Postal Service

National Labor Relations Board - Board Decisions

Oct 21, 1997

324 N.L.R.B. 794 (N.L.R.B. 1997)

794
324 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates are in 1997.
2 We find this case distinguishable from Consolidated Freightways
Corp., 288 NLRB 1252, 1255–1256 (1988), petition for rev. denied
sub nom. Hammontree v. NLRB, 925 F.2d 1486 (D.C. Cir. 1991) (en
banc), where the Board deferred to the arbitral procedure an unfair
labor practice charge filed by an individual charging party. In that
case, unlike here, the charging party could have (through his union)
submitted to arbitration the contractual claim that was parallel to his
charge, but he had failed to tell the union about it when the union
was pursuing a related claim on his behalf. Id. at 1254. In holding
that the charge was not rendered inappropriate for deferral simply
because it was filed by an individual rather than by the union, the
Board, inter alia, expressed concern that a contrary rule might allow
unions to ‘‘circumvent the contractual grievance procedure by the
simple expedient of having the individual employee, instead of the
union, file the charge.’’ As noted above, there has been no allegation
here that the Union is interested in circumventing the grievance-arbi-
tration procedure in order to have the claim resolved elsewhere.
Rather, the letter from the Union attached as exh. A to the General
Counsel’s ‘‘Response to Notice to Show Cause’’ indicates that the
Union simply does not regard issues involving assignment to super-
visory positions as grievable matters. As also noted above, no party
has alleged that this position violates the Act.
United States Postal Service and Janet Fulmer. Case
10–CA–29640(P)
October 21, 1997
ORDER DENYING MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
Upon a charge filed by Janet Fulmer, an individual,
on September 26, 1996, the General Counsel of the
National Labor Relations Board issued a complaint on
February 24, 1997,1 against the United States Postal
Service, the Respondent, alleging that it had violated
Section 8(a)(1) of the Act. Copies of the charge and
the complaint were properly served on the Respondent.
On March 14, the Respondent filed an answer to the
complaint, denying the unfair labor practice allegations
and affirmatively arguing that the case should be de-
ferred for processing under the grievance-arbitration
procedure of the collective-bargaining agreement be-
tween the Respondent and the American Postal Work-
ers Union.
On April 7, the Respondent filed with the Board a
Motion for Summary Judgment, arguing that the alle-
gations should be deferred and that the complaint
should be dismissed consistent with the policies of
Collyer Insulated Wire, 192 NLRB 837 (1971), and
United Technologies, 268 NLRB 557 (1984). On April
24, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
Respondent’s motion should not be granted. On May
8, counsel for the General Counsel filed a response op-
posing the Respondent’s Motion for Summary Judg-
ment.
The complaint alleges that the Respondent ceased
assigning employee Janet Fulmer acting supervisor du-
ties, and imposed more onerous working conditions on
employees Jackie Poteet and Carolyn Appling because
the three employees engaged in protected concerted ac-
tivities. Specifically, the Respondent is charged with
relieving Fulmer of acting supervisor duties in retalia-
tion for her filing a class action grievance protesting
the Respondent’s distribution of hours. The Respond-
ent is also charged with harassing Poteet and Appling,
and imposing more onerous conditions on them, in re-
prisal for filing grievances.
The Respondent asserts that deferral is appropriate
because the complaint allegations are cognizable as
grievances under the collective-bargaining agreement,
and because it has agreed—for a reasonable period—
to process and arbitrate the complaint allegations re-
garding Fulmer, Poteet, and Appling. Counsel for the
General Counsel contends that deferral is not appro-
priate because the grievance-arbitration mechanism is
available only to parties to the contract, and not to in-
dividual grievance filers. Counsel for the General
Counsel notes that the Union consistently has refused
to process Fulmer’s grievance because it involves as-
signment to a nonunit, supervisory position. Counsel
for the General Counsel further asserts that because
there is no claim or evidence that the Union’s refusal
is unlawful or undertaken to avoid arbitration, deferral
is inappropriate. Finally, because Fulmer, Poteet, and
Appling allege that the same supervisor retaliated
against them for grievance filing, counsel for the Gen-
eral Counsel asserts that Appling’s and Poteet’s griev-
ances are closely related to and intertwined with
Fulmer’s and similarly should not be deferred.
Having duly considered the matter, we find that
summary judgment is not appropriate here. The griev-
ance was filed by Charging Party Fulmer. Under the
contract, Fulmer cannot independently process her
grievance, and the Union steadfastly has refused to
process it. A precondition of Collyer deferral is that
the charging party have the ability to obtain arbitral
consideration of the grievance. Here, because the
Union has steadfastly refused to process Fulmer’s
grievance to arbitration and there is no evidence or
even a contention that this refusal was unlawful or mo-
tivated to avoid deferral, we find that deferral is not
appropriate.2 Additionally, because there is a factual
issue as to whether Poteet’s and Appling’s grievances
are closely related to Fulmer’s, we find that the com-
plaint allegations as to these two employees likewise
should not be deferred. See Clarkson Industries, 312
NLRB 349, 352 and fn. 12 (1993). Accordingly, we
shall deny the Respondent’s Motion for Summary
Judgment.
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795POSTAL SERVICE
ORDER
It is ordered that the Respondent’s Motion for Sum-
mary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 10 for fur-
ther appropriate action.
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