Postal Service

National Labor Relations Board - Board Decisions

May 13, 1991

302 N.L.R.B. 918 (N.L.R.B. 1991)

918
302 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Nor can it be established from the pleadings and submissions that the uni-
lateral refusal to ‘‘pay out-of-schedule premium pay,’’ as alleged in the com-
plaint, is, as contended by the Respondent, at most a breach of contract that
does not constitute an unfair labor practice. The General Counsel defines the
‘‘premium pay’’ allegation as a ‘‘unilateral refusal to compensate [the Re-
spondent’s] employees for overtime’’ by which the Respondent ‘‘repudiated
the contract.’’ Claims of unilateral alteration of contractual overtime schedules
have been found to violate Sec. 8(a)(5) and (1) of the Act. See, e.g., Alamo
Cement Co., 277 NLRB 1031, 1034 (1985); Architectural Woodwork Corp.,
280 NLRB 930 (1986). Accordingly, we find that there are issues of fact and
law to be resolved in connection with the Respondent’s contention.
United States Postal Service and American Postal
Workers Union Local 4560, AFL–CIO. Cases
11–CA–13798(P) and 11–CA–13867(P)
May 13, 1991
ORDER DENYING MOTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 13, 1990, the Regional Director for Region
11 of the National Labor Relations Board issued a
complaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act. The Respondent filed an answer, admitting in part
and denying in part allegations of the complaint, plead-
ing certain affirmative defenses, and requesting that the
complaint be dismissed.
On October 9, 1990, the Respondent filed with the
Board a motion to dismiss or to defer and a supporting
memorandum. The Respondent contends that the mat-
ters alleged in the complaint should be dismissed or,
alternatively, should be deferred to the grievance-arbi-
tration procedure in accordance with the Board’s deci-
sion in Dubo Mfg. Co., 142 NLRB 431 (1963). On Oc-
tober 23, 1990, the General Counsel filed a motion in
opposition to the Respondent’s motion to dismiss or to
defer.
On October 25, 1990, 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 Respondent filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Respondent contends that the refusal to provide
information allegations in the complaint should be dis-
missed because it is undisputed that the Respondent
has offered to furnish the requested information to the
Union conditioned on payment of costs. We disagree.
The General Counsel does not concede in his opposi-
tion that such an offer has been made. The Respondent
has denied the other unfair labor practice alleged in the
complaint—that it unilaterally discontinued out-of-
schedule premium pay to relief and pool employees,
and he does not concede that the Respondent was priv-
ileged to condition the grant of information on the pay-
ment of costs.1 There are, therefore, material issues of
fact in dispute pertaining to both complaint unfair
labor practice allegations.
We also reject the Respondent’s request for deferral
to arbitration. The Board has held that issues con-
cerning a refusal to supply information are not subject
to deferral to the grievance-arbitration process. See
Postal Service, 280 NLRB 685 fn. 2 (1986). Hence,
the information-refusal allegations in this case are not
subject to deferral. The 8(a)(5) allegations pertaining to
out-of-schedule premium pay are intimately connected
to the information-refusal allegations, and hence they
too are not subject to deferral. We thus find that the
pleadings and submissions of the parties raise substan-
tial issues of fact and law which can better be resolved
before an administrative law judge.
IT IS ORDERED that the Respondent’s motion to dis-
miss or to defer is denied.
IT IS ORDERED that the proceeding is remanded to
the Regional Director for Region 11 for further appro-
priate action.