Postal Service

National Labor Relations Board - Board Decisions

Aug 27, 1984

271 N.L.R.B. 1297 (N.L.R.B. 1984)

POSTAL SERVICE
United States Postal Service and Youngstown Postal
Workers Union Local 443, Affiliated with the
American Postal Workers Union, AFL-CIO.
Case 8-CA-16365(P)
27 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On a charge filed by the Union, Youngstown
Postal Workers Union Local 443, affiliated with
the American Postal Workers Union, AFL-CIO,
on 27 December 1982, the General Counsel for the
National Labor Relations Board issued a complaint
on 10 February 1983 against the United States
Postal Service, the Respondent, alleging that it had
violated Section 8(a)(1) and (5) of the National
Labor Relations Act.
The complaint alleges that about 7 December
1982 the Respondent altered the location, size, and
physical arrangement of the union stewards' work
area; that also about that date the Respondent re-
fused to permit union stewards access to typing fa-
cilities; that about late December 1982, the Re-
spondent denied stewards forms necessary to leave
their workplace to perform union duties; and that
about 7 January 1983, the Respondent through its
agent and supervisor instituted a rule that only one
steward would be permitted in the stewards' work
area at any time. The complaint alleges that the
Respondent has engaged in this conduct without
affording the Union an opportunity to negotiate
and bargain with it as the exclusive representative
of the Respondent's employees.
The complaint also alleges that the location and
physical layout of the stewards' work area creates
the impression that the Respondent is engaging in
surveillance of its employees' union activities. On 7
April 1983 the General Counsel filed an amend-
ment to the complaint. On 22 February 1983 the
Respondent filed an answer to the complaint admit-
ting in part and denying in part the allegations in
the complaint and asserting certain affirmative de-
fenses.
Subsequently, on 20 June 1983, the Respondent
filed directly with the Board a Motion for Summa-
ry Judgment and a supporting memorandum. On
27 June 1983 the Board issued an order transferring
this proceeding to the Board and a Notice to Show
Cause why the Respondent's Motion for Summary
Judgment should not be granted. On 13 July 1983
counsel for the General Counsel filed a Motion in
Opposition to the Respondent's Motion for Sum-
mary Judgment.
271 NLRB No. 182
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record the Board makes the fol-
lowing
Ruling on Motion for Summary Judgment
In its Motion for Summary Judgment and its
supporting memorandum, the Respondent con-
tends, inter alia, that the unfair labor practice alle-
gations should be deferred to the parties' griev-
ance-arbitration procedure pursuant to Collyer Insu-
lated Wire, 192 NLRB 837 (1971), and Roy Robin-
son Chevrolet, 228 NLRB 828 (1977). Citing Joseph
T. Ryerson & Sons, 199 NLRB 461 (1972), in its op-
position to the Respondent's Motion for Summary
Judgment, counsel for the General Counsel con-
tends that because the allegations of the complaint
involve grievance filing activity they are not sub-
ject to deferral. We agree with the Respondent
that the unfair labor practice allegations should be
deferred to the parties' grievance-arbitration proce-
dure. '
The Respondent's motion avers that on 20 De-
cember 1982 the Union filed a grievance over the
size, location, and physical arrangement of the
stewards' work area. The grievance stated, in part,
that:
Management has violated the past practice of
allowing Stewards to work in an area that had
been mutually agreed upon. Management is
Bectause w.e find the Respondent's deferral contention sufficient to
warranl granting the Motion for Sunmlary Judgment. we deem it unnec-
essary to pass on the other contentions raised in the Motion for Summary
Judgment
According to dcocunlents submitted hy the Respondent and not disput-
ed hb the General Counsel. the parties' collective-hbargaining agreement
contains a grievalnce-arbitration procedure which culminates in "final and
binding" arbitration and which defines a grievance as "a dispute, differ-
ence, disagreement or conmplaint bctween Ihe parties related to sages.
hours and conditions of employment [including, hut not limited to] the
complaint of an employee or of the Union which involves the interpreta-
tion, application of or compliance with the provisions of [the contract]."
Art 17. ec 3 pros ides:
Rights of Stewards
When it is necessary for a steward to leave his/her work area to in-
vestigate and adjust grievances or to investigate a specific problem
to determine whether to file a grievance, the steward shall request
pernmission from the immediate supervisor and such request shall not
he unreasonably denied.
In the event the duties require the steward leave the work area and
enter another area within the installation or post office, the steward
must also receive permission from the supervisor from the other area
he/she wishes to enter and such request shall not be unreasonably
denied
The steward, chief steward or other Union representative properly
certified . may request and shall obtain access through the appropri-
ate supervisor to review the documents, files and other records nec-
essary foir processing a grievance or determining if a grievance exists
and shall have the right to interviesw the aggrieved employee(s), su-
pervisors and wsitnesses during working hours Such requests shall
not be utreasonably denied.
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also attempting to intimidate its employees in
general and the Stewards in particular by
giving them a Direct Order to Stand in a con-
spicuous area located in the center of the
workroom floor while processing grievances.
The motion further avers that the grievance was
denied at step 2 in January 1983 and subsequently
abandoned by the Union when the complaint in
this case issued.
In United Technologies Corp., 268 NLRB 557
(1984), we found a dispute arising in the context of
processing a grievance to be "eminently well suited
for deferral" (id. at 560). That case involved an al-
leged statement by a supervisor threatening retalia-
tion against an employee if she continued to pursue
a grievance. In addressing the contention that the
charge concerned grievance-processing and is
therefore unsuited to deferral, we observed that
"the alleged misconduct 'does not appear to be of
such character as to render the use of [the griev-
ance-arbitration] machinery unpromising or futile."'
(Id. at 460 fn. 21 quoting United Aircraft Corp., 204
NLRB 879 (1973), enfd. sub nom. Lodges 700, 743,
1746 Machinists v. NLRB, 525 F.2d 237 (2d Cir.
1975).) Accordingly, we held that the dispute
should be deferred to the grievance-arbitration pro-
visions of the parties' contract. Likewise, in this
case, there is no contention that the Respondent
has interfered with the grievance-arbitration ma-
chinery in a way that has rendered access to it "un-
promising or futile." To the contrary, the Respond-
ent has indicated its willingness to resolve the dis-
pute through an arbitral forum and has agreed to
waive the timeliness provision of the contractual
grievance-arbitration clauses. Thus, we find, as in
United Technologies, that Ryerson is not controlling
and that the General Counsel has not alleged facts
tending to show that there is a genuine obstacle to
utilization of the parties' contractually agreed-upon
method for dispute resolution.
The General Counsel has argued, alternatively,
that the complaint allegation that the Respondent
created an unlawful impression of surveillance of
union activity is an "independent" violation incapa-
ble of resolution with reference to the contractual
provisions. Furthermore, the General Counsel con-
tends, because all other complaint allegations are
"inextricably intertwined" with this one, the entire
case should be decided by the Board rather than an
arbitrator. We disagree with the General Counsel's
premise that the charge of unlawful impression of
surveillance, as alleged in the complaint, is unsus-
ceptible of resolution under the collective-bargain-
ing provisions.
Initially, we note that the allegation at issue is
narrowly drafted: The Respondent is not alleged to
have created an unlawful impression of surveillance
in any manner other than interference with the
physical arrangement of the stewards' work area
alleged elsewhere in the complaint. Thus, the issues
to be resolved are: (1) did the Respondent effect a
physical alteration of the stewards' work area; and
(2) if so, did that alteration place employees and
shop stewards in an environment so conspicuous to
supervisors and management officials as to inhibit
the grievance process. Applying the relevant con-
tractual provisions, an arbitrator would logically
consider and resolve these issues in determining
whether the Respondent "unreasonably denied"
steward requests to process employee grievances.
In this regard, we note that the grievance, which
the Respondent avers was filed and later aban-
doned by the Union, protests management
"attempt[s] to intimidate its employees" by redir-
ecting their grievance activity to a "conspicuous
area located in the center of the workroom." Thus,
it appears that the language of the grievance con-
templates the very dispute described in the com-
plaint. 2
We hold that the parties' collective-bargaining
agreement commits them to settle this dispute, as
well as the other misconduct alleged in the com-
plaint, through the grievance and arbitration proce-
dures during the term of their collective-bargaining
agreement. Accordingly, consistent with United
Technologies, we shall order that the Respondent's
Motion for Summary Judgment be granted, that
the complaint allegations be deferred to the parties'
grievance-arbitration procedure, and that the com-
plaint be dismissed. As in United Technologies, how-
ever, we shall retain jurisdiction for the purpose of
entertaining a motion for further consideration
upon a showing that either (1) the dispute has not
been resolved in the grievance procedure or sub-
mitted to arbitration, or (2) the grievance or arbi-
tration procedures have not been fair or regular or
have reached a result which is repugnant to the
Act. 3
2 Whether in fact the grievance is cognizable under the contract is an
issue properly determinable by the arbitrator. See Urban N Patrman, Inc.,
197 NLRB 1222 (1972); Great Coastal Express, 196 NLRB 871 (1972).
3 The American Postal Workers Union, AFL-CIO (the National) has
filed a motion to intervene and for a remand. The Respondent filed a re-
sponse to the National's motion and the National filed a reply to the Re-
spondent's response to the National's motion. The motion contains a
statement of the National's position on the suitability of this case for de-
ferral. Upon consideration of the National's motion and its views on the
issue of deferral contained therein, and having resolved for reasons stated
above that no further proceedings before the Board are warranted, we
deny the National's motion at this time. This ruling does not preclude the
National from reasserting intervenor status by reapplication in the event
that a motion for further consideration is granted under the terms stated
in this Order.
1298
POSTAL SERVICE
On the basis of the entire record, the Board
makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
United States Postal Service provides postal
service for the United States of America and oper-
ates various facilities throughout the United States,
including its facility in Youngstown, Ohio, in the
performance of that function. The Board has juris-
diction over the Respondent pursuant to Section
1209 of the Postal Reorganization Act, as amended.
II1. THE LABOR ORGANIZATION INVOLVED
Youngstown Postal Workers Union Local 443,
affiliated with the American Postal Workers Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
CONCLUSIONS OF LAW
The unfair labor practice violations in the com-
plaint should be deferred to the grievance-arbitra-
tion procedure established by the parties' collec-
tive-bargaining agreement.
ORDER
The Motion for Summary Judgment is granted,
and the complaint is dismissed, provided that:
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this Decision and Order, been either resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is re-
pugnant to the Act.
MEMBER ZIMMERMAN, dissenting.
Unlike my colleagues, I would deny the Re-
spondent's Motion for Summary Judgment and
remand this proceeding for a hearing. As with
United Technologies Corp., 268 NLRB 557 (1984),
this case involves conduct allegedly impinging
upon the integrity of the grievance process itself.'
i See my dissenting opinion in United Technologies Corp., supra.
As such, I would find the Board's decision in
Joseph T. Ryerson & Sons, 199 NLRB 461 (1972),
controlling, and would not defer to the parties'
grievance-arbitration procedure. As stated by the
majority in Ryerson, supra at 462:
If we are to foster the national policy favoring
collective bargaining and arbitration as a pri-
mary arena for the resolution of industrial dis-
putes, as we sought to do in Collyer, by declin-
ing to intervene in disputes best settled else-
where, we must assure ourselves that those al-
ternative procedures are not only "fair and
regular" but that they are or were open, in
fact, for use by the disputants. These consider-
ations caution against our abstention on a
claim that a respondent has sought, by prohib-
ited means, to inhibit or preclude access to the
grievance procedure. (Footnote and citation
omitted.)
Here, the complaint alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act by alter-
ing the locations, size, and physical arrangement of
the stewards' work area; refusing to permit union
stewards access to typing facilities; denying stew-
ards forms necessary to leave their workplace to
perform union duties; and instituting a rule that
only one steward would be permitted in the stew-
ards' work area at any one time, all without afford-
ing the Union an opportunity to negotiate and bar-
gain with respect to this conduct. The complaint
further alleges that the present location of the
stewards' work area and the manner in which
stewards have been required to prepare grievances
creates the impression that the Respondent is en-
gaging in surveillance and effectively limits em-
ployees' free and uninhibited access to that area,
thereby inhibiting the grievance process itself in
violation of Section 8(a)(l) of the Act. I would find
these allegations to fall squarely within the holding
of Ryerson, under which the Board has consistently
declined to defer to the grievance-arbitration pro-
cedure. I would likewise refuse to defer, 2 and
therefore dissent.
2 In light of my position that the proceeding should be remanded for a
hearing, I find it unnecessary to rule on the motion of the American
Postal Workers Union, AFL-CIO (the National) to intervene and for a
remand. The National could appropriately reassert its motion for interve-
nor status before the judge.
1299