Postal Service

POSTAL SERVICE 348 NLRB No. 3 25 United States Postal Service, Employer-Petitioner and American Postal Workers Union, AFL-CIO. Case 5–UC–386 August 31, 2006 DECISION ON REVIEW AND ORDER REMANDING BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On September 30, 2003, the Regional Director for Re- gion 5 issued a Decision and Order dismissing the Em- ployer’s unit clarification petition, finding that under Verizon Information Systems, 335 NLRB 558 (2001), the Employer was estopped from filing the petition. There- after, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employer filed a timely re- quest for review of the Regional Director’s Decision and Order. On December 24, 2003, a three-member panel of the Board1 granted the Employer’s request for review. Having carefully considered the matter, we find, con- trary to the Regional Director, that the Employer is not estopped from filing the petition. Accordingly, we rein- state the petition and remand this case to the Regional Director. The Employer and the Union are parties to a collec- tive-bargaining agreement that recognizes the Union as the collective-bargaining representative for a nationwide unit of various groups of employees, including postal clerks. On October 27, 1997, the Union filed a unit clari- fication petition in Case 5–UC–353, seeking to include approximately 250 executive and administrative Service (EAS) classifications of employees in the bargaining unit. On December 13, 1999, the Employer and the Un- ion signed a settlement agreement to “fully and com- pletely resolve any and all issues, and all currently pend- ing grievances” regarding the Union’s unit clarification petition. Under the settlement agreement, the Union agreed to withdraw its petition, and the parties agreed to arbitrate various EAS classifications in dispute, including the “Address Management Systems Specialists.” The agreement was silent regarding the rights and obligations of the parties in the event that either of the parties dis- agreed with the results of the arbitration, including whether any party could file a unit clarification petition with the Board. Pursuant to the settlement agreement, the parties sub- mitted to arbitration the issue of whether the address management system specialists should be included in the unit. The arbitrator issued an award on April 29, 2003, finding that the classification “is part of the APWU bar- gaining unit and that it is a violation of Article 1.2 of the 1 Chairman Battista, Member Liebman, and Member Walsh. National Agreement to exclude the position and the dis- puted work from the bargaining unit.” The Employer then filed the instant petition seeking to exclude from the bargaining unit “all EAS personnel not historically repre- sented by any postal union, including but not limited to the Address Management System Specialists.” In dismissing the petition, the Regional Director relied on the Board’s decision in Verizon Information Systems, supra. The Regional Director found that, like the union in Verizon, the Employer was estopped from filing the petition. The Regional Director emphasized that the Un- ion and the Employer reached an enforceable agreement establishing a procedure to resolve the issue of the EAS employees, including the address management systems specialists, outside of the Board’s processes. In light of this agreement, the Regional Director found that process- ing the petition would permit the Employer to enjoy the benefits of the settlement agreement while avoiding its commitment to resolve the status of the EAS positions through a procedure outside of the Board’s processes. Moreover, it would permit the Employer to file a petition after every unfavorable arbitrator’s award involving the various EAS positions.2 The Regional Director also em- phasized that the Union detrimentally relied on the Em- ployer’s promise to arbitrate because the Union withdrew its unit clarification petition as part of the settlement agreement. Contrary to the Regional Director, we do not find that the Board’s decision in Verizon, supra, is dispositive. In Verizon, the union and the employer agreed to a proce- dure for voluntary recognition outside the Board’s proc- esses, including a provision to have unit issues decided by an arbitrator. The union invoked the provisions of the agreement. In response to the union’s invocation of the agreement and consistent with the agreement’s terms, Verizon, at the union’s request, disclosed information about the employees. The union also invoked its right under the agreement to have the issue of unit scope de- cided by an arbitrator and the issue was submitted for resolution by an arbitrator before the American Arbitra- tion Association. However, the union subsequently sought to abandon the arbitration by filing a representa- tion petition with the Board. Verizon filed a motion to dismiss the petition. The Regional Director denied the motion. While expressly affirming its “long-held view, relied upon by the Regional Director, that it only infre- quently defers to arbitration in representation proceed- ings,” the Board—in what it described as a “narrow hold- ing”—held that the union was estopped from filing a 2 The address management system specialist was one of six classifi- cations of EAS personnel that the parties agreed to take to arbitration under the settlement agreement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 petition with the Board. The Board premised its holding on the fact that the union invoked the benefits of the agreement, and then sought to abandon the agreement. The Board held that the union could not “pick and choose which provisions it wishes to invoke and which it prefers to avoid.” 335 NLRB at 560. In contrast, the Employer here, unlike the union in Verizon, carried out its obligations under the settlement agreement. It completed the arbitration process. We recognize that the Employer did not then acquiesce to the arbitral decision. Instead, it has filed the instant petition with the Board. However, as noted above, there was no express agreement that the Employer would refrain from exercising its right to file a petition with the Board.3 Thus, the Employer did not breach the agreement.4 Our dissenting colleague says that the Union’s with- drawal of its own petition and the parties’ agreement to go to arbitration as to the issues raised in that petition somehow constitute an agreement by the Employer not to file its own petition. Where, as here, the right involved is the statutory right of access to the Board, we would not lightly infer an agreement to forgo that right. If the par- ties had intended the result for which our colleague con- tends, they could easily have provided that the Employer agrees not to raise the issues before the Board. The par- ties did not do so. Finally, this is not a challenge to the arbitrator’s author- ity. The arbitrator apparently had authority to issue his opinion, and he did. Rather, the issue here is the Board’s power to exercise its jurisdiction. We would do so. Accordingly, we find that the Regional Director erred in dismissing the Employer’s petition. We therefore re- instate the petition and remand the case to the Regional Director for further appropriate action.5 3 Existing Board law holds that any waiver of a statutory right must be “clear and unmistakable.” In the absence of language in the settle- ment agreement limiting the Employer’s right to file a petition with the Board, we find that the Employer has not clearly and unmistakably waived its right to do so. 4 Contrary to the dissent, the settlement agreement does not “implic- itly” preclude the Employer from exercising its statutory right to the file the instant petition. The dissent infers from the agreement that the parties’ “obvious intent” was to make the arbitration proceeding “final and binding.” Not all arbitral decisions are final and binding however, and this agreement did not contain a provision making the decision final and binding. Champlin Petroleum Co., 201 NLRB 83, 90 (1973), cited in support of the dissent’s approach, is not on point. The issue presented in Champlin was whether the Board should defer the case to the parties’ contractual arbitral procedure pursuant to the Board’s defer- ral policy under Collyer Insulated Wire, 192 NLRB 837 (1971). Under a Collyer deferral, the Board retains jurisdiction to review the arbitral award. By contrast, the issue in the instant case is whether a party has given up the right to file its own petition and come to the Board at all. 5 In its request for review, the Employer contends that deferral to the arbitrator’s award is not appropriate because issues in this case turn on ORDER The Regional Director’s dismissal of the petition is re- versed, the petition is reinstated, and the case is re- manded to the Regional Director for further appropriate action consistent with this Decision on Review. MEMBER LIEBMAN, dissenting. Contrary to the majority’s view, this case is governed by our decision in Verizon Information Systems, 335 NLRB 558 (2001), which dismissed a union’s election petition on estoppel grounds and required the union to honor the terms of a voluntary-recognition agreement that it had already invoked, to its benefit. Here, the Employer and the Union agreed to resolve “fully and completely and all issues” regarding the Un- ion’s unit-clarification petition by arbitrating whether certain job classifications should be included in the bar- gaining unit. When the Employer lost the first arbitration under the agreement, it filed its own unit-clarification petition with the Board. Applying Verizon, the Regional Director properly dismissed that petition, based on the parties’ arbitration agreement, which the employer had first invoked and then abandoned. The majority attempts to distinguish Verizon by argu- ing that because the Employer “completed the arbitration process,” it “carried out its obligations under the [arbitra- tion] agreement.” “[T]here was no express agreement that the Employer would refrain from exercising its right to file a petition with the Board,” the majority insists, citing the principle that the waiver of a statutory right must be clear and unmistakable. But the majority’s approach is untenable. The obvious intent of the parties was to make the arbitration proceed- ing final and binding, which implicitly precludes the fil- ing of a petition with the Board. By its terms, the arbitra- tion agreement “represents an understanding between the parties to fully and completely resolve any and all issues, and all currently pending grievances regarding the [Un- ion’s] Unit Clarification petition.” Insofar as the Em- ployer’s current petition involves the same issues as the Union’s earlier petition, they, too, are necessarily cov- ered by the arbitration agreement. Indeed, the agreement contemplates that the anticipated arbitration awards would establish controlling precedent.1 To the extent the statutory policy and not solely upon contract interpretation. We ac- knowledge this as controlling Board law. However, because this issue was not before the Regional Director, we find no need to pass on it. 1 The agreement provides that the “parties shall apply the national level arbitration awards which are issued as a result of this settlement agreement as broadly as possible in an effort to resolve other pending EAS grievances raising the same or similar issues or arguments” (em- phasis added). POSTAL SERVICE 27 waiver standard might apply (contrary to Verizon), it was satisfied.2 The majority points to no language in the agreement suggesting that arbitration was non-binding or that the parties reserved their right to petition the Board. Nor does the majority explain why the Union would agree to dismiss its own unit-clarification petition and arbitrate the issues raised—incurring expense and delay— only to permit the Employer to opt-out of an unfavorable arbitra- tion award and return the matter to the Board. As the Board has observed, even when there is no specific lan- guage to the effect that the results of arbitration shall be final and binding, it is reasonable to infer that this was the intention of the parties. Otherwise, the arbitral pro- 2 The Verizon Board explained that in situations like this one, a waiver analysis is inapplicable: The issue is not . . . whether the Petitioner “clearly and unmistakably” waived its right to file a representation petition. Rather, the issue is whether the Petitioner—having elected to proceed under the Agree- ment and derived benefits from it—should be permitted to pick and choose which provisions it wishes to invoke and which it prefers to avoid. The question, then, is really one of estoppel. 335 NLRB at 560. cedure would be illusory; and resort thereto, an exercise in futility. Champlin Petroleum Co., 201 NLRB 83, 90 (1973) (deferring case to arbitration). In short, as con- strued by the majority, the arbitration agreement makes no sense. Applying Verizon here, finally, is consistent with gen- eral federal labor law. It is well established that a party may not voluntarily arbitrate a matter, lose, and only then challenge the arbitrator’s authority, even if the issue arbi- trated is a question of external law that would ordinarily be decided by a court or other tribunal. See, e.g., Jones Dairy Farm v United Food & Commercial Workers Lo- cal P-1236, 760 F.2d 173, 175–176 (7th Cir. 1985).3 The Employer had its bite of the apple. Accordingly, I would affirm the Regional Director’s dismissal of the petition. 3 See also United Industrial Workers v. Virgin Islands, 987 F.2d 162, 167–169 (3d Cir. 1993) (rejecting union’s postarbitration argument that arbitrator lacked authority to determine whether public employee was included in bargaining unit and that territorial public employees rela- tions board had exclusive jurisdiction).