U.S. Postal Service

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1826 (N.L.R.B. 1977)

1826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Postal Service and American Postal Workers
Union, AFL-CIO, Georgetown, Texas Local
Union . Cases 16-CA-5400(P) and 16-CA-5861(P)
January 31, 1977
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
REMANDING PROCEEDING TO
REGIONAL DIRECTOR FOR HEARING
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On February 21, 1974, the Regional Director for
Region 16 of the National Labor Relations Board
issued a complaint and notice of hearing, and on May
20, 1975, an order consolidating cases and complaint
and notice of hearing in the above-entitled proceed-
ing, alleging that the Respondent has engaged in and
is engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as
amended, and within the meaning of the Postal
Reorganization Act. Subsequently, the Respondent
filed answers to the complaint and consolidated
complaint, admitting in part, and denying in part, the
allegations of the complaints, and requesting that the
complaints be dismissed in their entirety.
Thereafter, on August 4, 1975, the Respondent filed
a Motion for Summary Judgment and a memoran-
dum in support thereof, with exhibits attached.
Respondent moves that summary judgment be grant-
ed on the ground that the Board lacks jurisdiction to
substitute its litigation procedures for the grievance-
arbitration procedures mandated by the Postal Reor-
ganization Act. Alternatively, Respondent moves
that the Board defer the matter to the grievance-
arbitration procedures of the contract between the
parties under the principles of Dubo Manufacturing
Corporation, 142 NLRB 431(1963), or Collyer Insulat-
ed Wire, A Gulf and Western Systems Co., 192 NLRB
837 (1971). On August 7, 1975, the General Counsel
filed an opposition to Respondent's Motion for
Summary Judgment, arguing, inter alia, that deferral
of the 8(a)(4) allegations, in particular, is inappropri-
ate because of the Board's duty to protect access to its
own processes. On August 8, 1975, the Board issued
an order transferring the proceeding to the Board and
' The Respondent 's contention that the Board's junsdiction in this case
has been supplanted by provisions of the Postal Reorganization Act, calking
for the adoption by the parties of binding arbitration procedures, is totally
lacking in ment According to sec. 1209(a ) of the Postal Reorganization Act,
"Employee- Management relations shall, to the extent not inconsistent with
provisions of this title , be subject to the provisions of [the National Labor
Relations Act 1 " We find no provision in that act which deprives the Board
of its general power under Sec 10(a) of the National Labor Relations Act "to
prevent any person from engaging in any unfair labor practice affecting
commerce " Sec 10(a) of the Act further provides that "[t ills power shall not
227 NLRB No. 267
Notice To Show Cause why the Respondent's Motion
for Summary Judgment should not be granted.
Thereafter, Respondent and General Counsel filed
briefs.
In addition, on August 14, 1975, Respondent filed a
petition to revoke the subpoena duces tecum, in the
event that its Motion for Summary Judgment is not
granted. General Counsel filed an opposition to
Respondent's petition to revoke the subpoena duces
tecum, asserting that the petition was moot because
the subpena was returnable at a hearing in the above-
captioned case which had been canceled. Thereafter,
on August 22,1975, the Regional Director for Region
16 issued an order referring the petition to revoke the
subpoena duces tecum and counsel for the General
Counsel's response thereto to the National Labor
Relations Board. Additionally, on September 8 and
22, 1975, Respondent filed a motion for the inclusion
of documents in the record concerning Respondent's
Motion for Summary Judgment, and a supplemental
motion for inclusion of documents, respectively. The
General Counsel filed an opposition to each motion
on September 15 and 29, 1975, respectively.
On December 19, 1975, and April 26, July 29,
September 9, and December 14, 1976, Respondent
filed further motions for the inclusion of additional
documents. The General Counsel filed an opposition
to each motion on December 29, 1975, and May 7,
August 16, September 13, and December 30, 1976,
respectively. On September 16, 1976, Richard Quin-
lan, the discriminatee, also filed an opposition to
Respondent's motion of September 9, 1976. Further,
on December 6, 1976, Quinlan filed a motion for the
inclusion of additional documents.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has duly considered the matter and is of
the opinion that issues raised by the pleadings may
best be resolved at a hearing conducted by an
Administrative Law Judge.I
It is hereby ordered that the Respondent's Motion
for Summary Judgment in the above-captioned
proceeding be, and it hereby is, denied?
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
be affected by any other means of adjustment or prevention that has been or
may be established by agreement , law, or otherwise."
2 Because Chairman Murphy believes that 8(aX4) issues are solely within
the Board 's province to decide , and because the 8(aX3) and (1) issues here are
inextricably intertwined with the 8(aX4) allegation , the Chairman would not
defer to arbitration in any event McKinley Transport Limited, 219 NLRB
1148, fn . 2(1975)
Although Member Fanning agrees with the disposition herein, he would
not defer to arbitration for reasons stated in his dissents in Collyer Insulated
Wire, supra, and subsequent cases decided thereunder.
U.S. POSTAL SERVICE 1827
Regional Director for Region 16 for further appropri-
ate action.
IT IS FURTHER ORDERED that Respondent's petition
to revoke the subpoena duces tecum be, and it hereby
is, granted, without prejudice to the General Coun-
sel's right to renew its request for a subpoena duces
tecum before the Administrative Law Judge and that
the various motions for inclusion of certain docu-
ments be, and they hereby are, denied without
prejudice to the parties' rights to renew their requests
before the Administrative Law Judge.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would defer the 8(a)(4)
issue herein to arbitration as I perceive no real
distinction between Section 8(a)(3) and Section
8(a)(4) with respect to deferral, and would defer the
8(a)(3), 8(a)(4), and 8(a)(1) issues herein to arbitra-
tion.
In National Radio Company, Inc., 198 NLRB 527
(1972), the Board held that deferral of an 8(a)(3)
charge was appropriate since it was reasonable to
assume that an arbitrator could resolve the dispute in
a manner consistent with the standards of Spielberg
Manufacturing Company, 112 NLRB 1080 (1955). The
Board's view was based on the premise that, since
arbitrators are skilled at determining whether or not
an employee was discharged for "just cause," arbitra-
tors are necessarily adept at deciding whether or not
union animus was the real motivation for the compa-
ny's action. This underlying assumption was reiterat-
ed in Electronic Reproduction Service Corporation;
Madison Square Offset Company, Inc., and Xerograph-
ic Reproduction Center, Inc., 213 NLRB 758, 761
(1974):
For in discharge and discipline cases the basic
contractual issue is whether or not the grievant
has been disciplined or discharged for just cause.
It is of course obvious that "just cause" does not
include illegal or discriminatory reasons. Indeed,
a showing that the true reason for the discipline or
discharge was a discriminatory one negates an
employer claim that the discharge or discipline
was "for just cause." Arbitrators have repeatedly
so held, and have recognized clearly their respon-
sibilities in this area.
The Board believes that it will not effectuate the
statutory policy of encouraging the practice and
procedure of collective bargaining for the Board to
assume the role of policing collective contracts
between employers and unions by trying to decide
whether disputes as to the meaning and administra-
tion of such contracts constitute unfair labor practic-
es under the Act. Quoting from an earlier case, the
Board in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837, 840 (1971), stated
"[e]xperience has demonstrated that collective-bar-
gaining agreements that provide for final and binding
arbitration of grievance and disputes arising thereun-
der, `as a substitute for industrial strife,' contribute
significantly to the attainment of this statutory
objective." The question then is whether it is reason-
able to assume that the facts herein present an issue
which may be properly resolved through the griev-
ance and arbitration procedure.
Respondent is alleged to have subjected employee
Quinlan to disparate treatment by requiring of
Quinlan a greater work output than that of other
employees, keeping him under surveillance, denying
him a periodic wage increase, and placing him on
probation for 14 weeks because Quinlan filed unfair
labor practice charges and gave testimony under the
National Labor Relations Act.
The contract between the parties herein contains in
article XVI a "just cause" provision and provides that
any discipline or discharge shall be subject to the
grievance-arbitration procedure. Furthermore, article
V states that:
The Employer will not take any actions affecting
wages , hours and other terms and conditions of
employment as defined in Section 8(d) of the
National Labor Relations Act which violate the
terms of this Agreement or are otherwise inconsis-
tent with its obligations under law . [Emphasis
supplied.]
In addition , article XV, section 1, of the parties'
agreement states , inter alia:
Definition. A grievance is defined as a dispute,
difference, disagreement or complaint between the
parties related to wages, hours, and conditions of
employment. A grievance shall include , but is not
limited to, the complaint of any employee or of the
Unions which involves the interpretation of, or
compliance with the provisions of this Agreement
.... [Emphasis supplied.]
Therefore , it is clear that the matters in dispute just
as in an 8(a)(3) situation are subject to the contract's
arbitration procedure and can be considered and
resolved by the parties ' own procedures in a manner
consistent with Spielberg, supra. For the alleged
8(a)(4) discriminatory treatment cannot be for "just
cause" or consistent "with its [Respondent's] obliga-
tions under law" if the conduct is motivated by the
protected activity of presenting a charge to the Board
or testifying under the Act. Moreover, as the Board
noted in United States Postal Service, 210 NLRB 560
(1974), the parties herein have a clearly defined,
workable , and freely resorted to grievance procedure,
1828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which at that time had been successfully utilized in
the processing of numerous grievances. In this regard,
I note that the Union filed a grievance concerning
one of the issues involved herein, which the General
Counsel alleges it has now abandoned.
In conclusion, in my view deferral of an 8(a)(4)
unfair labor practice charge is warranted if there is a
reasonable probability that the unfair labor practice
issues raised by the charge could be considered and
effectively settled under the contract arbitration
procedures in a prompt and fair manner. For the
same reasons the Board defers in an 8(a)(3) context,
deferral in an 8(a)(4) situation is warranted, neces-
sary, and proper if we are to advance the fundamen-
tal aim of the Act to promote industrial peace and
stability by encouraging the fullest use of collective
bargaining.
Accordingly, I would dismiss the complaint herein
but retain jurisdiction to reopen the case in the event
the Respondent engages in foot dragging, or the
disposition in the arbitration proceeding is irregular
or repugnant to the policies of the Act.