United States Postal Service

692 POSTAL SERVICE United States Postal Service and Anthony Pappas. Case 21-CA-25278(P) 9 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON , On a charge filed by the Union on 6 March 1987,1 the General Counsel of the National Labor Relations Board issued a complaint on 22 April 1987 against the Respondent, alleging that it has violated Section 8(a)(1) of the National Labor Re- lations Act. The complaint alleges that the Respondent de- moted Anthony Pappas from his supervisory posi- tion to a bargaining unit position, because he testi- fied on behalf of a unit employee at a contractually provided grievance arbitration hearing. On 4 May the Respondent filed its answer admitting in part and denying in part the allegations of the complaint and requesting that the complaint be dismissed. On 15 July the Respondent filed a Motion for Summary Judgment with a supporting brief and ex- hibits. On 20 July the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the Respondent's Motion for Summary Judgment should not be granted. On 4 August the General Counsel filed a brief in opposi- tion to the Respondent's Motion for Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motion for Summary Judgment In its Motion for Summary Judgment, the Re- spondent contends that there are no material issues of fact requiring a hearing and that the instant charge and complaint are barred by Section 10(b) of the Act. In support of its contentions the Re- spondent asserts the following facts. On 2 Septem- ber 1986 Pappas received from the Respondent a "Notice of Proposed Adverse Action-Removal" advising him that the Respondent proposed to remove him after 30 days, based on charges that he testified falsely at the grievance hearing and under- mined the efficiency of the Postal Service. The notice provided an opportunity to reply prior to the Respondent's final decision. On 7 October 1986 Pappas received a "Letter of Decision-Removal," i All dates are in 1987 unless otherwise indicated advising him that the Respondent found the charges substantiated but decided to demote him to a unit employee position effective 25 October 1986, rather than remove him. Pappas filed the instant charge on 6 March. Based on the foregoing, the Respondent contends that the complaint is time- barred by Section 10(b) of the Act on the ground that the 6-month limitation period began on 2 Sep- tember 1986 when Pappas received the Respond- ent's "Notice of Proposed Adverse Action." The Respondent requests that its motion be granted and that the complaint be dismissed as a matter of law. The General Counsel, in opposition to the Re- spondent's motion, argues that the complaint is not time-barred because the 10(b) period commenced on 7 October 1986 when Pappas received the Re- spondent's "Letter of Decision." We agree with the General Counsel. In Postal Service Marina Center, 271 NLRB 397 (.1984), the Board dealt with the interpretation and application of Section 10(b) of the Act in a case in- volving the same employer and the same discipli- nary procedure. The Board held that it would "focus on the date of the alleged unlawful act, rather than on the date its consequences become ef- fective, in deciding whether the period for filing a charge under Section 10(b) of the Act has expired" and would begin the 10(b) period from the date "[w]here a final adverse employment decision is, made and communicated to an employee . . .." Id. at 399-400. In that case, the Board specifically held that the limitations period commenced on the date the charging party received the "Letter of Decision" identical in relevant part to the 7 Octo- ber 1986 "Letter of Decision" in this proceeding. The Board, declining to begin the 10(b) period from the earlier date the Charging Party received a letter of charges and proposed removal, found that the "Letter of Decision" constituted "unequivocal notice of the Respondent's decision to terminate him . . . ." Id. at 400. Under these circumstances, we find that the 10(b) period did not commence as of the date of the Respondent's "Notice of Proposed Adverse Action" but rather that it commenced on 7 Octo- ber 1986 when Pappas received the "Letter of De- cision."2 The 6 March filing date for the underly- ing charge therefore falls within the 6-month limi- tation period set forth in Section 10(b) of the Act. Accordingly, the Respondent's Motion for Summa- ry Judgment is denied. 2 See also Stage Employees IATSE Local 659 (Paramount Pictures), 276 NLRB 881, 882 (1985) 285 NLRB No. 98 POSTAL SERVICE 693 ORDER orders that the above-entitled proceeding is re- The National Labor Relations Board denies the manded to the Regional Director for further appro- Respondent's Motion for Summary Judgment and priate proceedings.