United States Postal Service

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Local 912, National Alliance of Postal and Federal Employees. Case 14-CA-7402(P) December 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 30, 1974, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions with a supporting brief, and the Respondent filed a reply brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated authority in this proceeding to a three-member panel. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the excep- tions and briefs and has decided to affirm the Adminis- trative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith. The General Counsel has excepted to the Adminis- trative Law Judge's determination that the alleged dis- criminatory suspension of employee Michael Wheeler should be deferred to the grievance and arbitration provisions in the existing collective-bargaining agree- ment between the Postal Service and the American Postal Workers Union (APWU) under an application of the Board's Collyer doctrine.' The General Counsel also excepts to the Administrative Law Judge's failure to find that employee Wheeler's 10-day suspension was in violation of our Act. For the reasons stated, infra, we find merit in these exceptions. The suspension of employee Wheeler arose out of somewhat unusual circumstances. Under intra-Postal Service regulations, any employee with an Equal Em- ployment Opportunity complaint may request any in- dividual of his or her own choosing as a representative at a hearing with the Postal Service. Pursuant to this procedure, Evelyn Mary Jones, a discharged employee of the St. Louis Post Office, requested that Wheeler represent her at a hearing on her EEO complaint. Wheeler is employed as a postal clerk at the St. Louis Post Office and he is also a vice president of Local 912, National Alliance of Postal and Federal Employees (Alliance). Although the APWU is the recognized bar- gaining representative for employees at the St. Louis Post Office, including Wheeler and Jones, the Alliance has for a number of years been a rival of the APWU i Co/lyer Insulated Wire, A Guljand Western System Co., 192 NLRB 837 (1971) (Members Fanning and Jenkins, dissenting) in seeking representation rights for these employees. In any case, Wheeler agreed to serve as Jones' representa- tive and a meeting, pursuant to Jones' complaint, was held with the Postal Service's representative, William Holloway, director of employee and labor relations, St. Louis district. At the meeting, Wheeler became em- broiled in a misunderstanding or argument with Hollo- way over the settlement of Jones' complaint and, as a direct result of this oral altercation, Wheeler was charged with insubordination and suspended for 10 days without pay. The Administrative Law Judge found it unnecessary for purposes of this proceeding to determine whether or not Wheeler was guilty of insubordination because he concluded that the matter was one which is cognizable under the grievance and arbitration provisions of the existing contract between the Postal Service and the APWU.Z The Administrative Law Judge further con- cluded that even though Wheeler did not file a griev- ance and was an official of a competing labor organiza- tion, there was no evidence to indicate that APWU was unwilling to represent him in invoking and pursuing the grievance-arbitration procedures of the collective- bargaining agreement and that the APWU had in fact, on previous occasions, satisfactorily processed griev- ances on Wheeler's behalf. As previously indicated, we do not believe that deferral to the grievance and arbitra- tion provisions of the agreement would be appropriate in the circumstances of this case. At the outset, it must be recognized that Wheeler's suspension did not arise out of conduct occurring dur- ing the course of the work relationship. Rather, the suspension was a result of alleged misconduct while serving as the authorized representative of employee Jones in an EEO proceeding. Under existing intra- Postal Service regulations, the complainant in an EEO proceeding may choose any individualhe or she desires to serve as representative and thus the regulations themselves do not contemplate that the employer- employee relationship be maintained with respect to such representatives. This fact becomes of particular significance in attempting to determine the accommo- 2 The Administrative Law Judge placed particular reliance on articles XV and XVI of this 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 Agree- ment 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 procedure set forth below in presenting the grievance Article XVI provides, in pertinent part, as follows No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, 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 215 NLRB No. 81 UNITED STATES POSTAL SERVICE 489 dation of rights under EEO procedures and the griev- ance and arbitration provisions of the agreement. Since individuals other than those party to, or covered by, the agreement are permitted to participate in EEO pro- ceedings, there is an implication that there is not direct interrelationship between the two procedures. Cer- tainly, the Postal Service's EEO program was estab- lished as a separate procedure for resolving specific categories of complaints and no recognition of these procedures is to be found in the collective-bargaining agreement between the parties. The only reference in the collective-bargaining agreement to discrimination affecting the civil rights of employees is found in article II which provides that the parties agree that neither of them shall discriminate against employees because of race, color, creed, religion, national origin, sex, age, marital status, or physical handicap. In such circum- stances, it cannot be said with any certainty that Wheeler would be permitted to maintain that discipline invoked pursuant to EEO procedures constituted a breach of the collective-bargaining agreement. There- fore, as the issue in question is not clearly cognizable under the grievance and arbitration provisions of the agreement, we would consider it unwise to require def- erral to these procedures. However, even if we were to have concluded that the matter in question was readily cognizable under the existing collective-bargaining agreement, we still con- sider deferral to these procedures to be inappropriate. To act in a manner which impedes or otherwise pre- vents a duly authorized representative from utilizing the established grievance procedure frustrates the very policy for which the procedure was established. When as here, it is argued that this procedure is, in effect, an adjunct of the collective-bargaining agreement's griev- ance and arbitration provisions with adverse actions under the one being cognizable under the other, such an impediment strikes at the very foundation of the grievance and arbitration mechanism and is and of it- self grounds for a refusal to defer.' Finally, we are not disposed to defer to the grievance and arbitration procedures of the agreement, when, as here, there is a reasonable doubt as to whether a sub- stantial harmony of interest exists between Wheeler and his collective-bargaining representative. Wheeler is not merely an employee who has chosen not to become a member of the APWU, he is also a high-ranking official in a labor organization which is in active com- petition with the APWU in seeking representation rights among the employees at the St. Louis Post Of- fice. Wheeler did not initiate the filing of a grievance on his own behalf' nd, under the provisions of the 3 Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972) (Members Fanning and Jenkins dissenting, but on other grounds), North Shore Publish- ing Co, 206 NLRB 42 (1973) collective-bargaining agreement, he would have no in- dependent right to invoke its arbitration procedures. In such circumstances, deferral would not be a proper exercise of the Board's discretion.5 Accordingly, for all the foregoing reasons, we find that deferral to the grievance and arbitration provisions of the collective-bargaining agreement are neither ap- propriate nor warranted in the circumstances presented here.' The Administrative Law Judge did not consider the merits of the unfair labor practice charged in the com- plaint because of his conclusion that the Board should defer the matter to the grievance and arbitration provi- sions of the collective-bargaining agreement for resolu- tion. Our reversal of his findings with respect to the Collyer issue would normally require that we remand the proceeding to the Administrative Law Judge for a determination on the merits. However the record evi- dence before us is such that we believe, in this instance, that a remand is unnecessary and that the unfair labor practice allegation can be resolved on the basis of the evidence before us. The complaint alleges that Respondent Postal Ser- vice violated Section 8(a)(1) of the Act by suspending without pay Michael Wheeler, an employee of the St. Louis Post Office, because the said employee had en- gaged in concerted activities with other employees for the purpose of collective bargaining or for their mutual aid and protection. The General Counsel's theory is that Wheeler in his representation of Jones during the EEO proceeding was engaged in protected concerted activity. The Respondent denies that any unfair labor practice was committed, contending that Wheeler's suspension was justified on the basis of his misconduct during the EEO conference with Holloway. As previ- ously mentioned, the meeting between Wheeler and Holloway was arranged in an effort to arrive at an informal settlement of Jones' complaint. After some preliminary discussion, Wheeler advanced a proposed solution and Holloway briefly left the room to confer with another of Respondent's managers. Upon his re- turn, he announced to Wheeler and Jones that the 4 While this Board hearing was in progress, the APWU filed a grievance on Wheeler's behalf, but without his consent, involving a prior 5-day suspen- sion for tardiness Thereafter, following the close of the hearing before the Administrative Law Judge, the APWU moved that the record be reopened to receive into evidence a letter from the Postal Service notifying the APWU that the Postal Service considered the grievance to be meritorious and that as a result Wheeler would be made whole for worktime lost as a result of the suspension and the matter would be expunged from his record The Administrative Law Judge received the document into evidence over the objection of the General Counsel Although we affirm the Administrative Law Judge's ruling, we believe the circumstances are such that no weight can be properly given to this evidence 5 Kansas Meat Packers, a Division ofAristo Foods, Inc, 198 NLRB 543 (1972) 6 In addition to the reasons expressed in the text, Members Fanning and Jenkins would not defer to arbitration for the reasons expressed in their dissents in Collyer Insulated Wire, 192 NLRB 837 (1971) 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposal had to be turned down. As found by the Ad- ministrative Law Judge, the evidence is in conflict' as to whether Wheeler called Holloway "ignorant" more than once, or merely stated that the refusal to agree to his settlement proposal was "ignorant." In any event, Holloway summarily ended the meeting and ordered Wheeler and Jones to leave the room. Wheeler, 2 days later, was placed on a 10-day suspension for insubordi- nation as a direct result of this occurrence. Assuming, arguendo, that Respondent's version of the Wheeler- Holloway verbal exchange is true, under the circum- stances we would not find Wheeler's characterization of Holloway to be so objectionable, or so provocative, as to justify the imposition of the disciplinary work suspension for insubordination. In representing Jones, Wheeler was clearly engaged in a protected concerted activity and entitled to a certain degree of latitude in the handling of Jones' case. To place the same limita- tions on Wheeler's conduct as representative as would apply in the workplace would severely limit and impede him in his efforts to give full representation to his cli- ent. Since this minor altercation arose within the con- text of the vigorous exchange of viewpoints involved in the parties' attempt to resolve the EEO complaint, we are persuaded that Wheeler's conduct was not so egre- gious that it would warrant a conclusion that he acted outside the protection of the Act. Accordingly, as Wheeler's suspension was for what we have found con- stitutes protected concerted activity, we conclude that this suspension was in violation of Section 8(a)(1) of the Act.' CONCLUSIONS OF LAW9 1. Respondent United States Postal Service is subject to the jurisdiction of the National Labor Relations Board pursuant to the National Labor Relations Act, as amended, by virtue of certain provisions of chapter 12 of the Postal Reorganization Act, 39 U.S.C. 1201-09. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the National Labor Re- lations Act. 3. By imposing a 10-day disciplinary work suspen- sion (without pay) upon Michael Wheeler at its St. Louis, Missouri, postal facility because Wheeler was engaged in protected concerted activity, the Respond- ent has engaged in conduct violative of Section 8(a)(1) of the Act. 7 The Administrative Law Judge found it unnecessary in the light of his recommended deferral to resolve the credibility issues involved in the disa- greement between Wheeler and Holloway 8 Cf Thor Power Tool Company, 148 NLRB 1379 (1964) 9 The Administrative Law Judge did not make any conclusions of law in his Decision Accordingly, on the basis of the foregoing findings, and on the entire record, we reach the following conclusions of law 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, the Board hereby issues the following: ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United States Postal Service, St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing disciplinary work suspensions without pay, or engaging in other forms of coercion, restraint, or interference directed against Michael Wheeler, or any other employee, while said employees are engaged in protected concerted activities, including the re- presentation of EEO complainants, within the meaning of the Act. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of his or her rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which, we find, will effectuate the policies of the Act: (a) Expunge all references to the unlawful 10-day disciplinary work suspension from Michael Wheeler's personnel records so that he will not in any way be prejudiced with regard to his seniority or other employ- ment rights previously enjoyed, and make him whole for any loss of pay due to the said discrimination against him by awarding him backpay from the date of his suspension until the date he was fully reinstated to his job, the computation of such moneys to be in accord with the Board's decisions in F W. Woolworth Com- pany, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at the Respondent's place of business in St. Louis, Missouri, copies of the attached notice marked "Appendix.s10 Copies of said notice, on forms prov- ided by the Regional Director for Region 14, after being duly signed by the Respondent's authorized rep- resentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." UNITED STATES POSTAL SERVICE 491 places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To engage in activities together for the pur- pose of mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL expunge all references to the unlawful 10-day disciplinary suspension from Michael Wheeler's personnel records so that he will not in any way be disadvantaged with regard to his seni- ority or other employment rights previously en- joyed, and we will make him whole for any loss of pay suffered by reason of the unlawful conduct against him. WE WILL NOT cause disciplinary work suspen- sions without pay, or engage in other forms of coercion, restraint, or interference directed against Michael Wheeler, or any other employee, while said employees are engaged in protected concerted activities, including the representation of EEO complainants, within the meaning of the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce any of our employees in the exercise of any of their rights protected by Section 7 of the National Labor Relations Act. UNITED STATES POSTAL SERVICE DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: Upon a charge filed on May 10, 1973, by Local 912, National Alliance of Postal and Federal Employees, herein called `the Charging Union or the Alliance, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on June 29, 1973, on behalf of the General Counsel of the Board against United States Postal Service, herein called the Postal Service or the Respondent, alleging that the said Postal Service had violated Section 8(a)(1) of the Act by suspending without pay Michael Wheeler, an employee of the St. Louis, Missouri, Post Office, because the said employee had engaged in concerted activities with other employees for the purpose of collective bargaining or for their mutual aid and protection In its duly filed an- swer, the Postal Service, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice in suspending the said employee. Pursuant to notice, a hearing in this case was held before me at St. Louis, Missouri, on August 23 and November 19, 1973. All parties were represented and were afforded full opportunity to be heard,' to introduce relevant evidence, to present oral argument, and to file briefs. At the end of the hearing oral argument was heard on the Postal Service's renewed motion to defer. Again, ruling on the motion was reserved to permit the parties to submit briefs in support or in opposition to the said motion and also with regard to the merits of the case Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the en- tire record herein and upon my observation of each witness appearing before me, I make the following. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent provides Postal Service for the United States of America and operates various facilities throughout the United States in performance of that function, including the facility involved to this proceeding, the United States Post Office located at St. Louis, Missouri. It is admitted, 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., §101, et seq. (herein called the PRA). II THE LABOR ORGANIZATION INVOLVED It is admitted, and I find , that the Alliance is a labor organization within the meaning of Section 2(5) of the Na- tional Labor Relations Act and within the meaning of the PRA. III BACKGROUND AND ISSUES American Postal Workers Union, AFL-CIO, herein called the Postal Workers, has been recognized by the Postal Service At the outset of the hearing oral argument was heard on a motion by counsel for the Postal Service to defer further formal proceedings and to dismiss the complaint in conformity with the Board's policy as established in the Collyer Insulated Wire, a Gulf and Western Systems Co case (192 NLRB 150 (1971)) After hearing counsel, the ruling on the motion was itself deferred until sufficient evidentiary matter was introduced because, in my opinion, at that state of the proceeding there were insufficient facts on which the motion could be decided At the end of the General Counsel's case-in-chief ruling on the motion was reserved and the case adjourned without date to afford the parties the opportunity of submitting written memoranda in support of their positions with regard to the matter contained in the said motion to defer By order dated October 9, 1973, the motion was denied with leave to renew at the close of the hearing Thereafter, the hearing was resumed on November 19, 1973, and completed on that day 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since the enactment of the Postal Reorganization Act, and pursuant to the said PRA, as the bargaining representative of a number of units of postal employees , among them postal clerks. Michael Wheeler, a postal clerk in the St. Louis Post Office, is a vice president of the Alliance . For a number of years, the Alliance has sought to represent the same unit of postal clerks as that for which the Postal Workers is now recognized Pursuant to intra-Postal Service regulations , any employee with an EEO complaint may request any other individual to represent the complainant at the EEO hearing with a re- presentative of the Postal Service. This right is not vested exclusively in the recognized bargaining representative. Pur- suant to this Postal Service procedure , Evelyn Mary Jones, a discharged employee of the St Louis Post Office, requested Michael Wheeler to represent her at the EEO hearing. At the meeting which took place pursuant to Jones' complaint, Wheeler became embroiled in a misunderstanding or argu- ment with William E . Holloway, director of employee and labor relations, St. Louis district. As a result of this oral altercation , Holloway recommended that Wheeler be sus- pended for 10 days and Wheeler was so suspended. The- reafter, the charge in this proceeding was filed , alleging that Wheeler's suspension was discriminatory and taken , not be- cause of any insubordination on the part of Wheeler, but because Wheeler had engaged in protected concerted activity in representing Mrs. Jones in the EEO proceeding. As noted above, the complaint herein alleges in general terms the content of the charge immediately hereinabove recited Respondent's answer , likewise, is in general terms denying any unfair labor practices . However, prior to the hearing herein, the Respondent moved that the complaint be dismissed and that the matter of the suspension be deferred to the grievance and arbitration procedures contained in the bargaining agreement between the Postal Service and Postal Workers. This motion was denied, renewed again at the ini- tial part of the hearing herein , again denied with leave to renew at the end of the hearing. The Charging Party and the General Counsel both contend that because Wheeler is a vice president of the Alliance, which is actively seeking recogni- tion as representative of the postal clerk unit to which Wheeler belongs, the Postal Workers, the recognized union now representing the employees in the said unit , cannot ade- quately represent Wheeler because hs is an officer of the rival union and not a member of the Postal Workers. General Counsel argues that the interests of Wheeler and the Alliance and the interest of the Postal Workers are not in harmony and that, moreover, Wheeler has never consented, with regard to this particular matter, to have the Postal Workers represent him in an arbitration proceeding . General Counsel also con- tends that the subject matter of the suspension is not cogniza- ble under the grievance and arbitration provisions of the aforementioned collective-bargaining agreement between the Postal Workers and the Postal Service. Thus the issues framed by the pleadings and the conten- tions of the parties are (1) whether Wheeler's suspension is cognizable under the bargaining agreement provisions for grievance and arbitration, (2) whether there exists such sub- stantial disharmony between Wheeler and the Alliance on one hand and the Postal Workers that deferral of Wheeler's suspension pursuant to the terms of the agreement between the Postal Service and the Postal Workers should not be ordered and, if such is the case , (3) whether Wheeler was engaged in protected activity for which activity he was unlaw- fully suspended. IV. THE FAGTS 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 Agree- ment or the Union believes that the Employer has vi- olated 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 4-step grievance proce- dure beginning with employee discussion of this 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 im- pose on employees. The pertinent paragraph reads as follows. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or al- cohol), incompetence, failure to perform work as re- quested, 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, in- cluding backpay.2 [Emphasis supplied ] The balance of the section is concerned with the various types of discipline which the Employer may impose pursuant to the contract terms depending on the type of misconduct with which an individual employee may be charged B. The Events As set forth above, Michael Wheeler is employed in the St. Louis, Missouri, Post Office. His work as a machine operator places him in the unit of postal clerks represented nationwide by the Postal Workers as bargaining representative. Wheeler, however, is not a member of the Postal Workers but belongs to the Alliance and has been a member thereof since 1962. At all of the times material herein Wheeler had occupied the position of vice president of the local of the Alliance which is the Charging Party in this proceeding. 2 These provisions are contained in the 1971 agreement in force at the time of the events herein The 1973 agreement contains the same provisions UNITED STATES POSTAL SERVICE 493 Around March 1, 1973, Wheeler received a 5-day discipli- nary suspension for tardiness. Thereafter, on approximately March 7, 1973, Wheeler filed a grievance with regard to this suspension and the Postal Workers processed this grievance. In fact, the Postal Workers processed the grievance through the first two steps and demanded arbitration However, prior to arbitration, and subsequent to the hearing in the instant case, at a prearbitration settlement discussion, the Postal Ser- vice conceded that the suspension should be lifted.' Evelyn Jones, a former employee of the Post Office, after being discharged from the Postal Service sometime in the spring of 1972, thereafter informed the Postal Service's Equal Employment Opportunity Council that she was going to pro- test her discharge. Thereafter, she requested Michael Wheeler to represent her under the EEO internal appeals procedures of the Postal Service. Thereafter, Wheeler at- tended an informal hearing and represented Mrs. Jones on her EEO complaint sometime during the summer of 1972. Evidently this informal hearing availed Mrs. Jones nothing by way of reinstatement and the matter was continued until May 1, 1973. In connection with representation of various individuals at EEO hearings or conferences within the Post Office at St. Louis, it should be noted that Wheeler before and after representing Mrs. Jones also represented a number of other employees of the Postal Service at EEO hearings and conferences. Wheeler admitted at the hearing herein that he had never been disciplined for representing any employees at such hearings. It should also be noted, that the provisions of the EEO procedures permit any aggrieved employee to be represented by anyone of the employee's own choosing. In any event, a second informal settlement meeting was scheduled for May 1, 1973, with regard to Mrs. Jones' EEO complaint. Assigned to represent the St. Louis Postmaster at that meeting was William E. Holloway, director of employee and labor relations of the St. Louis district of the Postal Service. When Wheeler was apprised that Holloway was to be such representative, Wheeler was admittedly somewhat concerned because he felt that the Postal Department rep- resentative at such meeting should have been a completely nnpartial individual and Wheeler felt that Holloway could not conduct himself in an impartial manner. At any rate, the hearing was held as scheduled on May 1 in the office of the director of labor relations in the St. Louis Post Office. Present were Holloway, Mrs. Jones, and Wheeler as Mrs. Jones' re- presentative. After some initial discussion, Wheeler evidently presented a settlement proposal to Holloway with regard to the possible reinstatement of Mrs. Jones. Holloway, after taking notes of the points made by Mr. Wheeler, asked to be excused to present the matter evidently to some superior. A short while later he came back to the meeting room and 3 Subsequent to the hearing herein, on December 26, 1973, the Postal Service by written notice informed the American Postal Workers Union that the grievance of Wheeler had merit and that Wheeler would be made whole for the work time lost as a result of that matter, and that the suspension would be expunged from Wheeler's record Counsel for the Postal Workers, by motion dated January 2, 1974, moved that the record be opened and that the letter from the Postal Service to the Postal Workers containing this information should be received in evidence General Counsel opposed this motion The motion is granted, the hearing is ordered open for the purpose of receiving this evidence, and the hearing is hereby closed The said docu- ment dated December 26, 1973, is received in evidence as Resp Exh 10 informed Wheeler and Mrs. Jones that the proposal was not acceptable. What occurred thereafter is in dispute. Wheeler and Jones testified that Wheeler stated that the refusal to accept the points made by Wheeler was ignorant. Holloway, on the other hand, testified that Jones lost his temper and called Holloway ignorant When Holloway warned Jones that the latter was being insubordinate and that he should not repeat it, Jones again, according to Holloway, told Holloway "you are ignorant " In view of the disposition that I make of this matter, I find it unnecessary to resolve this credibility issue. In any event, Wheeler testified, as did Mrs. Jones, that it was Holloway who lost his temper, banged on the table, and told them to get out of the room. Regardless of what actually happened in the meeting room on that day, immediately after Holloway left the room, he reported the matter to James Gregory, the general foreman on Tour 3, evidently the tour or shift to which Wheeler was assigned. As a result of this meeting with Gregory, on May 3, 1973, Gregory presented to Wheeler a notice of suspension for 10 days for insubordination. Despite the fact that the Postal Workers had processed Wheeler's grievance with regard to his earlier 5-day suspen- sion for tardiness, Wheeler, after receiving the 10-day notice of suspension for insubordination, did not file a grievance or request the Postal Workers to take up the matter. Instead, on May 10, 1973, the Alliance filed the charges herein alleging that Wheeler was suspended for engaging in protected con- certed activity. V THE ISSUE OF DEFERRAL-THE CONTENTIONS, DISCUSSIONS AND CONCLUSIONS As heretofore set forth, counsel for the Respondent Postal Service has moved that the complaint be dismissed and the subject matter of this proceeding be deferred to the grievance and arbitration procedures provided in the collective-bargain- ing agreement between the Postal Service and the Postal Workers. The motion to defer is based, of course, on the Collyer doctrine' and the rather numerous decisions on de- ferral following Collyer. However, counsel for the General Counsel and counsel for the Charging Party contend that the matter should not be deferred for a number of reasons, Gen- eral Counsel also citing Board decisions since Collyer in which the Board has laid down broad general principles with regard to the requirements for deferral and cases in which the Board has refused to defer for a number of reasons. Counsel for General Counsel would seem to concede that were this an ordinary matter of suspension for insubordination involving a member of the Postal Workers, the bargaining agreement between the Postal Service and the Postal Workers would be applicable and its provisions for grievance and arbitration of disciplinary suspension would rightly be invoked. However, counsel for the General Counsel argues that factors appear in this matter which render inapplicable the said contractual provisions. The first point raised by counsel for the General Counsel is that the collective-bargaining agreement does not contain provisions for the disposition of disciplinary actions taken by 4 Collyer Insulated Wire, 192 NLRB 150 (1971) 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Postal Service arising out of EEO proceedings. Put another way, counsel for the General Counsel argues that Wheeler was engaged in a protected concerted activity when he appeared on behalf of Mrs. Jones and that, therefore, the 10-day suspension constituted discipline for engaging in a concerted, protected activity and not insubordination as con- tended by the Respondent. A careful search of the record, however, and especially a reading of the testimony of Wheeler, Jones, and Holloway, although in conflict in some respects, establishes that at no time did the Respondent through Holloway or Gregory claim that the discipline was for other than insubordination. Whether such discipline was properly taken within the terms of the collective-bargaining agreement or within the purview of the Act is a factual matter which is not here necessary to decide. Thus, whether the action was taken for the purpose of discouraging concerted, protected activity as alleged by the General Counsel or whether Wheeler lost the protection of the Act or the bar- gaining agreement by his actions and remarks at the EEO conference on May 1, are matters of fact which must be decided only after it is determined whether the subject matter of this proceeding should be deferred or retained for disposi- tion by the Board. Therefore, it is concluded that this argu- ment of counsel for the General Counsel is an argument going to the merits of the suspension rather than to the issue of deferrability. Moreover, the bargaining agreement provision providing for grievance and arbitration in the event of disci- plinary suspensions specifically lists suspension for insubordi- nation as an appealable suspension under the said grievance and arbitration provisions.' The second argument against deferral proffered by counsel for the General Counsel is that the record, according to coun- sel for the General Counsel, establishes that the Postal Work- ers is unwilling to carry the dispute on behalf of Wheeler, an official of the rival Alliance. In support of his argument, counsel for the General Counsel cites the case of Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543, in which the Board refused to defer to arbitration grievance procedures of the collective-bargaining agreement between Kansas Meat Packers and the union representing its em- ployees because the union in that proceeding was shown to be unwilling to carry the dispute on behalf of the alleged discriminatee. However, in that case the facts show that the union not only refused and neglected to file a grievance on behalf of the alleged discriminatee, but, in addition thereto, the union was instrumental in obtaining the employer's ac- tion against the said discriminatee. Accordingly, the Board found that it could not defer to arbitration on the Respon- dent's motion because the union in that proceeding had shown itself unwilling and incapable, therefore, of represent- ing the discriminatee. Counsel for the General Counsel contends that there is a parallel between the facts and the principle set forth in Kansas Meat Packers and the facts in the instant case. He cites in support thereof the testimony of Otis Keys, president of the Clerk Craft Division of the Postal Workers in St. Louis When asked whether the Postal Workers was willing to waive ' It was for the purpose of determining the Post Office's actual proffered reason for suspension that it became necessary to obtain the testimony of Holloway over the objections of counsel for the Respondent the time limit in which a grievance could be filed, Keys answered that he could not answer this specifically since there was nothing in the grievance procedures that provided that he could do so. Mr. Keys also testified that although he had authority to process grievance procedures that provided that he could do so. Mr. Keys also testified that although he had authority to process grievances through the Postmaster level, the additional steps involving grievance and arbitration had to be handled by the International on a regional level and he was not certain whether the Postal Workers had the juns- diction to process a grievance in this situation . Additionally, Keys testified that since Mr. Wheeler was representing another employee, Mrs. Jones, that he was actually taking the place of the Postal Workers and that would place the Postal Workers, or Keys as its officer, in a position of having to represent an individual who was taking the recognized un- ion's place. However, upon my questioning Keys, Keys stated that regardless of what he had testified before, and despite the fact that Keys seemed somewhat confused as to what the obligations of the Postal Workers are under the bargaining agreement and under the Act, Keys admitted that if Wheeler had a valid grievance, according to the grievance procedures of the bargaining agreement, the Union would have no alter- native and would represent him. I was impressed by Keys' obvious sincerity and his at- tempts to be as careful as possible with regard to his answers within the scope of his knowledge of the rights of parties under the collective-bargaining agreement . However, I ob- served that Keys was somewhat confused at the beginning of the questioning with regard to whether the Union could or would represent Wheeler Nevertheless, I have no doubt that by the completion of his testimony Keys established that the Union would do anything necessary for Wheeler provided Wheeler explained the entire situation as to what took place at the EEO meeting so that the Union could decide whether Wheeler did,, in fact, have a meritorious grievance. Additionally, the General Counsel argues that with regard to the Postal Workers' willingness to represent Wheeler, the - Union did nothing about Wheeler 's matter until a break in the instant proceeding at which time the Union ultimately filed, at the regional level, a request to the Post Office for a review of the Wheeler situation and a notification of desire to proceed within the grievance-arbitration provisions of the bargaining agreement Moreover, the general Counsel stresses that this filing of the request for grievance and arbi- tration on Wheeler's behalf by the Union came later in the day and only because of presumed pressure on the Postal Workers to do so brought by the Postal Service. However, it should be noted that at no time did Wheeler request the Postal Workers to proceed on his behalf. In fact, the representative of the Alliance, who represented Wheeler and the Alliance at the outset of the instant proceeding, ar- gued that Wheeler did not wish to be represented in this instance by the Postal Workers. It would seem, therefore, that the Postal Workers' failure to act in the first instance upon notification of Wheeler of his 10-day suspension for insubordination was due not to the Postal Workers' reluc- tance to act on Wheeler's behalf but to Wheeler's reluctance to request the Postal Workers to act on his behalf. Moreover, it should be noted in connection therewith, as pointed out by counsel for the Postal Service, that in March UNITED STATES POSTAL SERVICE 1973, when Wheeler was suspended for tardiness he volun- tarily filed a grievence and asked the Postal Workers to repre- sent him in his proceeding under the contract to have his suspension set aside. Without hesitation, the Postal Workers processed the grievance on behalf of Wheeler up to and in- cluding the successful discussion at the regional level at which time the Postal Service representative agreed to set Wheeler's 5-day tardiness suspension aside. Counsel for the General Counsel argues that this is not evidence of the Postal Workers' willingness to represent Wheeler because the Postal Workers represent other em- ployees in the unit in the St. Louis Post Office who were subject to the same arbitrary rules with regard to tardiness and therefore the Postal Workers had an interest not only on Wheeler's behalf but on behalf of all of its members with regard to this tardiness suspension. The General Counsel further argues that, however, the case at bar represents a situation which is primarily concerned only with Wheeler and that therefore the Postal Workers would not have an interest in this particular proceeding and that, accordingly, Wheeler's position as an officer of the rival union would be such that the Postal Workers would not properly represent him. I find this last argument of counsel for the General Counsel to constitute mere conjecture. Wheeler openly represented any number of employees in the past of EEO proceedings despite the fact that the Postal Workers was and is the recog- nized bargaining representative of these employees. More- over, the representation of employees in EEO procedures is not one of the functions exclusively granted to an exclusive bargaining representative. The United States Court of Ap- peals has held that an individual who claims to have been the victim of unlawful EEO discrimination has the right to re- dress individually.' Thus, the Postal Workers would have no legitimate right to refuse to represent Wheeler for his having handled the EEO proceeding on behalf of Mrs. Jones and the other employees. And, as already pointed out, the Union was aware of the fact of representation in EEO pro- ceedings by Wheeler and, despite this, nevertheless did not hesitate to process his earlier grievance. Additionally, it should be noted that Otis Keys voluntarily testified with regard to the merits of the 10-day disciplinary suspension for alleged insubordination in the instant proceed- ing and voluntarily gave the counsel for the General Counsel his affidavit with regard thereto. This, certainly, does not indicate that Otis Keys as president of the Postal Workers' St. Louis local was reluctant in any way to assist Wheeler or that Keys bore Wheeler any ill will. Accordingly, I find and conclude that the General Counsel has failed to establish that the Postal Workers is unwilling to process the grievance of Wheeler with regard to his suspen- sion and to prosecute the matter to the fullest extent neces- sary under the grievance and arbitration procedures of the Postal Workers' collective-bargaining agreement with the Respondent. The final argument presented by counsel for the General Counsel to support his contention that the suspension of Wheeler should not be deferred to arbitration is that Whee- 6 Airline Stewards, et at v. American Airlines, Inc. (C A 7, decided December 21, 1973 ) 495 ler's interest and those of the Alliance are not in substantial harmony with the interests of the Postal Workers In support of his argument, General Counsel states that the institutional interests of the Alliance in protecting Michael Wheeler, an Alliance officer, in the performance of his duties are not in harmony with the interests of its rival union, the Postal work- ers, which is a signatory to the collective-bargaining agree- ment which covers Michael Wheeler as a unit employee. General Counsel then cites the argument made by the Al- liance representative during the first day of the hearing herein that although there is no current representation petition on file requesting that an election be held between the Alliance and the Postal Workers, there is a substantial history of com- petition and hostility between the two labor organizations. Thus, according to the Alliance representative, the Alliance on August 23, 1971, filed a petition for an election with the Board. However, because the Alliance lacked a sufficient showing of interest, no election was ordered by the Board. General Counsel also cites his own statement on the record that Michael Wheeler has approached shop stewards with a number of grievances. General Counsel then argues that Wheeler informed him that the shop stewards have failed and refused to process such grievances, stating they had no merit, while at the same time, other employees who are members of the Postal Workers have grievances of a similar nature proc- essed by the Postal Workers. In addition, it was admitted on the record that the Postal Workers and the Alliance were at that time involved in litigation before the Board in a case known as United States Postal Service and National Alliance of Postal and Federal Employees, Local 912, Case 14-CA-6611(P).7 However, significantly, counsel for the General Counsel did not question Wheeler when the latter appeared on the stand as to whether Wheeler could actually cite any case in which grievances which he or other members of the Alliance had filed which were refused processing by the Postal Work- ers, but were similar to grievances filed by Postal Worker members which were processed by that union. Since this information was merely offered by counsel and does not con- stitute evidence, I cannot consider the allegation of refusal, made in the argument, as a fact on which a decision herein can be based. Additionally, it would seem that if, indeed, there is such disharmony as would prevent the Postal Workers from proc- essing Wheeler's grievance and taking the matter, if neces- sary, to arbitration, such disharmony exists, basically, on the part of Wheeler and the Alliance. The Board has held' that mere employee dissatisfaction with the bargaining agent is not sufficient to warrant the Board to refuse to order deferral. As heretofore noted, there is no substantial record evidence to show that the Postal Workers are unable or basically un- willing to process a grievance on behalf of Michael Wheeler. It has done so in the past even with knowledge of the fact that 7 Since the date of that argument made by counsel for the General Coun- sel, this case has been decided by the Board, 208 NLRB 145 (1974) The Board sustained the decision of Administrative Law Judge James V Con- stantine holding that the Postal Workers had the exclusive right to represent unit employees in the processing of grievances and to go to arbitration on such grievances pursuant to the collective -bargaining agreement between the parties and pursuant to the provisions of the Postal Reorganization Act 8 Great Scott Supermarkets, Inc., 206 NLRB 447 (1973) 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wheeler has processed EEO matters for members of the Al- liance and other employees. There is no reason to believe, based on the record herein, that the Postal Workers would refuse to do so now. The delay in processing Wheeler's grievance over the 10- day disciplinary suspension for insubordination was caused not by lack of harmony between the interests of the Postal Workers and the Alliance and Wheeler, but rather, because of the refusal by Wheeler to call upon the recognized bargain- ing agent, the Postal Workers, to process the grievance on his behalf. The mere fact that the institutional interests of the Postal Workers and the Alliance may be different, and, in- deed, that these two labor organizations may be rivals, does not in and of itself preclude the Board from ordering deferral. While it may be said that based on normal human experience, it would be very unusual for the Postal Workers to happily, fully, and enthusiastically process the grievance of an officer of a union which seeks to displace it as the bargaining re- presentative of the unit in which the rival union's officer is placed, and that, therefore, on this basis deferral should not be ordered, as heretofore stated, there is no record evidence that the Postal Workers would refuse to process such griev- ance. The argument thus presented is one of speculation. If, indeed, the processing of such grievance and arbitration is not performed in a proper manner or in a manner repugnant to the Act, the grievant may, pursuant to Board policy, reapply to the Board for relief I While it is true that the Board in National Radio Compan}w° has held that deferral should be predicated on the Board's finding that the interests of the Union represent- ing the unit and the employee must be in "substantial har- mony," the Board, in that very decision also stated, "The crucial determinant is, we believe, the reasonableness of the assumption that the arbitration procedure will resolve this dispute in a manner consistent with the standard of Spielberg." Accordingly, I find and conclude on all of the arguments and contentions of the parties to this proceeding, and on the record herein, that the subject matter of this proceeding should be deferred to the grievance and arbitration proce- dures of the collective-bargaining agreement between the 9 Spielberg Manufacturing Company, 112 NLRB 36 (1955) 10 198 NLRB 527 (1972) Postal Service and the Postal Workers. In arriving at this conclusion, in addition to what is set forth above, I have considered the numerous cases cited by counsel for the Gen- eral Counsel, in which the Board has refused deferral. However, in each case cited by counsel for the General Coun- sel there is some rather unique situation which made deferral undesirable, usually because the Union representing the em- ployees is unwilling or unable to represent fully and com- pletely the alleged discriminatee or discriminatees. Here, as repeated above, there is no such showing. Moreover, there is no reason to believe that if Wheeler's case before the arbitra- tor has merit, the relief granted by the arbitrator will not fully rectify the situation involved. Indeed, in the former case of suspension of Wheeler which was processed by the Postal Workers, Wheeler's suspension was revoked, his loss of pay returned to him and his personnel record cleared of all nota- tion of his suspension. There is no reason to believe that in the instant matter, if Wheeler's case is meritorious, the result of arbitration, or settlement before arbitration, cannot also fully rectify any impropriety in the suspension of Wheeler Upon the foregoing findings and conclusions, and the re- cord heretofore developed herein, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER" 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 arbi- tration procedure or the decision of the arbitrator is not wholly diapositive of the issues in this case, and (c) that the grievance and arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. i i In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes