judge, and we concur in his analysis. As he pointed out, the record demonstrates the existence of a workable and freely resorted to grievance procedure, and evidences no hesitation or reluctance by Respondent to adhere to and comply with the grievance and arbitration provisions of the ate when the unlawful acts alleged in the complaint strike at the very foundation of the grievance and arbitration procedures. Thus, for example, where an employer threatened reprisal against an employee because of his participation in the grievance proce- dure sanctioned by the contract, the majority refused to defer the matter to arbitration. North Shore Publishing Co., 206 NLRB No. 7. In deferring this case to arbitration, our colleagues now ignore these principles. The Administrative Law Judge recommended deferral here largely on the basis of his reading of the decision in United Aircraft, supra. In that case, despite allegations of company harassment and discrimination against employees because of their activities as union stewards, the Collyer majority deferred to arbitration. In so doing, they stressed the importance of their finding-a finding with which we disagreed-that there was both "effective" dispute- solving machinery available to the parties and little evidence of company hostility to the use of that machinery. Although he made mention in passing of the factual differences between the instant case and United Aircraft, the Administrative Law Judge failed to address himself in any real way to the legal significance of these differences. Instead, he content- ed himself with the bare-bones conclusion that United Aircraft provides a "rationale" for deferral here. He also ignored the ample record evidence that the Employer's conduct, while directed most immedi- ately against an individual steward, was calculated ultimately to restrict employee access to the griev- ance procedures established by the contract. It is these conclusions, unsupportable if our colleagues' prior statements have any meaning, which our colleagues now adopt. In United Aircraft, the majority stressed the size of the company work force of over 40,000 as well as the number of company facilities at which unlawful practices allegedly occurred. It was in this context of a large and scattered employee population that the majority professed to find no "pattern" of continuing unfair labor practices. As for other evidence of company hostility to unions and to the realities of collective bargaining, the majority suggested that the alleged misconduct was largely the responsibility of a parties' agreement We are at a loss to understand how our colleagues can conclude that Respondent has "rejected the grievance-arbitration proce- dure" when the record evidence shows that it has been successfully utilized in the processing of 275 grievances during the time the Charging Party has been a steward As is our policy, however, and as the Administrative Law Judge below noted, we shall retain jurisdiction for Spelberg review purposes against the possibility that those procedures should go awry to dtie particular case or should not reach a result consistent with the poBas of our Act. S Colyer Insulated Wire, 192 NLRB 837. 210 NLRB No. 95 UNITED STATES POSTAL SERVICE 561 few "first-level" supervisors. Our colleagues coun- seled that such "occasional first-level misconduct" is not necessarily enough to show an employer's "disinclination" to accept and honor his contract commitment to collective bargaining. The present case, like United Aircraft, involves allegations of a persistent management campaign of harassment and intimidation of union stewards. This case, however, involves alleged misconduct at a single facility employing approximately 1,700 people and at which grievance and arbitration procedures were established only in early 1972. Furthermore, most of the conduct complained of here was initiated not by "first-level" supervisors but by Postmaster Maloney, the highest management official at the facility. As even the Administrative Law Judge acknowledges in his Decision, if the matters alleged in the complaint are true, then as regards at least the employees on Steward Jamilkowski's shift, "the means of processing grievances are effectively cut off Furthermore, the record here hardly indicates a stable or harmonious relationship between the parties. Although this is the first unfair labor practice involving this particular post office to be processed to complaint, approximately a year ago the Union filed charges alleging in substance identical unlawful conduct by management. These earlier charges were withdrawn only after an informal settlement by management. Steward Jamilkowski testified, howev- er, that following this settlement he was warned by a foreman that management was still "out to get" him and other union stewards.3 We believe that even a cursory examination of the record evidence supports the Charging Party's contention that this dispute is simply an outgrowth of Postmaster Maloney's continuing determination to "get" Steward Jamilkowski and thereby restrict employee access to the grievance procedures estab- lished by the contract. Maloney himself testified to his "concern" over Jamilkowski's involvement in the filing of grievances. He acknowledged that he took this into account in suspending Jamilkowski.4 Final- ly, he admitted that in deciding to "postpone" and then to "reinstate" the suspension he was motivated by his desire to establish a more "favorable" labor- management relations climate on Jamilkowski's tour.5 Postmaster Maloney's letter of February 7, 1973, one of three letters sent to Jamilkowski and alleged by the General Counsel to be violative of Section 8(a)(1), probably best illustrates Maloney's version of a "favorable" labor relations climate. In the letter, even while acknowledging the merit of the particular grievance that was the ostensible subject of the letter, Maloney described Jamilkowski 's alleged encourage- ment of the grievant in filing as "certainly not conducive to good labor-management relations."• Apparently, insofar as Maloney was concerned, "good" labor-management relations exist only when union stewards like Jamilkowski cease filing griev- ances on behalf of employees. Compare, North Shore Publishing Co., supra. As we have elucidated elsewhere the reasons for our disagreement with the Collyer policy of deferral we see no need to restate them here . Accordingly, we will content ourselves with the observation that in affirming the Administrative Law Judge's Decision the majority has chosen to ignore the facts of record which clearly show that the Respondent has not accepted the basic realities of collective-bargaining but rather has rejected the grievance-arbitration procedure which is an essential part of any collective- bargaining agreement. In deferring, the majority has once again demonstrated that its Collyer doctrine is nothing more than a device for avoiding our duty under the Act. We would remand this case to the Administrative Law Judge to make credibility findings and to issue a Supplemental Decision on the merits. 3 According to the Charging Party Steward Jamilkowski aroused management's enmity by his diligence in assisting employees on his tour in filing grievances. The Administrative Law Judge took note of the number of grievances filed on Jamilkowski's shift by way of buttressing his conclusions that the grievance procedure was open and effective and that there was no employer hostility to its use. We confess our astonishment at learning that a steward's diligence in performing his duties , even in the face of an alleged employer campaign of harassment and intimidation , can be used as evidence of a lack of employer hostility to unions and to the use of the grievance procedure. 4 Jamilkowski was ostensibly suspended for remarks he allegedly made to Foreman Giulietti during the course of a first-stage grievance meeting. The Administrative Law Judge's Decision erroneously indicates that the remarks were contemporaneous with Giulietti's order to Jamilkowski to raise his seat. 5 On the whole Maloney's testimony is marked by evasiveness and convenient lapses of memory For example, he initially testified that in suspending Jamilkowski he had merely acted on Foreman Giulietti's report and recommendation. When the 13-day lag between the report and his signing of the suspension was pointed out he testified that he "assumed" he had investigated Jamilkowski's conduct. Later, he acknowledged refusing to retract the suspension even at Giulietti's request that he do so . Finally, he testified that Jamilkowski's position as union steward had a bearing on the decision to "postpone" the suspension since 'Jilt was directly involved in the climate that I as a manager was trying to establish." 6 In the other two letters , both of which also ostensibly dealt with particular employee grievances, Maloney warned Jamilkowski that "solicit- ing" grievances or "interfering" with personnel assignment would not be tolerated DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Ju e: Upon a charge filed on February 6, 1973, an amended charge filed on March 28, 1973, and a second amended charge filed on April 9, 1973, by New Haven, Conn. Local, American Postal Workers Union, AFL-CIO, herein called the Union or the Charging Party, the Regional Director for Region 1 of the National Labor Relations Board, havin 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Board, issued a complaint on May 11, 1973, on behalf of the General Counsel of the Board against United States Postal Service, herein called the Postal Service or the Respondent, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act. In its duly filed answer, the Postal Service, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at Pittsburgh, Pennsylvania, on June 19, 20, and 21, 1973. All parties were represented and were afforded full opportunity to be heard. At the outset of the hearing, counsel for the Postal Service made two motions. The first was directed to paragraph 5(c) of the complaint which alleged that the New Haven, Connecticut, postmaster, Donald M. Malo- ney, in a letter dated February 7, 1973, to Chief Steward Thomas Jamilkowski, threatened and coerced Jamilkowski in the performance of the latter's duty as a steward of the Union in violation of Section 8(a)(1) of the Act. Counsel for the Postal Service argued that the statement was a protected statement within the meaning of Section 8(c) of the Act. The second motion made by counsel for the Postal Service was that, in accordance with the terms of the collective-bargaining agreement between the Union and the Postal Service, the matters alleged in the complaint should be deferred to the grievance and arbitration procedures of the said collective-bargaining agreement in conformity with the Board's policy as established in Collyer Insulated Wire Co.' Deferral had also been raised as an affirmative defense in the Respondent's answer to the complaint herein. After hearing argument of counsel for all parties, the motion to defer to arbitration and the motion to dismiss paragraph 5(c) of the complaint were, themselves, deferred because, in my opinion, at that stage of the proceeding, there were insufficient facts before me upon which it could be decided whether the Respondent's motions had merit. It was therefore ruled that sufficient record on the merits should be made to enable me to gain a more comprehen- sive view of the facts and the issues in order to make ruling on said motions. Thereafter, as noted above, counsel for the General Counsel developed the record to the extent of completing her case subject to calling one possible additional witness. Thereupon, counsel for the Postal Service renewed the two motions made at the outset of the hearing and I adjourned the hearing sine die to enable the parties to submit memoranda of points and authorities with regard to the issues raised by the motions in the light of the record as it had been developed up to that point. Pursuant to the said ruling, the parties thereafter submitted memoranda as noted. After due consideration and after a review of the Collyer line of cases then extant, I issued an order on July 18, 1973, denying the said motions of counsel for the Postal Service. Thereafter, by motion dated July 25, 1973, counsel for the Postal Service moved for reconsideration of the order denying the Postal Service's motion to dismiss, said motion for reconsidera- tion being based on the decision of the Board in the case of United Aircraft Corporation, 204 NLRB No. 133, which had not been considered by any of the parties on the original motion, because that case had not been published at the time of the denial of the Respondent's motions. Thereafter counsel for the General Counsel and counsel for the Union submitted written opposition to the motion for reconsider- ation. Upon consideration of the entire record herein, including the various posthearing motions, orders, and motion for reconsideration, and upon my observation of each witness appearing before me at the hearing herein , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent provides postal service for the United States of America and operates various facilities through- out the United States in performance of that function, including the facility involved in this proceeding, the United States Post Office located on Church Street, New Haven, Connecticut. It is conceded and I find that the Board has jurisdiction over the Respondent in this matter by virtue of the Postal Reorganization Act, 39 U.S.C., Sec. 101, et seq. (herein called the PRA). II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act and within the meaning of the PRA. III. BACKGROUND, PLEADINGS, AND ISSUES The complaint, in substance, alleges that the Respondent through its supervisors and, in particular, the postmaster of the New Haven Post Office, by memoranda written to Thomas Jamilkowski, the chief steward on Tour I of the Brewery Street Terminal of the New Haven Post Office, threatened and coerced Jamilkowski in the exercise of his Section 7 rights and the Section 7 rights of other employees of the Post Office and, furthermore, did threaten to suspend and finally did suspend Jamilkowski for 3 days in retaliation for Jamilkowski's protected activities as chief steward, in filing grievances with his immediate superior, Tour Foreman Dominic L. Giulietti. The answer filed by the Respondent denies the import of the memoranda or letters and, in substance, alleges that they constituted free speech within the meaning of Section 8(c) of the Act and were not in any manner coercive or interfered with the Section 7 rights of the employees. In addition, the answer alleges that the suspension of Jamilkowski was for cause and was not in retaliation for Jamilkowski's engaging in protected union activity. By way of affirmative defense the Respondent contends that the issues raised by the complaint involve interpretations of the collective-bargain- ing agreement between the Respondent and the Union and that said matters should be resolved through the grievance 1 See Collyer Insulated Wire, 192 NLRB 150. UNITED STATES POSTAL SERVICE 563 and arbitration procedures provided in the said collective- bargaining agreement. As noted above, at the outset of the hearing herein, counsel for the Respondent moved that the entire matter be deferred to the grievance and arbitration procedures of the collective-bargaining agreement and that the complaint be dismissed for that reason. Additionally, the argument was made by counsel for the Respondent that although Jamilkowski was suspended, after a griev- ance was filed following the suspension, and pursuant to discussions between the parties under the arbitration and grievance procedures, Jamilkowski's loss of pay was fully restored and, accordingly, he suffered no loss by reason of his suspension. Counsel for the General Counsel argues, in substance, that the arbitration proceedings did not fully satisfy the requirements of the Act in that they did not remedy and could not remedy the violations alleged in the complaint inasmuch as the complaint alleges that Jamilkowski was punished for using the grievance procedures of the contract and, therefore, those procedures should not here be pursued because the unlawful acts of the Respondent go to the very heart of those procedures and actually are designed to prevent access thereto. Accordingly, counsel for General Counsel contends that only a Board cease-and- desist order can remedy the situation, and this is so even though Jamilkowski has already been made whole for the pay he lost by reason of his suspension. Thus the issues are set forth as follows: 1. Did the Respondent's letters or memoranda to Jamilkowski constitute interference with Jamilkowski's and other employee's Section 7 rights and thereby violate Section 8(a)(l) of the Act? 2. Was Respondent's suspension of Jamilkowski for 3 days retaliatory and, therefore, discriminatory or was Jamilkowski suspended for cause? 3. Should the entire matter involved herein be deferred to the grievance and arbitration procedures of the collective-bargaining agreement between the Charging Union and the Respondent? In order to resolve these issues, it is necessary to recite some of the facts leading up to the memoranda given to Jamilkowski by the New Haven postmaster and to his suspension. IV. THE FACTS A. The Applicable Provisions of the Bargaining Agreement Article XV, Grievance Procedure , defines the right to grieve as follows: When an employee covered by the terms of this Agreement or the Union believes that the Employer has violated the terms of this Agreement and that by reason of such violation his or its rights arising out of this Agreement have been adversely affected, the employee or Union shall be required to follow the procedures set forth below in presenting the grievance. Section 2 of article XV sets forth a four-step grievance procedure beginning with employee discussion of his complaint with his immediate supervisor and ending with a meeting between the Postal Department representatives and national representative of the Union on a national level. If after all of these steps the parties are not able to resolve the grievance, the Union is given the right to refer the grievance to a panel of arbitrators. Article XVI of the bargaining agreement provides for the discipline procedure which the Postal Department may impose upon employees. The pertinent paragraphs read as follows: No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordina- tion, pilferage, intoxication (drugs or alcohol), in- competence, failure to perform work as requested, violation of the terms of this agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance arbitration procedure provided for in this agreement, which could result in reinstatement and restitution, including back- pay.2 The balance of the section is concerned with the various types of discipline which the Employer may impose pursuant to the contract terms depending upon the type of misconduct with which an individual employee may be charged. Article XVII, Representation, provides that stewards may be designated for the purpose of presenting and adjusting grievances. That article also provides the number of stewards which can be appointed in accordance with the number of employees engaged at each Post Office or subdivision thereof. The article also sets forth the rights of the steward to represent employees during working hours and to present grievances at that time. The foregoing recited paragraphs of the National Collective Bargaining Agreement represent the contractual context under which the alleged unfair labor practices herein arose. B. The Events As stated above, Thomas H. Jaimlkowski, a clerk on Tour I at the Brewery Street terminal, is the chief steward on that tour, which has one other steward. Jamilkowski has been steward since the adoption of the grievance proce- dures on February 13, 1972. From that date until the date of the hearing herein, Jamilkowski has participated and been involved in approximately 275 grievances. From the record as it developed, it is evident that most, if not all, of these grievances Dominic L. Giulietti. The record does not reveal how many of these involved the actions or activities of the tour supervisor, Foreman grievances were meritori- ous, how many were disposed of at the first stage of the grievance procedure, or how many of them went beyond that stage even up to arbitration at the national level. At any rate, it is evident from the testimony not only of Jamilkowski but of other General Counsel witnesses that the relationship between Giulietti and a number of the employees on the shift was not harmonious during the 2 Emphasis supplied 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period covered by the collective-bargaining agreement. Whether this was due to fault of the individuals involved in the grievances, the stewards, including Jamilkowski or Giulietti, is not pertinent at this time. However, there were certain incidents which resulted in thletters of reprimand sent to Jamilkowski by Postmaster Maloney upon reports given to Maloney by Giulietti and which also led to Giulietti's recommending to the Postmaster that Jamilkow- ski be suspended for 3 days. Because it is the gravamen of the complaint and the contention of counsel for the General Counsel that it was Jamilkowski's forceful presentation of certain grievances which led to these incidents which allegedly constituted unfair labor practices, it is necessary to briefly touch on each of these incidents. Some time during the Christmas rush of 1972, Postal Clerk Betty Clark volunteered to work on the pouch table, contrary to what Jamilkowski contended was union policy not to volunteer. Because of this, Jamilkowski filed a grievance which went through the second step of the grievance procedure to the Postmaster who, on January 26, 1973, sent to Jamilkowski a letter denying the grievance. That letter contained a statement that Jamilkowski had no right to advise any clerk not to accept an assignment; that, when an employee volunteers to accept an available detail or assignment, "We will not tolerate the interference of any steward or any other employee who attempts to dictate the assignment of personnel." It was this statement in this letter which the complaint alleges was a violation of Section 8(a)(1) in that it interfered with the rights of Jamilkowski and other employees to engage in union or concerted, protected activity. On January 24, 1973, clerk Robert A. Celone was ordered by Foreman Giulietti to push a heavily loaded skid. Janulkowski contended to Giulietti, on behalf of Celone, that Celone should not have been required to push the skid because the skid was too heavy and Celone could have been injured. Evidently, Giulietti reported this matter to the postmaster contending that Jamilkowski had attempted to persuade, indeed coerce, Celone to file a grievance. Accordingly, on January 30, Postmaster Malo- ney sent a memo or letter to Jamilkowski in which he stated that it was reported to Maloney that Jamilkowski stated that no employee should be required to push a skid at any time. Maloney stated in this letter that such a decision is not within the authority of the steward but solely within the authority of management. Then, Maloney went on to state that it was alleged to Maloney that Jamilkowski attempted to coerce Celone into filing a grievance . Maloney then stated that "This type of action is certainly not conducive to good labor-management rela- tions and is dangerously close to violation of the National Labor Relations Act. If you believe that local management will continue to tolerate the practice of soliciting griev- ances and the harassment which results, you are mistaken. I will take whatever action may be necessary to correct the situation." The complaint alleges that this letter and this statement was a second attempt on the part of Maloney to violate the Section 7 rights of Jamilkowski and other employees in violation of Section 8(a)(1) of the Act. It should be noted, in connection with all of the foregoing, that it was admitted by Jamilkowski that, during the discussion with Giulietti with regard to this incident, Giulietti promised that he would attempt to secure a tow motor to move the skid in future situations. A formal grievance was never filed by reason of this promise. A third incident involved a dispute between Clerk Joseph 0. Spellman and Foreman Giulietti. On the night of January 29, 1973, Spellman reported for work and found that his partner, the clerk who usually sorted the mail with him at his particular station, had not arrived. Without going into the details of the work which these employees normally performed, it is sufficient to state that Spellman had to perform the work without the help of an assistant. Quite naturally, according to Spellman, he was unable to perform the volume of work that was normally performed by two individuals, and at one point, thereafter, Foreman Giulietti came to him and told him that if the mail did not get out he was going to hang Spellman . Step 1 of the grievance procedure, which was filed by Jamilkowski on behalf of Spellman, stated that the remark attributed to Giulietti was "If they hang me for not getting this mail out, I'll hang you." At the second stage of the grievance procedure , the postmaster sustained the grievance and found that the remark by Giulietti was out of order. In his memorandum to Jamilkowski dated February 7, 1973, Maloney informed Jamilkowski of this but stated further "On the other hand, the supervisor's report alleges that you encouraged the filing of the grievance. This is certainly not conducive to good labor-management relations." The complaint alleges that these last two sentences above quoted constituted coercion, interference , and restraint in violation of Section 8(axl) of the Act. The foregoing three instances and the letters sent by Maloney to Jamilkowski are the only three instances of 8(a)(1) violations alleged in the complaint. The allegation of discrimination in violation of Section 8(a)(3) of the Act involves the suspension of Jamilkowski for 3 days. This arose out of an incident involving Jamilkowski himself as the individual who allegedly was improperly treated by Giulietti. The incident occurred on the night of March 4 or 5, 1973. Giulietti and Jamilkowski had evidently had some words while Jamilkowski was "off the clock," which meant he was on a break. When Jamilkowski returned to work after the break, he was working at an area known as the "first class flat cases." In doing this work, the mail sorter or clerk sits on an adjustable seat which has several notches so that the seat can be lowered or raised according to the clerk's needs in order to reach the various compartments in which the mail is to be placed in sorting. After Jamilkowski returned to his place of work, and was sorting mail, Giulietti came up to him and told him to raise his seat. Jamilkowski, according to his own testimony, felt that Giulietti was "picking on me" because of the earlier argument and because Jamil- kowski was steward. At any rate, the argument over the seat raising became quite heated and at one point, according to the report written by Giulietti to Postmaster Maloney, Jamilkowski raised his voice and stated to other employees who were nearby words to the effect of "how many times do I have to tell you idiots that there are no production standards." According to the Respondent, UNITED STATES POSTAL SERVICE 565 these remarks were made in the middle of the work floor and in a tone designed for all employees to hear the steward's defiance of Supervisor Giulietti's authority. Jamilkowski, in testifying, denied making any such statement and gave a different version of the conversation. However, in any event, Giulietti recommended to Maloney that Jamilkowski be suspended for 3 days. Jamilkowski was given notice of a suspension which notice was then retracted upon Giulietti's request to Postmaster Maloney and, then finally after a period of time, was given a second notice of suspension, and was actually suspended for 3 days without pay. Sometime thereafter, after Jamilkowski's filing of a grievance over the matter of his suspension, the Union and the Respondent, outside the grievance procedures, reached a mutual agreement whereby Jamilkowski' s suspension was revoked and Jamilkowski was paid for the 3 days during which he was suspended. It is this suspension which is alleged in the complaint to have been a violation of Section 8(a)(3) upon the theory that Janulkowski, a union steward, was discriminated against, for his protected, concerted activities. Respondent, of course, stated that Jamilkowski was suspended for cause in telling all of the other employees in his capacity as steward that there were no such things as work standards in the post office. The foregoing briefly states what is involved in the entire proceeding as alleged in the complaint and as framed by the pleadings. Of course, as in most cases, there are credibility resolutions to be made as to whether or not any of the remarks attributed to Jamilkowski or to Giulietti or to others were actually made. However, in view of my disposition of this proceeding, I do not find it necessary to resolve these credibility issues. V. THE ISSUE OF DEFERRAL-THE CONTENTIONS, DISCUSSION, AND CONCLUSIONS As previously noted, couneel for Respondent moved at the outset of the hearing and in the Respondent's answer to dismiss the complaint and to defer the matters hereinabove set forth to the grievance and arbitration procedures provided in the collective-bargaining agreement between the Respondent and the Union. At the hearing and in his original submission in support of his motion, counsel for the Respondent based his motion on the Board's Collyer doctrine and the line of cases following Collyer which expanded upon the Collyer doctrine to permit the deferral of matters involving violations of Section 8(a)(l) and (3) of the Act as well as those involving refusals to bargain in violation of Section 8(a)(5). Counsel for the General Counsel and counsel for the Charging Union argue, in opposition to counsel for the Respondent, that the matters herein cannot be deferred to arbitration by reason of the fact that the allegations of the complaint and the matters under consideration involve the alleged threats to a union steward for carrying out his duties as such steward and a suspension of the steward in violation of Section 8(a)(3) for the same reason. They further argue that by reason of this the very access of employees to the grievance and arbitration procedure of the contract was being attacked by the Respondent and rely in support of their argument upon the rationale of the Board in the case of Joseph T. Ryerson & Sons, Inc, 199 NLRB 461, in which case the Board held that alleged violations involving restrictions upon steward access to the grievance procedure "bite at the very heart of the grievance arbitration procedure" and therefore are not deferrable. Moreover, counsel for the General Counsel and the Respondent further argue that deferral is inappropriate in this case because there is no specific contractual provision which would permit a contractual resolution of the 8(a)(l) issues involved. On the other hand, in support of the Respondent's contention that the matters herein be deferred to arbitra- tion, Respondent's counsel cited National Radio Company, 198 NLRB No. 1, in which the Board deferred 8(a)(1), (3), and (5) allegation3 relating to an employer's restrictions on the movement of union representatives throughout the plant to resolve grievances and the discharge or suspension of the main u-uon representative for refusal to comply with the employer's rules in this regard. Counsel for Respondent also cited the case of Todd Shipyards Corp., 203 NLRB No. 20, in which the Board sustained the Administrative Law Judge's Decision deferring a matter concerning the alleged violation of Section 8(a)(1) of the Act whereby a supervisor threatened to physically assault a union steward if the union steward entered a certain area of the plant, allegedly for the purpose of carrying out his duties as steward. Both of these cases involved, to a great degree, the rights of stewards to perform their duties as against the right of the employer and the employer's supervisors to regulate the operations of the particular plant involved. These matters involved, also to a certain extent, interpretations of various portions of the collective-bargaining agreements between the employers involved and the unions with whom they had contractual relationships. Upon consideration of all of the arguments and of the submissions of the parties, and upon close scrutiny of the bargaining agreement between the Respondent and the Charging Union herein, and after giving due consideration to the testimony presented by the counsel for the General Counsel, I arrived at the conclusion that the instant case falls somewhere between the Ryerson case on one hand and the National Radio Company and Todd Shipyards Corp., cases on the other. Accordingly, the conclusion was reached that the best way to resolve all of the issues presented was to complete the hearing of the case, decide the matter on the merits, or defer after completion of the entire hearing, and then give access to the parties to file such exceptions as they found necessary for the Board's ultimate disposition of the question of deferral. By reason of this conclusion, an order was issued by me on July 18, 1973, denying the Respondent's motion to dismiss the complaint and to defer and ordering the hearing to be continued. However, unknown to me and to the parties as of the date of that order, the Board had issued on or about July 15, its decision in the case of United Aircraft Corporation, 204 NLRB No. 133. Upon the publication of the Board's decision in United Aircraft Corporation, supra, counsel for the Respondent made a motion for reconsideration of the order of July 1S denying the Respondent's original motion to dismiss the complaint and to defer to the grievance and arbitration provision of the bargaining agreement between 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the parties. Thereafter, an order to show cause why the motion for reconsideration should not be granted was served on counsel for the Respondent and counsel for the Charging Union and thereafter they timely filed written opposition to the motion for reconsideration. Counsel for the Respondent, in effect, argues that United Aircraft Corporation overrules Ryerson, supra, and that, therefore, whatever impediment existed to the deferral of the matters involved in this proceeding by reason of Ryerson are now removed and, accordingly, the original motion to defer should be granted. Although I do not agree that the Board either specifically or sub silentio overruled its Ryerson decision in United Aircraft Corporation, I do find that there is merit in the Respondent's argument that United Aircraft Corporation does provide the rationale upon which all of the matters presented in the instant case should be deferred. It is true that in all of the cases following Collyer and, particularly, even in United Aircraft Corporation, the Board has maintained that "an explora- tion of the nature of the relationship between the parties is relevant to the question of whether in a particular case we ought or not defer contractually resolvable issues to the parties own machinery. Where the facts so show a sufficient degree of hostility, either on the facts of the case at bar alone or in the light of prior unlawful conduct of which the immediate dispute may fairly be said to be simply a continuation, there is a serious reason to question whether we ought to defer to arbitration." The Board then evaluated the facts of the case and concluded that there existed no such hostility or prior unlawful conduct which would preclude the deferral to the grievance and arbitra- tion procedures of the collective-bargai{::aig agreement between United Aircraft and the charging union in that case. In United Aircraft Corporation the basic complaint was that the company harassed and discriminated against shop stewards in violation of Section 8(a)(1) and (3) of the Act and that the company violated the union's representation rights by failing to give timely notice of layoffs and by refusing to supply information necessary for the handling of merit rating grievances in violation of Section 8(a)(5) of the Act. The facts of the case showed, after a full hearing, that the United Aircraft had enforced, or threatened to enforce, plant and security rules more vigorously against shop stewards than against other rank-and-file employees; suspended and otherwise discriminated against shop stewards because of their activities in processing griev- ances; threatened to discipline employees for requesting to be represented by shop stewards; and refused to deal with shop stewards concerning merit rating grievances and even went so far as to refuse shop stewards permission to talk to supervisors in connection with the processing of such grievances. The Board accepted these facts and also the fact that United Aircraft had been involved in a number of very serious unfair labor practice proceeding cases before the Board in the past. Thus, as in the case at bar, the allegations of the complaint and the facts substantiating such allegations in United Aircraft involved harassment and discrimination against union stewards because of their grievance processing activities. This is precisely the gravamen of the complaint in the case at bar, since the complaint alleges that Postmaster Maloney and Foreman Giulietti harassed union steward Jamilkowski because he vigorously presented and processed grievances in great numbers and also suspended him discriminatorily for like reason. In arriving at its decision to defer, the Board in United Aircraft Corporation considered not only the fact that United Aircraft had been involved in a number of unfair labor practice proceedings before the Board as a respondent, but also took into consideration, as more important, the fact that the parties had an effective dispute-solving machinery available and that in the combination of the past and presently alleged misconduct such conduct did not appear to be of such character as to render the use of that machinery unpromising or futile. In the case at bar, I find the parties have, and have had since the institution of their collective-bargaining agreement, effective dispute-solving machinery available. It is true that in United Aircraft Corporation the number of minor supervisors involved and the number of stewards involved was rather small in comparison to the total number of plants, plant departments, and employees overall employed by the corporation and, by way of comparison, in the present case involved are the postmas- ter, the individual with the highest authority at the particular installation here involved and only one depart- ment with a limited number of employees on a particular shift. Also involved, only for all practical purposes, are the single chief steward and a single supervisor on that shift or tour. The distinction sought to be made by counsel for the General Counsel and counsel for the Charging Union is that in United Aircraft the totality of the individuals involved was rather insignificant while here the position of the Postmaster and the fact that only one individual steward on one shift were involved is a distinction which makes it apparent that on that particular shift regarding that particular steward and that particular supervisor the means for processing grievances are effectively cut off by the fact that the very individual supervisor and Postmaster involved have threatened and harassed the particular steward for the performance of his duties as such steward. This does, indeed, present a factor which must be considered. However, I also note the fact that at this particular post office, this is the first unfair labor practice charge to be processed to complaint. While it is true that another unfair labor practice charge was filed approxi- mately 1 year before the charge in the instant case and was then withdrawn, there is no record of any proven past unfair labor practice on the part of the particular individual supervisor or postmaster here involved . Counsel for the General Counsel and counsel for the Charging Party cite the fact that over 275 grievances have been presented and/or processed during the period of time that Jamilkowski has been steward on the particular tour and argue that this presents a situation which can be remedied only by a Board order. However, it can likewise be concluded that the fact that as many as 275 grievances have been filed and/or processed in that period of time concerning that particular tour, and evidently concerning the particular supervisor and steward involved, equally demonstrates that the processes for filing and processing grievances are readily open and available to the Union and UNITED STATES POSTAL SERVICE the union's constituents and that, therefore, the actions of the particular supervisor and of the postmaster are not necessarily indicative of either hostility toward the Union and its stewards and/or a reluctance on the part of the Respondent herein to adhere to and comply with the grievance and arbitration provisions of the collective- bargaining agreement. I, therefore, conclude from the facts presented by counsel for the General Counsel based on the evidence presented at the hearing that there exists now effective dispute-solving machinery available to the parties by which the matters involved in the allegations of the complaint can be resolved. With regard to the argument that the alleged 8(aXl) violations, as hereinbefore set forth and described, are not cognizable within the terms of the collective-bargaining agreement and especially within the terms of the grievance and arbitration procedures, I have above set forth portions of that section of the collective-bargaining agreement which deals with discipline. As noted, article XVI, Discipline Procedure, provides that "any such discipline or discharge shall be subject to the grievance arbitration procedure provided for in this agreement ...." Without attempting to interpret that clause of the collective- bargaining agreement, it is certainly arguable that the three letters from Maloney to Jamilkowski, cited above, and which are alleged to constitute the three specific violations of Section 8(a)(1) of the Act, are letters of reprimand to Jamilkowski by Postmaster Maloney for Jamilkowski's allegedly having overstepped himself in his conduct as steward. Thus not only is Jamilkowski's right as steward under the contract involved, which would ordinarily be a matter for arbitration, but also the reprimand involved in these letters constitutes a form of discipline. Since disciplinary action under the agreement as heretofore cited may be grieved under the grievance terms of the contract and may even go to arbitration, it is concluded that the contract does provide for a means of resolving the alleged 8(axl) violations and that they are, therefore, cognizable under the terms of the collective-bargaining agreement. Accordingly, I find and conclude that all the matters alleged in the complaint, in the light of the record as developed, and in accordance with the rationale of the Board as laid down in United Aircraft Corporation, supra, the entire matter involved herein should be deferred to the grievance and arbitration procedures of the contract. In 3 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. 567 arriving at this conclusion, I have considered the fact that the matter of Jamilkowski's suspension was settled and Jamilkowski has been paid the earnings he lost during his 3-day suspension and that this was accomplished outside of the grievance and arbitration procedures of the contract. I have taken into consideration the argument of both counsel for the Charging Union and the counsel for the General Counsel that there is little for the arbitrator to consider, therefore, with regard to Jamilkowski's suspen- sion and that, therefore, a Board order would be more effective in resolving the underlying dispute than would an arbitrator's decision. However, as in the case of any proceeding deferred by the Board to grievance and arbitration procedures, the arbitrator's award is reviewable pursuant to the Board's decision in Spielberg Manufactur- ing Company, 112 NLRB 1080, and if, for any reason, the Board should find upon further review after the arbitration award is handed down that the said award is repugnant to the Act or does not fully rectify the situation involved, then the Board can reopen the case and decide it upon a fully developed record on the merits presented by such record. I also do not rule on the Respondent's motion to dismiss paragraph 5(c) of the complaint on the ground that the matter stated therein is protected free speech within the meaning of Section 8(c) of the Act. This is so because that matter is deferred to the grievance and arbitration procedures for disposition. Upon the foregoing findings and conclusions, and the record heretofore developed herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDERS The complaint herein is dismissed in its entirety except that jurisdiction is hereby retained for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute as alleged in the complaint has not been submitted promptly to grievance and arbitration, (b) the dispute has not been resolved by the arbitration procedure or the decision of the arbitrator is not wholly dispositive of the issues in this case, and (c) that the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. 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