Postal Service

National Labor Relations Board - Board Decisions

Apr 16, 1984

269 N.L.R.B. 991 (N.L.R.B. 1984)

POSTAL SERVICE
United States Postal Service and Enrique A. Betan-
court. Case 21-CA-21487(P)
16 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by Enrique A. Betancourt,
an individual, 11 August 1982, the General Counsel
of the National Labor Relations Board issued a
complaint 24 September 1982 against the Company,
the Respondent, alleging that it has violated Sec-
tion 8(a)(1) of the National Labor Relations Act.
Copies of the charge and complaint and notice of
hearing were served on the parties.'
The complaint alleges that, on 9 August 1982,
the Respondent, acting through Bruce Lane, a su-
pervisor within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the
meaning of Section 2(2) and (13) of the Act, at its
San Diego facility, prohibited employees from dis-
tributing material protected by Section 7 of the
Act in the Respondent's lunchroom. On 12 Octo-
ber 1982 the Respondent filed its answer, admitting
in part and denying in part the allegations in the
complaint.
On 17 January 1983 the General Counsel filed a
Motion for Summary Judgment. On 19 January
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In support of its Motion for Summary Judgment,
the General Counsel contends that there are no
issues of fact which require a hearing inasmuch as
the Respondent's answer admits all the procedural
and jurisdictional allegations of the complaint. The
Respondent admits that Bruce Lane is, and has
been at all times material, a supervisor and agent of
the Respondent, although it denies in its answer
that Lane prohibited employees from distributing
material protected by Section 7 of the Act in the
Respondent's lunchroom. However, the General
Counsel contends that the Respondent, in its state-
ment of position in response to the charge, admissi-
ble against the Respondent under Rule
801(d)(2)(D) of the Federal Rules of Evidence,
t On 17 September 1982 the Respondent submitted to the General
Counsel a written statement of position in response to the charge.
269 NLRB No. 170
clearly admits that, on 9 August 1982, Lane did, in
fact, deny an employee's request to distribute
copies of a leaflet, in the Respondent's employee
lunchroom, opposing certain proposed changes in
the constitution of a labor organization which rep-
resents certain of the Respondent's employees. The
General Counsel also contends that, as the Re-
spondent is bound by this admission contained in
its statement of position, there are no issues of fact
which need be decided through a hearing before an
administrative law judge, notwithstanding the Re-
spondent's answer to the complaint.
The Respondent contends in its statement of po-
sition that the wages, hours, and conditions of all
postal clerks are set forth in the 1981-1984 national
collective-bargaining agreement between the Postal
Service, the Respondent, and the American Postal
Workers Union (APWU). That agreement also in-
cludes as a party the National Association of Letter
Carriers. Article 22 of that agreement, entitled
"Bulletin Boards," provides for the distribution of
union literature on literature racks and ad posting
on union bulletin boards. 2 The Respondent further
contends that Betancourt, the Charging Party,
should have sought permission from the appropri-
ate union officials to so post or distribute his mes-
sage concerning union matters.
The Respondent contends that, based on the
record and pleadings now before the Board, the
General Counsel's motion should not be granted
because there are genuine issues as to material facts
in this case, and the General Counsel is not entitled
to judgment as a matter of law. Therefore, the
Motion for Summary Judgment should be denied,
and the case be remanded for a hearing before an
administrative law judge of the Board. In the event
the Board finds no such material issues of fact, the
Respondent submits that its Cross-Motion for Sum-
mary Judgment should be granted by the Board as
the Postal Service is entitled to judgment as a
matter of law.
In support of its view, the Respondent contends
that, on 9 August 1982, Betancourt spoke with
Bruce Lane, a labor relations representative for the
2 Art. 22 reads:
ARTICLE 22
BULLETIN BOARDS
The Employer shall furnish separate bulletin boards for the exclusive
use of each Union party to this Agreement, subject to the conditions
stated herein, if space is available. If sufficient space is not available,
at least one will be provided for all Unions signatory to this Agree-
ment. The Unions may place their literature racks in swing rooms, if
space is available. Only suitable notices and literature may be posted
or placed in literature racks. There shall be no posting or placement
of literature in literature racks except upon the authority of officially
designated representatives of the Union.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Diego Post Office. Betancourt asked permis-
sion to distribute a handbill in the employees'
lunchroom at the San Diego Post Office. He
showed Lane a copy of the handbill. He gave no
indication that he had sought and been denied per-
mission from an officially designated representative
of the APWU to post his literature on the APWU
bulletin boards or distribute it on APWU literature
racks. Lane denied Betancourt's request on the
ground that the literature in issue was covered by
article 22 and should have been posted and/or dis-
tributed pursuant to the provisions of article 22.
Betancourt's handbill displayed the following
heading: "UNION DUES-UP, UP, AND
AWAY-." The handbill indicated that union dues
could go "skyhigh" if proposed changes in the con-
stitution, proposed by the local general president,
Bill Sims, were ratified by the membership. Ac-
cording to the handbill, the proposed changes with
a ballot were to be mailed to each member before
local officers attended the Biennial Convention. Al-
though the general president had refused to release
the details of the proposed changes, insiders had in-
dicated that there would be a proposal to make
three full-time union officers in lieu of the single
general president; that the salary of the general
president be increased and a proposal for the salary
of the two new union officers; that there would be
a proposal to raise the union dues; and that there
would also be a proposal to elect a general presi-
dent every 3 years rather than every 2 years. Each
proposal was accompanied by a recommendation
that the employees vote "NO." It was pointed out
that most of the proposals would result in a dues
increase. The flyer was distributed by "The Rank
And File Action Committee." A listing of the com-
mittee's officers was included.
The final paragraph of the flyer reads as follows:
Local union elections are scheduled to be held
in March of next year. The Rank And File
Action Committee (RAFAC) has been formed
to support and to promote candidates for
office who are responsive to the needs of the
general membership. Many union members feel
a sense of frustration because it seems that the
union isn't doing enough to protect their
rights. The answer is that a grassroots move-
ment is needed to replace ineffective union of-
ficers. If you would like to help please write
to: RAFAC P.O. Box 86324 San Diego, CA
92138. We need your support!
It is well established that the Board has, on nu-
merous occasions, found that conduct similar to
that engaged in by the Respondent is violative of
Section 8(a)(1) of the Act.
In McDonnell Douglas Corp.,3 the Board agreed
with the administrative law judge's finding that the
distribution of handbills by the "Fight Dues Raise"
group of employees was an activity sufficiently re-
lated to their working conditions and bore such a
reasonable connection to matters affecting the in-
terests of the employees as to come within the pro-
tection of Section 7 of the Act. The Board found
that the dues issue, which was the target of FDR's
activities, was directly related to the employees'
employment relationship and their working condi-
tions, and that activity, namely the distribution of
handbills on company premises during their non-
working time and in nonworking areas, was pro-
tected. Citing the Supreme Court's decision in
NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322
(1974), the Board held that parties to a collective-
bargaining agreement cannot waive an employee's
Section 7 rights.4 The Board also found that the
FDR group of employees were acting in concerted
opposition to the incumbent union on a matter di-
rectly affecting their employment conditions. It
was the Board's view that their Section 7 right to
distribute literature to their fellow employees in
order to solicit their support could not be waived
by the union or the company. The Board conclud-
ed that the respondent's security and/or production
needs did not justify its restraint of employees seek-
ing to distribute Section 7 matter during their non-
working time and in nonworking areas.
In a later case, Ford Motor Co. (Rouge Com-
plex),5 the Board noted that in its Magnavox6 deci-
sion, and subsequent cases, it had distinguished be-
tween the distribution of union institutional litera-
ture and literature which pertained to the employ-
ees' selection or rejection of a labor organization as
their collective-bargaining representative or other
matters related to the exercise by employees of
their Section 7 rights. The Board concluded that
the literature therein which pertained to the em-
ployees' concerns over the possibility of layoffs
and the union's efforts to avert that possibility
clearly fell within the category of other conditions
of employment, that the employees' solicitation and
distribution of literature was protected concerted
and/or union activity within the meaning of Sec-
tion 7, and that the union could not effectively
waive the employees' right to engage in such ac-
tivities under the principles of Magnavox.7
' 210 NLRB 280 (1974).
4 In Magnavox, the Supreme Court noted that the place of work is a
place uniquely appropriate for dissemination of views concerning the bar-
gaining representative and the various options open to the employees.
a 233 NLRB 698 (1977).
6 195 NLRB 265 (1972).
? See also Transcom Lines, 235 NLRB 1163 (1978), where the literature
found to be protected by the Board opposed the local union's policies
Continued
992
POSTAL SERVICE
In view of the Respondent's admission that
Bruce Lane, a supervisor and an agent, prohibited
employee Betancourt from distributing literature
which was published by the Rank and File Action
Committee (RAFAC), appealing to employees not
to support changes in the constitution promoted by
the general president of the Union on grounds that
such action may result in higher dues increases,
and that there was a need for a grassroots move-
ment to replace ineffective union officers, the alle-
gations of the complaint are deemed admitted and
are found to be true. Inasmuch as all material issues
have been admitted by the Respondent's answer,
and as the Respondent's contentions concerning the
necessity of an administrative law judge's decision
have been found to be lacking in merit, we find
that there are no issues properly triable in this pro-
ceeding and therefore no further hearing is re-
quired or warranted. Accordingly, we shall grant
the General Counsel's Motion for Summary Judg-
ment and deny the Respondent's Cross-Motion for
Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent provides postal services for the
United States of America and operates various fa-
cilities throughout the United States in the per-
formance of that function. The facility involved in
this proceeding is located in San Diego, California.
At all times material, the Board has had jurisdic-
tion over this matter by virtue of section 1209 of
the Postal Reorganization Act, 39 U.S.C. 1201-09.
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About 9 August 1982 the Respondent, by its su-
pervisor and agent, Bruce Lane, prohibited em-
ployees, including the Charging Party Enrique A.
Betancourt, from distributing material concerning
proposed changes in the constitution and bylaws of
the American Postal Workers Union, San Diego,
California, Area Local, AFL-CIO, in the Respond-
ent's lunchroom.
and officers and proposed that members challenge the incumbent officers
in an upcoming intraunion election; and Harper-Grace Hospitals, 264
NLRB 663 (1982), where the Board rejected the employer's contention
that employees should be denied the right to distribute literature on the
premises because of a provision in the collective-bargaining agreement
which gave them the right to post material on the union bulletin board.
Accordingly, we find, that the Respondent has
interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and thereby did engage in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By prohibiting its employees from distributing
literature which was related to the exercise of their
Section 7 rights, the Respondent has interfered
with, restrained, and coerced its employees in the
exercise of those rights in violation of Section
8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act, we shall
order that it cease and desist therefrom, and that it
take certain affirmative action as set forth below
designed to effectuate the purposes of the Act.
As we have found that the Respondent prohibit-
ed employees from distributing material which is
related to their exercise of the rights guaranteed
them by Section 7 of the Act, we shall order that
the Respondent inform the employees of their right
to engage in such protected activity.
ORDER
The National Labor Relations Board orders that
the Respondent, United States Postal Service, San
Diego, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from distributing liter-
ature which is related to their exercise of the rights
guaranteed them by Section 7 of the Act.
(b) 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 designed
to effectuate the policies of the Act.
(a) Rescind its rule or policy prohibiting employ-
ees from distributing literature relating to the exer-
cise of statutorily protected rights.
(b) Post at its facility in San Diego, California,
copies of the attached notice marked "Appendix." 8
a 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent'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 employees 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.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT prohibit our employees from dis-
tributing literature which concerns the exercise of
any of the rights guaranteed them by Section 7 of
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed employees by
Section 7 of the Act.
WE WILL rescind our rule or policy prohibiting
employees from distributing literature relating to
the exercise of their rights protected by the Act.
UNITED STATES POSTAL SERVICE
994