United States Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1015 (N.L.R.B. 1986)

POSTAL SERVICE 1015
United States Postal Service and American Postal
Workers Union, Columbus Area Local, AFL-
CIO
American Postal Workers Union , Phoenix Metro
Area Local, AFL-CIO. Cases 9-CA-16503(P)
and 9-CA-6540(P)
30 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 23 August 1982 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent, the General Counsel, Charging
Parties, and Intervenor ' filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs2 and
has decided to affirm the judge's rulings, fmdings,
and conclusions only to the extent consistent with
this Decision and Order.
At issue in this proceeding is the question of
whether the Union must be given the opportunity
to be present when the Postal Service adjusts or at-
tempts to adjust Equal Employment Opportunity
complaints3 with individual unit employees when
the same incidents or course of conduct comprising
those complaints are concurrently the subject of
contractual grievances . The judge engaged in a bal-
ancing of what he found to be conflicting statutory
policies of Title VII of the Civil Rights Act of
1964 and Section 9(a) of the National Labor Rela-
tions Act, and arrived at an accommodation
scheme, which he found best harmonized the im-
portant interests sought to be protected by each.
Specifically, he concluded that the Union's right to
be present at Equal Employment Opportunity
(EEO) precomplaint settlement meetings with unit
employees at which individual's grievances are ad-
justed should yield to EEO processes mandating
anonymity of the complainant at the precomplaint
stage of that proceeding , thereby limiting the re-
quirements of Section 9(a) of the Act to the extent
necessary to be consistent with federally enacted
r American Postal Workers Union, AFL-CIO was granted Intervenor
status in this proceeding.
2 The Charging Parties and Intervenor have requested that the Board,
sua sponte , authorize injunctive relief under Sec. 10 (j) of the Act. We
find this is not an appropriate case for such action, and deny that request.
s The term "complaints" is used here in its generic sense , to connote
matters of concern to employees, rather than as an indication that the in-
dividual has filed a formal complaint of discrimination within the mean-
ing of Federal EEO Regulations. See fn . 4 below.
EEO regulations pertaining to the Postal Service.4
As a necessary consequence of this limitation, he
concomitantly guaranteed the Union 's right to pro-
tect the interests of all unit employees by limiting
the Respondent 's ability to raise as a defense to the
Union 's pursuit of a contract grievance based on
the same facts the EEO precomplaint settlement
reached with the individual employee . Contrary to
the judge, we fmd that the clear statutory mandate
of Section 9(a) of the Act must prevail over the
EEO administrative regulations . Accordingly, we
disagree with the judge 's conclusions and find that
the Postal Service violated the Act when it adjust-
ed or attempted to adjust contract grievances with
individual employees without affording their col-
lective-bargaining representative the opportunity to
be present at the adjustments.
Section 9(a) of the Acts gives individual employ-
ees the right to present and adjust grievances with
management , but the second proviso to that section
guarantees to the bargaining representative an op-
portunity to be present at the adjustment of griev-
ances . The explicit language of the Act secures this
right to the bargaining representative without qual-
ification . Further, legislative history and the entire
statutory bargaining scheme disclose that the
second proviso to Section 9 (a) was inserted in rec-
ognition of the bargaining representative 's interest
in administering its contract. Bethlehem Steel Co.,
89 NLRB 341, 347 (1950). As noted in Bethlehem
Steel, the dangers of permitting an employee, or a
group of employees , the unqualified right to
present and settle grievances were expounded upon
in the House debates on Section 9 (a) as follows:6
To grant individual employees or a minority
group of employees the right to present and
settle grievances which relate to wages, hours,
and conditions of employment, without per-
4 29 CFR § 1613.213, which applies to this employer and provides for
an aggrieved employee 's precomplaint right of consultation with an EEO
counselor to try to resolve the matter, states, in relevant part:
The Equal Employment Opportunity Counselor shall not reveal
the identity of an aggrieved person who consulted the counselor,
except when authorized to do so by the aggrieved person , until the
agency has accepted a complaint of discrimination from that person.
a Sec . 9(a) of the Act provides that:
Representatives designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit appropri-
ate for such purposes , shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages , hours of employment , or other condi-
tions of employment : Provided, That any individual employee or a
group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, with-
out the intervention of the bargaining representative , as long as the
adjustment is not inconsistent with the terms of a collective-bargam-
ing contract or agreement then in effect : Provided further, That the
bargaining representative has been given opportunity to be present at
such adjustment.
6 Bethlehem Steel Co., supra at fn. 8.
281 NLRB No. 138
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witting the representative of the majority of
the employees to participate in the conference
and join in any adjustment is to undermine the
very foundations of the Act. To create rivalry,
dissension, suspicion, and friction among em-
ployees, to permit employers to play off one
group of employees against another, to confuse
the employees would completely undermine
the collective-bargaining representative and
would be disastrous. [93 Cong. Rec. 3702
(daily ed. Apr. 17, 1947).]
The House version of Section 9(a) did not in-
clude any requirement that the bargaining repre-
sentative be given an opportunity to be present at
the adjustment of grievances (see H.R. 3020, 80th
Cong . 1st Sess. at 28). The requirement was includ-
ed in the Senate Bill (S. 1126, 80th Cong. 1st Sess.
at 19) and was retained in the Conference Agree-
ment (H.R. Conf. Rep. 80th Cong. 1st Sess . at 46).
Thus, by including the second proviso to Section
9(a), Congress clearly indicated an intent to ensure
that the institutional role of the collective-bargain-
ing representative of all the employees in a bargain-
ing unit is not subordinated to that of individual
employees.7
Balanced against this clear statutory imperative
of Section 9(a) is the EEO regulation requiring an
EEO counselor not to reveal the identity of an ag-
grieved person except when authorized to do so by
that individual. This anonymity right obtains only
at the precomplaint stage, before a formal com-
plaint of discrimination has been filed by an ag-
grieved person. The EEO regulations provide for
initial precomplaint counseling, which is a required
first step in the EEO complaint procedure. Within
specified time limits the aggrieved person must
contact an EEO counselor who, following an ini-
tial consultation, makes whatever inquiry he deems
appropriate into the matter, seeks a solution on an
informal' basis, and counsels the aggrieved person
concerning the issues in the matter. While selection
of EEO counselors is a responsibility of manage-
ment, the EEO counselor may be a bargaining unit
employee. Applicable Federal Personnel Bulletins
provide that an EEO counselor "should not serve
as a representative for a complainant or for an
7 The Supreme Court has recognized the importance of maloritanan
rights in the statutory scheme, noting in Emporium Capwell Co. v. West-
ern Addition Community Organization , 420 U.S. 50, 62 (1975):
In establishing a regime of majority rule, Congress sought to secure
to all members of the unit, the benefits of their collective strengths
and bargaining power , in full awareness that the superior strength of
some individuals or groups might be subordinated to the interest of
the majority. Vaca v. Sipes, 386 U.S. 171, 182 (1967); Z1. Case Co. v.
NL.R.B., 321 U.S. 332, 338-339 (1944); H.R. Res No. 972, 74th
Cong. 1st Sess, 18 (1935).
agency in connection with the processing of a dis-
crimination complaint."8
Guidance as to the reason for the anonymity re-
quirement was provided in the Federal Personnel
Manual at section 713-B-2, issued on December 21,
1976. As stated there, this provision "serves to pro-
tect the identity of an employee who wants to dis-
cuss a problem but who does not want the atten-
tion of agency management attracted to him."
While the Appendix containing this statement in
the Federal Personnel Manual was revoked when
the EEOC assumed enforcement responsibility for
EEO in the Federal Government and Postal Serv-
ice, the anonymity provision was retained in regu-
lations adopted by the EEOC, and there is no evi-
dence that the reason for inclusion of the provision
has altered by virtue of the change in enforcement
authority. Hence, it would appear that the anonym-
ity requirement is to protect the identity of the ag-
grieved employee from management, not from the
union . Moreover, since contract grievances were
also filed regarding the matters that are the subject
of the EEO inquiries in the cases before us, the
Union was already aware of the identities of the
aggrieved employees.9 Accordingly, whatever va-
lidity the confidentiality requirement may have in
general, we do not find that it is sufficient to out-
weigh the Union's clear statutory rights set forth in
Section 9(a) of the Act.
This consolidated proceeding encompasses
United States Postal Service cases arising in two
different geographical regions. In Case 28-CA-
6540, the Phoenix Metro Area Local Union filed
contract grievances with the Postal Service on
behalf of four employees who had received notices
of termination. i 0 These grievances allege distinct
s Federal Personnel Manual Letter No. 713-21 , issued September 21,
1973, adopted by the EEOC on December 29, 1978, following transfer to
that agency of the EEO enforcement functions formerly vested in the
Civil Service Commission pursuant to Title VII of the Civil Rights Act
of 1964, as amended, under the Reorganization Plan #1 of 1978 and Ex-
ecutive Order 12106. Federal Personnel Manual Bulletin 720-5 , issued
November 29, 1979.
The judge states that EEO counselors are agents of the Postal Service.
No party has excepted to this finding . While the EEO counselors in-
volved in this proceeding may have been agents of the Postal Service, we
make no finding that EEO counselors are generally management agents.
s Nor were all of these employees who had filed contract grievances
concerned with remaining anonymous to the Postal Service management.
Phoenix EEO Counselor Max O 'Canas testified, for instance, that em-
ployees Anita Ortiz and Ramona Tovar had sent a telegram to the Post-
master requesting a meeting with regard to their grievances. A meeting
among the two employees, O'Canas, Postal Service Employee and Labor
Relations Sectional Center Director Leo Gutierrez , and the Postmaster
resulted from this contact . O'Canas testified that this meeting , which oc-
curred before the two employees were offered an EEO settlement, was
part of the EEO counseling stage.
iu The notices, issued on various dates in 1981 , notified four distribu-
tion clerks that their performance on the letter sorting machine was un-
satisfactory and that they , would be terminated by a certain date unless
they could qualify on the machines before then. Each clerk asserted that
Continued
POSTAL SERVICE
and specific violations of sections of the Respond-
ent's collective-bargaining agreement with the
Union. The parties' contract provides for the filing
of grievances because of alleged discrimination on
the basis of race, color, religion, and sex, inter alia,
and the grievances in dispute raise, among other
issues, alleged discrimination on the basis of these
factors. Each of the clerks additionally filed an
EEO request for counseling with respect to the ter-
mination notices, pursuant to the Postal Service's
EEO regulations providing an EEO precomplaint
adjustment mechanism. Each employee was offered
a settlement at the precomplaint meeting with the
EEO counselor, which provided for additional
training time and purported to settle all grievances.
The employees were advised that acceptance of
this settlement offer would resolve all grievances
concerning the matter; three of the four signed the
settlement agreements offered. The Union was nei-
ther notified of nor invited to participate in the
EEO grievance adjustment process.
With the exception of one of the grievances that
was resolved at step two of the contractual griev-
ance procedure, the Union has continued to proc-
ess the contract grievances filed on behalf of the
clerks. At the time of the hearing, the remaining
three grievances were pending arbitration. The
Postal Service has not to date attempted to raise
the EEO, settlements as a bar to further proceed-
ings under, the contract, but counsel for the Postal
Service stated at the hearing that Respondent
would reserve the right to assert the settlements as
a defense at the pending arbitrations.
The judge, based on his conclusion that the
Union's right to be present at EEO precomplaint
settlement meetings should yield to EEO processes
assuring anonymity to the complainant at' the EEO
precomplaint stage, dismissed the General Coun-
sel's complaint alleging that the Respondent by-
passed the Union, acted in derogation- of the
Union's representative status, and otherwise failed
to comply with Section 9(a) of the Act in violation
of Section 8(a)(5) and (1). For the reasons stated
above, we disagree, and therefore find that the Re-
spondent violated the Act in the Phoenix case.
In Case 9-CA-16503, Columbus, Ohio, distribu-
tion clerk Joan Otler, who asserted that a 5-day
suspension without pay for parking in an unauthor-
ized area resulted from discriminatory and unfair
treatment by the Postal Service,' 1 filed both an
her inability to achieve proficiency resulted from not being given as
much training time as others, and that the Postal Service's action was
unjust and discriminatory.
11 Oiler claimed in the EEO form that the suspension was in reprisal
for a previous EEO filing.
1017
EEO precomplaint form with the Respondent's
EEO authority and a contract grievance regarding
the suspension . The Respondent's EEO precom-
plaint procedure resulted in a meeting at which
Otler executed an EEO precomplaint resolution
providing for expunction of the suspension from
her personnel record, but no backpay. This settle-
ment did not purport to settle any either griev-
ances, stating merely that:
It is agreed between Joan L. Otler and Postal
Officials, Main Post Office, that pursuant to
E.E.O. Pre-Complaint filed on September 3,
1980, the following constitutes an acceptable
resolution.
The Columbus Area Local Union was not noti-
fied of the EEO settlement meeting, and did not
participate in those proceedings. It continued proc-
essing Otler's contractual grievance through the
normal steps, and the grievance was set for arbitra-
tion . Otler sought to recover backpay through the
contractual procedure, and she was not told that
the EEO settlement would affect her contract
grievance. The settlement was not raised by the
Postal Service when it denied the grievance at step
3 of the contractual grievance procedure, although
the EEO resolution had been accepted by Otler
almost a month before. When Otler's case came to
arbitration, the Postal Service asserted the EEO
settlement as a defense to the grievance under the
contract. The arbitrator ruled that the matter was
not arbitrable "as the arbitrator is without author-
ity to abrogate a contract freely entered into be-
tween Joan Otler and the Postal Service."
The judge found that the Respondent sabotaged
the grievance process and, in effect, repudiated the
arbitration clause of its contract by asserting the
Otler settlement agreement as a' defense to contract
arbitration in violation of Section 8(a)(5) and (1) of
the Act. We agree with the, judge that the 'Re-
spondent violated that section of the Act in the Co-
lumbus case , but find that the violation occurred
when the Respondent entered into a grievance res-
olution without the Union's notification or partici-
pation.12
12 The complaint alleges that the Respondent violated Sec. 8(a)(1) and
(5) of the Act by asserting the precomplaint resolution of Otlees EEO
claim as a defense to arbitration proceedings on the contract grievance.
However, it also seeks a remedy for the "unfair labor practices alleged
above in paragraphs 8 and 9" of the complaint , and par . 8 alleges (a) that
Oiler filed the EEO precomplamt form on 3 September 1980; (b) that
Oiler filed a contract grievance with respect to the same subject matter
on 29 September 1980 ; (c) that Otler and the Respondent entered into a
resolution with regard to the EEO precomplaint matter on 12 November
1980, and (d) that neither the Union nor any of its representatives partici-
pated in the proceedings culminating in the resolution of Oiler's EEO
claim. At the hearing counsel for the General Counsel moved to amend
the complaint to delete the reference to par. 8 in the remedy section, but
Continued
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Postal Service was doing more in these
cases than simply adjusting EEO complaints-it
was also attempting to adjust or, in some instances
adjusting , concurrent grievances under the terms of
its contract with the Union through its internal
EEO '13 As we have found above that
the Postal Service was not privileged to resolve
contract grievances with individual employees in
derogation of the Union's statutory rights, we find
that it violated Section 8(a)(5) and (1) of the Act
by not affording the collective-bargaining repre-
sentatives an opportunity to be present at grievance
adjustments as, required by Section 9(a) of the
Act.14
CONCLUSIONS OF LAW
1. The United States Postal Service is an em-
ployer over whom the Board has jurisdiction by
virtue of Section 1209 of the Postal Reorganization
Act, 39 U.S.C. § 101 et seq.
2. The Phoenix Metro Area Local, the Columbus
Area Local, and the American Postal Workers
Union are labor organizations within the meaning
of Section 2(5) of the Act.
3, By adjusting or attempting to adjust contract
grievances with individual unit employees without
affording the employee's collective-bargaining rep-
resentative the opportunity to be present at such
adjustments as required by Section 9(a) of the Act,
the Respondent has violated 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.
later withdrew that motion to amend . In these circumstances , we find the
complaint allegations sufficiently 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.
13 We need not decide here-whether the Union would have a right to
be present at grievance adjustments with individual employees in which
no contract grievance had been filed . In all of the incidents at issue con-
tract grievances had been filed , and the collective-bargaining representa-
tive was never given the notice and opportunities to be present at the
adjustments of the grievances as mandated by the second proviso to Sec.
9(a).
14 E.g., Top Mfg. Co., 249 NLRB 424 (1980), and cases cited therein,
cited in Postal Service, 268 NLRB 876 (1984).
Member Johansen does not agree that "an attempt to adjust griev-
ances" at an employee 's request, without more, transcends Sec. 9(a)'s res-
ervation of the right of employees to present grievances to their employ-
er without the intervention of the bargaining representative.
Members Babson and Stephens do not dispute that under the first pro-
viso to Sec. 9(a) of the Act employees have the right to present griev-
ances to their employer without the intervention of the bargaining repre-
sentative . However, they conclude that under the second proviso to that
section, the collective-bargaining representative must be given an oppor-
tunity to be present at a conference with an individual employee at
which the individual is offered a final settlement of a pending contract
grievance, whether this attempt at adjustment results in the employee's
acceptance of the settlement or not. They intimate no view on what
other circumstances might bring a conference on a grievance within the
second proviso.
AMENDED REMEDY
Having found that the Respondent has engaged
in, and is engaging in, unfair labor practices in vio-
lation 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 de-
signed to effectuate the policies of the Act.
As we have found that the Respondent unlawful-
ly adjusted or attempted to adjust contractual
grievances without giving the employee's collec-
tive-bargaining representative the opportunity to be
present at the adjustments, we shall order it to
cease and desist from this conduct. We shall also
prohibit the Respondent from raising or otherwise
asserting the unlawfully obtained EEO grievance
settlements reached with the individual employees
as a bar to the contractual grievance and arbitra-
tion procedures, so that in those cases where the
Respondent negotiated settlements with individual
employees without the Union's notification or par-
ticipation but has not yet asserted the settlements as
a defense to contract grievance processing that un-
lawful conduct may be effectively remedied. With
respect to the case in which the Respondent suc-
cessfully asserted an EEO settlement as a defense
in a contract arbitration proceeding, we shall adopt
the judge's recommended remedy. Thus, we shall
order the Respondent to take all appropriate steps
to reconvene the Otler arbitration or to hold the
arbitration de novo, as provided by the judge, and
to pay the Union for all reasonable increased ex-
penses resulting from its assertion of the Otler
EEO settlement as a contract defense in the
manner set forth in his recommended remedy. In
this way the status quo ante may be restored. We
shall also order the Respondent to afford the Union
the opportunity to be present at any attempts to
adjust contractual grievances.
A new notice that conforms with our Order shall
be issued, and we shall require its posting at both
the Phoenix and Columbus facilities. Like the
judge, we do not find nationwide posting to be
warranted.
ORDER
The National Labor Relations Board orders that
the Respondent, United States Postal Service,
Phoenix, Arizona, and Columbus, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Adjusting or attempting to adjust contract
grievances with individual unit employees without
affording the employee's collective-bargaining rep-
resentative the opportunity to be present at such
adjustments.
POSTAL SERVICE
(b) Giving contractual effect to , raising or other-
wise asserting in the contractual grievance process,
grievance settlements reached with individual unit
employees where the employee 's 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 employee 's 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 Joan Otter arbi-
tration, jointly with the Union be it willing, to
reopen the arbitration or, the arbitrator being un-
available or unwilling, convene a de novo arbitra-
tion to consider the issues in the Otter grievance on
their merits, waiving all defenses not ripe at the
time of the original arbitration and, further, with-
drawing at the reconvened arbitration , or not ad-
vancing at a de novo arbitration , the EEO settle-
ment reached with Otter 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 Otter grievance, with ap-
propriate interest , as more fully set forth in the sec-
tion of the judge's decision entitled "Remedy."
(d) Post at its Phoenix, Arizona, and Columbus,
Ohio facilities , copies of the attached notices
marked "Appendix." 15 Copies of the notices, on
forms provided by the Regional Directors for Re-
gions 28 and 9, after being signed by the Respond-
ent's authorized representative , shall be posted by
the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted . Reasonable 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 Directors for Regions 28
and 9 in writing within 20 days from the date of
this Order what steps the Respondent has taken to
comply.
APPENDIX A
1019
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
the American Postal Workers Union and the Phoe-
nix Metro Area Local and Columbus Area Local
by adjusting or attempting to adjust contract griev-
ances with individual unit employees without af-
fording those Unions the opportunity to be present
at such adjustments.
WE WILL NOT give contractual effect to, raise or
otherwise assert in the contractual grievance proc-
ess, grievance settlements reached with individual
unit employees where the employee's collective-
bargaining representative was not afforded the op-
portunity 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 employee 's 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 Joan
Otter grievance, jointly with the Union if they
agree, to reopen the Otter arbitration . If reopening
is not possible, we shall seek a new arbitration of
the Otter grievance . At the reconvened or the new
arbitration we shall withdraw or not raise the EEO
settlement between Otter and the Postal Service as
a defense to the Union 's grievance; nor will we
assert any other defense that 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 that resulted from our improper
assertion of the EEO settlement as a defense in the
original arbitration , with appropriate interest.
UNITED STATES POSTAL SERVICE
15 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."
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
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
the American Postal Workers Union and the Phoe-
nix Metro Area Local and Columbus Area Local
by adjusting or attempting to adjust contract griev-
ances with individual unit employees without af-
fording those Unions the opportunity to be present
at such adjustments.
WE WILL NOT give contractual effect to, raise or
otherwise , assert in the contractual grievance proc-
ess, grievance settlements reached with individual
unit employees where the employee's collective-
bargaining representative was not afforded the op-
portunity 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 employee's 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 Joan
Otler grievance, jointly with the Union if, they
agree, to reopen the Otler arbitration. If reopening
is not possible , we shall seek a new arbitration of
the Otler grievance. At the reconvened or the new
arbitration we shall withdraw or not raise the EEO
settlement between Otler and the Postal Service as
a defense to the Union's grievance ; nor will we
assert any other defense that 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 that resulted from our improper
assertion of the EEO settlement as a defense in the
original arbitration , with appropriate interest.
UNITED STATES POSTAL SERVICE
Francis X. Schwegmann, Esq., in Case 9-CA-16503(P)
and Gregory Z Meyerson, Esq., in Case 28-CA-6540(P)
for the General Counsel.
Stuart J. Blenner, Esq., of Chicago, Illinois, in Case 9-
CA-16503(P) and John H. Arbuckle Esq., of San
Bruno, California, in Case 28-CA-6540(P) for the Re-
spondent.
Leonard S. Sigall, Esq., of Reynoldsburg, Ohio, for the
Columbus Local.
Anton G. Hajjar, Esq. (O'Donnell and Schwartz), of Wash-
ington, D.C., for the Intervenor.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge.
This matter was tried on March 25, 1982, in Phoenix,
Arizona, and on April 15, 1982, in Columbus, Ohio. The
cases arose as follows.
On March 2, 1981, the American Post Workers Union,
Columbus Area Local, AFL-CIO (the Columbus Local)
filed a charge in Case 9-CA-16503( P) against the United
States Postal Service (Respondent or the Postal Service).
On August 21, 1981 , the Regional Director for Region 9
of the National Labor Relations Board, issued a com-
plaint and notice of hearing on the matter . On July 2,
1981, the American Postal Workers Union, Phoenix
Metro Area Local, AFL-CIO (the Phoenix and, collec-
tively with the Columbus Local, the Locals) filed a
charge in Case 28-CA-6540(P) against the Postal Serv-
ice. On August 14, 1981 , the Regional Director for
Region 28 of the National Labor Relations Board issued
a complaint and notice of hearing in Case 28-CA-
6540(P) and amended , the complaint on September 10,
1981. On March 15, 1982, the General Counsel of the
National Labor Relations Board (the General Counsel)
issued an order consolidating cases and directing a
common hearing in Phoenix, Arizona . At the commence-
ment of the March 25 , 1982 Phoenix hearing , I granted
the motion of the counsel for the Columbus Local to
sever the cases and postponed the hearing in Case 9-
CA-16503(P). Thereafter' Case 9-CA-16503(P) was
heard in Columbus on April 15, 1982. At that ; time, on
the motion of the General Counsel and with the concur-
rence , of all parties, the cases were again consolidated
and American Postal Workers Union, AFL-CIO (the In-
tervenor or the National Union and, collectively with
the Locals, the Union) was granted' Intervenor status in
the consolidated cases.
Following the conclusion of the trial, the record was
closed and briefs were submitted . Thereafter , by motion
dated June 29, 1982, the General Counsel moved, to
reopen the record and consolidate the above-captioned
cases with an outstanding complaint in Case 9-CA-
18366(P). I denied this motion on July 12, 1982.
The complaints, as amended, allege that the Postal
Service violated Section 8(a)(1) and (5) of the ' National
Labor Relations Act (Act) in two ways. First, as alleged
in the Phoenix case, Respondent bypassed the Union in
its role as collective-bargaining representative of the em-
ployees as defined by Section 9(a),of the Act by meeting
and negotiating settlements of employee equal , emplpy-
ment opportunity complaints with unit employees with-
out affording the Union an opportunity to participate in
the adjustment process . Second , as alleged in the Colum-
bus case, Respondent frustrated the operation of its col-
lective-bargaining agreement with the Union by,asserting
to an arbitrator who was considering a grievance filed
POSTAL SERVICE
by the Union pursuant to the collective-bargaining agree-
ment that an EEO settlement agreement reached with an
employee was a settlement, which barred the Union's
claim . Respondent, while conceding generally the opera-
tive facts alleged by the General Counsel, denies that its
actions in any way violated the Act. Rather, it asserts
that its conduct was consistent with and in furtherance
of Federal laws, regulations, and policies, which required
it to maintain and utilize the EEO settlement procedures
at issue herein.
All parties were afforded full opportunity to partici-
pate at the hearing, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and
to file briefs. On the entire record including my observa-
tion of the witnesses and their demeanor as well as the
posthearing briefs of the parties,' I make the following2
FINDINGS OF FACT
1. JURISDICTION
The Board has jurisdiction over these matters by
virtue of Section 1209 of the Postal Reorganization Act,
39 U.S.C. § 101 et seq.
II. LABOR ORGANIZATION
The Locals and the National Union are each labor or-
ganizations within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Contractual and StatutoryScheme Applicable
to the Parties
At all relevant times the Postal Service has recognized
the National Union as the exclusive representative of its
maintenance employees, special delivery messengers,
motor vehicle employees, and postal clerks in separate
nationwide units. A series of contracts have been negoti-
ated covering these employees. The contracts applicable
to the instant dispute cover the periods July 21, 1978, to
July 20, 1981, and July 21, 1981, to July 20, 1984. The
contracts have identical language in relevant part.
The contracts provide for binding arbitration of dis-
putes concerning terms and conditions of employment
after various steps in the grievance process have been ex-
hausted. Either an employee or the Union may initiate a
grievance at step one. Only the Union may carry a
grievance to higher steps. The contracts provide that
neither the Union nor the Postal Service will discrimi-
nate against employees because of "race, color, creed, re-
ligion, national origin, sex, and/or marital status or be-
cause of a physical handicap." They further provide that
employees will not be disciplined or discharged without
"just cause."
1 The Intervenor filed a brief on behalf of the Union . The General
Counsel filed a separate brief for each case. The Postal Service filed a
single brief.
3 The facts were essentially not in dispute. Unless otherwise noted,
these findings are based on admitted pleadings , stipulated facts, and ex-
hibits or the uncontested testimony of credible witnesses.
1021
The Postal Service came under the jurisdiction of the
Act in 1971 by operation of the Postal Reorganization
Act. The 1972 amendments to the Civil Rights Act of
1964, 78 Stat. 253, 42 U.S.C § 2000(e), et seq. (Title VII),
provide for certain rights for employees including, inter
alia, the following (Title VII or EEO rights):
All personnel actions affecting employees in the
United States Postal Service .. shall be made free
from any discrimination based on race, color, reli-
gion, sex or national origin.
The Equal Employment Opportunity Commission
(EEOC) has had the authority to enforce the above-
quoted sections of the Civil Rights Act since 1978 and
has enacted regulations in regard thereto. The relevant
regulations are set forth at 29 Code of Federal Regula-
tions (C.F.R.) Part 1613. These regulations require the
Postal Service to provide a procedure for the acceptance
of EEO-based complaints from employees. They further
provide that the employee must have the right to be ac-
companied, represented, or advised by a representative
of his or her own choosing during the processing of the
complaint. The EEO counselor, an agent of the Postal
Service, must not reveal the identity of the aggrieved
person unless authorized or until a formal complaint has
been received.3 In conformity with the regulations the
Postal Service has established and maintained a detailed
procedure for the handling of employee EEO com-
plaints.
B. Events in Phoenix
Postal Service distribution clerks in Phoenix operate
letter sorting machines (LSMs). Employees must demon-
strate minimum levels of speed and accuracy on the
LSM in an examination to become, permanent operators.
Inability to pass the required examination after a set
period may be grounds for discharge. Four Phoenix dis-
tribution clerks, Anita Ortiz, Ramona Tova]r, Elaine Fa-
levich, and Deborah Lowe, received formal notification
from the Postal Service during April,and June 19814 that
their performances on the LSM were not satisfactory
and that they must pass the requisite examination within
30 days or lose their jobs. In each case the employee be-
lieved that her inability to achieve the necessary profi-
ciency resulted from the unjust conduct by the Postal
Service. In each case the employee invoked both the
grievance procedures under the collective-bargaining
contract and the Postal Service's EEO complaint proce-
dures. The chronology of events with respect to each
employee varies slightly.
Oritz received her 30-day termination notice on April
19. A step 1 grievance was filed by the Phoenix Local in
early May and was thereafter taken to step 2. On June 5,
the Postal Service issued a letter to the Union reciting
that the step 2 matter had been discussed on June 1 and
3 Complainants are afforded an initial informal stage of counseling and
negotiation. 29 C.F .R. $ 1613.213 . Only if the complainant is not satisfied
with the result of this informal procedure are the formal procedures in-
voked.
4 All dates hereinafter refer to 1981 unless otherwise indicated.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Ortiz was given an extension of time to pass the ex-
amination . The Union did not appeal this resolution and
the matter is no longer in the grievance process. In early
June, Ortiz met with the Postal Service's EEO counselor
under the Postal Service's EEO procedures and ex-
plained that she had not received sufficient opportunity
to pass her examination . The EEO counselor, in conjunc-
tion with other agents of the Postal Service, prepared a
proposed EEO settlement, which was presented to Ortiz.
After initial reluctance to enter into the agreement, Oritz
signed the agreement on June 19. The agreement stated,
inter alia:
The following agreement is entered into on this
date, June 19, 1981 , as complete and final resolution
of all grievances , the EEO Request for Counseling
filed by you on June 9, 1981, and all other adminis-
trative actions.
The settlement in effect gave Ortiz a 10-day extension of
the deadline to achieve a satisfactory examination score.
There is no dispute that Ortiz was informed by the
Postal Serivice that entry into the settlement agreement
would resolve all grievances regarding the matter. There
is also no dispute that the Union was neither notified of
nor invited to participate in the EEO processs involving
Ortiz.
Tovar received her 30-day termination notice on April
23. In May the Union started the grievance process on
Tovar's situation, which was utilized step by step with-
out resolution. The matter is now pending arbitration.
Tovar also initiated the EEO counseling process. On
June 18, the Postal Service offered Tovar the same EEO
settlement proffered Ortiz. Tovar declined it. Again the
Postal Service made clear to Tovar that acceptance of
the EEO ,settlement would resolve all grievances con-
cerning the matter, The' Union was not informed of nor
involved in the EEO procedures involving Tovar.
Falevich and Lowe each received a 30-day termination
notice on June 13. Each initiated the grievance process
in June and the grievance of each is now pending arbi-
tration. Each employee initiated the EEO' counseling
process and each accepted the identical settlement prof-
fered Ortiz and Tovar in late July. Falevich and Lowe
were each told by the Postal Service agents that accept=
ance of the settlement would resolve all disputes regard-
ing the matter including any contract grievance. While
each was afforded an opportunity to have a witness or
representative present during her 'EEO meetings, the
Union was neither contacted directly nor afforded an op-
portunity to participate in the procedures. The Postal
Service, at the hearing, stated it intended to reserve the
right to assert any EEO settlement entered into by a
Phoenix employee as a defense in any arbitration of that
employee's grievance.
C. Events in Columbus
Joan Otler was employed by the Postal Service as a
manual distribution clerk in Columbus, Ohio. On August
20, 1980, she received a Postal Service parking ticket for
parking in an unauthorized area. As a consequence she
received a 5-day suspension without pay in late August.
Otler felt the parking ticket and the resulting suspension
were unfair and discriminatory. On September 3, 1980,
she initiated the Postal Service's EEO procedures. On
September 29, 1980, after serving her 5-day suspension,
she filed a grievance. The grievance was processed
through the normal steps by the Union and was set for
arbitration. On November 12, 1980, Otler and the Postal
Service entered into an "Acceptable E.E.O. Pre-Com-
plaint Resolution," which, in essence, expunged her per-
sonnel record of any mention of the 5-day suspension but
did not provide backpay for her missed time. The settle-
ment did not contain any reference to the resolution of
other related grievances nor was Otler told that the
EEO settlement would foreclose relief under the collec-
tive-bargaining agreement. The Postal Service did not
notify the Union or provide it with an opportunity to
participate in the Otler EEO procedures nor did Otler
ask the Union to represent her in the EEO process.
When Otler's case came to arbitration in January 1981,
the Postal Service asserted the EEO settlement as a de-
fense to the grievance. The arbitrator agreed the EEO
settlement barred his hearing the case holding that the
matter was "not arbitratible [sic] as the arbitrator is with-
out authority to abrogate a contract freely entered into
between Joan Otler and the Postal Service."
D. Analysis and Conclusions
1. Positions of the parties
The briefs of the parties, particularly the scholarly and
helpful briefs of the Union and the Postal Service, make
it clear that important public policies and institutional in-
terests are at stake in the resolution of the potentially
conflicting statutory schemes at issue in the present
cases . It may' be useful initially to consider portions of
the arguments of the parties on brief in order to define
the issues to be resolved.
(a) The argument for a violation
The General Counsel and the Union argue primarily
that these cases involve simple "bypassing" conduct,
which may be analyzed and held violative of the Act
under traditional Board doctrines. Thus, the General
Counsel and the Union advance the Board's early hold-
ing in Bethlehem Steel Co., 89 NLRB 341 (1950), for the
proposition the language of Section 9(a) of the Acts pro-
5 Sec. 9(a) of the Act states:
Representatives designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit appropri-
ate,for such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment , or other condi-
tions of employment: Provided, That any individual employee or a
group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, with-
out the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective-bargain-
ing contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be present at
such adjustment.
POSTAL SERVICE
vides a union that represents employees with the unquali-
fied right to be present at the adjustment of employee
grievances-a right that accrues directly to it and not to
the employee involved in the adjustment . They note that
Bethlehem also holds that an "adjustment" must be taken
to include even the denial by management of an individ-
ual employee 's grievance and that "adjustment" is a
broad term that includes all the Postal Service 's conduct
at issue herein . They argue further that the Board contin-
ues to construe broadly the term "grievances" in the
context of Section 9(a) of the Act, citing for example,
Dow Chemical Co., 227 NLRB 1005 (1975), supplement-
ing 215 NLRB 910 (1974). Thus, the Union and the Gen-
eral Counsel argue that the conduct of the Postal Service
in meeting with employees concerning the adjustment of
their grievances and in some cases adjusting those griev-
ances-all without providing the Union an opportunity
to be present-violated Section 8(a)(5) and (1) of the
Act. Further, they argue that the proffer of a EEO set-
tlement, reached without the Union's participation in the
Oiler situation , to an arbitration is a further violation by
the Postal Service both as an act of direct dealing with
an employee and as an act of contract repudiation by im-
properly defeating the proper operation of the grievance
and arbitration process.
The General Counsel and the Union do not suggest
that the Postal Service 's procedures are not consistent
with the EEO regulations cited supra . Rather two argu-
ments are advanced regarding the impact of Title VII
and the related EEO procedures utilized by the Postal
Service on the guarantees given unions under Section
9(a) of the Act. First, the Union notes that the Supreme
Court has held union representational rights paramount
over employee efforts to augment antidiscriminatory
agreements between employers and unions , citing Empo-
rium Capwell Co. v. Western Addition Community Organi-
zation , 420 U.S. 50 (1975). Second, the Union and the
General Counsel emphasize the interpretive memoran-
dum introduced by Senator Clark during Congressional
consideration of Title VII, which states:
[N]othing in Title VII or anywhere else in this bill
affects rights and obligations under the NLRA and
the Railway Labor Act. . . . [T]itle VII is not in-
tended to and does not deny to any individual,
rights and remedies which he may pursue under
other Federal and State statutes . If a given action
should violate both title VII and the National Labor
Relations Act, the National Labor Relations Board
would not be deprived of jurisdiction. 110 Cong.
Rec. 7207 ( 1964).8
Thus the General Counsel and the Union argue that
normal Board standards should apply to these cases and
the Postal Service 's EEO procedures and other Title VII
considerations must defer to the Act or, in any event,
can provide no defense for Respondent herein.
s Quoted by the Supreme Court m Alexander v. Gardner-Denver Co.,
415 U.S. 36, at 48 fn . 9 (1973). But see the Court's later comments on the
matter in Emporium Capwell Co. v. Western Addition Community Organi-
zation, 420 U .S. at 73 fn. 26.
1023
(b) The argument against a violation
The Postal Service emphasizes that it is a unique em-
ployer under the Act by virtue of its special legislative
history. Unlike private sector employers it is required by
Federal statutes and regulations to establish and maintain
specific EEO procedures for its employees . It notes it
has done no more than utilize those mandated proce-
dures in the instant matter . Thus, argues the Postal Serv-
ice, to the extent there is real or apparent conflict be-
tween the Board 's decisional law regarding employer
direct dealing with employees and the Postal Service's
handling of the EEO complaints herein, such a conflict
occurred because of the requirements of Title VII and
the special obligations laid on the Postal Service by Con-
gress and the EEOC . Therefore, Respondent argues the
Board should consider the conflicting public policies
and, noting the Postal Service as a special case , seek to
harmonize any conflict in policy by allowing the Postal
Service to continue to apply its EEO procedures as it
has in the past . As the Court stated in Emporium:
[I]n some circumstances rights created by the
NLRA and related laws affecting the employment
relationship must be broadened to accommodate the
policies of Title VII. [Emporium Capwell Co. v.
Western Addition Community Organization , 420 U.S.,
at 73 fn. 26.]
In connection with the arguments of the General
Counsel and the Union premised on the uncontested fact
that the EEO settlements were either on their face waiv-
ers of all employee claims and grievances or were ad-
vanced by the Postal Service in arbitration as having that
effect, the Postal Service makes several points . First, it
notes that the Board in Postal Service, 234 NLRB 820
(1978), found that the Postal Service could enter into a
settlement with an employee , which included an agree-
ment that the employee would not (1) grieve the matter
settled under the contract grievance procedure, (2)
appeal to the Civil Service Commission, (3) appeal to the
EEO commission , or (4) raise the issue under the Veter-
an's Preference Act.7
Second , the Postal Service notes that while the Su-
preme Court held in Alexander v. Gardner-Denver Co.,
supra, that an arbitration award does not bar a subse-
quent Title VII action on the same alleged act of dis-
crimination, the Court did not address the issue of the
effect of a voluntary settlement of a grievance on a sub-
sequent Title VII action. See Alexander v. Gardner-
Denver, 415 U.S. 36, at 53 fn . 9. The Postal Service notes
that the Fifth Circuit Court of Appeals in Strozier v. Gen-
eral Motors Corp., 635 F.2d 424 (5th Cir. 1981), a case de-
cided after Alexander v. Gardner-Denver and relying on
its reasoning, found that the settlement of a grievance
acted as a bar to a later Title VII action by the same in-
dividual based on the same circumstances. Thus, the
T In the cited case the General Counsel had alleged a violation of Sec.
8(axl) of the Act, i.e., that the Postal Service was chilling the employee's
Sec. 7 rights by requiring him to waive his right to seek further relief. No
issue of the Union's representational rights under Secs. 9(a) or 8(ax5) of
the Act were at issue in that case.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Postal Service argues that it is not against the provisions
of the Act or other public policy to settle EEO com-
plaints raised by individuals and it is also not against the
provisions of the Act or other public policy that volun-
tary settlements should bar further actions on the same
claim. The Postal Service notes that binding settlement
agreements encourage settlements generally and that,
were the settlements herein either prohibited or made ef-
fective only in the EEO forum, the limited value of such
settlements would ' discourage compromise and promote
litigation. This is so, the Postal Service argues, because a
significant value of an EEO settlement is that it bars all
litigation, including grievance arbitration on the dispute.
2. The public policy conflicts considered
The General Counsel asserts and Board decisions hold
that Section 9(a) of the Act gives a union as representa-
tive of employees a right to participate in grievance ad-
justments of the type that occurred herein.8 The Postal
Service asserts and the EEO regulations cited, supra,
provide that an EEO procedure shall be established by
the Postal Service, which allows the Postal Service to
propose a precomplaint settlement to the employee and
that during that precomplaint process the identity of the
complainant shall not be revealed. This aspect of the
EEO procedure mandated by Federal statute and regula-
tions thus seems at odds with the intent of Section 9(a)
of the Act, which gives the Union the right to attend all
grievance adjustments, without apparent exception.
The Board has long been aware of the need to accom-
modate the Act with other public policies. For example,
Member Jenkins, in dissent in Comet Fast Freights, 262
NLRB 430, 433 (1982), cites the admonition of the Su-
preme Court in Southern Steamship Co. v. NLRB 316
U.S. 31, 47 (1942):
[T]he Board has not been commissioned to effectu-
ate the policies of the Labor Relations Act so
single-mindedly that it may wholly ignore other and
equally important Congressional objectives. Fre-
quently the entire scope of Congressional purpose
calls for careful accommodation of one statutory
scheme to another, and it is not too much to
demand of an administrative body that it undertake
this accommodation without excessive emphasis
upon its immediate task.
And the Court in Emporium Capwell Co., 420 U.S. at 73
fn. 26 states:
In Alexander v. Gardner Denver Co., 415 U.S., at
48 n. 9, we had occasion to refer to Senator Clark's
interpretive memorandum stating that "[n]othing in
a The , Union does not seek the right to attend all EEO precomplaint
sessions. Rather it asserts in its brief at 21:
The Respondent should be ordered to cease adjusting grievances
in the absence of the Union . This is not to say that the Union must
participate in EEO settlement conferences. Indeed there is a risk of
conflict between the individual's interest-paramount in the EEO
context-and the unit's interest, where a Shop Steward attempts to
fill both roles. Rather, the USPS must simply be precluded from as-
serting that an EEO settlement is also a grievance adjustment, or in
any way affects the processing of grievances on their merits, at any
stage in the grievance-arbitration process.
Title VII or anywhere else in this bill affects rights
and obligations under the NLRA. . . ." Since the
Senator's remarks were directed to the suggestion
that enactment of title VII would somehow con-
strict an employee's access to redress under other
statutory regimes, we do not take them as foreclos-
ing the possibility that in some circumstances rights
created by the NLRA and related laws affecting the
employment relationship must be broadened to ac-
commodate the policies of Title VII.
It is necessary, therefore: (1) to consider carefully the
potential conflicts between an uncompromising applica-
tion of either the Postal Service's EEO regulations,
which reflect Title VII policies, or Section 9(a) of the
Act, which provides for exclusivity of union representa-
tion and (2) to seek to balance the conflicting rights of
the two policies "with as little destruction of one as is
consistent with the maintenance of the other."9 Such an
analysis requires a threshold examination of the nature of
the interests advanced and protected by the conflicting
policies of the Title VII and Section 9(a) of the Act and
their potential for harmonization and accommodation.
The Supreme Court has had occasion to compare and
contrast the collective rights and obligations of the union
as representative of employees under Section 9 of the
Act with the individual rights protected by Title VII.
The Court has specifically held Title VII rights stand on
a different basis, separate and apart from representational
rights under Section 9 of the Act.
In Alexander v. Gardner-Denver Co., 415 U.S. at 51 the
Court stated:
Title VII, concerns not majoritarian processes, but
an individual's right to equal employment opportu-
nities . Title VII's structures are absolute and repre-
sent a congressional command that each employee
be free from discriminatory practices.
The Court described in detail these Section 9 "majoritar-
ian" rights in Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50, 62 (1975).
Central to the policy of fostering collective bar-
gaining, where the employees elect that course, is
the principle of majority rule. See NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937). If the ma-
jority of a unit chooses union representation, the
NLRA permits it to bargain with its' employer to
make union membership a condition of employment,
thereby imposing its choice upon the minority. 29
U.S.C. §§ 157, 158(a)(3). In establishing a regime of
majority rule, Congress sought to secure to all
members of the unit the benefits of their collective
strength and bargaining power,13 in full awareness
that the superior strength of some individuals or
groups might be subordinated to the interest of the
majority. Vaca v. Sipes, 386 U.S. 171, 182 (1967); J.
9 The famous balancing instruction given by the Supreme Court to the
Board ' regarding the weighing of public and private rights in Hudgen v.
NLRB., 424 U.S. 507, 521 (1976), citing NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 , 112 (1965).
POSTAL SERVICE 1025
I. Case Co. v. NLRB, 321 U.S. 332, 338-339 (1944);
H.R. Rep. No. 972, 74th Cong., 1st Sess., 18 (1935).
As a result, "[t]he complete satisfaction of all who
are represented is hardly to be expected." Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
1 s In introducing the bill that became the NLRA, Senator
Wagner said of the provisions establishing majority rule: `Without
them the phrase `collective bargaining ' is devoid of meaning, and
the very few unfair employers are encouraged to divide their
workers against themselves." 79 Cong.Rec.2372 (1935).
In Emporium the Court sustained the Board's ruling the
exclusive bargaining representative status vested in the
union preempted the rights of individual aggrieved par-
ties to seek additional employer concessions regarding
racial discrimination and the right to assert those griev-
ances in derogation of the union's representational status.
The Court noted that a union bears a duty to fairly rep-
resent the interests of minorities in the unit and that it
could not properly refuse to process grievances against
racial discrimination. The Court also noted that contrac-
tual grievance resolution of racial discrimination issues
serves different interests than individual settlement of
Title VII claims. Id., 420 U.S. at 66, 67:
Nor is there any reason to believe that the process-
ing of grievances is inherently limited to the correc-
tion of individual cases of discrimination. Quite
apart from the essentially contractual question of
whether the Union could grieve against a "pattern
or practice" it deems inconsistent with the nondis-
crimination clause of the contract, one would
hardly expect an employer to continue in effect an
employment practice that routinely results in ad-
verse arbitral decisions, 19
19 "The processing of disputes through the grievance machinery is
actually a vehicle by which meaning and content are given to the
collective bargaining agreement." Steelworkers v. Warrior & Gulf
Co., 363 U.S. 574, 581 (1960); hence the common law of the
shop."' Id. at 580, quoting Cox, Reflections Upon Labor Arbitra-
tion, 72 Harv. L Rev. 1482, 1489 (1959).
The Court noted further that, whether the substantive
rights to be free of racial discrimination "are thought to
depend upon Title VII or have an independent source in
the NLRA, [footnote omitted] they cannot be pursued at
the expense of the orderly collective -bargaining process
contemplated by the NLRA." Id., 420 U.S. at 69. The
Union, as exclusive bargaining representative (Id., 420
U.S. at 70):
has a legitimate interest in presenting a united front
on this as on other issues and in not seeing its
strength dissipated and its stature denigrated by sub-
groups within the unit separately pursuing what
they see as separate interests. When union and em-
ployer are not responsive to their legal obligations,
the bargain they have struck must yield pro tanto to
the law, whether by means of conciliation through
the offices of the EEOC, or by means of federal
court enforcement at the instance of either that
agency or the party claiming to be aggrieved.
It seems clear that, while eradication of racial discrimi-
nation represents a high public purpose, (1) the remedy
of such evil may be accomplished both under Title VII
and under the system of exclusive representation provid-
ed by the Act and (2) these means have areas of potential
conflict. Title VII procedures and,remedies are directed
to individual victims of discrimination' O while the
union's use of the contractual grievance arbitration proc-
ess includes both individual issues and larger "law of the
shop" questions that may involve broader remedies. The
fundamental interests of the moving parties in each
forum bear a different perspective. The individual claim-
ant under Title VII seeks to cure his or her individual
complaint and has no limiting standard of conduct other
than personal wishes. The individual EEO complainant
thus decides only what is best for him or her without
necessary regard for other employees. A union asserting
a racial discrimination grievance seeks primarily to repre-
sent the unit as a whole even in the remedy of individual
grievances and bears the legal obligation to fairly repre-
sent all employees in the unit. A union must therefore
always look to the larger implications of each case.
Thus, however often the individual and the union may
perceive identical wrongs and seek identical remedies in
given situations, they view each potential grievance from
different obligations and goals.
3. Balancing the interests involved
Considering the arguments of the parties and the un-
derlying policies of the Title VII and EEO regulations as
compared to the Act's Section 9(a) and 8(a)(5) principles,
in the unique circumstances of the Postal Service as an
employer, I have attempted to reach an accommodation
between the conflicting procedural requirements of each
scheme. That accommodation is presented, infra, in a
manner structured to facilitate later consideration of the
issues raised by the complaints.
(a) The Postal Service's right to utilize its current EEO
precomplaint settlement process without the Union
having a right to be present
The Postal Service's conduct during the EEO precom-
plaint meetings at issue herein was consistent with the
EEO regulations applicable to it. Section 9(a) of the Act
gives the Union a right to be present during this process,
the EEO regulations do not. Given this conflict I find it
is appropriate-in the special circumstances of the Postal
Service-that the requirements of Section 9(a) of the Act
should defer to the applicable EEO regulations. This ac-
commodation specifically preserves the anonymity of the
EEO complainant and the complainant's right to individ-
ually pursue his or her own "private" right to oppose
discrimination. I find therefore that the Union has no
right to be present during EEO preeomplaint settlement
meetings with employees. i t
10 No "class action" situation is presented herein , nor does this analysis
contemplate such circumstances.
11 This resolution does not involve the situation where the EEO griev-
ant requests that the Union serve as his or her representative . There is no
potential for conflict where the employee so requests. The sole issue
herein is the right of the Union to participate when the grievant either
does not request nor specifically opposes the presence of the Union.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find this accommodation best preserves the EEO
policies advanced by Congress and the EEOC while
doing as little injury as possible to the Union 's role as
representative of all the employees . I note that the Union
does not seek the right to be present at EEO precom-
plaint meetings between individual grievants and the
Postal Service 's EEO counselors . Rather the Union spe-
cifically acknowledges the potential for conflict between
EEO complainants and the Union in some circumstances.
Indeed many such complaints may, not directly concern
the Union in its role of representative of all employees.
The consequences of a contrary holding are not insignifi-
cant . The General Counsel notes that all the situations at
issue herein involve disputes in which both contract
grievances and EEO complaints were filed . Thus a con-
tract grievance was involved in each event . However, to
read Section 9(a) of the Act as broadly as the General
Counsel argues would require that the Postal Service
give the Union the right to be present at all EEO pre-
complaint sessions even when the individual is asserting
no contractV violation and opposes the Union's presence. I
do not believe that the EEO process mandated by Title
VII and the EEOC regulations-with the specific admo-
nition to the Postal Service to guard the anonymity of
the complainan t-could easily survive such mandatory
participation by the Union without significant risk of al-
tering its nature and function . Therefore in my view the
necessary accommodation in the arrangements of pre-
complaint meetings must be made by limiting the effect
of Section 9(a) of the Act to' the extent necessary to be
consistent with the EEO regulations.
(b) The Postal Service's right to propose and enter into
EEO settlement agreements with employees without
the presence of the Union, when the EEO settlements
require the individual complainant to abandon all
related claims
The Board's decision in Postal Service, 234 NLRB 820
(1978), clearly holds that the Postal Service may solicit
and obtain a settlement from an employee , which waives
the employee 's rights to grieve the matter under the con-
tract . The instant case involves facts little different from
the ' Board's earlier holding save that here the allegation
is that the institutional interests of the Union were cur-
tailed rather than the Section 7 rights of the settling em-
ployee . For the reasons asserted, supra , in requiring that
the Union 's 9(a) right to be present at grievance adjust-
ments must bow to the regulations establishing the EEO
procedures for the Postal Service , I find that the Union's
exclusive right to represent employees does not bar the
Postal Service 's solicitation and consummation of private
EEO precomplaint settlements . Title VII encourages pri-
vate- settlements and the EEO procedures in place at the
Postal Service are designed to prevent individual com-
plaints from becoming the subject of formal disputes and
litigation . The complainant 's private right to reach a set-
tlement-as opposed to the Union's majoritarian rights
and obligations as representative of the unit as a whole,
discussed in detail infra-would be vitiated should the
Postal Service be denied the right to tender the settle-
ments at issue without allowing the Union to be present
and/or bargaining with the Union concerning the settle-
ments , Given my finding that a settlement may be ten-
dered , without violating Section 9 (a) and 8(a)(5) of the
Act, the Postal Service case, 234 NLRB 820 (1975), per-
mits an individual to also waive his or her private rights
to litigate further.
(c) The force and effect of EEO settlements on the
Union's rights to assert contract- violations under the
grievance and arbitration clause
In the preceding subsections , I have accommodated
the conflicts between the Postal Service's EEO proce-
dures and the exclusive representation provisions of Sec-
tions 9(a) and 8(a)(5) of the Act by leaving the EEO pro-
cedure unaltered and circumscribing the Union's rights
under Sections ' 9(a) and 8(a)(5) of the Act . I have done
so because I view Title VII, as it is here reflected in the
Postal Service EEO ' procedures , as placing a strong em-
phasis on establishing a private forum for the individual
so that he or she may redress acts of discrimination., By
failing and refusing to allow the Union to intercede by
right in that process, I have attempted to accommodate
the conflicting interests by preserving the privacy of the
EEO process . The separate and equally significant ques-
tion presented here is to what extent should the fruits of
the private EEO procedures, i.e., an EEO settlement, be
allowed to limit the Union's ability to police the contract
through the grievance-arbitration procedures.
The resolution of this question has critical importance
to the Union for the EEO settlements have great poten-
tial to interfere with its rights to police the contract if
they may bar actions earlier settled by individuals. The
consequences to the individual claimant and the EEO
system are less severe since , by definition , the impinge-
ment on the grievance process would occur only after a
settlement had been knowingly entered into.
I have previously found EEO settlements bind the set-
tling employees to the extent they have control over the
grievance process . 12 I will not hold the Union bound by
such a 'settlement. This is so because I find the injury to
the Union in losing control of its right to enforce the
contract is out of proportion to any arguable benefit the
EEO process would consequently enjoy . Therefore, I
shall require that the EEO settlements be held of no
force and effect in the grievance process.
This holding is the logical consequence of my earlier
accommodation regarding the Union 's rights to partici-
pate in EEO settlement meetings . If it is appropriate to
attempt to preserve private rights in the EEO proce-
dures, it appears equally appropriate to preserve majori-
tarian rights in the utilization of the grievance proce-
dures . As noted by the Supreme Court in the cases cited,
supra, the grievance procedure is uniquely suited to pro-
tection of the "law of the shop" and to the establishment
12 The contract provides that employees or the Union may file a griev-
ance at the first step. The EEO settlements involved in Phoenix would
clearly prevent an individual as opposed to the Union from filing a griev-
ance on the matter settled under the EEO procedures . Only the Union
may advance a grievance beyond the first step. Once a grievance is taken
beyond the first step, I regard it as within the exclusive control of the
union whether it was filed by an individual or the union. Were the status
of a grievance to turn on the identity of the filer, multiple filing would be
encouraged and little but increased complexity would result.
POSTAL SERVICE 1027
of precedent, which protects all employees by the means
of redressing the specific grievances of a few. It seems
least harmful to the EEO process to allow it full play as
between the Postal Service and the individual without
the presence by right of the Union, but to limit the effect
of the EEO settlements to the signatory parties, i.e., the
individual and the Postal Service. This accommodation
limits the force and effect of EEO settlements reached
by individual employees without the agreement of the
Union. I hold here that such an EEO settlement will not
prevent the Union from advancing its claims under the
contract, even if the grievance is based on the same facts
underlying the EEO settlement. Thus, in a grievance
meeting or at an arbitration proceeding, the fact that an
EEO settlement was reached between an EEO complain-
ant and the Postal Service would be without force and
effect to limit the Union's claim.
This portion of my accommodation, from the Postal
Service's perspective, diminishes to some extent the
value of any settlement obtained in the EEO procedure.
The extent of such diminution should not be overstated
however. In practice under this system the Union is un-
likely to pursue a grievance that is of significance only to
a single individual when that individual has already
agreed to a personal settlement unless important union
institutional interests are at stal e.13 Further, any decision
adverse to the Postal Service in an arbitration held after
an EEO settlement would not, involve duplicative pay-
ments for I here make no restriction on the Postal Serv-
ice asserting the improvements or benefits given the em-
ployee under the EEO settlement as a factor mitigating
the amount of money sought by the Union in the arbitra-
tion. As to the Postal Service's argument regarding its
incentive to settle EEO cases, the court in Alexander v.
Gardner-Denver Co., supra, noted that duplication of
similar substantive rights should not be lightly dimin-
ished merely because is particular party's incentive to
settle in one forum will be discouraged by the existence
of another independent forum.14
(d) Summary
The Supreme Court has emphasized the importance of
the grievance process and a union's institutional interest
as the employees' exclusive bargaining representative in
Emporium. The accommodation described herein at-
tempts' to preserve the rights of private complainants and
13 Certainly the Union would be less inclined to initiate or continue to
process a grievance solely to avoid being accused of failing to fairly rep-
resent a particular claimant when the claimant has already entered into
an EEO settlement expressly relinquishing -his' or her own rights to
pursue the claim further.
14 To the extent that the Postal Service was able to obtain more favor-
able settlements in its EEO forum as opposed to the grievance process,
there would appear to be an important union institutional interest in es-
tablishing uniform standards. The greater , the uniformity between EEO
settlements and arbitration awards, the less risk to the Postal Service that
a subsequent arbitration on a matter settled in the EEO forum will result
in a more costly award. Thus, it appears that the greater the potential
disincentive to settle cases in the EEO forum by the Postal Service, the
greater the legitimate interests of the Union in retaining its right to utilize
the grievance procedures unaffected by the EEO procedures. If a com-
plainant in the EEO procedure raises a matter of general importance to
the unit, it is clear the Union , as representative of all employees, should
be involved at the earliest stage possible.
the majoritarian or representational rights of the Union,
insofar as possible, by separating and insulating the two
procedures one from another so as to afford both the
Union and individuals the right to independent redress. I
have held that the EEO procedures should remain isolat-
ed from union participation under claim of right. This
allows the Postal Service to engage in the settlement of
grievances that may be clearly cognizable under its col-
lective-bargaining agreement with the Union. The Union
is denied the right to participate because, despite Section
9(a) of the Act, (1) the rights adjusted are private rights,
which are protected by the EEO procedures and, (2) any
result reached in the EEO pocedure will not limit the
Union in its institutional role as representative of the unit
as a whole in policing the contract. The negotiation of
"private rights" may be isolated from the union only if
their resolution has no crippling effect on the Union's
ability to assert its rights without restriction under the
contract through the grievance and arbitration process.
If EEO settlements reached without the Union's pres-
ence may be raised as a bar to the Union's assertion of a
contract grievance at any stage of the grievance process,
including arbitration, then the Union has in fact lost its
right to police the contract. The analytical fiction used
herein that a given action or event raises both "private"
rights cognizable under the EEO procedures and
"public" or "majoritarian" rights sustainable under the
contractual grievance arbitration procedure dissolves if a
resolution in one forum bars its advancement in the
other.15
4. Applying the accommodated scheme to the
allegations in the complaints
(a) Phoenix
The amended complaint in Case 28-CA-6540(P) al-
leges that the Postal Service met individually with cer-
tain unit employees for the purpose of settling or adjust-
ing EEO grievances and that the Union was never in-
formed of the meetings nor afforded an opportunity to
be present. Settlements resulted in which the individual
waived the right to raise the matter further. The General
Counsel successfully proved the facts asserted in the
complaint. From these facts, the General Counsel argues
the Postal Service has bypassed the Union in derogation
of its status as exclusive representative of the employees
within the meaning of Sections 9(a) and 8(aX5) of the
Act.
Because of the apparent conflict between the Act and
the EEO procedures utilized by the Postal Service in the
ib Strozier v. General Motors Corp., 635 F.2d 424 (5th Or. 1981), is not
to the contrary. There the Fifth Circuit Court of Appeals held an em-
ployee who settled a case in arbitration could not bring a later Title VII
action on the same claim. Thus the case stands for the proposition that an
individual who voluntarily settles a claim may waive future rights. Here
there are two separate parties or interests involved, the individual and the
Union. An EEO precomplaint settlement, when the Union has no right to
be present, may hardly be considered a voluntary settlement by the
union. It was the concept of a voluntary settlement as a resolution of all
issues by all involved parties that distinguished Strozier from the opposite
holding in Alexander Y. Gardner-Denver, supra. Here, when the Union
does not participate in the EEO settlements, it has not waived any rights
to proceed under the contract
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incidents underlying these cases, I have attempted to ac-
commodate conflicting public policies regarding griev-
ances cognizable under both the contract and the EEO
procedures. Applying the accommodation scheme set
forth, supra, I fmd the Union has no right to be present
at EEO settlement meetings held by the Postal Service
consistent with, the EEO regulations cited, supra. I find,
therefore that the Phoenix complaint is without merit and
I shall dismiss it in its entirety.
I do not find this holding affected by the fact that the
Postal Service and certain of the employees in Phoenix
reached settlements that, inter alia, waived the employ-
ees' rights to pursue the settled disputes to arbitration.
Such a settlement is not violative of employee rights.
Postal Service, 234 NLRB 820 (1978). Nor is it violative
of the Union's institutional rights under my accommoda-
tion for I find EEO settlements are of no force and effect
against the Union's rights to ,initiate or continue process-
ing grievances to and including arbitration.16
(b) Columbus
The amended complaint in Case 9-CA-16503(P) al-
leges that the Postal Service asserted the EEO precom-
plaint settlement reached with Columbus employee Otter
as a defense to an arbitration of a contract grievance.
There was no dispute regarding the underlying facts.
From these facts the General Counsel argues without
case citation or extensive analysis that the Postal Service
has violated Section 8(a)(1) and (5) of the Act.
In an earlier portion of this decision, I have attempted
to accommodate the conflicting policies reflected in Sec-
tions 9(a) and 8(a)(5) of the Act as opposed to those of
Title VII and EEO regulations cited, supra. Applying
that accommodation, I conclude for the reasons stated
below that Respondent by its Columbus conduct violated
Section 8(a)(1) and (5) of the Act as alleged in the com-
plaint. First, the General Counsel does not contend nor
would I fmd, consistent with my analysis of the Phoenix
case, supra, that Respondent violated the Act in its EEO
negotiations and settlement with Otter. At issue here is
the later assertion to the arbitrator by the Postal Service
that the EEO agreement with Otter deprived the Union
of its right to carry its grievance on the matter to- bind-
ing arbitration. In effect the Postal Service has, through
(p. 1026)
its assertion of the Otter EEO agreement-which I have
found, supra, has no force and effect on union grievances
filed pursuant to the contract-sabotaged the grievance
process, and in effect repudiated the arbitration clause of
the contract. Such a repudiation of a contract clause,
which goes to the heart of the Postal Service's relation-
ship with the Union, is a violation of Section 8(a)(1) and
(5) of the Act.
16 The statement of the Postal Service's counsel made at trial in Phoe-
nix that it is not waiving its right to assert the EEO settlements in an
arbitration as a defense to a claimed contract breach is no more than a
statement of possible intention. Such a statement is no more than a state-
ment in litigation regarding future dealings with the Union, it is not a
separate violation of the Act, nor is it so alleged in the complaint. If and
when such actions are taken by the Postal Service, the Union may file a
timely charge and test the issue in the normal course.
The Postal Service argues on brief:
In Joan Otter's arbitration the Postal Service of-
fered a legitimate good faith affirmative defense,
,and to selectively preclude advocates from offering
any such defense strips advocates of their right and
obligation to represent the client as best they can.
I also note the Board's reversal of an administrative law
judge who ordered a remedy similar to that sought by
the General Counsel here in Teamsters Local 46 (Guiness-
Harp Corp.), 236 NLRB 1160 (1978). There the Board
held that to order a respondent to cease furthering its il-
legal bargaining demands by means of the grievance and
arbitration provisions of a contract "would constitute an
unwarranted impairment of the parties' procedural
rights." 236 NLRB at 1160.
I fmd neither the Board case cited nor the Postal Serv-
ice's argument, persuasive. The violation found here is
not "an unwarranted impairment," of the arbitral process
because it is a necessary consequence of the accommoda-
tion described supra and is, in, that sense, a deliberate
"impairment," which is a vital part of the compromises
between conflicting public policies of which the accom-
modation consists. I have found in the instant case that
Respondent defeated the arbitration process using an
EEO agreement, which I have found, supra, can have no
proper force and effect on contract disputes. My efforts
to accommodate the conflicting EEO regulations and
National Labor Relations Act provisions necessarily in-
volved compromises or "impairments" in each statutory
scheme. These have been designed to minimize the
injury to the diminution of the effectiveness of either im-
portant public policy. The independence of EEO settle-
ments between individuals and the Postal Service and the
Union's rights under the contract grievance and arbitra-
tion procedures is a necessary part of this accommoda-
tion if the compromise is to properly balance the con-
flicting policies. The Union under my accommodation is
denied rights to be present at EEO adjustments. It is
denied any right to complain of the EEO settlements en-
tered into by employee complainants insofar as they
affect only the complainant's private EEO rights. If these
EEO settlements, reached without the Union's presence,
may be used by the Postal Service to bar the Union's as-
sertion of contract rights, the Union is without means to
police the contract. In effect the EEO provisions would
unnecessarily and substantially reduce the Section 9
rights of a union to represent all the employees in the
unit. To prevent this, the Postal Service must be denied
the right to utilize EEO settlements in any way during
the processing of grievances under the contract including
the arbitration, stage.
Thus the accommodation scheme advanced, supra, re-
quires the Postal Service be barred from the assertion of
EEO settlements as affirmative defenses in arbitrations.
The "impairment" found is necessary rather than unwar-
ranted in this context. Accordingly, I find that the Postal
Service repudiated its contractual obligation to carry
POSTAL SERVICE
cases to binding arbitration in the Oiler case and there-
fore violated Section 8(a)(5) and (1) of the Act.t'
REMEDY
Having found the Postal Service has violated Section
8(aX5) and (1) of the Act, I shall order it to cease and
desist therefrom and take certain affirmative actions de-
signed to effectuate the purposes of the Act.
The Postal Service argues that, assuming, arguendo, a
violation of the Act is found, any remedy ordered should
be prospective only because of earlier contrary rulings
by the General Counsel 's office of appeals . I reject the
argument of the Postal Service on the facts without con-
sidering its legal sufficiency . Unlike the situation con-
cerning the Phoenix complaint , found without merit,
supra, there is no record evidence of earlier contrary
holdings by the General Counsel 's Office of Appeals
concerning allegations dealing with the use of EEO set-
tlements to defeat in arbitration. The remedy in this
matter therefore will be in accord with normal Board re-
medial policies.
Concerning the proper remedy for the violation con-
cerning the Oiler grievance the Union on brief argues:
By virtue of the final-and-binding clause in the con-
tract that wrong is irremediable there . Accordingly,
the Board should resolve the uncertainty of the out-
come of an arbitral decision on the merits against
the wrong-doer who made certainty impossible. [Ci-
tations deleted.]
The General Counsel on brief seeks:
[A] remedy ordering the parties back to arbitration
and refraining from any assertion of defense or any
argument in such proceeedings , based on the EEO
settlement, as well as pay all the costs incurred by
Otter and the Union in such grievance proceedings.
In disagreement with the Union, I find nothing done in
the Oiler arbitration to date that cannot be undone by
agreement of the parties . Thus, the Postal Service and
the Union may jointly petition the arbitrator or, if he is
unavailable or unwilling , another arbitrator to consider
the issues in the Oiler arbitration on their merits without
reference to or reliance in any way on Oiler's EEO set-
tlement . Thus, I fmd there is no need to order the Postal
Service to give Oiler that which the Union is seeking in
the arbitration . i 8 Should the arbitration be impossible to
17 The Union argued that the entire course of conduct of the Postal
Service herein was animated by a desire to defeat the Union and to un-
dermine its status as exclusive representative of the employees . The Gen-
eral Counsel carefully disassociated itself from the Union's argument and
noted that its complaints allege violations of Sec. 8(a)(5) of the Act only
and not Sec. 8(ax3) of the Act . Thus, the General Counsel asserts any
issue of animus is irrelevant to the case. In agreement with the General
Counsel, I do not find an animus theory raised by the pleadings and do
not address it here . Were I forced to reach the issue , I would find insuffi-
cient evidence on this record to establish either that the Postal Service
engaged in the conduct found herein in order to defeat or to undermine
the Union or that the Postal Service in any other fashion discriminated
against employees because of their union activities.
18 This is not to say that the Postal Service could not deliberately
choose to "forfeit" the case and give to Oiler that which was sought by
1029
reconvene or hold de novo, it is possible that such a
remedy as requested by the union will ultimately be nec-
essary to remedy the wrong done to the Union herein.
That will depend on subsequent events. I find it most ap-
propriate to defer such unlikely and speculative issues to
the compliance stage of the proceeding . At that time, if
the issue ripens, it may be addressed . Accordingly, I
shall order the Postal Service , jointly with the Union be
it willing, to take all appropriate steps to reconvene the
Oiler 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 argument, made directly or indi-
rectly, that Oiler 's EEO settlement defeats, diminishes,
or otherwise weakens the Union 's claims under the col-
lective-bargaining agreement . If the arbitration cannot be
concluded , the Union will be made whole as is appropri-
ate under all the circumstances then pertaining.
The Postal Service shall also pay all reasonable in-
creased expenses of the Union and the arbitrator clearly
and specifically resulting from the delay in the arbitra-
tion caused as a result of the successful but improper as-
sertion by the Postal Service of the Oiler EEO settle-
ment as a defense . The sums owing, if any, shall bear ap-
propriate interest to be calculated in accordance with the
formulas set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977),
see generally Isis Plumbing Co., 138 NLRB 716 (1962).
The Union seeks nationwide posting of remedial no-
tices . In view of the narrow violation found , I deem it
appropriate to require posting only at the Columbus fa-
cility . There is no evidence that the Postal Service's as-
sertion of EEO settlements as defenses in contract arbi-
trations were common or widespread as of the time of
the hearing.
The remedial notice in the instant case must include an
explanation of the rights and privileges created by all the
statutes involved herein i e as well as an explanation of
the accommodation between those statutes described
supra. Thus the notice is somewhat longer than usual.
On the above findings of fact and on the entire record,
I make the following
CONCLUSIONS OF LAW
1. The 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. The Phoenix Local, the Columbus Local, and the
National Union are, and each of them is, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The Postal Service has violated Section 8(a)(5) and
(1) of the Act by repudiating the grievance and arbitra-
tion clause of its collective-bargaining agreement with
the union through the assertion to an arbitrator that the
union's grievance regarding Joan Oiler was barred be-
cause of a settlement entered into by Oiler and the Postal
the Union in arbitration. The option, however, is the Postal Service's and
not the Union's to exercise.
19 See, for example, the remedial notices in Atlas Corp., 256 NLRB 91
(1981), and Dura- Vent Corp., 257 NLRB 430 (1981).
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service pursuant to the Postal Service 's EEO precom- 5. The Postal Service has not otherwise violated the
plaint settlement procedures . Act as alleged in the complaints.
4. The above unfair labor practice is an unfair labor [Recommended Order omitted from publication.]
practice burdening commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.