United States Postal Service

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service (Venice, CA) and American Postal Workers' Union, AFL-CIO, Venice Local 378. Case 31-CA-I1964(P) 16 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union, American Postal Workers' Union, AFL-CIO, Venice Local 378, on 9 March 1982, the General Counsel of the National Labor Relations Board issued a complaint on 23 January 1984 and an amended complaint on 12 September 1984 against the Respondent, United States Postal Service (Venice, CA), alleging that it has violated Section 8(a)(1) of the National Labor Relations Act. The amended complaint alleges that the Re- spondent: (1) about 11 December 1981 denied the request of employee Mary Miles to be represented by a union representative during an interview which she reasonably had cause to believe would result in disciplinary action against her; (2) con- ducted the interview after denying Miles' request for representation; (3) on 21 January 1982 suspend- ed Miles as a result of the 11 December 1981 inter- view; and (4) on 5 April 1982 discharged Miles as a result of the same interview. The amended com- plaint further alleges that about 30 November 1982 an impartial arbitrator ordered Miles' reinstatement and that her discharge be changed to a disciplinary suspension without pay. On 17 September 1984 the Respondent answered the amended complaint admitting in part and deny- ing in part the allegations in the amended com- plaint. On 3 October 1984 the Respondent filed a Motion for Summary Judgment. On 10 October 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The General Counsel filed a response. Ruling on Motion for Summary Judgment In its answer to the amended complaint the Re- spondent admits that it suspended Miles on 21 Jan-' uary 1982 and that it dismissed her on 5 April 1982, but denies that either of these disciplinary ac- tions was the result of the 11 December 1981 inter- view. The Respondent further asserts that on 29 April 1982 the Board deferred the allegations un- derlying the amended complaint to the grievance- arbitration procedure established by the collective- bargaining agreement between the Union and itself; impartial arbitrator; that the unfair labor practice allegations were presented to the arbitrator for res- olution; and that the arbitrator found that the, Re- spondent did not violate the National Labor tRela- ,tions Act, to wit: that the grievant Miles had not been denied her Weingarten' rights and that there was no evidence of union animus on the part of the Respondent. The Respondent asserts that inasmuch as the arbitration proceedings were fair and regu- lar, all parties had agreed to be bound, and the de- cision of the arbitrator was not clearly repugnant to the Act the Board should defer to the arbitration award and dismiss the amended complaint in its en- tirety. The record indicates that on 3 June 1983 the Acting Regional Director for Region 31 notified the Charging Party Union that he was refusing to issue a complaint on the pending charge. He stated that review of the arbitration proceedings and awards established that all of the alleged unfair labor practice issues were considered and decided by the arbitrator, that the Charging Party Union's objections to the awards do not constitute per se valid grounds for finding that the awards are re- pugnant to the Act, and that the arbitrator's deter- mination that Miles' Weingarten rights had not been violated was based on his discrediting Miles' testi- mony regarding the circumstances of her removal. Thereafter, on 16 December 1983, the General Counsel through the Office of Appeals sustained the Charging Party Union's appeal of the re gional determination not to issue a complaint. The pro- ceeding was then remanded to the Regional Direc- tor for Region 31 for issuance of a complaint, absent settlement by the parties. On 3 October 1984 the Respondent filed a Motion for Summary Judgment with a supporting memorandum and exhibits attached. Among the ex- hibits submitted are copies of the arbitrator's deci- sions relating to Miles' suspension and discharge and copies of the parties' posthearing briefs to the arbitrator relating to the discharge. The General Counsel filed a response opposing the Respondent's motion. Review of the documents before the Board re- veals that Miles, working as a postal service window and distribution clerk, serving as the Local Union's president, and a 10-year employee of the Respondent, was given a 5-day disciplinary suspen- sion in January 1982 and was terminated in April 1982. The incidents leading to these two discipli- nary actions were the subjects of two separate grievance-arbitration proceedings. Arbitrator Jo- seph F. Gentile issued an award dated 23 July 1982 that the grievances were duly arbitrated before an ' NLRB v J Weingarten, 420 U S 251 (1975) 275 NLRB No. 65 'POSTAL SERVICE finding that Miles' suspension was for just cause and that the Respondent was not motivated by an- tiunion considerations in issuing the suspension and did not violate the Act thereby. On 30 November 1982 Arbitrator Gentile issued a second award finding that Miles' dismissal should be reduced to a suspension without backpay and that the Respond- ent did not violate the Act by its action. The inci- dent which was the subject of the 30 November 1982 award occurred during the fall of 1981 and was under investigation until April 1982. The sub- ject of the 23 July 1982 suspension arbitration was an incident which occurred in January 1982. The unfair labor practice- charge in this proceeding and the allegations in the amended complaint contend that the Respondent violated Miles' Weingarten rights during a December 1981 investigatory inter- view concerning the fall- 1981' incident and the Re- spondent's subsequent disciplinary measures stemmed from the unlawful interview. In January 1982 Miles received -a 5-day suspen- sion for using loud and abusive language to Super- visor Walsh and for failure. to follow instructions and extending her break period without permission. Based on credited testimony from four witnesses at the arbitration hearing, in which Miles participated and testified, the arbitrator concluded that Miles did conduct herself in a loud and abusive manner toward her supervisor, causing a disruption of the work area, but that insufficient evidence existed to support the allegations of the unauthorized exten- sion of the breaktime and failure to follow instruc- tions. The arbitrator concluded that the seriousness of the first charge alone warranted imposition of the suspension. He also found that, while some per- sonal animosity may have existed between Miles and Walsh, this strained relationship did not trans- late into antiunion prejudice. He found no evidence of union animus as a motivating factor in the Re- spondent's treatment of Miles and that there' was no violation of Miles' Section 7 rights under the Act. In April 1982 Miles was terminated on the grounds that she "obstructed" the delivery of a piece of mail which was addressed to the Venice, California postmaster. The Respondent determined that Miles crossed out the name of the addressee on the piece of mail2 and marked it with a return- to-sender stamp. This resulted in the item being re- turned to the sending party without first having reached the intended recipient. Subsequently, the, sending party delivered the item to the addressee, whereupon the Respondent undertook an investiga- tion as to the circumstances of its rerouting. On 11 2 The item was the October issue of the American Postal Workers' Union California Area Local monthly newsletter 431 December 1981 Supervisor Walsh spoke to Miles about the inciden't.3 Walsh told Miles ' that - the interview was neither disciplinary nor a "discus- sion." Miles asked for a steward. Walsh replied that none was available; whereupon Miles respond- ed to Walsh's questions . The'Respondent continued to'investigate the incident through various adminis- trative channels-which included a 2 March 1982 meeting with Miles; accompanied by a union repre- sentative, during ' which- Miles admitted that the writing on the rerouted mail was hers-resulting in the 5 April 1982 -removal of Miles from the Re- spondent's employ. Based on'his analysis of the evi- dence the arbitrator concluded that Miles commit- ted - a serious infraction of conduct by improperly handling the mail, but that it did not amount to a "knowing, deliberate and wilfull obstruction of the mails" as urged by the Postal Service and as cited in its removal letter to Miles., Accordingly, he de- termined that, while termination was not warrant- ed, an unpaid suspension was an appropriate disci- plinary measure for the offense. As requested by the parties, the arbitrator also evaluated' the situa- tion from the perspective of whether -any unfair labor practice had been -committed by the Re- spondent's conduct. 'He found no evidence whatso- ever of an unlawful motive underlying the Re- spondent's dismissal of Miles. As to the possibility that Miles' rights under Weingarten had been in- fringed during the 11 December 1981 interview with Walsh, he found that: (1) the interview was an "investigatory interview"; (2) -Miles' request -for representation was not refused by virtue of Walsh's statement that no steward was then available for such purposes; and (3) Miles was not forced by fear of discipline to respond to Walsh's questions. He found that Miles' continued participation in the interview constituted a waiver of her right to have a union representative present during the interview, particularly in view of her status as president of the Local Union and by virtue of evidence establishing that she was an informed and a vigorous advocate of employee rights. Accordingly, the arbitrator concluded that no violation of Miles' rights under the National Labor Relations Act occurred. In its motion the Respondent submits that the parties' resolution of these' matters through the ar- bitral process warrants deferral by the Board under its- Spielberg4 doctrine as recently interpreted in Olin Corp.5 There is no contention that the pro- 3 According to the arbitrator's decision, both Walsh and Miles testified about this conversation and there were no substantial differences in their respective accounts However,- where disagreements existed Walsh was credited 4 Spielberg Mfg Co, 112 NLRB 1080 (1955) 5 268 NLRB 573 (1984) _ ' 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceedings were not fair or regular or that all parties had not,agreed to be bound thereby. In addition,, the issues presented to the arbitrator were factually . parallel to those which are alleged as haying con- stituted unfair labor practices. In fact, the parties stipulated before the arbitrator that the question of whether the Respondent - had , violated the Act was properly before him. The arbitrator also specifical- ly addressed the unfair labor practice aspects in his decisions, finding, in all instances that no violation had occurred. The- General Counsel contends that deferral is not warranted in the circumstances of this case be- - cause the arbitrator's resolution of the Weingarten- issue is at odds with Board decisional precedent. The, General Counsel argues that Miles did not ef- fectively waive her right, to representation during the 11 December 1981 • investigatory interview be- cause after advising her that no steward was avail- able the Respondent, did not- then advise her that she had the option of either continuing with the interview unrepresented ' or forgoing the interview. The General Counsel contends that the arbitrator: erred by. applying a subjective.. standard, i.e., rely- ing on Miles' position as president of the Local Union and her demonstrated awareness of employ- ee rights, in concluding that Miles was not coerced into participating in the interview without repre- sentation. The General Counsel urges that the fail- ure of the Respondent to provide Miles with this choice precludes the finding that Miles voluntarily participated in the interview process and that by this omission of responsibility the Respondent vio- lated.Miles' Weingarten rights. The General Coun- sel contends that absent a contractual provision concerning waiver of these rights the arbitrator's disposition of this issue is repugnant to the Act. Nye find that -the record before us establishes that the.standards for deferral to the arbitration process have been met. The only issue the General Counsel raises concerns. the arbitrator's disposition of whether Miles' Weingarten rights had been in- fringed. Whether the arbitrator's analysis of the waiver question comports precisely with certain Board decisional precedent does not affect our con- clusion that his assessment is susceptible to an in- terpretation consistent with the Act. It cannot be described -either as "palpably wrong" or "clearly repugnant to the purposes and policies of . the Act. "s A primary objective of the Board is to foster the collective and cooperative resolution of workplace disputes. ' We find that the disposition of the unfair. labor practice issues -raised by the facts of this case warrants deferral; accordingly, the Re- spondent's Motion for Summary Judgment is grant- ed and the complaint in this case is dimissed. , ORDER We defer to the arbitration proceedings disposing of the issues in this case and dimiss the complaint. 6 See generally Olin Corp, supra, and Spielberg, supra Specifically, em- ployees may, .even after having requested that a steward be present, waive the right to representation during a Weingarten interview Here the arbitrator effectively found that Miles knew her lawful choices and'by continuing to participate in the interview waived her Weingarten rights