United States Postal Service

500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United States Postal Service and Lena V. Hunter. Case 5-CA-15718(P) April 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On May 18, 1987, Administrative Law Judge Joel A. Harmatz issued the attached decision. The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, 1 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. In adopting the judge's dismissal of the complaint, we find it unnec- essary to rely on his construction of the Supreme Court's holding in Met- ropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), as being limited nar- rowly to the facts of that case. We also find it unnecessary to rely on his finding that grievants Hall and Hunter, by their own accounts, neglected to comply with the Respondent's leave procedures. In fn. 11 of the judge's decision, the reference to Otis Elevator should read Olin Corp. Chairman Stephens finds deferral appropriate even assuming that the Respondent should bear the burden of showing that the arbitrator consid- ered the statutory issue. Here the arbitrator noted, at the outset, the Union's argument that the Respondent had sought to discharge the stew- ard-grievants (including Charging Party Hunter) in order to make an ex- ample of them and intimidate others who were representing employees and filing EEO complaints 'On their behalf. He then considered evidence bearing both on the grievants' conduct and on the manner in which the Respondent had investigated that conduct before deciding to discharge them. He ultimately concluded that the Respondent had initially looked into the matter that led to the discharge decisions not in order to try to discharge the grievants, but rather to find out why certain forms for au- thonzmg absence from the work floor had not been completely filled out Although the arbitrator found insufficient evidence that the grievants had falsified initials on forms (and therefore found no basis for the dis- charges), he concluded that they had engaged in conduct—failure to follow proper procedures in obtaining permission to leave the work floor—that gave just cause for discipline, and he determined that a 30- day suspension was a proper penalty. The arbitrator therefore rejected the argument that the grievants had been disciplined in order to discour- age grievance and EEO complaint filing activity. Chairman Stephens also agrees that the award is not repugnant to the Act. It can tenably be read not as penalizing the grievants simply because they held union office, but rather as penalizing them because they did not follow procedures that even the average employee should have known were to be followed, and that the grievants were in an even better posi- tion to know about, given their steward responsibihties, which necessitat- ed frequently obtaining permission to leave the work floor James P. Lewis, Esq., for the General Counsel Bruce Joel Jacobsohn, Esq., of Philadelphia, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. A complaint was issued in this proceeding on 22 March 1985 pursuant to an unfair labor practice charge filed on 6 September 1983. The complaint alleged that the Postal Service discharged Lena V. Hunter on 6 September 1983 in violation of Section 8(a)(3) and (1) of the Act because of her union and other protected concerted activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed, affirmatively alleging that an arbitrator's award, which reduced the discharge in question to a 30-day disciplinary suspension, should be given controlling effect pursuant to Board decisions in Alpha Beta Co., 273 NLRB 1546 (1985), and Olin Corp., 268 NLRB 573 (1984). Consistent with its affirmative defense, Respondent, on 24 April 1986, filed a Motion for Summary Judgment and a memorandum in support, alleging that the arbitra- tor's award be given binding effect under the Board's es- tablished deferral policy, and hence that the complaint be dismissed in its entirety.' Thereafter, counsel for the General Counsel, on 3 June 1986, filed an opposition with the Board urging that the arbitration award be re- jected as "palpably wrong" and not "susceptible to inter, pretation consistent with the Act."2 By Order dated 25 September 1986, the Board denied summary judgment and remanded the proceeding, stating that "there exist material and substantial issues which can best be resolved at a hearing before an administrative law judge . . . ." The Board's Order was subject to the caveat that the motion for summary judgment "is denied without prejudice to the Respondent's right to renew its motion before an administrative law judge."3 Pursuant to the foregoing, a hearing was held before me in Baltimore, Maryland, on 18 February 1987. No testimony was taken. In the course thereof, Respondent renewed its quest for summary dismissal on the basis of the arbitration award. After close of the hearing, briefs were filed on behalf of the General Counsel and the Re- spondent. On the entire record in this proceeding, including con- sideration of the stipulations of fact and posthearing briefs, it is found as follows FINDINGS OF FACT I. JURISDICTION Respondent provides postal services for the United States and operates facilities throughout the United States in the performance of that function. The Respond- ent admits, and I fmd, that the Board has jurisdiction over its operations by virtue of Section 1209 of the Postal Reorganization Act. It. Exhs. 2(a)-(b). 2 Jt• Exh. 3 3 G.C. Exh. 1(q). 288 NLRB No. 57 POSTAL SERVICE 501 f II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I fmd that American Postal Workers Union, National Capitol Area Local (the Union)" is labor organization within the meaning of Section 2(5) of the Act. III. CONCLUDING FINDINGS On the pleadings, this cause essentially presents two issues. 1. Whether the Board should give conclusive weight to an arbitration award under the standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955) as later clari- fied by Olin Corp., supra, and if not 2. Whether Respondent violated Section 8(a)(3) and (I) of the Act by terminating Charging Party Hunter. At the hearing, Respondent, in the interest of expedit- ing a final disposition of this proceeding, stipulated, with- out an admission of guilt, that if unsuccessful in maintain- ing its defense based on the arbitral award (either before the Board, or ultimately after court review), it will in that event consent to the entry of a conventional remedy regarding the 8(a)(3) and (1) allegations in this case. This concession was tailored to avoid litigation of merits of the alleged unfair labor practice. To that end, it was con- ditional further on the absence of need for parole testi- mony, and stands on the understanding of all parties that it will be vacated should there be a remand for addition- al evidentiary development.4 Thus, in the present posture of the case, the sole issue is whether the arbitration award is entitled to conclusive weight under the Board's deferral policy. In this respect the arbitrator's findings show that Hunter was terminated by the Respondent on 6 September 1983. 5 At that time Hunter was a member of the Union and a steward. She was classified as a "Full-Time Distribution Clerk." Hunter invoked contractual grievance procedures to pro- test her discharge. On 15 August an initial grievance ses- sion was held. On 6 September the instant unfair labor practice charge was filed, but not processed, because of the pending arbitration in accordance with the Board's policy articulated in Dubo Mfg. Corp., 142 NLRB 431 (1963). On 6 July 1985 Arbitrator Philip W. Parkinson issued his award in a 27-page opinion.6 The fmdings of the arbitrator disclose that the Postal Service maintains a system designed to establish account- ability when employees leave their work station or duties during working time. At the threshold is the requirement that employees first obtain permission from a supervisor. Beyond that, management monitors those absences through Postal Service Form 7020. This document, inter alia, contains spaces for entry by a supervisor of approv- al of the absence and registry of departure time, together with arrival and leave time at the employee's destination, 4 Errors in the transcript have been noted and corrected. 5 All dates refer to 1983 unless otherwise indicated. 6 The arbitration proceeding also included the grievance of Gloria B. Hall, who, like Lena V. Hunter, was a umon steward and member of the American Postal Workers' Union She was discharged a few days after Hunter. Both terminations emerged from an incident on 11 May in which they allegedly faded ..to adhere to Postal Service requirements when de- parting from and returning to their work areas after discussing grievances with an EEO counselor. and supervisory verification thereof. A supervisor is also to initial the time of return to the work area.7 The alleged mishandling of form 7020 was central to the discipline effected in this case. Charging Party Hunter and fellow union steward Hall, on 11 May, were to meet with an EEO counselor. They utilized 7020 forms, each of which contained the initials A.M.C., which corresponded to those of Supervisor Ann M. Callaway. 9 Neither testified that they personally ob- served Callaway, or any other supervisor, make the re- quired entries on the 7020s authorizing their absences. Instead, they testified that they requested the forms in the presence of supervisors, then departed to attend to personal business, returning to pick up the forms, which they found lying on a desk. Hunter and Hall also adMit- ted that, on their return, both laid the 7020s on a desk without securing a supervisor's confirmation of, or en- tries concerning, their time of return. As his award makes clear, the arbitrator concluded that just cause did not support the terminations. He rea- soned further, however, that some discipline was appro- priate due to the failure of the stewards: (1) to secure direct personal supervisory authorization before leaving their stations, on the one hand, and (2) on their:return from grievance activity, to have supervisor ponfirm the time, signing them back into their work area. These in- fractions, according to the arbitrator, warranted lesser discipline in the form of a 30-day suspension. Thus, the Postal Service was directed to reinstate Hunter and Hall and make them whole for all work lost, except the 30- day period for which they should have been suspended.9 The initial reference in evaluating whether conclusive weight ought to be given to arbitral awards is the Board's landmark decision in Spielberg Mfg. Co., 112 NLRB 1080 (1955). There, the Board took an early step toward implementing the national policy encouraging voluntary dispute settlement by announcing that finality would be entered on the results of private arbitration under certain conditions. Complying arbitral awards under that policy are given binding weight, and relitiga- tion of the underlying unfair labor practice allegations is barred. In this case, the General Counsel's attack on the award is narrowly grounded. Thus, there is no dispute that the award was issued in a proceeding, fair and regu- lar on its face, and to which all parties agreed to be bound. Instead, the primary thrust of the General Coun- sel's position is that the award is unacceptable because 7 Jt. Exh. 1, pp. 3-4. No supervisor was identified as having initialed the 7020s. Supervisor Ann M. Callaway, though identified by both Hall and Hunter as present when they requested the forms, denied that she issued the 7020s and re- lated that the initials were not hers. Callaway added that, on the day in question, she had been reassigned to a different operation and was not even present in the area described by Hunter and Hall. Callaway further testified before the arbitrator that since she was not on duty in their area, she was not authorized to grant any such request It is noted in this con- nection that Respondent's grounds for terminating Hall included an asser- tion that Hall was guilty of falsifying the 7020s The arbitrator concluded that the evidence was inconclusive in this respect, and hence removal action against Hall on that basis was too severe and not for just cause. 9 Respondent has complied fully with the award. The Charging Party has been reinstated and compensated for all but the 30-day disciplinary layoff deemed warranted in that proceeding. 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "clearly repugnant to the purposes and policies of the Act." 112 NLRB at 1082. In this latter connection, over the years following Spielberg, the meaning and scope of that standard was debated through a series of difficult to reconcile decisions." In 1984, the Board, in Olin, supra, clarified the conditions under which arbitral awards are to be set aside as offensive to statutory policies, stating: [W]e adopt the following standard for deferral to arbitration awards. We would find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. In this respect, differences, if any, between the contractual and stat- utory standards of review should be weighed by the Board as part of its determination under the Spiel- berg standards of whether an award is "clearly re- pugnant" to the Act. And, with regard to the in- quiry into the "clearly repugnant" standard, we would not require an arbitrator's award to be total- ly consistent with Board precedent. Unless the award is "palpably wrong," i.e., unless the arbitra- tor's decision is not susceptible to an interpretation consistent with the Act, we will defer. Finally, we would require that the party seeking to have the Board reject deferral and consider the merits of a given case show that the above stand- ards for deferral have not been met. Thus, the party seeking to have the Board ignore the determination of an arbitrator has the burden of affirmatively dem- onstrating the defects in the arbitral process or award." In its opposition to summary judgment filed with the Board, and at the instant hearing, the General Counsel challenged the award solely on the ground that the 30- day suspension imposed by the arbitrator was contrary to the Supreme Court's holding in Metropolitan Edison Co. v. NLRB, 460 U.S. 698 (1983). It is argued that the arbi- trator drew too heavily on the status of the grievants as shop stewards in assessing their responsibility under Postal Service rules." 10 My own struggle with the variant applications of this standard was discussed in Liberal Market, 264 NLRB 807 (1982). 11 The Board specifically overruled Suburban Motor Freight, 247 NLR13 146 (1980), and its holdmg that the party seeking Board deferral to an arbitration award bears the burden of proving that the statutory issue was litigated before the arbitrator. As is apparent from the above quote, Otis Elevator shifts to the party resisting the award the burden of establishing that the statutory issue was not considered. 12 In its posthearmg brief, the General Counsel for the first time argues that "the arbitrator was [not] presented generally with the facts relevant to resolving the unfair labor practice." This argument appears to be an afterthought. It was not raised in the General Counsel's opposition to Respondent's Motion for Summary Judgment. Moreover, at the hear- ing, when the General Counsel's attack on the award was defined specifi- cally as limited to the palpably wrong standard, the General Counsel tac- itly acquiesced that this was so, mentionmg no other basis for dishonor- ing the award. Indeed, when the parties were canvassed about whether the arbitral transcript should be entered m the record, that invitation was declined by the General Counsel. In its posthearing brief, however, the General Counsel at 2 states that "it is far from clear, from a reading of the arbitrator's decision that the facts presented to him were sufficient to On the facts of this case, it is clear that there is no provision in the collective-bargaining agreement that either directly, or by interpretation, licenses the Postal Service to discriminate against union stewards by exact- ing higher standards of performance from them as a class. Despite the absence at waiver, however, I reject the General Counsel's claim that the result reached in ar- bitration conflicts with rights preserved in union stew- ards by Metropolitan Edison, supra. In that case, union members refused to cross a picket line posted by a differ- ent labor organization. The employer sought out the union president, advising him that he had a duty, as a union official, to encourage members of his union to comply with the no-strike clause in the subsisting collec- tive-bargaining agreement by himself crossing the picket line. The union's president and vice president, though re- peatedly instructed to cross, did not obey. After the basic dispute was resolved, and the picket line with- drawn, the employer imposed 5- to 10-day suspensions on employees who honored the picket line, but the union's president and vice president received 25-day sus- pensions and were warned that future participation in any unlawful work stoppage would result in immediate discharge. The Supreme Court agrees that the disparate penalties were illegal in that an employer may not assume "that a union official is required to attempt to en- force a no-strike clause by complying with the employ- er's directions," and then "impose a penalty on the offi- cial for declining to comply." The Court, however, was careful to point out that its holding was limited narrowly to the facts presented, and hence that its decision failed to endorse an absolute principle that in all cases, employ- ers violate the law when union officials receive more detrimental treatment than other workers. The arbitrator's determination neither offended the result in that case nor any policy designed to insulate union officials from selective discipline. The grounds on which the Postal Service acted against the grievants did not address their union position or any vestige of their leadership responsibility. Instead, the discipline was based on violation of an established procedure designed to control permitted absences from work stations. These requirements were applicable to the general working population and imposed a duty on employees generally to involve supervision in accounting for time spent away from their duties. resolve the unfair labor practice." Even were one to agree that the arbi- trator failed to exhaustively analyze evidence that would tend to support proscribed discrimination, he was fully mindful of the Umon's claim of pretext. This is evident from his acknowledgement of the Union's "charge that the Postal Service's real reason for the grievants' termina- tion was their vociferous and heightened activity in representing other employees in the EEO process . . . ." In addition, the award evidences a number of factors that would tend to support a pretext argument, and one could construe his decision as embodying his intention, m effect, or by implication, to reject that claim In any event, the General Counsel bears the burden of establishing that the arbitrator was not given a rea- sonable opportunity to resolve the unfair labor practice issue. See Olin Corp., supra at 574, In 8. Argumentation based on the content of an award, where as here, a transcript of the proceedings was available, but not offered, does not suffice as the best evidence cif what was litigated before the arbitrator and does not fulfill Olin's allocation of proof respon- sibility. Accordingly, the challenge to the award on this basis is rejected as unsubstantiated. POSTAL SERVICE 503 Unquestionably, the analysis by the arbitrator included references to the status of Hunter and Hall as union stewards. Thus, he first concluded that Hunter and Hall left their work stations and went to the EEO counselor without direct authorization or specific assurance that such authorization would be provided from any specific supervisor. This noncompliance with the rules was ana- lyzed by the arbitrator as follows: The point of this is that neither Ms. Hall nor Ms. Hunter, even assuming their recollection of the events surrounding the disputed 7020's was correct on May 11, 1983, ever had any assurances from any supervisor that their 7020's would be approved. De- spite this, Ms. Hall filled the pertinent information on the forms (name, social security number, etc.) and they both left for the ladies room with no firm reason to believe that the 7020 would be approved, but with every intention of going to the EEO. Al- though the testimony revealed that EEO requests had rarely, if ever been disapproved, as steward, the grievants have a higher degree of responsibility than the ordinary prudent employee for following procedures. It would seem to be that even the aver- age employee would have made certain that a su- pervisor would approve her (his) leave time This can only be done by receiving personal approval from the supervisor by her (him) signing the 7020 in the presence of the employee, or by the supervisor stating that she (he) will approve the request, and that it will be left at a designated place for them to pick up at a later time. This was not so in this case. With the responsibilities invested in them as stew- ards and with their alleged and admitted concerns about Management's attitude toward them in vigor- ously pursuing various types of complaints, it was of even greater importance that they follow this very elemental procedure. Had they been denied leave time on their 7020's, channels would have been available to them in the grievance procedure to contest such action. Instead it appears to me that they "took for granted" the permission to leave and, albeit they had legitimate business at the EEO office, were remiss in the method used to properly secure authorized leave. Secondly, the arbitrator concluded that Hunter and Hall failed to have a supervisor sign their 7020s so as to acknowledge the time of their return from EEO. In this respect, he reasoned as follows: Both grievants were also remiss in their responsibil- ities as stewards in not having a supervisor initial the 7020's when they returned to the Unit. Even as- suming the forms . . . were laid on the desk upon their return, as the grievants claim, they should have encountered a supervisor and had (her) sign the forms. Although Ms. Hunter testified that they were not told they had to be given to a supervisor to close out the form, given their status as stewards and the aforementioned problems, it is inconceiv- able to me that they would lay the forms on a desk, without ever ascertaining that they were signed out and with the assumption that a supervisor would sign them. Beyond the foregoing, in summing up, the arbitrator, after acknowledging a lack of responsible supervision on the part of the Postal Service regarding the 7020 process, concluded that any mismanagement "does not diminish the responsibility the grievants had, as stewards, to follow procedures" going on to state Both grievants, however, failed to follow obvious procedures in receiving authorization for leaving the Unit and in closing out their 7020's. For this there is cause for disciplinary action. Even though the Service's supervision yvas not entirely without some degree of fault in the administration of the 7020 program, this does not absolve the grievants. The preponderance of the credible evidence leads me to conclude, albeit the initials AMC on their 7020's, that they were no properly authorized to attend the EEO session in question on May 11, 1983 and therefore were absent from their work assign- ment without permission. However, because their absence was proven to be for legitimate EEO rea- sons and because this is the first instance in which the greivants have been admonished for such an in- fraction, discharge for these counts/charges would be punitive. A disciplinary suspension of thirty work days because of the nature of the offense and the scienter in this regard that a steward should rea- sonably have, is hereby ordered. The grievants shall be reinstated and made whole for the balance of the time they otherwise would have been working, less outside remuneration. Despite the references by the arbitrator to the status of Hunter and Hall as union stewards, his award was nei- ther "palpably wrong" nor repugnant to the purposes and policies of the Act. Unquestionably, an employer that dedicates paid work- ing time to the collective-bargaining process is entitled to establish and enforce reasonable procedures to protect against abuse. The approach used by the Postal Service was the 7020 system. On their own accounts, Hunter and Hall neglected to comply with that policy. If the award's discipline is to be condemned in this case, the fatal flaw would have to be the arbitrator's as- sumption that stewards are within the class of employees most frequently called on to utilize the 7020 procedure and hence would be the most familiar with its demands. Yet, the General Counsel's attack on that assumption ap- pears to "beg the question," by laying challenge to the analytical process invoked by the arbitrator in resolving the dispute, rather than the result he reached. Thus, in this latter respect, the award embodies no determination condoning or upholding an employer's imposition of de- mands on shop stewards who are generally not made up of employees. Moreover, it is within the realm of possi- bility that the same result would have been reached by the arbitrator even if he had ignored what he considered to be the special knowledge of stewards. In sum, the General Counsel's challenge to the award in this case 504 iDECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quarrels with the rationale and the mental processes of the arbitrator and only in a speculative sense reaches the latter's ultimate determination that the Charging Party was guilty of a breach of work rules, and rightfully disci- plined for that offense." A recent decision of the Board seems to be entirely on point. There, the Board declined to intrude despite an ar- bitrator's rationale that stressed the special knowledge of a union official. Thus, in Postal Service (Venice, CA), 275 NLRB 430 (1985), an award was deemed binding despite an arbitrator's finding that a union president's continued participation in an "investigatory interview" constituted a waiver of her right under Weingarten," to be accom- panied by a union representative. In so concluding, the arbitrator relied on the fact that, as president of the union, the individual involved was an informed and vig- orous advocate of employee rights, and hence knew that she did not have to participate without representation. Accordingly, he concluded that by doing so voluntarily, she waived any such ri4ht. In rejecting the General Counsel's challenge to the award, the Board stated as follows: Whether the arbitrator's analysis of the waiver question comports precisely with certain Board decisional precedent does not affect our conclusion 13 At the hearing, the General Counsel submitted an offer of proof. G.C. Exh. 2. That document reflects evidence to be offered in this pro- ceeding for the first time to contest the arbitrator's subsidiary finding that umon stewards had greater knowledge than other employees concerning the 7020 procedure. The proffer is irrelevant as an attempt collaterally to attack findings by the arbitrator on the basis of de novo litigation. Under the law, a party attacking the results in arbitration on the basis of "repug- nancy" must rely on the facts litigated before the arbitrator, and not on the basis of other facts, which, though available, were never raised and hence never weighed in arbitration. The authority is clear that the issue of whether an award is "clearly repugnant" to the Act must stand or fall on the basis of the facts presented to the arbitrator—not whether that result could be deemed fallacious through litigation of different facts in a different forum. See, e.g , Kansas City Star Co., 236 NLRB 866 (1978); Associated Press v. NLRB, 492 F.2d 662, 667 (D.0 Cir. 1974); NLRB a Pincus Bros., 620 F.2d 367, 374 (3d Cir. 1980); Hershey Chocolate Corp., 129 NLRB 1052, 1067 (1960); NLRB v. Babcock & Wilcox Co.; 697 F.2d 724, 729 fn. 5 (6th Cir. 1983), and Olin Corp., supra 268 NLRB at 575. 14 NLRB v. J. Weingarten, 420 U.S. 251 (1975). that his assessment is susceptible to an interpretation consistent with the Act. It cannot be described either as "palpably wrong" or "clearly repugnant to the purposes and policies of the Act."" Here, as in the cited case, the arbitrator merely attempt- ed to apply his own sense of logic in assessing the legal effect of the conduct of the parties. Whether or not the Venice case is regarded as dispositive, it seems clear that an arbitrator is given latitude in assessing probability, whether in the context of a credibility resolution or a subsidiary finding of fact. And, even if erroneously pre- mised, such a breakdown in the reasoning process does not itself militate against deferral. Accordingly, counsel for the General Counsel has failed to meet his burden of proving that the award failed to warrant deferral under the Spielberg criteria and, hence, on the basis of the private determination, it is con- cluded that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent, United States Postal Service, by act of Congress, is subject to the Board's jurisdiction. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent will not be deemed to have violated Section 8(a)(3) and (1) of the Act by, on 6 September 1983, terminating Lena V. Hunter because of her union or other concerted activity. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER I recommend that the complaint be dismissed in its en- tirety. 15 275 NLRB at 432. 16 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.