Postal Service

National Labor Relations Board - Board Decisions

Aug 31, 2006

348 N.L.R.B. 25 (N.L.R.B. 2006)

POSTAL SERVICE
348 NLRB No. 3
25
United States Postal Service, Employer-Petitioner and
American Postal Workers Union, AFL-CIO.
Case 5–UC–386
August 31, 2006
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 30, 2003, the Regional Director for Re-
gion 5 issued a Decision and Order dismissing the Em-
ployer’s unit clarification petition, finding that under
Verizon Information Systems, 335 NLRB 558 (2001), the
Employer was estopped from filing the petition. There-
after, in accordance with Section 102.67 of the Board’s
Rules and Regulations, the Employer filed a timely re-
quest for review of the Regional Director’s Decision and
Order. On December 24, 2003, a three-member panel of
the Board1 granted the Employer’s request for review.
Having carefully considered the matter, we find, con-
trary to the Regional Director, that the Employer is not
estopped from filing the petition. Accordingly, we rein-
state the petition and remand this case to the Regional
Director.
The Employer and the Union are parties to a collec-
tive-bargaining agreement that recognizes the Union as
the collective-bargaining representative for a nationwide
unit of various groups of employees, including postal
clerks. On October 27, 1997, the Union filed a unit clari-
fication petition in Case 5–UC–353, seeking to include
approximately 250 executive and administrative Service
(EAS) classifications of employees in the bargaining
unit. On December 13, 1999, the Employer and the Un-
ion signed a settlement agreement to “fully and com-
pletely resolve any and all issues, and all currently pend-
ing grievances” regarding the Union’s unit clarification
petition. Under the settlement agreement, the Union
agreed to withdraw its petition, and the parties agreed to
arbitrate various EAS classifications in dispute, including
the “Address Management Systems Specialists.” The
agreement was silent regarding the rights and obligations
of the parties in the event that either of the parties dis-
agreed with the results of the arbitration, including
whether any party could file a unit clarification petition
with the Board.
Pursuant to the settlement agreement, the parties sub-
mitted to arbitration the issue of whether the address
management system specialists should be included in the
unit. The arbitrator issued an award on April 29, 2003,
finding that the classification “is part of the APWU bar-
gaining unit and that it is a violation of Article 1.2 of the

1 Chairman Battista, Member Liebman, and Member Walsh.
National Agreement to exclude the position and the dis-
puted work from the bargaining unit.” The Employer
then filed the instant petition seeking to exclude from the
bargaining unit “all EAS personnel not historically repre-
sented by any postal union, including but not limited to
the Address Management System Specialists.”
In dismissing the petition, the Regional Director relied
on the Board’s decision in Verizon Information Systems,
supra. The Regional Director found that, like the union
in Verizon, the Employer was estopped from filing the
petition. The Regional Director emphasized that the Un-
ion and the Employer reached an enforceable agreement
establishing a procedure to resolve the issue of the EAS
employees, including the address management systems
specialists, outside of the Board’s processes. In light of
this agreement, the Regional Director found that process-
ing the petition would permit the Employer to enjoy the
benefits of the settlement agreement while avoiding its
commitment to resolve the status of the EAS positions
through a procedure outside of the Board’s processes.
Moreover, it would permit the Employer to file a petition
after every unfavorable arbitrator’s award involving the
various EAS positions.2 The Regional Director also em-
phasized that the Union detrimentally relied on the Em-
ployer’s promise to arbitrate because the Union withdrew
its unit clarification petition as part of the settlement
agreement.
Contrary to the Regional Director, we do not find that
the Board’s decision in Verizon, supra, is dispositive. In
Verizon, the union and the employer agreed to a proce-
dure for voluntary recognition outside the Board’s proc-
esses, including a provision to have unit issues decided
by an arbitrator. The union invoked the provisions of the
agreement. In response to the union’s invocation of the
agreement and consistent with the agreement’s terms,
Verizon, at the union’s request, disclosed information
about the employees. The union also invoked its right
under the agreement to have the issue of unit scope de-
cided by an arbitrator and the issue was submitted for
resolution by an arbitrator before the American Arbitra-
tion Association. However, the union subsequently
sought to abandon the arbitration by filing a representa-
tion petition with the Board. Verizon filed a motion to
dismiss the petition. The Regional Director denied the
motion. While expressly affirming its “long-held view,
relied upon by the Regional Director, that it only infre-
quently defers to arbitration in representation proceed-
ings,” the Board—in what it described as a “narrow hold-
ing”—held that the union was estopped from filing a

2 The address management system specialist was one of six classifi-
cations of EAS personnel that the parties agreed to take to arbitration
under the settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
petition with the Board. The Board premised its holding
on the fact that the union invoked the benefits of the
agreement, and then sought to abandon the agreement.
The Board held that the union could not “pick and
choose which provisions it wishes to invoke and which it
prefers to avoid.” 335 NLRB at 560.
In contrast, the Employer here, unlike the union in
Verizon, carried out its obligations under the settlement
agreement. It completed the arbitration process. We
recognize that the Employer did not then acquiesce to the
arbitral decision. Instead, it has filed the instant petition
with the Board. However, as noted above, there was no
express agreement that the Employer would refrain from
exercising its right to file a petition with the Board.3
Thus, the Employer did not breach the agreement.4
Our dissenting colleague says that the Union’s with-
drawal of its own petition and the parties’ agreement to
go to arbitration as to the issues raised in that petition
somehow constitute an agreement by the Employer not to
file its own petition. Where, as here, the right involved is
the statutory right of access to the Board, we would not
lightly infer an agreement to forgo that right. If the par-
ties had intended the result for which our colleague con-
tends, they could easily have provided that the Employer
agrees not to raise the issues before the Board. The par-
ties did not do so.
Finally, this is not a challenge to the arbitrator’s author-
ity. The arbitrator apparently had authority to issue his
opinion, and he did. Rather, the issue here is the Board’s
power to exercise its jurisdiction. We would do so.
Accordingly, we find that the Regional Director erred
in dismissing the Employer’s petition. We therefore re-
instate the petition and remand the case to the Regional
Director for further appropriate action.5

3 Existing Board law holds that any waiver of a statutory right must
be “clear and unmistakable.” In the absence of language in the settle-
ment agreement limiting the Employer’s right to file a petition with the
Board, we find that the Employer has not clearly and unmistakably
waived its right to do so.
4 Contrary to the dissent, the settlement agreement does not “implic-
itly” preclude the Employer from exercising its statutory right to the
file the instant petition. The dissent infers from the agreement that the
parties’ “obvious intent” was to make the arbitration proceeding “final
and binding.” Not all arbitral decisions are final and binding however,
and this agreement did not contain a provision making the decision
final and binding. Champlin Petroleum Co., 201 NLRB 83, 90 (1973),
cited in support of the dissent’s approach, is not on point. The issue
presented in Champlin was whether the Board should defer the case to
the parties’ contractual arbitral procedure pursuant to the Board’s defer-
ral policy under Collyer Insulated Wire, 192 NLRB 837 (1971). Under
a Collyer deferral, the Board retains jurisdiction to review the arbitral
award. By contrast, the issue in the instant case is whether a party has
given up the right to file its own petition and come to the Board at all.
5 In its request for review, the Employer contends that deferral to the
arbitrator’s award is not appropriate because issues in this case turn on
ORDER
The Regional Director’s dismissal of the petition is re-
versed, the petition is reinstated, and the case is re-
manded to the Regional Director for further appropriate
action consistent with this Decision on Review.
MEMBER LIEBMAN, dissenting.
Contrary to the majority’s view, this case is governed
by our decision in Verizon Information Systems, 335
NLRB 558 (2001), which dismissed a union’s election
petition on estoppel grounds and required the union to
honor the terms of a voluntary-recognition agreement
that it had already invoked, to its benefit.
Here, the Employer and the Union agreed to resolve
“fully and completely and all issues” regarding the Un-
ion’s unit-clarification petition by arbitrating whether
certain job classifications should be included in the bar-
gaining unit. When the Employer lost the first arbitration
under the agreement, it filed its own unit-clarification
petition with the Board. Applying Verizon, the Regional
Director properly dismissed that petition, based on the
parties’ arbitration agreement, which the employer had
first invoked and then abandoned.
The majority attempts to distinguish Verizon by argu-
ing that because the Employer “completed the arbitration
process,” it “carried out its obligations under the [arbitra-
tion] agreement.” “[T]here was no express agreement
that the Employer would refrain from exercising its right
to file a petition with the Board,” the majority insists,
citing the principle that the waiver of a statutory right
must be clear and unmistakable.
But the majority’s approach is untenable. The obvious
intent of the parties was to make the arbitration proceed-
ing final and binding, which implicitly precludes the fil-
ing of a petition with the Board. By its terms, the arbitra-
tion agreement “represents an understanding between the
parties to fully and completely resolve any and all issues,
and all currently pending grievances regarding the [Un-
ion’s] Unit Clarification petition.” Insofar as the Em-
ployer’s current petition involves the same issues as the
Union’s earlier petition, they, too, are necessarily cov-
ered by the arbitration agreement. Indeed, the agreement
contemplates that the anticipated arbitration awards
would establish controlling precedent.1 To the extent the

statutory policy and not solely upon contract interpretation. We ac-
knowledge this as controlling Board law. However, because this issue
was not before the Regional Director, we find no need to pass on it.
1 The agreement provides that the “parties shall apply the national
level arbitration awards which are issued as a result of this settlement
agreement as broadly as possible in an effort to resolve other pending
EAS grievances raising the same or similar issues or arguments” (em-
phasis added).
POSTAL SERVICE 27
waiver standard might apply (contrary to Verizon), it was
satisfied.2
The majority points to no language in the agreement
suggesting that arbitration was non-binding or that the
parties reserved their right to petition the Board. Nor
does the majority explain why the Union would agree to
dismiss its own unit-clarification petition and arbitrate
the issues raised—incurring expense and delay— only to
permit the Employer to opt-out of an unfavorable arbitra-
tion award and return the matter to the Board. As the
Board has observed, even when there is no specific lan-
guage to the effect that the results of arbitration shall be
final and binding, it is reasonable to infer that this was
the intention of the parties. Otherwise, the arbitral pro-

2 The Verizon Board explained that in situations like this one, a
waiver analysis is inapplicable:
The issue is not . . . whether the Petitioner “clearly and unmistakably”
waived its right to file a representation petition. Rather, the issue is
whether the Petitioner—having elected to proceed under the Agree-
ment and derived benefits from it—should be permitted to pick and
choose which provisions it wishes to invoke and which it prefers to
avoid. The question, then, is really one of estoppel. 335 NLRB at 560.
cedure would be illusory; and resort thereto, an exercise
in futility. Champlin Petroleum Co., 201 NLRB 83, 90
(1973) (deferring case to arbitration). In short, as con-
strued by the majority, the arbitration agreement makes
no sense.
Applying Verizon here, finally, is consistent with gen-
eral federal labor law. It is well established that a party
may not voluntarily arbitrate a matter, lose, and only then
challenge the arbitrator’s authority, even if the issue arbi-
trated is a question of external law that would ordinarily
be decided by a court or other tribunal. See, e.g., Jones
Dairy Farm v United Food & Commercial Workers Lo-
cal P-1236, 760 F.2d 173, 175–176 (7th Cir. 1985).3
The Employer had its bite of the apple. Accordingly, I
would affirm the Regional Director’s dismissal of the
petition.

3 See also United Industrial Workers v. Virgin Islands, 987 F.2d 162,
167–169 (3d Cir. 1993) (rejecting union’s postarbitration argument that
arbitrator lacked authority to determine whether public employee was
included in bargaining unit and that territorial public employees rela-
tions board had exclusive jurisdiction).