Postal Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Albert White. Case 12-CA- 10834(P)(1-2) 30 April 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon charges filed on 4, 25, and 26 August 1983,1 by Albert White, herein called the Charging Party, and duly served on United States Postal Service, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a com- plaint and notice of hearing 5 October alleging that the Respondent had engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The complaint alleges in essence that the Re- spondent, by its agent and supervisor Wayne Wood, on or about 8 July directed obscenities to an employee because of his filing of grievances and EEO complaints; threatened to evict an employee from the Respondent's facility because of his filing of grievances and EEO complaints; threatened an employee with unspecified reprisals because of his filing of a grievance; and, on or about 16 July, threatened to suspend an employee and threatened to discharge an employee if he did not transfer out of his present position. The complaint also alleges that the Respondent, by its agent and supervisor, C. R. Munnell, on or about 18 August threatened to discharge an employee if he did not stop filing grievances and EEO complaints. The complaint further alleges that the Respondent, by its agent and supervisor, Wayne Wood, on or about 9 July caused the police to escort the Charging Party out of the Respondent's facility and that the Respond- ent on or about 29 July suspended the Charging Party for 7 days because of his union and/or pro- tected concerted activities. The complaint alleges that by the above conduct the Respondent inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and discriminated with regard to the terms and conditions of employment of employees and there- by committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act and within the meaning of the Postal Reorganization Act. Thereafter, the Respondent filed an answer to the complaint admitting in part, and denying in part, the allegations in the complaint. I Hereafter all dates refer to 1983 unless noted otherwise. Subsequently, on 23 January 1984 the Respond- ent filed a Motion for Summary Judgment and a supporting memorandum. On 10 February 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Respondent's Motion for Summary Judgment should not be granted. Counsel for the General Counsel filed a response to the Notice to Show Cause 21 February 1984. The National Labor Relations Board has delegat- ed its authority 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 Motion for Summary Judgment and its supporting memorandum, the Respondent con- tends, inter alia, that the unfair labor practice alle- gations should be deferred for processing through the grievance-arbitration procedure contained in its collective-bargaining contract.2 The Respondent argues that the Board should overrule its policy enunciated in General American Transportation Corp., 228 NLRB 808 (1977), of not deferring charges involving allegations of 8(a)(1) and (3) violations. The Respondent argues that the Board should reinstate its earlier policy of defer- ring such charges as set forth in National Radio Co., 198 NLRB 527 (1972). The General Counsel does not dispute the Re- spondent's assertion that the unfair labor practice allegations come within the scope of the binding grievance-arbitration procedure established by the parties' collective-bargaining contract. The General Counsel notes that the Board in United Technologies Corp., 268 NLRB 557 (1984), has reversed General American Transportation and now finds it appropri- ate to defer allegations of 8(a)(1) and (3) violations to the parties' grievance-arbitration procedure. The General Counsel asserts that the Charging Party is willing to file a grievance concerning the allega- tions set forth in the complaint. However, the Gen- eral Counsel contends that the Respondent's motion should be denied. Instead, the General Counsel contends that the case should be remanded to the Regional Director for issuance of an order withdrawing the complaint and deferral of the I According to documents submitted by the Respondent and not dis- puted by the General Counsel, the collective-bargaining contract with the American Postal Workers Union contains a grievance-arbitration pro- cedure which culminates in "final and binding" arbitration and which de- fines a grievance as "a dispute, difference, disagreement or complaint be- tween the parties related to wages, hours, and conditions of employment . . .[including, but not limited to,] the complaint of an employee or of the Unions which involves the interpretation, application of, or compli- ance with the provisions of. .. [the contract]." 270 NLRB No. 16 114 POSTAL SERVICE charge provided that the Respondent will waive the time-limitations provisions of the grievance-ar- bitration clauses of the contract. We agree that the unfair labor practice allega- tions here should be deferred to the parties' griev- ance-arbitration procedure. As noted above, in United Technologies Corp., we held that the policy expressed in the majority opin- ion in General American Transportation Corp. "ignore[d] the important policy considerations in favor of deferral" and that the policy expressed in the majority opinion in National Radio Co. "deserve[d] to be resurrected and infused with re- newed life" (at 559). Accordingly, we overruled the policy expressed in General American Transpor- tation Corp. of declining to defer unfair labor prac- tice allegations involving violations of Section 8(a)(1) and (3) and Section 8(b)(1)(XA) and (2) of the Act. In so doing, we noted that the facts of the United Technologies Corp. case, which involved an allegation of an 8(a)(1) violation, made the case "eminently well suited for deferral" (at 560). We believe that the present case involving alle- gations of 8(a)(1) and (3) violations is similarly well suited for deferral. We note that no one here dis- putes that the unfair labor practice allegations fall within the scope of the contract's binding griev- ance-arbitration procedure. While some of the al- leged misconduct involves threats directed to em- ployees who had filed grievances, we find this in- sufficient to conclude that the use of the grievance- arbitration machinery here would be "unpromising or futile" or that the parties here will not effective- ly use their own procedure to resolve these mat- ters. United Aircraft Corp., 204 NLRB 879 (1972). We note that both the Charging Party and the Re- spondent have agreed to pursue this matter through the grievance-arbitration machinery. In these circumstances, consistent with United Tech- nologies Corp., we shall order that the Respondent's Motion for Summary Judgment be granted, that the unfair labor practice allegations be deferred to the parties' grievance-arbitration procedure, and that the complaint be dismissed.3 As in United SThe Respondent must, of course, waive any timeliness provisions of the grievance-arbitration clauses of the collective-bargaining agreement so that the Charging Party's grievance may be processed in accord with our Order. Technologies Corp., however, we shall retain juris- diction for the purpose of entertaining a motion for further consideration upon a showing that either (a) the dispute has not been resolved in the griev- ance procedure or submitted 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. On the basis of the entire record, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT United States Postal Service provides postal services for the United States of America and oper- ates various facilities throughout the United States, including its facility in Fort Lauderdale, Florida, in the performance of that function. The Board has jurisdiction over the Respondent pursuant to Sec- tion 1209 of the Postal Reorganization Act, as amended. II. THE LABOR ORGANIZATION INVOLVED American Postal Workers Union, AFL-CIO, Broward County Area Local is a labor organiza- tion within the meaning of Section 2(5) of the Act. CONCLUSIONS OF LAW The unfair labor practice violations in the com- plaint should be deferred to the grievance-arbitra- tion procedure established in the Respondent's col- lective-bargaining contract with the American Postal Workers Union, AFL-CIO. ORDER The Motion for Summary Judgment is granted, and the complaint is dismissed, provided that: Jurisdiction of this proceeding is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, been either resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is re- pugnant to the Act. 115