United States Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1031 (N.L.R.B. 1986)

POSTAL SERVICE 1031
United States Postal Service and Columbus Area
Local, American Postal Workers Union, AFL-
CIO. Case 9-CA-18366(P)
30 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
Upon unfair labor practice charges filed by the
Union on 26 May 1982, the General Counsel of the
National Labor Relations Board issued a complaint
on 28 June 1982, against the United States Postal
Service, the Respondent, alleging that the Re-
spondent violated Section 8(a)(1) and (5) and Sec-
tion 2(6) and (7) of the National Labor Relations
Act. Copies of the complaint and notice of hearing
were served on the Respondent. Thereafter, the
Respondent filed a timely answer denying the com-
mission of any unfair labor practices and asserting
certain affirmative defenses.
On 17 March 1983 the parties jointly moved the
Board to transfer the proceeding to the Board
without benefit of hearing before an, administrative
law judge, and submitted a proposed record con-
sisting of the formal papers and the parties' stipula-
tion of facts with attached exhibits. On 28 July
1983,' the Executive Secretary of the Board, by di-
rection of the Board, issued an order granting, the
motion, approving the stipulation, and transferring
the proceeding to the Board. Thereafter, the Gen-
eral Counsel, the Respondent, and the Charging
Party filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent provides postal services for the
United States of America and operates various fa-
cilities throughout the United States in the per-
formance of that function, including a facility lo-
cated in Columbus , Ohio, the only facility involved
in this proceeding . The Board has jurisdiction over
the Respondent in this matter by virtue of Section
1209 of the Postal Reorganization Act, 39 U.S.C. §
101 et seq.
IL LABOR ORGANIZATION
The parties stipulated and we find that Columbus
Area Local, American Postal Workers Union,
AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union and the Respondent have been parties
to successive collective-bargaining agreements cov-
ering postal clerks, as well as certain other employ-
ees of the Postal Service, for a number of years, in-
cluding a contract that wag effective from 21 July
1978 to 20 July 1981. This contract contained a
final and binding grievance and arbitration provi-
sion.
About 10 July 1981, distribution clerk Regina M.
Woods, an employee included in the bargaining
unit covered by the parties' contract, was given
notice of a 10-day suspension by the Respondent
for being "Absent Without Leave." About 13 July
1981, Woods filed a grievance regarding the sus-
pension under the grievance-arbitration procedure
included in the parties' contract. The grievance
was denied by management at steps 1 and 2 of the
grievance procedure. Thereafter, about 28 July
1981, Woods filed a precomplaint Equal Employ-
ment Oppportunity (EEO) form alleging discrimi-
natory treatment because of race and sex with re-
spect to the suspension, which was the subject of
her contract grievance.
About 18 September 1981, an agreement entitled
"Pre-Complaint Withdrawal of Complaint" was
signed by Woods and EEO Counselor Barbara J.
Johnson on behalf of the Respondent. Such with-
drawal was based on partial relief for the substan-
tive matter complained of in Woods' precomplaint
form. Specifically, the final resolution provided
that the Postal Service would withdraw the 10-day
suspension and remove it from Woods' record, that
there would be no payment of back, wages, and
that Woods would withdraw her complaint of dis-
crimination. Neither the Union nor any of its repre-
sentatives participated in or were notified of the
proceedings culminating in the resolution of
Woods' EEO claim.
The Union continued pursuing Woods' contract
grievance through the contractual grievance and
arbitration procedure. The Union maintained in the
grievance that the disciplinary action was unjust
and unwarranted, and sought backpay to make
Woods whole for all her losses. The contract
grievance was ' based, in part, on an alleged viola-
tion of the nondiscrimination clause of the ,parties'
collective-bargaining agreement. About 16 ^ Febru-
ary 1982, when the grievance had reached the arbi-
tration stage, the Respondent asserted the EEO
Pre-Complaint Withdrawal of Complaint as, a de-
281 NLRB No. 139
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fense to the arbitration proceedings on the contract
grievance. On 22 February 1982, Arbitrator Linda
Di Leone Klein issued an award holding that the
contract grievance was not arbitrable because of
the EEO Pre-Complaint Withdrawal of Complaint
executed by Woods. Accordingly, she denied the
grievance on that basis.
B. Contentions of the Parties
The parties agree that the legal issues raised by
this case are identical to those presented in Postal
Service, 281 NLRB 1015 (1986), and urge that this
case be considered concomitantly with that pro-
ceeding. That case presented the Board with the
question whether the Union must be given the op-
portunity to be present when the Postal Service ad-
justs or attempts to adjust Equal Opportunity
(EEO) complaints with individual unit employees
when the same incidents or course of conduct com-
prising those complaints are concurrently the sub-
ject of contractual grievances.
The General Counsel asserts that the Respond-
ent's conduct of raising a precomplaint resolution
of an employee's EEO claim reached without
notice to, or participation of, her collective-bar-
gaining representative as a defense in a contract ar-
bitration proceeding violates Section 8(a)(5) and (1)
of the Act. That assertion is premised on the posi-
tion that it is a violation of Section 8(a)(5) and (1)
for an employer to . adjust employees' grievances
without permitting their collective-bargaining rep-
resentative an opportunity to be present at such ad-
justment, as required by Section 9(a) of the Act.
The Respondent submits that it did no more than
offer a legitimate, good-faith affirmative defense at
arbitration. It claims that to preclude the assertion
of such a defense deprives the Postal Service of its
right to present a defense, and unjustly deprives
and usurps from the arbitrator the right to decide
the issue. The Respondent argues that precluding
the assertion of a defense frustrates, rather than
aids, the grievance-arbitration process.
The Charging Party maintains that an employer
should not be permitted to preempt arbitration pro-
ceedings under a collective-bargaining agreement
with a settlement arrived at in unilaterally estab-
lished internal EEO proceedings. In its brief to the
Board in 281 NLRB 1015, referred to in its memo-
randum in this proceeding, the Charging Party as-
serts that the unilateral grievance adjustment pro-
hibited, by Section 9(a) of the Act occurred when
the document was signed, but that the EEO settle-
ment was not apparent as a grievance adjustment
until the Postal Service asserted it as a defense
before the arbitrator.
C. Analysis and Conclusions
As stated, the parties agree that this case is con-
trolled by the Board's decision in 281 NLRB No.
138, which issued today. As fully set forth in that
decision, we find that the clear statutory mandate
of Section 9(a) of the National Labor Relations Act
must prevail over EEO administrative regulations
requiring anonymity of the complainant at the pre-
complaint stage of an EEO proceeding. According-
ly, we find that the Postal Service violated Section
8(a)(5) and (1) of the Act when it adjusted a con-
tract grievance with employee Woods without af-
fording her collective-bargaining representative the
opportunity to be present at the adjustment as re-
quired by Section 9(a) of the Act.' See, e.g., Top
Mfg. Co., 249 NLRB 424 (1980), and cases cited
therein, cited in Postal Service, 268 NLRB 876, 877
(1984).2
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Postal Service and the
Union set forth in section III, above, occurring in
connection with the operations of the Postal Serv-
ice described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the Act, we shall
order the Respondent to cease and desist therefrom
and to take certain affirmative action designed to
effectuate the policies of the Act.
As we have found that the Respondent unlawful-
ly adjusted a contractual grievance without giving
the employee's collective-bargaining representative
the opportunity to be present at the adjustment, we
shall order it to cease and desist from this conduct.
We shall also order the Respondent to afford the
Union the opportunity to be present at any at-
tempts to adjust contractual grievances.
In order to return the parties to the position in
which they would have been but for .the Respond-
ent's unlawful conduct, we shall order the Postal
Service, jointly with the Union if it is willing, to
1 As in 281 NLRB 1015, we find the allegations of the complaint suffi-
ciently broad to support our finding that the violation occurred at the
time of the grievance adjustment , rather than at the time the settlement
was asserted as a contract grievance defense. The complaint in this pro-
ceeding generally tracks that in Case 9-CA-16503(P), 281 NLRB, 1015.
2 Member Johansen does not find that attempting to adjust a grievance
necessarily violates the Act. See Postal Service, 281 NLRB 1015.
POSTAL SERVICE
take all appropriate steps to reconvene the Woods'
arbitration or, in the alternative , to hold the arbi-
tration de novo, waiving all defenses not ripe at the
time of the original arbitration and specifically
withdrawing from the reconvened arbitration, or
not presenting at any de novo arbitration , any ar-
gument, made directly or indirectly, that Woods'
EEO settlement defeats, diminishes , or otherwise
weakens the Union 's claims under the collective-
bargaining agreement.
The Postal Service shall also pay all reasonable
increased expenses of the Union and the arbitrator
clearly and specifically resulting from the delay in
the arbitration caused as a result of the successful
but improper assertion by the Postal Service of the
Woods' EEO settlement as a defense. The sums
owing, if any, shall be computed as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), and shall
bear appropriate interest to be calculated in accord-
ance with the formulas set forth in Florida Steel
Corp., 231 NLRB 651 (1977).
Finally, we shall require the Respondent to post
a notice at its Columbus , Ohio facility in order to
fully inform employees of their rights and the out-
come of this matter.
CONCLUSIONS OF LAW
1. United States Postal Service is an employer
over whom the Board has jurisdiction by virtue of
Section 1209 of the Postal Reorganization Act, 39
U.S.C. § 101 et seq.
2. Columbus Area Local, American Postal
Workers Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By adjusting contract grievances with individ-
ual unit employees without affording the employ-
ees' collective-bargaining representative the oppor-
tunity to be present at such adjustment as required
by Section 9(a) of the Act, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, United States Postal Service, Co-
lumbus, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Colum-
bus Area Local American Postal Workers Union,
AFL-CIO by adjusting or attempting to adjust
contract grievances with individual unit employees
without affording that Union, the employees' col-
1033
lective-bargaining representative , the opportunity
to be present at such adjustments.
(b) Giving contractual effect to, raising, or other-
wise asserting in the contractual grievance process
grievance settlements reached with individual unit
employees where the employees ' collective-bar-
gaining representative was not afforded the oppor-
tunity to be present at such adjustment.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Afford the employees' collective-bargaining
representative the opportunity to be present at any
attempts to adjust contractual grievances with unit
employees through any forum.
(b) Petition the arbitrator in the Regina M.
Woods' arbitration, jointly with the Union be it
willing, to reopen the arbitration or, the arbitrator
being unavailable or unwilling, convene a de novo
arbitration to consider the issues in the Woods'
grievance on their merits, waiving all defenses not
ripe at the time of the original arbitration and, fur-
ther, withdrawing at the reconvened arbitration, or
not advancing at a de novo arbitration , the EEO
settlement reached with Woods as a defense to the
Union's asserted contract violation.
(c) Pay all reasonable increased expenses of the
Union and the arbitrator specifically resulting from
the delay in the arbitration caused by the successful
assertion of the EEO settlement as a defense in the
original arbitration of the Woods' grievance, with
appropriate interest, as more fully set forth in the
remedy section of this decision.
(d) Post at its Columbus , Ohio facility copies of
the attached notice marked "Appendix."s Copies
of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
8 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."
1033 a DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
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.
WE WILL NOT refuse to bargain collectively with
Columbus Area Local, American Postal Workers
Union , AFL-CIO by adjusting or attempting to
adjust contract grievances with individual unit em-
ployees without affording that Union, the employ-
ees' collective-bargaining representative , the oppor-
tunity to be present at such adjustments.
WE WILL NOT give contractual effect to, raise,
or otherwise assert in the contractual grievance
process grievance settlements reached with individ-
ual unit employees where the employees ' collec-
tive-bargaining representative was not afforded the
opportunity to be present at such adjustment.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL afford the employees' collective-bar-
gaining representative the opportunity to be
present at any attempts to adjust contractual griev-
ances with unit employees through any forum.
WE WILL petition the arbitrator of the Regina
M. Woods' grievance, jointly with the Union if it
agrees , to reopen the Woods' arbitration . If reopen-
ing is not possible, we shall seek a new arbitration
of the Woods' grievance . At the reconvened or the
new arbitration we shall withdraw or not raise the
EEO settlement between Woods and the Postal
Service as a defense to the Unions' grievance; nor
will we assert any other defense which was not
ripe at the time of the original arbitration.
WE WILL pay all reasonable increased expenses
of the Union and the arbitrator caused by the delay
in the arbitration which resulted from our improper
assertion of the EEO settlement as a defense in the
original arbitration , with appropriate interest.
UNITED STATES POSTAL SERVICE
1033 b
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