National Post Office Mailhandlers Union Local 314 (United States Postal Service)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD National Post Office Mailhandlers Union Local 314 (United States Postal Service) and Rory Ries and Joe N. Robinson. Cases 14-CB-6917(P) and 14-CB-6968(P) August 28, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY Upon the charges and amended charges filed by Charging Party Rory Ries on June 30, 1988,1 and August 3, in Case 14-CB-6917(P), and Charging Party Joe N. Robinson, on September 19 and Octo- ber 12, in Case 14-CB-6968(P), the General Coun- sel of the National Labor Relations Board issued an order consolidating cases, consolidated amended complaint, 2 and notice of hearing on October 19, against National Post Office Mailhandlers Union Local 314, the Respondent, alleging that it has vio- lated Section 8(b)(1)(A) and (B) and Section 8(b)(2) of the National Labor Relations Act. Copies of the charges, amended charges, and consolidated amended complaint were duly served on the Re- spondent. The complaint in Case 14-CB-6917(P) alleged that the Respondent violated Section 8(b)(1)(A) and (B) and Section 8(b)(2) of the Act by refusing to enter into a proposed grievance settlement or to further process a grievance protesting the Employ- er's scheduling of Charging Party Rory Ries on Fridays and Saturdays in contravention of his reli- gious beliefs, and by refusing to sign Ries' request for a temporary schedule change. On September 27, counsel for the General Counsel telephoned the Respondent reminding the Respondent of its need to respond to the complaint. The Respondent sub- sequently filed an answer dated September 27, con- sisting of a narrative discussing the allegations of the complaint and generally asserting that the Charging Party's allegations are false. On October 3, counsel for the General Counsel mailed a certi- fied letter to the Respondent explaining that its September 27 answer was insufficient and did not meet the requirements of Section 102.20 of the Board's Rules and Regulations that require that an answer specifically admit, deny, or explain each of the facts alleged in the complaint. The letter ad- vised further that if a sufficient answer was not filed by October -5 a Motion for Summary Judg- ment could be filed. The letter encouraged the Re- spondent to contact the counsel for the General Counsel concerning any questions it had . The Re- spondent filed a second answer dated October 5, ' All dates are 1988 unless indicated otherwise again in narrative form, generally asserting that Charging Party Ries is "an acting boss," who is "not covered by the agreement nor the NLRA." A consolidated amended complaints issued, al- leging in substance that the Respondent violated Section 8(b)(1)(A) and (B) and Section 8(b)(2) of the Act by maintaining a policy of withholding ap- provals of requests for temporary schedule changes made by employees who are not members of the Respondent; by refusing to enter into a proposed grievance settlement or to further process a griev- ance protesting the Employer's scheduling of Rory Ries on Fridays and Saturdays in contravention of his religious beliefs; by refusing to sign Ries' re- quest for a temporary schedule change; and by threatening an employee with adverse action if the employee pursued his dissatisfaction with the Re- spondent's actions regarding contractual job bid- ding procedures. On October 24, the Respondent filed an answer to the consolidated amended complaint incorporat- ing its previous answers and additionally asserting, in narrative form, that the Charging Parties are "acting bosses" who do not have access to griev- ance procedures, that it knows of no grievances filed by the Charging Parties, and that the alleged charges were neither valid nor true . On October 27, counsel for the General Counsel sent a letter to the Respondent setting forth Section 102.20 of the Board's Rules and Regulations, and advising the Respondent that its answer was insufficient to meet the requirements of Section 102.20. The Respond- ent was further advised that unless a sufficient answer was filed by November 2 a Motion for Summary Judgment could be filed . In addition, the Respondent was advised to contact the counsel for the General Counsel if it had any questions. There- after, the Respondent, by letter dated October 28, stated as follows : "Please be advised that we deny all charges and allegations made by Rory Ries and Joe Robinson . We stand on our previous submis- sions." On November 14, counsel for the General Coun- sel filed a Motion for Summary Judgment for fail- ure to file a sufficient answer. On November 21, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. On November 28, the Respondent filed, with the Regional Direc- tor, a response to the General Counsel's Motion for Summary Judgment reiterating the assertions that 8 On September 19, Charging Party Joe Robinson filed a charge in Case 14-CB-6968(P) alleging that the Respondent violated Sec 8(b)(1)(A) and (2) of the Act On October 19, an order consolidating Cases 14-CB-6917 (P) and 14- The complaint in Case 14-CB-6917(P) issued on August 16, 1988. CB-6968(P) was issued by the Regional Director 296 NLRB No. 42 MAIL HANDLERS LOCAL 314 (POSTAL SERVICE) Charging Party Ries is an "acting boss," and that Charging Party Robinson's allegations are false. The Respondent further asserts that summary judg- ment should be granted in its favor. On December 2, the Respondent filed a response to the Notice to Show Cause, incorporating its previous answers to the consolidated amended complaint, reiterating the assertions made in the previous answers, and moving for summary judgment in favor of the Re- spondent. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this proceeding, the Board makes the following Ruling on the Motions for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 14 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint , if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The consolidated amended complaint served on the Respondent specifically stated that unless an answer is filed to the consolidated amended com- plaint within 14 days from the service thereof "all of the allegations in the consolidated complaint shall be deemed to be admitted to be true and shall be so found by the Board." As outlined above, and as set forth in the uncontroverted allegations of the General Counsel's Motion for Summary Judgment, the Respondent replied to the complaint in Case 14-CB-6917(P) and to the consolidated amended complaint by letters setting forth general assertions about the complaint allegations in narrative form. By letters dated October 3 and 27, the General Counsel set forth the text of Section 102 .20 of the Board's Rules and Regulations, informed the Re- spondent that its responses did not comport with Section 102.20, advised the Respondent of the con- sequences of its failure to file a sufficient answer, and offered to answer any questions the Respond- ent had. In response to each of the General Coun- sel's letters and to the Notice to Show Cause, the 329 Respondent stated that it reiterated the general as- sertions made in previous submissions. Thereafter, no sufficient answer having been filed, the General Counsel filed with the Board a Motion for Summa- ry Judgment. We shall grant the General Counsel 's motion. Each of the Respondent's purported answers is im- proper under Section 102.20 of the Board's Rules and Regulations, because it does not specifically admit, deny, or explain each of the facts alleged in the complaint. None of the Respondent's submis- sions in this proceeding provide an explanation of its failure to comply with the requirements of Sec- tion 102.20. Therefore, as Respondent has not filed an answer acceptable under the Board 's Rules and Regulations within 14 days from service of the consolidated amended complaint, or within the ex- tended time afforded it by the General Counsel, and as no good cause for its failure to do so has been shown, in accordance with the Board's Rule set forth above, the allegations of the complaint are deemed to be true.4 Nor did the Respondent accept counsel for the General Counsel's offer to respond to any questions Respondent had about the procedure for filing an answer. Accordingly, we grant the General Counsel's Motion for Summary Judgments and deny the Respondent's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The United States Postal Service, the Employer, is engaged in the business of providing postal serv- ices for the United States of America and operates various facilities throughout the United States in performing that function, including its facility in St. Louis, Missouri, the only facility involved in this proceeding. The Board has jurisdiction over the Employer and this matter by virtue of Section 1209 of the Postal Reorganization Act. The Respondent, National Post Office Mail- handlers Union Local 314, is a labor organization within the meaning of Section 2(5) of the Act. 4 See, e g, Printing & Graphic Communications Local 391 (Salem Gra- vure), 259 NLRB 1182 (1982), and Pipeline Construction Workers Local 692 (Fulhgum Construction), 248 NLRB 1315 (1980) ' The General Counsel's motion is granted with the exception of the allegations that the Respondent violated Sec. 8(b)(1)(A) and (2) by its conduct toward Charging Party Ries, discussed infra 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES At all times material the Respondent has been the exclusive bargaining representative of all em- ployees of the Employer in the unit described in the current collective-bargaining agreement be- tween the United States Postal Service and Labor- ers' International Union of North America, Mail- handlers Division, effective from July 21, 1987, through November 20, 1990 (the agreement). The Respondent and the Employer have maintained in effect and enforced the agreement that contains, inter alia, procedures for grievance and arbitration, and temporary schedule changes . As a condition for receiving a requested temporary schedule change, an employee is required by the agreement to secure the written approval from both the Em- ployer and the Respondent. Since at least May 30, and continuing to date, the Respondent has maintained a policy of with- holding written approval of requests for temporary schedule changes made by employees who are not members of the Respondent , resulting in non- member employees being unable to secure tempo- rary schedule changes on request. Since on or about May 30, and continuing to date, the Respondent has refused to enter into a proposed grievance settlement or to further process a grievance, as provided for by the agreement, pro- testing the Employer's scheduling of Rory Ries on Fridays and Saturdays in contravention of his reli- gious beliefs. The Respondent has engaged in this conduct because Ries is not a member of the Re- spondent and because of Ries' conduct in perform- ing part-time supervisory duties for the Employer. Since on or about June 22, and continuing to date, the Respondent has refused to sign the Em- ployer-approved request made by Rory Ries for a temporary schedule change, as required by the agreement, because Ries is not a member of the Respondent and because of Ries' conduct in per- forming part-time supervisory duties for the Em- ployer. By this conduct, the Respondent caused the Employer to deny Ries' request for a temporary schedule change. At all times material, Rory Ries was selected for and occupied the position of part-time acting super- visor for the Employer, and was a representative of the Employer for the purposes of collective bar- gaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. On or about September 16, the Respondent, acting through Union President Alford,6 threat- 6 Union President Elias J Alford is an agent of the Respondent within the meaning of Sec. 2(13) of the Act ened an employee that if the employee pursued his dissatisfaction with the Respondent's actions re- garding contractual job bidding procedures, the Respondent would seek to have the Employer obtain reimbursement from the employee for a por- tion of the wages received by him. Accordingly, we find that by its conduct of maintaining a policy of withholding approvals of requests for temporary schedule changes made by employees who are not members of the Respond- ent and by threatening employees with seeking to have the Employer obtain reimbursement for a portion of the wages received by employees if they pursue their dissatisfaction with the Respondent's actions regarding contractual job bidding proce- dures, the Respondent restrained and coerced em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)(1)(A) of the Act.7 We find that the Respond- ent, by its above-described conduct toward Rory Ries, restrained and coerced the Employer in the selection of its representatives for the purposes of collective bargaining, or the adjustment of griev- ances in violation of Section 8(b)(1)(B ) of the Act. We find further that the Respondent, by its con- duct described above of withholding written ap- provals of requests for temporary schedule changes made by employees who are not members of the Respondent, has caused the Employer to discrimi- nate against its employees in violation of Section 8(a)(3) of the Act, and by so doing has violated Section 8(b)(2) of the Act. CONCLUSIONS OF LAW 1. By maintaining a policy of withholding writ- ten approvals of requests for temporary schedule changes made by employees who are not members of the Respondent, resulting in the inability of such employees to secure temporary schedule changes provided for in the collective-bargaining agree- ment; and by threatening an employee with seeking to have the Employer obtain reimbursement for a portion of the wages received by the employee if the employee pursued his dissatisfaction with the Respondent's action regarding contractual job bid- ding procedures, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. 1 The consolidated amended complaint alleges that "at all times materi- al" Ries was a supervisor and a representative of the Employer On that basis we find that the consolidated amended complaint fails to state a cause of action insofar as it alleges that the Respondent violated Sec 8(b)(1)(A) and (2) of the Act by its handling of Ries' grievance and by its refusal to sign Ries' requested schedule change MAIL HANDLERS LOCAL 314 (POSTAL SERVICE) 2. Rory Ries is a part-time acting supervisor for the Employer and is a representative of the Em- ployer for the purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 3. By refusing to enter into a proposed grievance settlement or to further process Rory Ries' griev- ance under the grievance and arbitration provisions of the contract and by refusing to sign Rory Ries' Employer-approved request for a temporary sched- ule change as required by the contract because of Ries' conduct in performing part-time supervisory duties for the Employer, the Respondent restrained and coerced the Employer in the selection of its representatives for the purposes of collective bar- gaining or the adjustment of grievances, and there- by has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(B) and Section 2(6) and (7) of the Act. 4. By maintaining a policy of withholding writ- ten approvals of requests for temporary schedule changes made by employees who are not members of the Respondent, resulting in the inability of such employees to secure temporary schedule changes provided for in the collective-bargaining agree- ment, the Respondent has caused the Employer to discriminate against its employees in violation of Section 8(a)(3) of the Act, and has therefore en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, National Post Office Mailhandlers Union Local 314, St. Louis, Missouri, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining a policy of withholding approv- als of requests for temporary schedule changes made by employees who are not members of the Respondent. (b) Threatening employees with seeking to have the Employer obtain reimbursement for a portion of the wages received by employees if they pursue their dissatisfaction with the Respondent's actions regarding contractual job bidding procedures. (c) Restraining or coercing the United States Postal Service in the selection of its representatives 331 for the purposes of collective bargaining or the ad- justment of grievances by refusing to enter into a proposed grievance settlement or to further process a grievance protesting the Employer's scheduling of Rory Ries on Fridays and Saturdays in contra- vention of his religious beliefs and by refusing to sign Rory Ries' Employer-approved request for a temporary schedule change because of his conduct in performing part-time supervisory duties for the Employer. (d) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. (e) In any like or related manner restraining or coercing the United States Postal Service in the se- lection of its representatives for the purposes of collective bargaining or the adjustment of griev- ances. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its offices at St. Louis, Missouri, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Sign and return to the Regional Director for Region 14 sufficient copies of the notice for post- ing by the United States Postal Service, if willing, at its St. Louis, Missouri facility where notices to its employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT maintain a policy of withholding approvals of requests for temporary schedule changes made by employees who are not members of the Respondent. WE WILL NOT threaten any employee with seek- ing to have the Employer obtain reimbursement for a portion of the wages received by the employees if they pursue their dissatisfaction with the Re- spondent's actions regarding contractual job bid- ding procedures. WE WILL NOT restrain or coerce the United States Postal Service in the selection of its repre- sentatives for the purposes of collective bargaining or the adjustment of grievances by refusing to enter into a proposed grievance settlement or to further process a grievance protesting the Employ- er's scheduling of Rory Ries on Fridays and Satur- days in contravention of his religious beliefs and by refusing to sign Rory Ries' Employer-approved re- quest for a temporary schedule change because of his conduct in performing part-time supervisory duties for the Employer. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL NOT in any like or related manner re- strain or coerce the United States Postal Service in the selection of its representatives for the purposes of collective bargaining or the adjustment of griev- ances. NATIONAL POST OFFICE MAIL- HANDLERS UNION LOCAL 314