Postal Service

National Labor Relations Board - Board Decisions

Mar 8, 1992

306 N.L.R.B. 640 (N.L.R.B. 1992)

640
306 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party also submitted three notices of recent author-
ity identifying the Board’s decisions in Dubuque Packing Co., 303
NLRB 386 (1991), Register-Guard, 301 NLRB 494 (1991), and
General Electric Co., 296 NLRB 844 (1989). The Respondent filed
a response to the Charging Party’s notice regarding the Board’s deci-
sion in Dubuque Packing. The Charging Party filed a motion to re-
ject the Respondent’s response or alternatively to file a reply brief.
The Charging Party’s motion is denied.
2 The Respondent filed a motion to reopen the record to receive
a speech given by the union president on January 8, 1990, which
purportedly constitutes ‘‘new’’ evidence to the effect that the Union
acknowledged that the Respondent’s actions in 1988 were in re-
sponse to a budget cut imposed by Congress and outside the Re-
spondent’s control. The General Counsel and the Charging Party
filed oppositions to the Respondent’s motion. We deny the motion
because the evidence sought to be added by the Respondent is cumu-
lative and would not require a different result.
3 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
4 Finding no bargaining obligation, the judge also found it unnec-
essary to reach the Respondent’s alternative defense of waiver. He,
however, made certain factual findings relating to whether the Union
had waived its right to engage in decisional bargaining.
5 Art. 3 reads as follows:
The Employer shall have the exclusive right, subject to the pro-
visions of this Agreement and consistent with applicable laws
and regulations:
A. To direct employees of the Employer in the performance
of official duties;
B. To hire, promote, transfer, assign, and retain employees in
positions within the Postal Service and to suspend, demote, dis-
charge, or take other disciplinary action against such employees;
C. To maintain the efficiency of the operations entrusted to it;
D. To determine the methods, means, and personnel by which
such operations are to be conducted;
E. To prescribe a uniform dress to be worn by letter carriers
and other designated employees; and
F. To take whatever actions may be necessary to carry out its
mission in emergency situations, i.e., an unforeseen circumstance
or a combination of circumstances which calls for immediate ac-
tion in a situation which is not expected to be of a recurring
nature.
6 In reaching this finding, the judge reviewed arbitral decisions re-
ceived as evidence that dealt with whether the Respondent had the
exclusive right (1) to revise one of its handbooks to allow ‘‘on the
fly’’ rotation between keyboard operators on the letter sorting ma-
chines; (2) to abolish a level 5 manual distribution and window clerk
relief position at a particular station due to a change in distribution
needs; (3) to excess three parcel post positions at a particular office
due to the effects of a major equipment change at that location; (4)
to make several staffing changes at one of its locations for efficiency
reasons; (5) to apply new work and time standards in establishing
new routes for letter carriers; (6) to make changes affecting unit em-
ployees that had been prompted by its decision to eliminate certain
air taxi routes; and (7) to determine the proper salary level for a re-
view clerk position.
In addition, the judge found that Postal Service regulations author-
ize the Respondent to adjust hours of window service, mail collec-
tion schedules, and mail processing and to discontinue or suspend
post office operations. We observe that the regulations themselves do
not clearly apply to the kind of employer decision at issue here. In
addition, the record does not provide any information as to the ori-
gin, effect, or implementation of these regulations or whether the
Union was involved or acquiesced in their development or applica-
tion.
United States Postal Service and American Postal
Workers Union, AFL–CIO. Case 5–CA–
19444(P)
March 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 7, 1989, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs.1 The Respondent filed an an-
swering brief.2
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The amended complaint alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act by closing
postal facilities on Saturday, December 26, 1987, and
Saturday, January 2, 1988, by reducing window service
hours on February 13, 1988, and by discontinuing Sun-
day collection work and processing of originating mail
on February 14, 1988, without affording the Union an
opportunity to bargain with respect to any of these
changes. The judge dismissed the amended complaint.
He found no bargaining obligation on the part of the
Respondent because he concluded that, in response to
a budget reduction mandated by Congress in 1987, the
Respondent decided to make changes that did not
‘‘turn upon labor costs’’ and which impinged on labor
costs to an ‘‘incidental and secondary’’ degree.4 We
disagree with the judge’s failure to find a violation for
the following reasons.
At all material times, the Union has represented a
nationwide unit of 270,000 full-time and 70,000 part-
time clerical, maintenance, motor vehicle, and special
delivery messenger employees of the Respondent.
Since 1971 the Respondent and the Union have been
parties to successive collective-bargaining agreements,
including the National Agreement effective from 1987
to 1990. As found by the judge, article 3 of the Na-
tional Agreement, the management-rights clause,5 has
been interpreted by some arbitrators as enabling the
Respondent to make certain unilateral operational
changes not inconsistent with other contractual provi-
sions.6
641POSTAL SERVICE
7 On February 26, 1988, the Respondent complied with this por-
tion of OBRA by submitting to Congress the required implementa-
tion plan for 1988 budget reductions.
8 As noted by the judge, on October 31, 1988, the General Ac-
counting Office (GAO) concluded that the 1988 budget reduction of
$160 million had been met by the Respondent, but GAO was unable
to determine how much of the estimated $60 million in labor costs
saving was actually achieved.
9 The Respondent also admits in its posthearing brief that these ac-
tions reduced labor costs.
As more fully discussed by the judge, over the
years, the Respondent has also made certain oper-
ational changes, including the creation of bulk mail
centers in the 1970’s, the initiation of the area mail
processing program in the 1970’s, and the implementa-
tion of the window hours adjustment program in 1986,
that have affected employees’ work hours and sched-
ules. On those occasions, the Union did not request
bargaining, nor did any bargaining occur.
On December 22, 1987, the Omnibus Budget Rec-
onciliation Act of 1987, Public Law 100–203 (OBRA),
was enacted and required, inter alia, the Respondent to
reduce its operating costs in fiscal years 1988 and
1989 by $160 million and $270 million, respectively,
to make corresponding payments to the employee
health benefits fund, and to submit a plan imple-
menting these budget reductions to Congress by March
1, 1988.7 OBRA, however, did not dictate the par-
ticular items of the Respondent’s budget that had to be
reduced.
The Respondent held meetings on December 23,
1987, January 14, 21, and 29, 1988, and February 5,
1988, to provide information to the Union about the
areas being considered by the Respondent for the 1988
budget cut. The parties do not contend that any of
these meetings constituted decisional bargaining ses-
sions.
At the December 23 meeting, the Respondent told
the Union, inter alia, that it had decided to close se-
lected retail service outlets on December 26, 1987, and
January 2, 1988. During the January 14 meeting, the
Union suggested several labor costs areas for the pro-
posed budget cuts including reducing ‘‘premium pay’’
for employees doing Sunday, nighttime, and overtime
work and reducing nonunit ‘‘casual employees.’’ The
Respondent indicated that it would consider these sug-
gestions.
The day before the January 21 meeting with the
Union, the Respondent made a general announcement
disclosing, inter alia, that the Respondent had decided
that approximately two-thirds of the mandated reduc-
tion for fiscal year 1988 would be saved through re-
duced administrative expenditures and related adjust-
ments in work hours with the remaining one-third re-
duction to be saved by adjusting postal services. Re-
garding the savings in postal services, the Respondent
specified that Sunday mail processing and collection
work would be adjusted and that retail service hours
would be adjusted ‘‘by one half day per week on aver-
age.’’ The Respondent also indicated that it expected
the above changes to be completed within 30 to 60
days to give its local managers time to complete plans
and notify the public.
The Respondent estimated that approximately $60
million in labor costs would be saved through the re-
ductions in window service hours (including the two
Saturday closures) and the Sunday mail processing and
collection work.8 According to the credited testimony
of John Mulligan, the Respondent’s assistant post-
master general, the approximately $40 million expected
in savings from the reduced window service hours
‘‘was directly related to labor costs’’ and reflected a
‘‘reduction in labor costs’’; that the approximately $17
million expected in savings from the Sunday service
reductions ‘‘would be labor costs’’; and that the two
Saturday closures resulted in ‘‘labor cost savings.’’9
Although he predicted no layoffs of unit employees,
Mulligan anticipated that there would be some em-
ployee reassignments, changes in schedules, reductions
in overtime, and reduced work hours.
At their January 21 meeting, the Union presented
the Respondent with a letter dated January 20, 1988,
which contained a formal request for bargaining over
the Respondent’s decision to make these service hours
reductions and over the effects of these reductions on
unit employees. The Respondent did not respond to the
Union’s bargaining request at that time.
The next day, the Respondent issued a memo for its
regional postmasters general, with attached imple-
menting instructions advising the regional postmasters
of the Respondent’s plan for the reduction of window
operations and the elimination of Sunday collections
and processing of outgoing mail. This memo indicated
that the window service adjustments would be effec-
tive February 13, 1988, and that the elimination of
Sunday collections and outgoing mail processing
would be effective February 14, 1988. The Respondent
forwarded a copy of this memo to the Union on Janu-
ary 27, 1988.
At their January 29 meeting, the Respondent and the
Union agreed that the local unions would be given the
option of waiving the posting requirements of the Na-
tional Agreement with respect to any changes that
might be made to employees’ assignments or days off
as a result of the service hours reductions. This agree-
ment involving a waiver of contract posting require-
ments was embodied in a written memorandum of un-
derstanding executed by the parties on February 1,
1988.
At their last meeting held on February 5, the Re-
spondent and the Union discussed, inter alia, whether
the window service hours reductions planned by the
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Union again requested bargaining, and the Respondent re-
fused.
11 Subsequent to the judge’s decision, the Board overruled Otis El-
evator in its decision in Dubuque Packing Co., 303 NLRB 386
(1991).
12 For example, the Respondent could have achieved its overall
cost savings by reducing further its administrative costs or it could
have reduced labor costs in areas other than the ones it chose, such
as areas the Union suggested.
13 Sec. 8(d) provides, in pertinent part, that ‘‘to bargain collec-
tively is the performance of the mutual obligation of the employer
and the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment.’’
14 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983);
Dubuque Packing Co., supra.
Respondent would be 9 or 10 percent and would be
accomplished by region or be divisionwide.
As stipulated by the parties, on February 13, 1988,
the Respondent began a nationwide reduction in retail
window service and, on the following day, began
elimination of the nationwide Sunday collection and
processing of outgoing mail.
By letter dated February 19, 1988, the Respondent
replied to the Union’s January request for decisional
and effects bargaining. In this letter, the Respondent
stated, inter alia, that it ‘‘does not have an obligation
to collectively bargain concerning changes in postal
services’’ but ‘‘will, however, continue to consult with
[the Union] concerning such changes.’’ On February
22, 1988, the Union filed the instant unfair labor prac-
tice charge. Subsequently, in September 1988, the Re-
spondent partially restored the retail services pre-
viously adjusted.10
From the judge’s view of the facts, the operative de-
cision to analyze in determining the Respondent’s obli-
gation to bargain was the Respondent’s decision to re-
duce its operating cost in fiscal year 1988 by $160
million. In making that decision, which was congres-
sionally mandated by OBRA, the judge noted that the
Respondent specifically sought to achieve the bulk of
the savings by reducing administrative expenditures
rather than by reducing its service activities. In line
with this objective, the Respondent achieved two-thirds
of the mandated savings by reducing administrative ex-
penditures, with the remaining one-third to come from
savings in labor costs. Applying the Board’s plurality
decision in Otis Elevator Co., 269 NLRB 891
(1984),11 the judge thus concluded that there was no
obligation to bargain over the decision to reduce oper-
ating costs because the Respondent, ‘‘in responding to
the budget mandate of Congress, was not motivated by
labor costs, its determinations did not turn upon labor
costs, and to the extent there was an impact on unit
labor costs, such impact was incidental and sec-
ondary.’’
Our disagreement with the judge’s analysis begins
with his characterization of the decision to be ana-
lyzed. Even if we agreed with the judge that the Re-
spondent’s initial decision to reduce its operating costs
by $160 million in fiscal year 1988 was not a manda-
tory subject of bargaining, it does not follow that each
subsequent decision that the Respondent made to
achieve those savings was similarly insulated from a
duty to bargain. Once the Respondent determined that
it had exhausted its administrative cutbacks and that it
could achieve the remaining $60 million in reductions
only through labor cost savings, its bargaining obliga-
tion commenced. Thus, the Respondent’s decision to
reduce labor costs by $60 million by the two Saturday
closures, the retail window service reductions, and the
elimination of Sunday mail processing and collection
work was a separate and distinct decision from its ini-
tial decision. It was not the inevitable outcome of the
initial decision, but rather was only one of a number
of possible changes the Respondent could have
made.12 Accordingly, we find that the Respondent’s
decision to reduce its labor costs is severable from its
decision to comply with the dictates of OBRA and
must be analyzed separately from that decision.
The Respondent’s decision to cut labor costs by its
Saturday closures, reducing retail window service, and
eliminating Sunday mail processing and collection
work amounted to a decision to reduce work hours—
a matter literally within the scope of an employer’s ob-
ligation to bargain as defined in Section 8(d) of the
Act.13 Characterizing the decision as simply a reduc-
tion in employee work hours rather than a ‘‘partial
closing’’ as that term is used in First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666 (1981), seems ap-
propriate because the Respondent’s decision was not to
abandon a particular line of business or to cease a con-
tractual relationship with a particular customer. Rather
the Respondent was seeking simply to limit the num-
ber of hours that employees would spend engaging in
the Respondent’s basic business: collecting and proc-
essing mail and dealing with the public concerning
postage. Thus, we find that this decision constitutes
that type of management decision that is ‘‘almost ex-
clusively ‘an aspect of the relationship’’’ between em-
ployer and employees and as to these there is an obli-
gation to bargain. Id. at 677. Accordingly, we find that
the Respondent’s decision to reduce its labor cost by
the two Saturday closings, the retail window service
reductions, and the elimination of Sunday mail proc-
essing and collection work was a mandatory subject of
bargaining.
The Respondent contends that even if its decision
were a mandatory subject of bargaining, the Union
waived its right to bargain over that decision. It is well
established that a waiver of statutory bargaining rights
must be clear and unmistakable.14 On the basis of arti-
cle 3 of the National Agreement, together with the bar-
643POSTAL SERVICE
15 Even if the Union failed to challenge prior labor-cost reductions,
‘‘[a] Union’s acquiescence in previous unilateral changes does not
operate as a waiver of its right to bargain over such changes for all
time.’’ Johnson-Bateman Co., 295 NLRB 180 (1989) (citation omit-
ted).
16 In view of our conclusion that the Respondent failed to satisfy
its obligation to engage in decisional bargaining, we find it unneces-
sary to pass on the complaint allegations and the judge’s waiver
finding relating to the effects bargaining issue. We also find it un-
necessary at this stage of the proceeding to pass on the Respondent’s
argument that given the size and complexity of its operation and the
variety of settings in which the changes at issue were implemented,
the extent of monetary loss suffered by the employees cannot be
proven. As is our customary practice, we leave such matters to be
resolved in compliance proceedings.
gaining history and past practice concerning certain
other operational changes, previously discussed infra,
the Respondent argues that the Union waived its right
to bargain over the decision to make the 1988 fiscal
year labor cost reductions. After careful examination,
we find that article 3, neither on its face nor as inter-
preted by the arbitrators whose decisions were received
into evidence, specifically refers to the type of em-
ployer decision or mentions the kind of factual situa-
tion presented here. We also find that the bargaining
history, past practice, and union conduct regarding the
other operational changes relied on by the Respondent
is of no significance because these changes likewise
dealt with entirely different matters.15 We, therefore,
reject the Respondent’s waiver argument.
Accordingly, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act as alleged by the
amended complaint when it admittedly refused to bar-
gain with the Union over the labor-cost budget reduc-
tions.16
CONCLUSION OF LAW
By failing and refusing to bargain collectively with
the Union as the exclusive representative of its em-
ployees in the appropriate unit concerning the decision
to cut labor costs for the 1988 fiscal year by reducing
window service hours and discontinuing Sunday mail
collections and processing of originating mail, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act by failing and refus-
ing to bargain with the Union about the Respondent’s
decision to cut labor costs for the 1988 fiscal year, we
shall order the Respondent to cease and desist from en-
gaging in such conduct and to take certain action to ef-
fectuate the policies of the Act.
Having found that the Respondent failed to bargain
over the decision to cut labor costs for the 1988 fiscal
year in violation of the Act, we shall order the Re-
spondent to bargain with the Union concerning that de-
cision to cut labor costs and the effects of that deci-
sion. We shall order the Respondent to make whole
unit employees for their losses, if any, that resulted
from the Respondent’s decision to cut labor costs for
the 1988 fiscal year by reducing window service hours
and discontinuing Sunday mail collections and proc-
essing of originating mail. We shall leave the deter-
mination of losses suffered by the employees to the
compliance stage of this proceeding. Backpay is to be
computed in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
In addition, because the Respondent’s failure to bar-
gain about its decision to cut labor costs affected em-
ployees nationwide, we shall order the Respondent to
post an appropriate notice to employees at all its var-
ious facilities throughout the United States, including
its facility at 475 L’Enfant Plaza S.W., Washington,
D.C.
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Washington,
D.C., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
American Postal Workers Union, AFL–CIO as the ex-
clusive representative of its clerical, maintenance, and
motor vehicle employees and special delivery mes-
sengers in the appropriate unit set forth in the National
Agreement between the Respondent and the Union,
about decisions entailing changes in mandatory sub-
jects of bargaining.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning
the decision to reduce labor costs for the 1988 fiscal
year and the effects of that decision.
(b) Make whole unit employees for their losses, if
any, that resulted from the Respondent’s decision to
cut labor costs for the 1988 fiscal year by reducing
window service hours and discontinuing Sunday mail
collections and processing of originating mail. Backpay
is to be computed in the manner set forth in the rem-
edy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 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.’’
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its various facilities throughout the
United States, including its facility located at 475
L’Enfant Plaza, S.W., Washington, D.C., copies of the
attached notice marked ‘‘Appendix.’’17 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s au-
thorized 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 employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(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.
MEMBER OVIATT, dissenting in part.
For the reasons stated by my colleagues, I agree that
the Respondent’s decision to reduce its labor costs by
$60 million by closing on two Saturdays, reducing re-
tail window service, and eliminating Sunday mail proc-
essing and collection work was a mandatory subject of
bargaining. Contrary to the majority, however, I would
not resolve whether the Union waived its right to bar-
gain over this decision. Rather, I would remand this
case to the administrative law judge for the taking of
additional evidence, if necessary, and to determine
whether the Union waived its bargaining rights by vir-
tue of, inter alia, applicable provisions of the Postal
Reorganization Act, Postal Service regulations, the col-
lective-bargaining agreement, and prior conduct by the
parties.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to bargain collectively
with American Postal Workers Union, AFL–CIO as
the exclusive representative of our clerical, mainte-
nance, and motor vehicle employees and special deliv-
ery messengers in the appropriate unit set forth in the
National Agreement between the Postal Service and
the Union, about decisions entailing changes in manda-
tory subjects of bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union con-
cerning the decision to reduce labor costs for the 1988
fiscal year and the effects of that decision.
WE WILL make whole unit employees for their
losses, if any, that resulted from the Respondent’s de-
cision to cut labor costs for the 1988 fiscal year by re-
ducing window service hours and discontinuing Sun-
day mail collections and processing of originating
mail. WE WILL pay backpay plus interest for such
losses.
UNITED STATES POSTAL SERVICE
James E. Horner, Esq., for the General Counsel.
Karen A. Intrater, Jesse L. Butler, and R. Andrew German,
Esqs., for the Respondent.
Anton G. Hajjar, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge was filed in this case on February 22
and a complaint issued on August 30, 1988. General Counsel
contended that on January 14, 1988, Respondent Postal Serv-
ice, in response to the budget reduction requirements of the
Omnibus Budget Reconciliation Act, informed the Union of
its decision to reduce window service hours and discontinue
Sunday collection and processing of originating mail; that on
January 20, the Union requested the Employer to bargain
with it over this decision and the effects of these changes;
and that on February 13, the Employer implemented these
changes without affording the Union an opportunity to nego-
tiate and bargain as the representative of its employees in an
appropriate unit, in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act. Respondent Postal Service, in
its answer, denied violating the Act as alleged. Hearings
were held on the issues raised in Washington, D.C., on Feb-
ruary 27 and 28 and March 1, 1989. General Counsel was
permitted over objection to amend the complaint on March
1 to include the Employer’s related decision to close facili-
ties on Saturday, December 26, 1987, and on Saturday, Janu-
ary 2, 1988, as part of the Employer’s alleged unlawful uni-
lateral action. (See Tr. 546–555, 601–603.)
645POSTAL SERVICE
1 The jurisdictional allegations of the complaint; the labor organi-
zation status of the Charging Party Union; and the allegations that
the Charging Party Union represents an appropriate unit of the Re-
spondent Postal Service’s employees are admitted. It is undisputed
that the Charging Party Union represents clerical, maintenance,
motor vehicle, and special delivery messenger employees of the Em-
ployer, including, inter alia, window clerks, letter sorting machine
operators, central markup clerks, distribution clerks, secretaries, and
mail processors. Charging Party Union represents a total of 270,000
full-time and 70,000 part-time unit employees.
2 The above decision, as stated, did not involve the Charging Party
Union, rather, it involved the same jointly bargained contract lan-
guage impacting on employees represented by the Letter Carriers
Union. Moreover, the decision, by its own terms, is apparently con-
fined to the ‘‘special circumstances in [that] case.’’
3 See sec. 5 of art. 12, Jt. Exh. 2, which provides for the reassign-
ment of employees where, inter alia, there is a discontinuance of an
installation, a consolidation of an installation, a transfer of a station
or branch, a reassignment of employees excess to the needs of an
installation, a reduction in the number of regular work force employ-
ees of an installation other than by attrition, and the reassignment
of part-time flexibles in excess of quota.
Counsel for Respondent Postal Service argues, inter alia,
that the Postal Service’s reduction of its fiscal year 1988
budget was not a decision which turned on labor costs; that
there was no substantial impact on the bargaining unit shown
here; and that, in any event, the Union waived its right to
bargain over the decision in question and the effects of this
decision. Counsel for General Counsel and the Union argue
that the Employer had a duty to bargain because the three
cited actions undertaken here by the Employer turned di-
rectly on labor costs and the case is therefore governed by
Otis Elevator Co., 269 NLRB 891 (1984); and, further, that
the Union has not waived the right to bargain. On the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. BACKGROUND; THE COLLECTIVE-BARGAINING
AGREEMENT AND EARLIER CONDUCT OF PARTIES
The Postal Reorganization Act, 39 U.S.C. § 101 et seq.,
created the Postal Service in 1971, directing, inter alia, that
the Postal Service ‘‘provide prompt, reliable and efficient
services,’’ and authorizing it to ‘‘maintain the efficiency of
the operation entrusted to it’’ and ‘‘to determine the meth-
ods, means and personnel by which such operations are to
be conducted.’’ See sections 101 and 1001(e). The Postal
Service and the Charging Party Union, American Postal
Workers Union, AFL–CIO, as well as National Association
of Letter Carriers, AFL–CIO, have been parties to successive
collective-bargaining contracts covering appropriate units of
employees since 1971.1 The most recent contract between the
Postal Service and American Postal Workers Union and Na-
tional Association of Letter Carriers, effective from 1987 to
1990 (Jt. Exh. 2), continues to maintain the same ‘‘manage-
ment rights’’ provisions. Thus, article 3 of the current con-
tract continues to provide that the Employer ‘‘shall have the
exclusive right, subject to the provisions of this Agreement
and consistent with applicable laws and regulations,’’ to ‘‘di-
rect employees . . . in the performance of official duties’’;
‘‘hire, promote, transfer, assign and retain employees . . .
and suspend, demote, discharge or take other disciplinary ac-
tion’’; ‘‘maintain the efficiency of the operations entrusted to
it’’; ‘‘determine the method, means and personnel by which
such operations are to be conducted’’; and ‘‘take whatever
action may be necessary to carry out its mission in emer-
gency situations, i.e., an unforeseen circumstance or a com-
bination of circumstances which calls for immediate action in
a situation which is not expected to be of a recurring na-
ture.’’
Article 3 of the contract has been determined by arbitrators
at both national and regional levels as enabling the Postal
Service to make unilateral operational changes not incon-
sistent with other contractual provisions. (See R. Exh. 21, p.
5; R. Exh. 22, p. 8; R. Exh. 23, p. 3; R. Exh. 24, p. 7; R.
Exh. 25, p. 20. See also R. Exh. 7, pp. 19 to 20. Cf. C.P.
Exh. 7, which involved a dispute with respect to the proper
evaluation of a newly established position.) See also Postal
Service, 203 NLRB 916 (1973), where the Board, in agree-
ment with the administrative law judge, in a case involving
the Letter Carriers Union, concluded that the employer did
not violate Section 8(a)(5) of the Act by unilaterally altering
terms and conditions of employment by changing work as-
signments. The Board relied on, inter alia, the ‘‘management
rights’’ language of article 3 of the contract, noting:
To be sure, the clause provides that these rights shall
be ‘‘subject to the provisions of this agreement and
consistent with applicable laws and regulations,’’ and
Art. V . . . as General Counsel stresses . . . prohibits
‘‘unilateral actions violative of the National Labor Re-
lations Act.’’ I do not regard the qualifying language as
negativing the managerial rights preserved by Art. III,
particularly in view of the broad managerial-assignment
discretion set forth in employee job descriptions next
described. Art. V appears to be nothing more than an
undertaking, not uncommon n labor agreements, that
the Employer will abide by his obligations under con-
tract and law.2
Postal Service regulations authorize the Employer to adjust
hours of window service, mail collection schedules, and mail
processing and to discontinue or suspend post office oper-
ations. (See G.C. Exh. 1(j); Exh. 9 attached to Mulligan dec-
laration in Motion for Summary Judgment.) And, as dis-
cussed below, the Employer in the past has made numerous
changes in its operations and services without affording the
Charging Party Union an opportunity to bargain over the un-
derlying decision. The Employer’s changes, however, must
concededly be in compliance with the pertinent provisions of
its collective-bargaining agreement which, as demonstrated
below, principally pertain to the effects of such decisions.
Thus, as Assistant Postmaster General John Mulligan testi-
fied, after describing such operational and service changes in
the past, ‘‘I never saw any bargaining over any of these
issues’’ and ‘‘I never heard of any demand for bar-
gaining’’—it was the ‘‘policy’’ of the Employer ‘‘not to bar-
gain over such decisions.’’
Articles 12 and 37 of the collective-bargaining agreement
provide for the reassignment of unit employees and posting
of new assignments, including the discontinuance of an inde-
pendent installation and the consolidation of an installation.3
Robert Templeton, a regional manager of labor relations for
the Postal Service, testified that article 12 applies ‘‘regardless
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The collective-bargaining agreement distinguishes between full-
time employees who are guaranteed a 40-hour work week and part-
time employees. Part-time regular employees are assigned regular
schedules of less than 40 hours per week. Part-time flexible employ-
ees are, insofar as pertinent here, ‘‘available to work flexible hours
as assigned by the Employer.’’ See art. 7 and R. Exh. 26. William
Downes, director of contract administration for the Employer, ex-
plained that the Employer generally ‘‘can adjust their schedules
[those of part-time flexibles] upward and downward depending on
the work load’’ and the Union to his knowledge has never requested
and there has been no bargaining over such reductions.
5 Operations Director Nick Barranca identified R. Exh. 33 as a
published predecisional cost analysis attributing a potential ‘‘$210.9
million in savings to reductions in clerks and mail handlers associ-
ated with the new bulk mail system.’’ See also Mulligan’s testimony
pertaining to changes in service known as the ‘‘two C program’’ (Tr.
pp. 478–480) which also affected bargaining unit employees.
of the reason the employee is being excessed from the sec-
tion’’ including a ‘‘reduction in service’’; that the Postal
Service is not obligated to bargain over such decisions and
to his knowledge has never bargained over a decision to
‘‘excess or reassign an employee’’; that there have been
‘‘hundreds’’ of such instances over the years; and that one
such decision pertained to the establishment of the Employ-
er’s 21 national bulk mail centers in the 1970s which in-
volved the reassignment of ‘‘thousands’’ of employees.
Templeton explained on cross-examination that part-time
flexible employees are also covered by article 12. (See art.
12.5C8 of Jt. Exh. 2.) Templeton further testified that article
37, which applies to clerk craft employees, provides for
changing the scheduled workdays, duties, and starting times
for full-time employees; that a ‘‘lot of things could happen’’
to cause such a change including ‘‘a change in transpor-
tation,’’ ‘‘a drop in mail volume,’’ the use of ‘‘area mail
processing’’ or a ‘‘scheduling staffing study’’ or ‘‘function
review’’; and that here too ‘‘there is no bargaining’’ and the
Employer is only required to comply with the provisions of
the contract. (See also R. Exh. 7, pp. 19 to 20.)4
Assistant Postmaster General Mulligan testified about past
operational changes made by the Employer which have af-
fected employees’ work hours and schedules. Mulligan cited
the creation by the employer in the 1970s of bulk mail cen-
ters, the implementation over the years of area mail proc-
essing, automation plans which have been implemented since
the early 1980s and recent transportation contracting changes
as a consequence of the deregulation of the airline industry.
Mulligan explained that the creation of bulk mail centers,
‘‘in [his] postal career . . . [had] the largest probably oper-
ational impact on people that [he has] seen . . . there were
21 bulk mail centers . . . the smallest ones might have 800
people . . . the largest had over 3000’’; the relocation or
changes of employees’ assignments or schedules ‘‘across the
country’’ affected a minimum of 20,000 and maximum of
50,000 employees ‘‘in terms of secondary effect from bump-
ing’’; and the changes ‘‘primarily’’ affected unit employees
of the Charging Party Postal Workers Union and ‘‘mail han-
dlers.’’5 Mulligan noted, as recited above, that there was no
bargaining over any of these decisions; he ‘‘never heard of
any demand for bargaining’’; and it was the Employer’s
‘‘policy’’ ‘‘not to bargain’’ over such decisions.
Operations Director Nick Barranca testified that the Em-
ployer’s area mail processing program, initiated in the 1970s
and continuing to the present, ‘‘is used to reduce direct labor
costs’’; the Employer ‘‘has deployed mechanized and auto-
mated equipment at major processing centers’’; there were
predecisional cost studies prepared indicating that this pro-
gram was intended to reduce labor costs; and published
guidelines, shown to the Postal Workers Union, ‘‘indicate the
impact that area mail processing will have or does have on
the bargaining unit.’’ (See R. Exhs. 37, and 34–36.) Barranca
recalled that he ‘‘had contact with Union officials’’ in the
past ‘‘at the national level’’ ‘‘regarding area mail proc-
essing’’; and the Union never requested bargaining ‘‘over de-
cisions to implement area mail processing’’ or ‘‘over the im-
pact.’’
Contract Administration Director William Downes cor-
roborated the above testimony. Downes explained that area
mail processing programs affect clerk craft employee sched-
ules, their work hours, and starting times; that such programs
take mail processing from outlying postal offices and move
the processing to central locations; that ‘‘we’re implementing
and have implemented’’ such programs ‘‘for years all over
the postal service’’; and that there has been no bargaining
with the Charging Party Union over such decisions. Downes
further testified that the Employer initiated a window hours
adjustment program in 1986 on a national basis affecting em-
ployees in every post office with window service; that guide-
lines furnished to the Charging Party Union indicated that
this program may require schedule changes for unit employ-
ees; and that the Union never requested bargaining over
‘‘these changes.’’ (See R. Exh. 32.) In addition, Downes
generally testified that ‘‘there is always a tightening of the
belt that comes . . . that could have very well have been
much more than the magnitude of [the instant] budget cut’’;
that ‘‘because of our . . . internal budget restrictions often-
times we have to put out the word to tighten up’’ resulting
in restrictions on hiring; that ‘‘the type of cutback here could
have gone on at any time under the usual budgetary proc-
ess’’; that such ‘‘budget reductions are made every day’’;
and that there has been no bargaining with the Charging
Party Union over such determinations.
Budget Director Kenneth Burditt testified that the Postal
Service develops its own budget; that the ‘‘Postal unions’’
are not involved in developing the budget and are given no
advance information; that in 1985 ‘‘we found ourselves in a
situation where our service was being degraded and our ex-
penses were way over our plans’’; that ‘‘we put in a cost re-
duction plan’’; that this ‘‘publicized’’ plan lowered the hour-
ly labor cost by reducing overtime and hiring more new em-
ployees at a lower hourly rate; that the effects of this plan
had a ‘‘fairly universal impact’’ on employees including the
unit personnel represented by the Postal Workers; that there
was no request for bargaining over these budget changes; and
that the Employer as a matter of ‘‘policy’’ would not bargain
over such a budget change. Burditt next identified a 1986
‘‘cost containment’’ plan. Burditt explained that ‘‘some im-
positions . . . were placed on us by the administration after
the beginning of fiscal year 1987 . . . [causing the Em-
ployer] to remove $300 to $500 million from our operating
budget’’; that ‘‘we embarked on a program entitled cost con-
tainment . . . it was of the same nature in terms of pub-
licity’’; that ‘‘each region was given a specific goal in terms
of dollars . . . headquarters was given a goal in terms of
dollars . . . it was the same type of thing we did [under] the
[instant] Omnibus Reconciliation Act’’; and that there was
647POSTAL SERVICE
6 Cf. Nichols v. Moore, slip opinion, United States District Court
for the Northern District of Alabama, dated November 14, 1975, at-
tached to the Employer’s brief; Mail Handlers v. Postal Service, 103
LRRM 307 (D.C. Neb. 1978); and Columbia Local, Postal Workers
Union, 621 F.2d 615 (4th Cir. 1980); involving applications to en-
join involuntary transfers or reassignments of employees, including
unit employees, under the bulk mail center program.
no request for or bargaining with the Union ‘‘over the cost
containment program.’’
William Burrus, executive vice president of the Postal
Workers Union, claimed on rebuttal that, ‘‘with respect to
the institution of area mail processing’’ and ‘‘automation’’
programs by the Employer, the Union ‘‘does not oppose and
actually embraces automation’’ and, consequently, has never
‘‘asked to bargain over implementation of such programs.’’
Burrus further claimed that, with respect to ‘‘the institution
of the bulk mail center system’’ by the Employer,
To my knowledge there were no Postal employees
that were, no bargaining unit Postal employees, that
were involuntarily transferred to the bulk mail centers.6
In addition, Burrus generally claimed that, ‘‘with respect to
decisions . . . concerning reductions in personnel or cuts in
hours or services’’ in prior years, he ‘‘never asked for bar-
gaining’’ because he ‘‘was not aware that the Postal Service
was attempting to reduce labor costs and that was the basis
upon which they were making the cuts’’—‘‘it had never been
presented to the Union that I was aware of that such cuts
would turn on labor costs.’’ Burrus also claimed that he was
not ‘‘aware’’ of any ‘‘policy’’ on the part of the Employer
not to bargain over such determinations.
II. THE OMNIBUS BUDGET RECONCILIATION ACT OF 1987
AND THE EMPLOYER’S RESPONSE
Congress enacted the Omnibus Budget Reconciliation Act
on December 22, 1987, requiring, inter alia, that the Em-
ployer reduce its operating budget by $160 million in the re-
maining months of fiscal year 1988 and by $270 million in
fiscal year 1989; make corresponding payments to the em-
ployee health benefits fund; not fund these payments by bor-
rowing the moneys or by increasing postal rates; and report
its fiscal year 1988 implementation plan by March 1, 1988.
(See G.C. Exh. 1(j), attachment 3.) As counsel for the Union
notes in his brief, pages 1 to 3, Congress ‘‘nowhere dictated
any specific part of the [Employer’s] budget which needed
to be reduced’’; ‘‘most of the fiscal year 1988 mandate was
met without affecting bargaining unit employees’’; and ‘‘all
of the much steeper fiscal year 1989 targets are being met
without such an impact.’’
Postmaster General Preston Tisch, on December 23, 1987,
announced that the Omnibus Budget Reconciliation Act ‘‘re-
quires us to reduce our expenditures by one and a quarter
billion dollars over the next 21 months’’; ‘‘it specifically re-
quires us to take $430 million out of our operating budget
and the remainder from capital funds’’; ‘‘our plan to build
or modernize badly needed postal facilities throughout the
country will be virtually wiped out . . . we will cancel 50
percent of the projects scheduled for fiscal years 1988 and
1989 overall and 75 percent of those which would have gone
forward in 1988’’; ‘‘new facility construction projects not
under contract will be eliminated’’; ‘‘equipment intended to
improve our productivity and our customer services will also
be sharply curtailed’’; ‘‘we will be forced to make adjust-
ments in postal operations’’ closing selected post offices
‘‘for the next two successive Saturdays’’; ‘‘some additional
cutbacks in retail services are being considered’’; ‘‘transpor-
tation for some third and fourth class mail will be consoli-
dated’’; and ‘‘all operating budgets at the division and head-
quarters levels are currently being reviewed and additional
adjustments will be announced.’’ (See R. Exh. 11.)
Assistant Postmaster General Mulligan testified that the
Employer conferred with regional and headquarters personnel
to identify areas for budget reduction. Mulligan explained:
Basically I was responsible for defining the process by
which we would address the issue of how we were
going to reduce our expenses . . . eliciting ideas as to
what our opportunities might be and orchestrating a dis-
cussion and debate about those issues and then recom-
mending a course of action [to the deputy postmaster
general].
Mulligan noted:
[W]e had . . . a set of criteria that included, number
one . . . it [the proposed savings] had to go in quickly
[and] had to be recoverable fairly quickly too; secondly,
we wanted to minimize the impact on service and that
accounts for . . . the fact that we got two-thirds of the
savings from . . . belt-tightening activities before we
ever got into service related activities . . . thirdly, if we
had to go into service, we wanted the impact on service
to not only be limited but [also] defined and control-
lable; [and, finally,] we needed to be able to produce
. . . some audit trail since the GAO had to audit it.
On December 23, as Union Vice President Burrus testi-
fied, Postal Service officials met with union officials and
then ‘‘shared with the unions the general areas that were
under consideration to be cut’’; the Employer ‘‘would be
closing selected substation retail service outlets the Saturday
[after] Christmas and the Saturday [after] New Years,’’ that
is, December 26 and January 2; Burrus asked a number of
questions; and further meetings were to be held. (See R. Exh.
11.) As counsel for the Employer notes in her brief at page
5, the Union ‘‘made no request to bargain until January 21,
1988’’ and no request for bargaining was made with respect
to the two Saturday closings. (See G.C. Exh. 2.)
The Employer and the Postal unions met again on January
14, 1988. Union Vice President Burrus testified that the Em-
ployer ‘‘had some additional information regarding the cuts
that were anticipated’’; that ‘‘I suggested . . . several areas
that the unions would propose for cuts’’; that Burrus’ pro-
posed cuts included reducing ‘‘premium pay’’ for employees
doing Sunday, nighttime, and overtime work and reducing
nonunit ‘‘casual employees’’; and that the Employer ‘‘in-
cluded’’ ‘‘our suggestions in the things that were being con-
sidered.’’ Assistant Postmaster General Mulligan explained
that various proposals, including those from the Union which
would have reduced labor costs, were rejected as inconsistent
with the criteria as stated above, contrary to contractual obli-
gations or contrary to law.
On January 20, Postmaster General Tisch announced, inter
alia, ‘‘For the past several weeks the U. S. Postal Service
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Union Vice President Burrus claimed on rebuttal that ‘‘there was
no mention by the Postal Service that they would absorb the lost
hours through attrition. It was not raised at all by the Postal Serv-
ice.’’ Burrus added: ‘‘As a matter of fact it was an issue that the
Union raised as a means of absorbing the cuts imposed upon the
Postal Service and the Postal Service rejected the Union’s sugges-
tions.’’
8 See also G.C. Exhs. 4 and 5 concerning the subsequent ‘‘partial
restoration of retail services’’ in September 1988, where the Em-
ployer reiterated its refusal to bargain with the Union over such
changes in postal service.
and its customers have wrestled with the problem of absorb-
ing cutbacks in our operating budgets of $430 million over
the next 21 months’’; ‘‘roughly three-fourths of all capital
expenditures planned for this fiscal year were affected’’;
‘‘two-thirds of the reductions in our operating budget will be
borne . . . through reduced administrative expenditures and
adjustments in work hours’’; ‘‘the remaining third of the sav-
ings we must achieve will come from adjustments in serv-
ice’’; ‘‘specifically . . . previously announced adjustments
such as changes in our mail transportation system and defer-
ral of the replacement of our computerized payroll updating
and timekeeping system are continued’’; ‘‘an immediate
moratorium has been placed on hiring for all administrative
vacancies’’; ‘‘administrative expenditures, including training,
travel, supplies and services will be sharply curtailed’’;
‘‘Sunday mail processing and collection plans will be ad-
justed’’; and ‘‘retail hours across the country will be adjusted
by one half day per week on average . . . these adjustments
are expected to be completed within the next 30 to 60 days
to give local managers time to complete plans and to notify
the public.’’ (See R. Exh. 14. See also R. Exh 13, a memo-
randum issued by Deputy Postmaster General Michael
Coughlin to regional postmasters on January 15, 1988.)
The Postal Service and representatives of the Charging
Party Union met again on January 21. Union Vice President
Burrus testified that he hand delivered to the Employer at the
beginning of this meeting a copy of General Counsel’s Ex-
hibit 2. Union Vice President Burrus, in General Counsel’s
Exhibit 2, stated that the Employer had informed the Union
on January 14 ‘‘of the final decisions reached to implement
the congressional mandated budget cuts’’ and ‘‘the Union is
in need of more specific information’’; propounded 12 ques-
tions; and ‘‘request[ed] bargaining prior to the effective date
of the service reductions and other areas directly affecting
conditions of employment.’’ The Employer gave the Union
‘‘verbal responses’’ to some of its questions at the meeting.
Additional written responses were later transmitted to the
Union. (See R. Exhs. 18, 19, and 20.) Assistant Postmaster
General Mulligan attended this meeting. He recalled that he
‘‘ran through an explanation of the process we used to iden-
tify potential areas of savings’’; that ‘‘it was anticipated there
would be some’’ ‘‘reassignments of employees or changes in
schedules or starting times’’; that he communicated to the
Union ‘‘that [he was] hoping to absorb the work hours
through less hiring and through reduction of overtime’’; and
that the
same policy [was] reiterated about no layoffs, that there
would be [an] attempt to achieve these savings through
reductions in hiring and a reduction in overtime.
See also Transcript 466–472, and Respondent’s Exhibit 15.7
On January 22, Deputy Postmaster General Michael
Coughlin announced to regional postmasters that, with re-
spect to the ‘‘reduction of window operations and elimi-
nation of Sunday collections and outgoing processing,’’ im-
plementing instructions had been completed; ‘‘while we all
recognize the impacts these changes will have on our em-
ployees, it is imperative that those impacts be minimized to
the extent possible and that all applicable provisions of the
national agreements be strictly adhered to’’; ‘‘it is expected
that window service adjustments will be effective February
13, 1988 and elimination of Sunday collections and outgoing
processing will be effective February 14’’; guidelines were
enclosed; a ‘‘bargaining unit impact checklist’’ was enclosed
noting, inter alia, ‘‘has the local/regional union been notified
per Article 12’’; and noting, inter alia, ‘‘make appropriate
staffing and scheduling changes in accordance with national
and local agreements including use of part time regulars and
reduction of PTF hours.’’ (See R. Exh. 17 and attachments.)
This memorandum and attachments were forwarded to the
Charging Party Union on January 27, 1988. (See R. Exh.
17.)
Charging Party Union and Postal Service representatives
met again on January 29. Union Vice President Burrus testi-
fied that he complained ‘‘that I had started receiving infor-
mation . . . regarding the cuts that were going into effect
. . . and it did not appear to be consistent with the instruc-
tions that we had previously received’’; ‘‘the Postal Service
said they would investigate those specific areas’’; ‘‘there
were a number of things discussed’’; and agreement was
reached on ‘‘waiving the posting requirements of the con-
tract.’’ The parties agreed that that the local unions would
be given the option to waive contract posting requirements.
The parties later signed Joint Exhibit 1, embodying their
agreement on waiving contract posting requirements, noting:
‘‘the dates of implementation for window service adjust-
ments and elimination of Sunday outgoing processing are
February 13 and 14, 1988, respectively.’’ And, Charging
Party Union and Postal Service representatives held a final
meeting on February 5. The parties, according to Union Vice
President Burrus, discussed, inter alia, whether the planned
reduction in window service would be 9 or 10 percent and
whether or not it would be region or divisionwide.
As stipulated, on February 13, the Postal Service began a
nationwide reduction of retail window service and, on Feb-
ruary 14, began its elimination of Sunday collection and
processing of outgoing mail. On February 19, the Postal
Service responded in writing to various questions raised by
the Charging Party Union and stated with respect to the
Union’s earlier request to bargain (G. C. Exh. 3):
The Postal Service does not have an obligation to col-
lectively bargain concerning changes in postal services.
We will, however, continue to consult with you con-
cerning such changes. To the extent that these changes
affect terms and conditions of employment, we will fol-
low the requirements of the national agreement.8
On February 26, the Postal Service sent its implementation
plan for the fiscal year 1988 budget reductions to Congress.
(See R. Exh. 1.) The plan included a servicewide administra-
tive cost reduction program; a reduction of research and de-
649POSTAL SERVICE
9 Assistant Postmaster General Mulligan acknowledged that ‘‘all
of’’ the approximated $40 million in savings from window closings
‘‘was directly related to labor costs’’; ‘‘we eliminated a segment of
work; closed down a certain amount of time; and that meant a reduc-
tion in labor costs’’ including unit labor costs. Mulligan added that
‘‘it came mostly from new hires not being hired; reduction of over-
time; and to my knowledge very little impact on the average number
of hours part time flexibles were working, almost no impact [on the]
average number.’’ Mulligan further acknowledged that ‘‘substantially
if not all of’’ the approximated $17 million in savings from the Sun-
day service reductions ‘‘would be labor costs’’ and those affected
part-time flexibles ‘‘might have had their hours reduced or they
might have simply transferred to another day with their full hours
as they were getting before.’’ And, Mulligan similarly agreed that
the two Saturday closures resulted in ‘‘labor cost savings’’ which
could have resulted in ‘‘some reduction in part time flexible hours;
some people who volunteered to take annual leave; some people
who were shifted . . . perhaps that day; I am not certain if there
would have been any official schedule changes.’’
10 Budget Director Burditt also noted that a rate increase went into
effect in fiscal year 1988 and he would attribute the 15-minute aver-
age loss per week to a decline in ‘‘volume plan’’ as a result of the
increase. Cf. the testimony of Union Representative Phillip Tabbita
and related documentary evidence pertaining to volume (Tr. 548–
601) and the testimony of Assistant Postmaster General Mulligan
(Tr. 513–514). As Assistant Postmaster General Mulligan explained,
‘‘In the 4th quarter [of fiscal 1988] it [volume] barely increased over
the last year and it increased much less than our planned level.’’
11 Counsel for General Counsel, in his posthearing brief (p. 13),
acknowledges the uncertainty of unit impact in this case by stating,
‘‘It very well may be that Respondent’s changes ultimately affected
Continued
velopment funds; the proposed implementation of a carrier
route information sortation system; the conversion of some
air transportation to cheaper highway transportation; the
elimination of some AMTRAK service; the increase in bulk
mail center van utilization; the elimination of ZIP plus 4
look-up service provided through computer forwarding sites;
the elimination of outgoing distribution on Sunday; a reduc-
tion in window service up to 10 percent; and the previous
implementation of selected retail closings and reduced collec-
tions on the Saturdays following Christmas and New Years.
As stated, only the last three items are the alleged unlawful
unilateral actions in this proceeding.
On October 31, the General Accounting Office (GAO)
issued its final report on compliance with the 1988 reduction
mandate. (See R. Exh. 2.) As GAO noted:
While GAO could not determine if all of the individual
cost reduction initiatives achieved their intended sav-
ings, the Postal Service’s overall efforts produced more
than the $160 million in savings mandated.
GAO added:
GAO could not determine the actual amounts saved for
initiatives such as curtailing window service and Sun-
day collections that comprised the remaining $75 mil-
lion of the $173.8 million savings goal. This was be-
cause savings depended on a reduction in operational
work hours and an unknown number of those hours
may have been shifted to other duties and functions.
Assistant Postmaster General Mulligan testified with re-
spect to the impact of the Employer’s reductions and savings.
As for the closings on the Saturdays following Christmas and
New Years, he explained:
we didn’t expect much business [on those 2 days] . . .
we felt we could recover the great majority of the hours
later . . . by reduction of part time flexible hours,
which we can do under the contract, or by selling peo-
ple on taking annual leave, a lot of people wanted off
at Christmas . . . some people were shifted if they
didn’t want to take leave.
Assistant Postmaster General Mulligan further testified with
respect to the impact of the reductions and savings in gen-
eral. He noted that he had made clear to the unions that it
was ‘‘anticipated there would be some’’ ‘‘reassignments of
employees or changes in schedules or starting times’’; ‘‘no
lay offs’’; and ‘‘there would be an attempt to achieve these
savings through a reduction in hiring and a reduction in over-
time’’;
The way we intended to save . . . was to slow down
or eliminate our hiring . . . and to reduce overtime
. . . those two were the major impacters on savings.
He observed that the savings ‘‘came mostly [from] new
hires not being hired . . . reduction of overtime . . .
and to [his] knowledge [there was] very little impact on
the average number of hours part time flexibles were
working . . . almost no impact [on the] average num-
ber,’’ and ‘‘there were no layoffs of any employees.’’9
Budget Director Burditt testified that there was a ‘‘slight
reduction’’ ‘‘in the total hours’’ worked by part-time
flexibles from fiscal year 1987 to 1988; there was a ‘‘very
minor’’ change ‘‘in the average number of hours worked by
the part time flexible clerks from l987 to 1988’’ ‘‘less than
a hundreth of an hour’’; ‘‘if you take from accounting period
6 on, the drop in the average hours worked [by the part time
flexible] was about 15 minutes a week’’; ‘‘we didn’t bring
part time flexibles on to work because we had less work for
them to do’’ and there was ‘‘a decrease in the number of
employees on the rolls’’; and
based on the fact that the total number of part time
flexibles dropped, it’s more of a cost avoidance by not
having people on the payroll, by not activating addi-
tional part time flexibles, rather than any damage; [as
for the] average hours worked by a part time flexible
. . . there wasn’t that much of an impact on the indi-
vidual that was already on board.
See Respondent’s Exhibit 6 and Transcript 271–284.10
Budget Director Burditt was asked if there was anyway
that he could determine how much of the approximated sav-
ings attributed to the alleged unilateral changes in issue here
‘‘affects only unit personnel,’’ and he explained:
Not that I am aware of . . . the Postal Service and the
GAO attempted to determine on tracking the costs on
some of these items and we were not able to do it . . .
the numbers just are not available.11
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
only a few hundred employees and not several thousands of employ-
ees’’; and ‘‘it may very well be difficult to ascertain the identities
of those who may be due backpay and the amount of the backpay
due.’’ Counsel for Charging Party Union, in like vein, also generally
asserts in his posthearing brief (pp. 1–2) that ‘‘work hours were ob-
viously changed’’; ‘‘overtime was reduced’’; and ‘‘it is certain that
some part time flexible employees lost hours.’’ It is apparently un-
disputed that full-time employees sustained no loss in hours and, as
noted below, there in fact were no layoffs.
12 As counsel for the Employer notes in her posthearing brief (pp.
50–51), C.P. Exh. 1 consists in large part of hearsay and does not
reliably or sufficiently show that unit part-time flexible employees
in fact lost hours because of the determinations in issue here. C.P.
Exh. 2, a decision on a grievance, also does not reliably or suffi-
ciently establish such lost work hours.
13 Counsel for Respondent Employer’s motion to correct the tran-
script, which is unopposed, is granted. Counsel for Charging Party
Union’s motion to file its brief instanter, which is unopposed, is
granted.
14 The Board, in Reece, supra at fn. 6, ‘‘applying former Member
Dennis’ test’’ from Otis, as well as the test of former Member Zim-
Finally, Budget Director Burditt observed that the approxi-
mated savings and reductions in issue here, some $60 mil-
lion, reflect only 2 percent of the Employer’s total labor
costs for fiscal year 1988.
Union Vice President Burrus generally claimed, inter alia,
that unit part-time flexible employees ‘‘would lose pay under
those Saturday closing situations’’; that unit ‘‘employees’
hours were cut pursuant to the reductions in window services
and in Sunday mail processing’’; that ‘‘some of our members
were affected by the elimination of work on Sunday which
has a 25 percent premium attached to it’’ ‘‘if the replacement
job did not include Sunday as a workday’’; and that ‘‘it’s not
my testimony that there were layoffs of full time employ-
ees’’ but ‘‘some employees were laid off.’’ (Cf. C.P. Exhs.
1 and 2.)
I credit the testimony of John Mulligan, Kenneth Burditt,
Robert Templeton, William Downes, and Nick Barranca as
summarized above. Their testimony is in significant part mu-
tually corroborative. Their testimony is also substantiated in
large part by undisputed documentary evidence. Their testi-
mony is further substantiated in part by admissions of Wil-
liam Burrus. And, on this entire record, I am persuaded that
the above-recited testimony of John Mulligan, Kenneth
Burditt, Robert Templeton, William Downes, and Nick
Barranca credibly and reliably relates both the background
and current sequence of events. On the other hand, I find the
testimony of William Burrus to be at times incomplete,
vague, unclear, and unreliable. In particular, I do not credit
the general assertions by William Burrus to the effect that
there were layoffs of unit personnel as result of the Employ-
er’s reductions in service. Indeed, counsel for General Coun-
sel conceded (Tr. 471–472) that he was ‘‘not in a position
to refute that’’ there were no layoffs as a result of the reduc-
tions in window service and Sunday mail processing, and
counsel for Charging Party Union does not press this testi-
mony of William Burrus in his posthearing brief.
I find equally incredible and unreliable the general asser-
tions of William Burrus to the effect that the Union never
demanded bargaining with the Employer in prior years with
respect to reductions or changes in service because it
assertedly did not know that such changes turned on labor
costs or because it did not oppose such changes. In my view,
William Burrus has not credibly explained why the Union
never requested bargaining in the past over decisions by the
Employer which, on their face, had at least the same impact
on unit personnel and labor costs as those in issue here. Fur-
ther, I do not under the circumstances credit the related as-
sertion of William Burrus to the effect that he was not aware
of the Employer’s ‘‘policy’’ not to bargain over the type of
decisions which are in issue here. This assertion, on the
record made here, appears to be contrary to the course of
conduct between the Employer and the Union during a 17-
year period of time. In addition, I find unreliable the broad
and general assertions of William Burrus that unit employees
lost hours as a consequence of the Employer’s action in the
instant case. These assertions were principally based on hear-
say and the documentary evidence adduced by counsel for
the Union does not reliably or sufficiently establish this
claimed impact on unit personnel. (Cf. C.P. Exhs. 1 and 2.)12
Accordingly, insofar as the testimony of William Burrus con-
flicts with the testimony of John Mulligan, Kenneth Burditt,
Robert Templeton, William Downes, and Nick Barranca and
related documentary evidence of record, I find the latter to
be more complete, reliable, and trustworthy.13
Discussion
The fundamental question raised in this case is whether
the Postal Service’s budget cutbacks as a consequence of the
Omnibus Budget Reconciliation Act of 1987 were mandatory
subjects of collective bargaining within the meaning of Sec-
tion 8(a)(5) and Section 8(d) of the National Labor Relations
Act. The controlling principles of labor law were recently re-
stated by the National Labor Relations Board in Reece Corp.,
294 NLRB 448 (1989), as follows:
In Otis Elevator Co., 269 NLRB 891 (1984), which ap-
plied the principles of the Supreme Court’s decision in
First National Maintenance Corp. v. NLRB, 452 U.S.
666 (1981) . . . the Board, in a plurality opinion, stated
that the critical factor in determining whether a man-
agement decision is subject to mandatory bargaining
under Section 8(d) is ‘‘the essence of the decision
itself, i.e., whether it turns upon a change in the nature
of the business or turns upon labor costs.’’
In Reece, supra, the Board, Member Johansen dissenting,
found that the ‘‘decision at issue did turn essentially on labor
costs.’’ The Board explained that ‘‘a decline in demand for
respondent’s products was the initial impetus for the re-
spondent’s decision to consolidate operations’’; ‘‘but the rea-
sons for the selection of . . . the plant whose operations
would be relocated were essentially reflected in the bargain-
ing over the 1980–1983 agreement and respondent’s abortive
efforts after the contract had gone into effect to achieve
changes in that agreement with respect to matters that are
undisputably related to labor costs.’’ The Board noted:
By contrast, there was no similar pattern of seeking
union contract concessions in Otis Elevator, supra. In
addition, a significant factor in the relocation there was
the desirability of locating research and development
operations near the parent corporation’s plant and merg-
ing . . . operations. Those considerations had nothing
to do with the collective bargaining agreement.14
651POSTAL SERVICE
merman, also concluded that ‘‘a factor over which the union had
control (i.e., labor costs) was a significant consideration in the em-
ployer’s decision and that the benefit for the collective bargaining
process outweighed the burden on the business, in view of the sig-
nificant impact on the employees and the respondent’s own effective
admission . . . that concessions by the union might negate the ne-
cessity of going through the extensive effort required for the reloca-
tion.’’
See also Inland Steel Container Co., 275 NLRB 929, 935–
937 (1985), enfd. 822 F.2d 559 (5th Cir. 1987), where the
Board, in agreement with the administrative law judge, found
that the essence of the ‘‘decision’’ itself was not predi-
cated solely or even predominantly on labor costs, but
was prompted largely by a need to replace an inad-
equate facility . . . the ‘‘decision’’ did not turn on
labor costs [and] was not subject to mandatory bar-
gaining.
FMC Corp., 290 NLRB 483 (1988), where the Board found
‘‘that the decision to manufacture the . . . crane at Bowling
Green involved a number of business reasons, including
higher productivity, lower scrap costs and lower wage rates
at Bowling Green,’’ and did not violate Section 8(a)(5)
‘‘under any of the views expressed in Otis’’; WXON-TV,
Inc., 289 NLRB 615 (1988), where the Board found that
‘‘the essence of the decision to eliminate the production de-
partment was based on the failure of that department to gen-
erate revenues sufficient to justify its continued existence’’
and was not a mandatory subject of bargaining even though
reference to ‘‘production department salaries . . . perhaps
. . . played a role in triggering an attempt to increase reve-
nues’’ for, ‘‘it does not follow that the decision therefore
must have turned upon labor costs.’’
Hawthorn Mellody, Inc., 275 NLRB 339 (1985), where the
Board explained that although ‘‘labor costs were a moti-
vating factor’’ for the transfer of operations, this factor was
‘‘not dispositive’’ labor costs ‘‘must be more than one of the
circumstances which stimulated the evaluation process for a
bargaining obligation to attach.’’
Dubuque Packing Co., 287 NLRB 499 (1987), where the
Board, in agreement with the administrative law judge,
found:
while labor costs clearly were a factor in the . . . deci-
sion to relocate . . . the decision to relocate did not
turn upon labor costs but upon the long range improb-
ability of continuing this work in [the particular loca-
tion].
Lapeer Foundry & Machine, 289 NLRB 952 (1988), where
the Board concluded that ‘‘the decision to lay off employees
for economic reasons is a mandatory subject of bargaining.’’
The Board explained:
In deciding to lay off employees, management di-
rectly alters employees’ terms of employment. This de-
cision, like the decision to reduce workers’ wages, nec-
essarily turns on labor costs because the decision itself
is to modify labor costs in order to save money during
economic downturns.
Applying the foregoing principles to the somewhat unusual
and special circumstances of this case, I find and conclude
that Respondent Employer’s budget response to the mandate
of Congress was not a determination which turned on labor
costs and was therefore not subject to mandatory bargaining.
And, insofar as the Employer’s implementation of the man-
date of Congress may have impacted on unit labor costs, the
credited proofs show at best only some vague and incidental
secondary effect. Thus, as recited supra, on December 22,
1987, Congress enacted the Omnibus Budget Reconciliation
Act. The Employer was directed to take certain budget action
within the ensuing 21 months. On the following day, Decem-
ber 23, Postmaster General Tisch announced that the Omni-
bus Budget Reconciliation Act ‘‘requires us to reduce our
expenditures by one and a quarter billion dollars over the
next 21 months’’; ‘‘it specifically requires us to take $430
million out of our operating budget and the remainder from
capital funds’’; ‘‘our plan to build or modernize badly need-
ed postal facilities throughout the country will be virtually
wiped out . . . we will cancel 50 percent of the projects
scheduled for fiscal years 1988 and 1989 overall and 75 per-
cent of those which would have gone forward in 1988’’;
‘‘new facility construction projects not under contract will be
eliminated’’; ‘‘equipment intended to improve our produc-
tivity and our customer services will also be sharply cur-
tailed’’; ‘‘we will be forced to make adjustments in postal
operations’’ closing selected post offices ‘‘for the next two
successive Saturdays’’; ‘‘some additional cutbacks in retail
services are being considered’’; ‘‘transportation for some
third and fourth class mail will be consolidated’’; and ‘‘all
operating budgets at the division and headquarters levels are
currently being reviewed and additional adjustments will be
announced.’’ (See R. Exh. 11.)
Assistant Postmaster General Mulligan, charged with the
task of recommending ‘‘a course of action’’ with respect to
the mandated $430 million reduction from the operating
budget for the next 21 months, explained that ‘‘we wanted
to minimize the impact on service and that accounts for . . .
the fact that we got two-thirds of the savings from . . . belt-
tightening activities before we ever got into service related
activities.’’ In short, the Employer intentionally avoided im-
pact on service activities and those unit and nonunit employ-
ees performing such activities. As counsel for the Union
notes in his brief, pages 1 to 3, Congress ‘‘nowhere dictated
any specific part of the [Employer’s] budget which needed
to be reduced’’; ‘‘most of the fiscal year 1988 mandate was
met without affecting bargaining unit employees’’; and ‘‘all
of the much steeper fiscal year 1989 targets are being met
without such an impact.’’
On February 26, 1988, the Postal Service, after consulta-
tions and discussions with its regional managers as well as
union representatives, sent its implementation plan for the
fiscal year 1988 budget reductions to Congress. (See R. Exh.
1.) The plan included a servicewide administrative cost re-
duction program; a reduction of research and development
funds; the proposed implementation of a carrier route infor-
mation sortation system; the conversion of some air transpor-
tation to cheaper highway transportation; the elimination of
some AMTRAK service; the increase in bulk mail center van
utilization; the elimination of ZIP plus 4 look-up service pro-
vided through computer forwarding sites; the elimination of
outgoing distribution on Sunday; a reduction in window serv-
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Counsel for the Employer also argues that the Union waived its
right to bargain over the decisions in question. In view of my deter-
mination that the Employer was not obligated to bargain with the
Union over the decisions in issue here, I find it unnecessary to reach
this issue and related contentions of the parties. Cf. Reece Corp.,
supra.
ice up to 10 percent; and the previous implementation of se-
lected retail closings and reduced collections on the Satur-
days following Christmas and New Years. As stated, only the
last three items are the alleged unlawful unilateral actions in
this proceeding.
Assistant Postmaster General Mulligan testified with re-
spect to the impact of the Employer’s reductions and savings
in its operating budget. Mulligan had made clear to the
unions that it was ‘‘anticipated there would be some’’ ‘‘re-
assignments of employees or changes in schedules or starting
times’’; ‘‘no lay offs’’; ‘‘there would be an attempt to
achieve these savings through a reduction in hiring and a re-
duction in overtime’’;
[t]he way we intended to save . . . was to slow down
or eliminate our hiring . . . and to reduce overtime
. . . those two were the major impacters on savings.
He explained that the approximated $40 million in savings
from window closings ‘‘came mostly from new hires not
being hired; reduction of overtime; and to my knowledge
very little impact on the average number of hours parttime
flexibles were working, almost no impact [on the] average
number.’’ He explained that, with respect to the approxi-
mated $17 million in savings from Sunday service reduc-
tions, those affected part-time flexibles ‘‘might have had
their hours reduced or they might have simply transferred to
another day with their full hours as they were getting be-
fore.’’ And, he explained that the two Saturday closings fol-
lowing Christmas and New Years could have resulted in
‘‘some reduction in part time flexible hours . . . some peo-
ple who volunteered to take annual leave . . . some people
who were shifted . . . perhaps that day; I am not certain if
there would have been any official schedule changes.’’
In addition, Budget Director Burditt testified that there was
a ‘‘slight reduction’’ ‘‘in the total hours’’ worked by part-
time flexibles from fiscal year 1987 to 1988; there was a
‘‘very minor’’ change ‘‘in the average number of hours
worked by the part-time flexible clerks from l987 to 1988’’
‘‘less than a hundreth of an hour’’; ‘‘if you take from ac-
counting period 6 on, the drop in the average hours worked
[by the part time flexible] was about 15 minutes a week’’;
‘‘we didn’t bring part time flexibles on to work because we
had less work for them to do’’ and there was ‘‘a decrease
in the number of employees on the rolls.’’ Burditt noted that
a rate increase went into effect in fiscal year 1988 and he
would attribute the 15-minute average loss per week to a de-
cline in ‘‘volume plan’’ as a result of the increase. And, fi-
nally, Burditt was asked if there was anyway that he could
determine how much of the approximated savings attributed
to the alleged unilateral changes in issue here ‘‘affects only
unit personnel,’’ and he explained:
[n]ot that I am aware of . . . the Postal Service and the
GAO attempted to determine on tracking the costs on
some of these items and we were not able to do it . . .
the numbers just are not available
Indeed, as GAO stated in its report to Congress:
GAO could not determine the actual amounts saved for
initiatives such as curtailing window service and Sun-
day collections that comprised the remaining $75 mil-
lion of the $173.8 million savings goal. This was be-
cause savings depended on a reduction in operational
work hours, and an unknown number of those hours
may have been shifted to other duties and functions.
Significantly, we deal with a unit of some 270,000 full-time
employees and 70,000 part-time employees; approximated
savings from budget reductions in issue that are only .2 per-
cent of the Employer’s total labor costs for fiscal year 1988;
no lay offs of unit personnel; no loss of hours of full-time
unit personnel; and no sufficient or reliable showing of any
loss of hours of part-time unit employees attributable to the
determinations in issue here.
On this record, I find that the Employer, in responding to
the budget mandate of Congress, was not motivated by labor
costs, its determinations did not turn on labor costs, and to
the extent there was an impact on unit labor costs, such im-
pact was incidental and secondary. See Reece Corp., supra,
and cases discussed above. As demonstrated above, the total
mandated reductions involved much more than the three de-
terminations placed in issue here. And, with respect to the
reductions in the fiscal year 1988 operating budget expenses
. . . only a part of the overall reductions . . . two-thirds of
these reductions involved nonlabor costs despite the fact that
over 80 percent of the Employer’s operating expenses are
labor costs. Moreover, as also demonstrated above, counsel
for General Counsel and Charging Party Union have failed
to sufficiently establish here by reliable and credible proofs
that the Employer’s alleged unilateral changes had a substan-
tial or significant impact on unit employees. As Assistant
Postmaster General Mulligan explained, the approximated
savings in issue here ‘‘came mostly [from] new hires not
being hired . . . reduction of overtime . . . and to [his]
knowledge [there was] very little impact on the average num-
ber of hours part time flexibles were working . . . almost no
impact [on the] average number,’’ and ‘‘there were no lay-
offs of any employees.’’ The proofs adduced by General
Counsel and Charging Party Union do not provide us with
more detailed and credible evidence of the requisite showing
of unit impact. In short, except for the general acknowledge-
ment by the Employer that it reduced planned work hours by
attrition and by an unspecified reduction in overtime, there
is no credible or sufficient or reliable showing of a loss of
unit work hours attributable to the service reductions in issue
here. Cf. First National Maintenance, supra, 452 U.S. at
678–679; United Technologies Corp., 274 NLRB 609, 621
(1985); Eastgate I.G.A. Foodliner, 236 NLRB 1305, 1314
(1978); Westinghouse Electric Corp., 150 NLRB 1574
(1965).
There remains for resolution the question whether the Em-
ployer fulfilled its obligation to bargain with the Union over
the effects of the above determinations and changes. Counsel
for the Employer argues that Charging Party Union waived
its right to bargain over the effects of these determinations
and changes.15 As noted above, articles 12 and 37 of the col-
lective-bargaining agreement provide for the reassignment of
653POSTAL SERVICE
unit employees and posting of new assignments, including
the discontinuance of an independent installation and the
consolidation of an installation. Templeton, a regional man-
ager of labor relations for the Postal Service, testified that ar-
ticle 12 applies ‘‘regardless of the reason the employee is
being excessed from the section’’ including a ‘‘reduction in
service’’; that the Postal Service is not obligated to bargain
over such decisions and to his knowledge has never bar-
gained over a decision to ‘‘excess or reassign an employee’’;
that there have been ‘‘hundreds’’ of such instances over the
years; and that one such decision pertained to the establish-
ment of the Employer’s 21 national bulk mail centers in the
1970s which involved the reassignment of ‘‘thousands’’ of
employees. Templeton explained on cross-examination that
part-time flexible employees are also covered by article 12.
(See art. 12.5C8 of Jt. Exh. 2.) Templeton further testified
that article 37, which applies to clerk craft employees, pro-
vides for changing the scheduled workdays, duties, and start-
ing times for full-time employees; that a ‘‘lot of things could
happen’’ to cause such a change including ‘‘a change in
transportation,’’ ‘‘a drop in mail volume,’’ the use of ‘‘area
mail processing’’ or a ‘‘scheduling staffing study’’ or ‘‘func-
tion review’’; and that here too ‘‘there is no bargaining’’ and
the Employer is only required to comply with the provisions
of the contract. Moreover, as detailed above, the Employer
in the past has made numerous changes in its operations and
services without affording the Charging Party Union an op-
portunity to bargain over the underlying decision. The Em-
ployer’s changes, however, must concededly be in compli-
ance with the pertinent provisions of its collective-bargaining
agreement which principally pertain to the effects of such de-
cisions.
There is no question here that the Employer fully com-
plied with the extensive effects provisions of its collective-
bargaining contract with the Union. In fact, the parties, dur-
ing one of their five meetings, on January 29, agreed that
that the local unions would be given the option to waive con-
tract posting requirements contained in these effects provi-
sions. The parties later signed Joint Exhibit 1, embodying
their agreement on waiving contract posting requirements,
noting: ‘‘the dates of implementation for window service ad-
justments and elimination of Sunday outgoing processing are
February 13 and 14, 1988, respectively.’’ In sum, the parties
have negotiated extensive contract procedures which provide
how operational changes such as reassignments and schedule
changes will impact on unit employees. The parties complied
with these contract procedures here. Under the cir-
cumstances, the Charging Party Union waived any right to
bargain further over these effects and the Employer, by fully
complying with these provisions, has fulfilled its bargaining
obligation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as al-
leged.
2. Charging Party Union is a labor organization as alleged.
3. Respondent has not violated Section 8(a)(5) and (1) of
the Act as alleged and the complaint will be dismissed in its
entirety.
[Recommended Order for dismissal omitted from publica-
tion.]