Mail Handlers Local 329 (Postal Service)

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 847 (N.L.R.B. 1995)

847
319 NLRB No. 108
MAIL HANDLERS LOCAL 329 (POSTAL SERVICE)
1 All dates are 1995 unless otherwise noted.
2 Thus, this case is distinguishable from cases in which the re-
spondent made a good-faith attempt to file a timely answer, although
the attempt was not strictly in compliance with the Board’s Rules.
See, e.g., Tri-Way Security, 310 NLRB 1222 (1993); Acme Building
Maintenance, 307 NLRB 358 (1992).
3 See Homestead Electric & Machine Co., 306 NLRB No. 149
(Mar. 25, 1992) (not reported in Board volumes) (summary judg-
ment granted, notwithstanding that respondent explained the reasons
for the alleged conduct, because respondent did not satisfy require-
ments of Sec. 102.20 of the Board’s Rules and its explanation did
not constitute a valid defense); compare Tri-Way Security, supra, 310
NLRB 1222, 1223 (summary judgment denied where respondent’s
response, although technically not in compliance with the Board’s
Rules, denied key allegations and explained relevant facts and cir-
cumstances).
National Postal Mail Handlers Union, Local 329
(United States Postal Service) and Myron L.
Bass. Case 26–CB–3320(P)
November 30, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
Upon a charge filed by Myron L. Bass, an Individ-
ual, on May 16, 1995, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
June 30, 1995,1 against National Postal Mail Handlers
Union, Local 329, the Respondent, alleging that it has
violated Section 8(b)(1)(A) of the National Labor Re-
lations Act. Although properly served copies of the
charge and complaint, the Respondent failed to file an
answer.
On August 28 the General Counsel filed a Motion
for Summary Judgment with the Board. On August 30,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On September 11 the Re-
spondent filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. The complaint states that
unless an answer is filed within 14 days of service,
‘‘all the allegations in the complaint shall be deemed
to be admitted to be true and shall be so found by the
Board.’’ Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region,
by letter dated August 15, notified the Respondent that
unless an answer was received by August 22 a Motion
for Summary Judgment would be filed.
The Respondent did not file a timely answer to the
complaint.2 In a letter dated September 1 from the Re-
spondent’s president, Charles E. Reynolds, to counsel
for the General Counsel, and in its September 11 re-
sponse to the Notice to Show Cause, however, the Re-
spondent contended that it did not file an answer be-
cause it assumed that an affidavit given by Reynolds
during the precomplaint investigative phase of this pro-
ceeding would suffice as an answer to the complaint.
The Respondent’s letters did not affirm or deny the al-
legations of the complaint or otherwise satisfy the re-
quirements of Section 102.20 of the Board’s Rules.
The Board’s Rules provide that all allegations of the
complaint that are not specifically denied or explained
shall be deemed admitted unless good cause is shown.
The Respondent did not file a timely answer. Further,
in its September 1 letter, the Respondent did not show
good cause for its failure timely to answer the unfair
labor practice complaint; nor did it affirm, deny, ex-
plain, or deny knowledge of the allegations of the
complaint, as required by Section 102.20 of the
Board’s Rules.3
Even assuming that the Respondent’s response to
the complaint was timely, it does not constitute a suffi-
cient answer. The Board consistently has held that
statements of position, including information submitted
during the precomplaint investigative phase, are insuf-
ficient to constitute answers to complaints. See, e.g.,
Wheeler Mfg. Corp., 296 NLRB 6 (1989); Bricklayers
Local 31, 309 NLRB 970 (1992).
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer, we grant
the General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service (the Employer)
provides postal services for the United States and oper-
ates various facilities throughout the United States in
the performance of that function, including its Bulk
Mail Center in Memphis, Tennessee, the only facility
involved in this proceeding. The Board has jurisdiction
over the Employer and this matter by virtue of Section
1209 of the Postal Reorganization Act (PRA).
At all material times, the Respondent has been a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, by virtue of Section 9(a) of
the Act, the Respondent has been the exclusive collec-
tive-bargaining representative of the mail processors of
the Employer (the unit).
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
National 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.’’
At all material times, the Respondent and the Em-
ployer have maintained and enforced a collective-bar-
gaining agreement covering conditions of employment
of the unit and containing, among other provisions, a
grievance-and-arbitration procedure. Since about Feb-
ruary 13, 1995, the Respondent has failed to process
a grievance concerning the suspension of Bass which
Bass attempted to file under the provisions of the col-
lective-bargaining agreement. The Respondent engaged
in this conduct for reasons unrelated to its duty as bar-
gaining representative.
By engaging in this conduct in connection with its
representative status as described above, the Respond-
ent has failed to represent Bass for reasons that are un-
fair, arbitrary, and invidious.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been restraining and coercing employees
in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act and has thereby engaged in unfair
labor practices affecting commerce within the meaning
of the PRA, Section 8(b)(1)(A), and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that since about February 13, 1995,
the Respondent has failed to file and process Bass’
grievance for reasons unrelated to its duty as bargain-
ing representative, we shall order the Respondent to
file a grievance on Bass’ behalf with the United States
Postal Service and pursue the grievance in good faith
and with due diligence, pursuant to the contractual
grievance/arbitration process. We shall also order the
Respondent to allow Bass to be represented by his own
counsel at the grievance-and-arbitration proceedings
and pay the reasonable legal fees of the counsel.
If the United States Postal Service refuses to accept
the grievance, we shall leave to the compliance stage
the determination whether the Respondent is liable to
make Myron L. Bass whole for any losses he suffered
as a result of the Respondent’s unfair labor practice.
ORDER
The National Labor Relations Board orders that the
Respondent, National Postal Mail Handlers Union,
Local 329, Memphis, Tennessee, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Failing to file and process a grievance, for rea-
sons unrelated to its duty as bargaining representative,
concerning the suspension of Myron L. Bass, which
Bass attempted to file pursuant to the provisions of the
collective-bargaining agreement with the United States
Postal Service.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Request the United States Postal Service to ac-
cept and process a grievance concerning the suspension
of Myron L. Bass and, if the United States Postal
Service agrees to do so, file and process the grievance
in good faith and with due diligence pursuant to the
contractual grievance/arbitration procedure.
(b) Allow Bass to be represented by his own counsel
at the grievance-and-arbitration proceedings, and pay
the reasonable legal fees of the counsel.
(c) Post at its facility in Memphis, Tennessee, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 26, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members and employees
represented by National Postal Mail Handlers Union,
Local 329 are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Sign and mail to the Regional Director copies of
the aforementioned notice for posting at the premises
of United States Postal Service, Memphis Bulk Mail
Center (the Employer) if the Employer is willing. If it
is determined at the compliance stage of this proceed-
ing that the Employer is not willing to post, National
Postal Mail Handlers Union, Local 329 shall sign and
mail copies to all employees of the Employer in the
bargaining unit represented by Respondent.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
849MAIL HANDLERS LOCAL 329 (POSTAL SERVICE)
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail to file and process a grievance,
for reasons unrelated to our duty as bargaining rep-
resentative, concerning the suspension of Myron L.
Bass which Bass attempted to file under the provisions
of the collective-bargaining agreement with the United
States Postal Service.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL request the United States Postal Service to
accept a grievance regarding the suspension of Bass
and, if the United States Postal Service agrees to ac-
cept a grievance, WE WILL promptly file and process
a grievance in good faith and with due diligence pursu-
ant to the grievance-and-arbitration provisions of the
collective-bargaining agreement.
WE WILL allow Bass to be represented by his own
counsel at the grievance-and-arbitration proceeding,
and WE WILL pay the reasonable legal fees of the
counsel.
NATIONAL POSTAL MAIL HANDLERS
UNION, LOCAL 329