United States Postal Service

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Sally A. Nievelt.' Case 7-CA-12482(P) June 25, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER Upon a charge filed on November 7, 1975, by Sal- ly A. Nievelt (hereinafter referred to as the Charging Party), and duly served on United States Postal Ser- vice (hereinafter referred to as Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on December 31, 1975, against Respondent, alleging that Respondent had engaged in or was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, and within the meaning of the Postal Re- organization Act.' Copies of the charge, complaint, and notices of hearing before an Administrative Law Judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that Respondent interro- gated the Charging Party regarding alleged improper mail deliveries and refused to accede to the Charging Party's request that a union representative be present at said interrogation. On January 23, 1976, Respondent filed an answer to the complaint admitting in part, and denying in part, the allegations therein, and asserting an affir- mative defense that the matters alleged in the com- plaint were cognizable under, and should be deferred to, the grievance-arbitration procedure of the collec- tive-bargaining contract in effect between Respon- dent and the Intervenor. Thereafter, on April 12, 1976, Respondent filed a motion to stay proceedings and a motion for summary judgment and verified memorandum in support thereof, with an affidavit and exhibits attached, moving the Board for an order dismissing the complaint herein, retaining jurisdic- tion for the sole purpose of entertaining an appropri- ate and timely motion for further consideration on a proper showing that the underlying dispute has not been promptly resolved by amicable settlement in 1 On April 15, 1976, the National Association of Letter Carriers, AFL- CIO, was granted leave to intervene in this proceeding by order of the Board 2 On December 29, 1975, the Regional Director approved the withdrawal of that portion of the charge alleging that Respondent violated Sec 8(a)(5) of the National Labor Relations Act the grievance procedure or arbitration, or that such procedures have not been fair and regular or have reached a result repugnant to the Act. On April 15, 1976, the Board issued an order trans- ferring the instant proceeding to the Board and post- poning indefinitely the scheduled hearing and a no- tice to show cause why Respondent's motion for summary judgment should not be granted. Thereaf- ter, the General Counsel filed a response to the no- tice to show cause stating that, in view of the agree- ment of all parties concerned, including the Charging Party, the Intervenor, and Respondent, the General Counsel now favors the handling of the underlying dispute herein through the parties' grievances and ar- bitration procedures. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its verified memorandum in support of the mo- tion for summary judgment, Respondent asserts that on October 18, 1975, the Charging Party was called into her supervisor's office and admitted fraudulently executing a change of address form for a customer without the latter's knowledge. Subsequently, the Charging Party was served with a notice of removal and thereafter, on November 3, the Charging Party filed a grievance protesting the proposed removal ac- tion. The grievance was fully processed, was certified for arbitration, and is awaiting assignment to an ar- bitrator for hearing. The proposed removal was not made a part of the charge or complaint herein and is not before the Board. The complaint relates solely to the issue of whether or not the Charging Party re- quested and was denied the presence of a union rep- resentative at the October 18 meeting. Respondent asserts that, for reasons of economy, the underlying issue in the complaint should be de- ferred for arbitration where the larger issue of "just cause" for the proposed removal is awaiting resolu- tion. Initially, the General Counsel and the Charging Party opposed such deferral and no grievance was filed concerning the issue underlying the instant complaint. However, as reflected in the General Counsel's response to the notice to show cause, the Intervenor has agreed to file a grievance on behalf of the Charging Party with respect to the underlying dispute herein, the Charging Party has agreed to uti- lize and be bound by the grievance and arbitration process, and Respondent has indicated its willingness 225 NLRB No. 33 UNITED STATES POSTAL SERVICE 221 to waive contractual time limitations and be respon- sive to the Intervenor's effort to bring the grievance to arbitration in an expeditious manner . In view of these circumstances, the General Counsel states that it no longer opposes , and now favors , the handling of the underlying dispute herein through the parties' grievance and arbitration procedure. Accordingly, since there is no opposition to the motion for sum- mary judgment, and in accordance with the desires of all of the parties herein to defer the resolution of the underlying dispute herein to the parties ' arbitra- tion process , we shall grant the motion for summary judgment.' THE REMEDY Without prejudice to any party and without decid- ing the merits of the controversy, we shall grant Respondent's motion for summary judgment and dismiss the complaint herein. We shall, however, re- 3 See Dubo Manufacturing Corporation, 142 NLRB 431 (1963) tain jurisdiction for the limited purpose of entertain- ing an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been re- solved by amicable settlement in the grievance proce- dure 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board grants Respondent's motion for sum- mary judgment and hereby orders that the complaint herein be, and it hereby is, dismissed ; provided, how- ever, that jurisdiction of this proceeding is hereby retained for the limited purposes indicated in that portion of this Decision and Order entitled "The Remedy."