Greater Northland Area Local, American Postal Workers Union, Afl-Cio (United States Postal Service)

858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Greater Northland Area Local, American Postal Workers Union, AFL-CIO (United States Postal Service) and David Hennessey. Case 18- CB-1917(P) September 26, 1990 ORDER DENYING MOTIONS BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OviAn' On May 25, 1989, the Regional Director for Region 18 of the National Labor Relations Board issued a complaint and notice of hearing alleging that the Respondent has violated Section 8(b)(1)(A) of the National Labor Relations Act On August 18, 1989, the General Counsel filed a Motion for Summary Judgment contending that there are no issues of fact warranting a hearing On August 23, 1989, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted On September 19, 1989, the Respondent filed an oppo- sition to the General Counsel's motion and cross- motion to dismiss the complaint The Respondent asserts that it has effectively repudiated several of the unfair labor practices and that other alleged unfair labor praciices do not constitute violations of the Act The National Labor Relations Board has delegat- ed its authority in this proceedmg to a three- member panel The Board having considered the matter finds that the General Counsel's and the Respondent's motions raise issues that can best be resolved at a hearmg before an administrative law judge 1 ORDER It is ordered that the General Counsel's Motion for Summary Judgment and the Respondent's cross-motion to dismiss the complaint are denied 'Our dissenting colleague would grant the General Counsel's motion insofar as It relates to alleged conduct the Union claims to have timely repudiated We agree with our colleague's statement of law including his acknowledgment that timeliness is a function of the circumstances in each case At this procedural juncture we hold that the Union may litigate whether it effectively repudiated the alleged unlawful conduct We fur- ther observe that resolution of other complaint allegations may have some bearing on the effectiveness of the Union's purported repudiation IT IS FURTHER ORDERED that the proceeding is remanded to the Regional Director for Region 18 for appropriate action MEMBER OwArr, dissentmg in part I would grant the General Counsel's Motion for Summary Judgment to the extent the motion seeks a finding that the Respondent Union unlawfully threatened employees in three respects 1 The complaint alleges, inter aim, and the Re- spondent in effect admits,2 that the Respondent un- lawfully threatened that (a) it would not provide nonmember employees with the benefits that mem- bers receive, (b) it would take action against non- members for discussing union matters while engag- ing in protected activity, and (c) it would discrimi- nate against nonmember employees regarding schedule-change requests In its defense, the Re- spondent contends that these unfair labor practices have been repudiated and remedied The Respond- ent contends that a "Notice to Employees" that it posted about September 12, 1989, cured any viola- tion and obviated the need for a Board order Ac- . cordmgly, the Respondent asks the Board to dis- miss the complaint in regard to these three allega- tions To review the Respondent's position, I look to Passavant Memorial Hospital, 237 NLRB 138 (1978), which set forth the standard for determining whether a party's repudiation of unlawful conduct is effective The Board stated To be effective such repudiation must be "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed illegal conduct" Furthermore, there must be adequate publication of the re- pudiation to the employees involved and there must be no proscribed conduct on the [wrong- doer's] part after the publication And, fi- nally, the Board has pointed out that such re- pudiation or disavowal of coercive conduct should give assurances to employees that in the future [the wrongdoer] will not interfere with the exercise of their Section 7 rights ' I join my colleagues in remanding the complaint's other allegations to be resolved at a hearing before an administrative law judge 2 The Respondent admits that the alleged threats were made and states on brief that it "has chosen not to contest" that the threats violated the Act 299 NLRB No 136 AMERICAN POSTAL WORKERS (POSTAL SERVICE) 859 The Respondent's defense cannot survive the first test in Passavant—timeliness The Respondent's notice, purporting to repudiate its unlawful acts, was posted some 6 months after the unlawful threats It was posted over 3 months after com- plaint had issued regarding the threats Differing circumstances may permit that diffenng time peri- ods be deemed timely The Board has required, however, that any repudiation—to be effective— must be quite prompt 3 Here, the Respondent's co- 3 See, e g, Red Arrow Freight Lines, 289 NLRB 227 fn 1 (1988) (a re- pudiation, consisting of a "notice to employees," posted more than 5 months after the event was untimely and ineffective), EP& Inc , 284 NLRB 191 fn 1 (1987) (a repudiation about a month after the event was ercive conduct lay unremedied for 6 months Its long belated attempt to repudiate its actions should not be deemed effective Rather, a Board order is required to remedy the Respondent's unlawful con- duct untimely and meffective), Safeway Stores, 266 NLRB 1124 (1983) (a repu- diation 3 months after the event, after complaint had Issued, and 1 week before trial on the unfair labor practice complaint was untimely and inef- fective), cf Raysel-IDE Inc, 284 NLRB 879, 881 (1987) (a repudiation 24 hours after the event was timely and effective), Broyhill Co. 260 NLRB 1366 (1982) (a repudiation 5 weeks after the event, and immediately after higher management learned of a supervisor's misconduct, was timely and effective) \ -