U. S. Postal Service

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1235 (N.L.R.B. 1977)

U. S. POSTAL SERVICE 1235
U. S. Postal Service and American Postal Workers
Union, AFL-CIO, Decatur, Alabama Local #354.
Case 10-CA-11930(P)
April 7, 1977
DECISION AND ORDER DENYING
MOTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On July 13, 1976, the Acting Regional Director for
Region 10 of the National Labor Relations Board
issued a complaint and notice of hearing in the
above-entitled proceeding, alleging that Respondent
has engaged in and is engaging in certain unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(1), (3), and (5) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Subsequently, Respondent filed an answer
admitting in part, and denying in part, the allegations
of the complaint, submitting affirmative defenses,
and requesting that the complaint be dismissed in its
entirety.
Thereafter, on July 21, 1976, Respondent filed a
Motion for Summary Judgment and memorandum
in support thereof, with exhibits attached. Respon-
dent moves the Board, inter alia, for an order
dismissing the complaint in its entirety for lack of
jurisdiction or, in the alternative, for an order
dismissing the complaint pursuant to Collyer Insulat-
ed Wire, A Gulf and Western Systems Co., 192 NLRB
837 (1971).
On August 3, 1976, the Board issued an order
transferring the proceeding to itself and a Notice To
Show Cause why Respondent's Motion for Summary
Judgment should not be granted. The General
Counsel filed a memorandum in opposition to
Respondent's Motion for Summary Judgment, con-
tending that the Postal Reorganization Act does not
deprive the Board of jurisdiction in this case and,
citing North Shore Publishing Co., 206 NLRB 42
(1973), that deferral to the parties' contractual
grievance-arbitration procedures is inappropriate in
cases such as this in which it is alleged that
Respondent sought, by prohibited means, to pre-
clude access to such grievance procedures.
Chairman Murphy would not defer the matter to arbitration inasmuch
as it involves allegations affecting individual rights under Sec 7 of the Act
See General American Transportation Corporation, 228 NLRB 808 (1977)
(concurring opinion ). Member Jenkins would not defer for the reasons set
forth in his dissenting opinion in Collyer Insulated Wire, supra
Respondent 's contention that the Board 's jurisdiction in this case has
been supplanted by provisions of the Postal Reorganization Act, calling for
the adoption by the parties of binding arbitration procedures , is totally
lacking in merit . According to Sec . 1209(a) of the Postal Reorganization
Act, "Employer-management relations shall, to the extent not inconsistent
228 NLRB No. 147
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have duly considered the matter and we
conclude that there are issues of fact which may best
be resolved at a hearing conducted before an
Administrative Law Judge.'
The dissent expresses an inability to comprehend
why "Board expertise" is required to determine
whether or not employees have a right to utilize
rubber floor mats. But the two principal questions
are (1) whether the Employer's removal of the floor
mats was in retaliation against an employee for
having filed a grievance, and (2) whether the
Employer threatened employees that it would deny
them the use of rubber floor mats because grievances
were filed under the contract. The issue here,
therefore, is not whether or not the employees have a
right to have rubber floor mats, but whether or not
the Employer has withdrawn, or threatened to
withdraw, a term or condition of employment in
order to punish employees for filing grievances-
which is plainly a concerted activity protected by
Section 7 of the Act.
ORDER
It is hereby ordered that Respondent's Motion for
Summary Judgment in the above-entitled proceeding
be, and it hereby is, denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the
Regional Director for Region 10 for further appro-
priate action.
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I would grant Respon-
dent's Motion for Summary Judgment and would
defer this proceeding to arbitration under the Collyer
doctrine.2
Respondent and American Postal Workers Union,
AFL-CIO, are parties to a collective-bargaining
agreement which contains a grievance-arbitration
procedure for dealing with "a dispute . . . which
involves the interpretation, application of, or compli-
ance with the provisions" of the parties' agreement.
The agreement further provides that Respondent
"will not take any actions affecting . . . terms and
with the provisions of this title, be subject to the provisions of [the National
Labor Relations Act]." We find no provision in that act which deprives the
Board of its general power under Sec 10(a) of the National Labor Relations
Act "to prevent any person from engaging in any unfair labor practice . .
affecting commerce " Sec. 10(a) of the Act further provides that "[t ]his
power shall not be affected by any other means of adjustment or prevention
that has been or may not be established by agreement , law, or otherwise " U.
S Postal Service, 226 NLRB 1065, fn. 1(1976).
2 Collyer Insulated Wire, 192 NLRB 837 (1971).
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment as defined in Section 8(d)
of the National Labor Relations Act which violate
the terms of this agreement or are otherwise
inconsistent with its obligation under law."
The complaint alleges, inter alia, that Respondent
violated Section 8(a)(1) and (5) of the Act by
unilaterally removing rubber floor mats used by
employees in their work; violated Section 8(a)(1) and
(3) by allegedly taking away an employee's floor mat
because the employee filed a grievance; and violated
Section 8(a)(1) of the Act allegedly by a supervisor's
threat that employees would not get rubber mats
because the grievance was filed. Respondent, inter
aka, denies the allegations, but affirmatively argues
that the entire matter should be deferred to arbitra-
tion pursuant to the terms of the grievance-arbitra-
tion procedures of its contract with the Union and
that the Board should defer further proceedings in
3 See, e g Granite City Steel Company, Subsidiary of National Steel
Corporation, 211 NLRB 880 (1974), Gary-Hobart Water Corporation, 200
NLRB 647 (1972), Appalachian Power Company, 198 NLRB 576 (1972).
4 By labeling the issues herem as those concerned with protected
concerted activity, my colleagues dispose of the case without having even
stated it For, if their edicts were all that needed to be considered , Collyer
this case under the policies set forth in Collyer and its
progeny.
The issues joined by the pleadings in this case are
not unlike those in cases in which the Board in the
past has deferred to the grievance-arbitration ma-
chinery of the parties.3 Accordingly, and for the
reasons more fully expressed in the dissenting
opinion in General American Transportation, supra, I
would defer this proceeding under Collyer.
I frankly cannot comprehend what there is about
the question of whether or not certain postal
employees have a right to utilize rubber floor mats at
their work stations that requires "Board expertise"
and the utilization of our procedures. In fact, I
cannot understand why the issues in this case are not
much better handled through the grievance and
arbitration procedures under the provision of the
collective-bargaining agreement.4
would be yet undreamt of, since the Act is in issue in all deferral questions
The issue is always whether resolution of the contract right will concomi-
tantly resolve any possible statutory issue See particularly United States
Postal Service, 210 NLRB 560, 564-565, 567 (1974). Cf. United Aircraft
Corporation (Pratt & Whitney and Hamilton Standard Division), 204 NLRB
879 (1972), 213 NLRB 150 (1974), enfd. 525 F.2d 237 (C.A. 2, 1975).