U.S. Postal Service

National Labor Relations Board - Board Decisions

Dec 20, 1978

239 N.L.R.B. 962 (N.L.R.B. 1978)

DECISIONS OF NAFIONAL LABOR RELATIONS BOARD
U. S. Postal Service and Roy Wiggs and Aaron
Wright. Cases 10-CA-13745(P) and 10-CA-
13827(P)
December 20, 1978
DECISION AND ORDER DENYING MOTION
FOR SUMMARY JUDGMENT AND
REMANDING PROCEEDING TO THE
REGIONAL DIRECTOR
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 28, 1978, the Regional Director for Region
10 of the National Labor Relations Board issued a
complaint and notice of hearing in Case 10-CA-
13745(P) alleging that Respondent has engaged in
and is engaging in certain unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) of the National Labor Relations Act, as
amended, and within the meaning of the Postal Re-
organization Act.' Subsequently, Respondent filed
an answer admitting in part and denying in part the
allegations of the complaint and submitting an affir-
mative defense.
On August 28, 1978, the Regional Director for Re-
gion 10 issued a complaint and notice of hearing in
Case 10-CA-13827(P) and consolidated it with Case
10-CA-13745(P). Subsequently, Respondent filed its
answer to the allegations of the complaint in Case
10-CA-13827(P) and submitted that the two cases
should not be consolidated as they involved different
Charging Parties and separate issues. In view of our
denial of Respondent's Motion for Summary Judg-
ment herein, we need not disturb this consolidation.
Thereafter, on September 21, 1978, Respondent
filed a Motion for Summary Judgment in Case 10-
CA-13745(P) and a memorandum in support
thereof, with exhibits attached. Respondent moves
that summary judgment be granted on the grounds
that: (I) pursuant to Jubilee Manufacturing Company,
202 NLRB 272 (1973), the Board lacks jurisdiction
over the allegations of the complaint, and (2) this
matter should be deferred to the Equal Employment
Opportunity administrative procedures of the Civil
Service Commission established pursuant to 42
U.S.C. 2000e-16(b).
On October 10, 1978, the Board issued an order
transferring the proceeding to the Board and Notice
To Show Cause why Respondent's Motion for Sum-
' The complaint alleges. inter ala, that Respondent violated See 8(a)()
of the NLRA and PRA by suspending the (Charging Party for 2 weeks
because he enbged in concerted activities with other employees for the
purposes of collective bargaining and other mutual aid and proteclion
mary Judgment should not be granted in Case 10-
CA-- 13745(P).
On October 23, 1978, the Charging Party in Case
10-CA-13745(P) filed a memorandum in opposition
to Respondent's Motion for Summary Judgment ar-
guing, inter alia, (1) that Jubilee Manufacturing Com-
pany, supra, is inapposite here since the action taken
against the Charging Party is alleged to be the result
of his engaging in concerted activity directly protect-
ed by Section 7 of the NLRA, and that there is
enough interference with employee rights wholly
apart from the racial discrimination issue for the
Board to retain jurisdiction; (2) that the Board
should not defer to the Civil Service Commission's
EEO procedures because the instant complaint is not
based solely on racial discrimination, and the proce-
dures and protections guaranteed by the EEO pro-
cess are largely illusory in the instant case since only
one of the Charging Party's allegations will be pro-
cessed through the EEO forum and many of the
Charging Party's protected concerted activities will
not be touched by the EEO investigation; and (3)
that deferral in this case will not dispose of the un-
derlying issue of whether Respondent discriminated
against the Charging Party, because the instant case
has been consolidated with the case of a fellow em-
ployee, Aaron Wright, Case 10-CA-13827(P). Final-
ly, Charging Party contends that there are genuine
issues of material fact which render summary judg-
ment inappropriate.
Thereafter, General Counsel filed a response to the
notice to show cause and motion to consolidate dat-
ed October 30, 1978, wherein he opposed the Motion
for Summary Judgment arguing, inter alia, (I) that
Respondent's attempt to analogize Case 10-CA-
13745(P) with Jubilee Manufacturing Company, supra,
is misplaced essentially for the same reasons urged
by the Charging Party; (2) that Respondent, while
urging that the Board should defer to the EEO ad-
ministrative procedures of the Civil Service Commis-
sion, is simultaneously asserting that the Charging
Party cannot prevail on the basis of the timeliness of
the filing: and (3) that Congress intended that the
Board maintain its jurisdiction over unfair labor
practices. The General Counsel also moved that the
Board consolidate Case 10-CA-13363(P), a case
which had been transferred to the Board, with Case
10-CA-13745(P) because both cases arise from the
same evidentiary facts.
On November 6, 1978, Respondent filed its reply
to counsel for General Counsel's motion to consoli-
date cases. Respondent asserted that General Coun-
sel should have, but had not, compiled with rule
56(e) Summary Judgment-of the Federal Rules of
Civil Procedure and Section 10(b) of the Act, that
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U.S. POSTAL SERVICE
General Counsel's factual assertions were not cor-
rect, that Respondent has not contended that the
EEO issue concerning the Charging Party's Decem-
ber 1977 suspension was untimely, and, alternatively,
that the Board should defer the allegations of the
complaint to the Civil Service Commission. Finally,
Respondent argued that Case 10-CA-13363(P)
should not be consolidated because there are differ-
ent Charging Parties, a different number of allega-
tions, and the result would be undue delay and com-
plication of the ultimate disposition of Case 10-CA-
13745(P).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has duly considered the matter and has
concluded that issues raised by the pleadings can
best be resolved at a hearing conducted by an Ad-
ministrative Law Judge.
We also hereby deny the General Counsel's mo-
tion to consolidate Case 10-CA-13363(P) with Case
10-CA-13745(P) because on October 27, 1978, the
Board issued its Decision and Order Denying Mo-
tion for Summary Judgment and Remanding Pro-
ceeding to Regional Director for Hearing in Case 10-
CA-13363(P), U.S. Postal Service, 239 NLRB
(1978).2
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment be, and it hereby is, denied.3
II Is fl RI HER ORDERED that the above-entitled pro-
ceeding be, and it hereby is, remanded to the Region-
al Director for Region 10 for further appropriate ac-
tion.
t he denial of the General Counsel's motion to consolidate does not
preclude the Regional Director from consolidating the cases at a later date.
In soverruling Respondent's contenti ,n that the Board should dismiss
the complaint under Jubilee Aanafacturing Companv, supra. we find that
case. w herein the Board rejected the theor) that sex and other forms of
insidious discrimination hb) an emplover are inherently destructive of Em-
pl ,yees' Sec. 7 rights. inapplicable to this situation since here the complaint
alleges that Respondent's conduct constitutes reprisal for the Charging Par-
t) having engaged in concerted activity with other employees for purposes
of collective bargaining and other mutual aid and protection Member Jen-
kins notes. moreover. that he adheres to his dissent in Jubilee Further. in
rejecting Respondent's arguments that the Board should defer to the Civil
Service Commission's EEO procedures. 'e note that the Board rejected
similar arguments in t S. Posal Seriice. supra Finally. we find that Re-
spondent's reliance on rule 56(e) of the Federal Rules of Civil Procedure
and Sec Ilimb) of the Act is misplaced and nonmeritorious.
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