United States Postal Service

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 413 (N.L.R.B. 1972)

UNITED STATES POSTAL SERVICE 413
United States Postal Service and Everett D . Adams.
Case 9-CA-6400 (P)
November 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 31, 1972, the Regional Director for
Region 9 of the National Labor Relations Board
issued a Complaint and Notice of Hearing in the
above-entitled proceeding, alleging that the Respon-
dent has engaged in and is engaging in certain un-
fair labor practices as defined in Section 8(a)(1)
and (3) of the National Labor Relations Act, and
within the meaning of the Postal Reorganization Act'.
Thereafter, on May 15, 1972, the Respondent filed
with the Board in Washington, D.C., a Motion to
Transfer Proceedings to the Board and Motion for
Summary Judgment, and a brief in support thereof,
asserting that there is no dispute as to the facts, that
the Board lacks jurisdiction over the subject matter
alleged in paragraph 6 of the complaint, and that
Respondent was deprived of due process with respect
to the allegation in paragraph 5.
On May 18, 1972, the Board issued an Order
Transferring Proceeding to the Board and Notice To
Show Cause why Respondent's Motion for Summary
Judgment should not be granted. Thereafter, the
General Counsel filed an opposition to Respondent's
motion.
Pursuant to the provisions of Section 3(b)of the
National Labor Relations Act, as amended, the
National Relations Board has delegated its authority
in this proceeding to a three-member panel.
The Board having duly considered the matter,
including the briefs, finds as follows:
Paragraph 5 of the complaint alleges that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
refusing to permit an employee to have a union
steward present when he was reprimanded. With
respect to this allegation, Respondent maintains that
it was denied due process of law because it was not
informed of the charge during the investigation
thereof or given an opportunity to present its
position or evidence prior to the issuance of the
complaint. In its brief, the General Counsel contends
inter alia, that Respondent was, in fact, informed of
the charge and given an opportunity to present
evidence. The contentions of the parties raise factual
issues which cannot be resolved with a hearing. We
therefore deny Respondent's Motion for Summary
Judgment with respect to paragraph 5. However,
nothing herein shall prejudice the rights of any party
to renew such contention, or to present evidence in
support thereof, during further proceedings in this
matter.
Paragraph 6 of the complaint alleges, in essence,
that Respondent violated Section 8(a)(3) and (1) of
the Act by the action of its board of appeals and
review, on November 25, 1971, in suspending
Charging Party Adams because he had engaged in
protected activity. Respondent contends that such
allegation should be dismissed for lack of jurisdic-
tion. For the following reasons, we find merit in
Respondent's contention.
According to the uncontroverted facts, Adams, a
postal clerk since 1959, was designated union
steward of Local 252, United Federation of Postal
Clerks, in September 1970.
On January 13, 1971, Adams, allegedly acting in
his capacity as union steward, protested the assign-
ment of a postal assistant employee to perform
certain work. When Fisher, Adams' foreman, ex-
plained that the assignment was necessary because of
an emergency, Adams protested that he did not give
a "god damn if the mail never got out" and suggested
that Fisher do the work himself. After a further
exchange of words, Fisher registered a complaint
against Adams.
On February 3, 1971, pursuant to the "Adverse
Action and Appeal Procedure" of the 1968-70
national agreement between the Post Office Depart-
ment and several unions representing postal employ-
ees, Adams was served with a "notice of proposed
adverse action" which proposed Adams' removal
from the Postal Service. Adams filed a written
response. On February 26, 1971, the officer-in-charge
of the Dayton Post Office issued a decision sustain-
ing the charge and Adams' proposed removal from
the Postal Service.
Adams chose to appeal the decision to the Postal
Service's regional director,2 and a hearing was held
on April 1, 1971, before a hearing officer appointed
by the Postal regional director. The hearing officer
issued his report; Adams filed objections; and on
May 24, 1971, the Postal Regional Director issued his
decision sustaining the officer-in-charge's decision,
and ordering Adams' removal.3 On June 28, 1971,
1 39 U S C § 1 01, et seq 3 Under the contract, any adverse action rendered is imposed at this
2 Under the contract , at this stage the individual may appeal to the Civil stage of the proceedings In case of a discharge , the employee ', ceases his
Service Commission or he may continue to pursue his appeal through Postal employment at this time, even though the individual may elect to proceed
Service channels In the event of an appeal , the discipline is not imposed further, either before (a) the Civil Service Commission , (b) the Postal
(Continued)
200 NLRB No. 56
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams was removed from his position in the Postal
Service.
On July 1, 1971, Adams filed an appeal with the
Postal Service's board of appeals and review (BAR).
On November 25, 1971, the BAR issued its decision
modifying the discharge to a suspension, effective
until December 24, 1971.
On the basis of these facts, Respondent contends
that the Board lacks jurisdiction over its discipline of
Adams because "the `operative facts' necessary to
make out a violation herein occurred prior to July
1971, a date when . . . the 1971, Board assumed
jurisdiction over the Postal employees."4 Counsel for
the General Counsel contends that, while the
discharge of Adams occurred prior to July 1,
Respondent's disciplinary action was not final until
ruled on by the BAR, on November 25, and thus,
any charge is timely if filed within 6 months of that
date, and the Board has jurisdiction over any such
charge.
Prior to July 1, 1971, all cases involving labor-
management relations in the Postal Service were
acted on by the Department of Labor under the
provisions of Executive Order 11491. Section 19(a)(2)
of that Executive Order makes it an unfair labor
practice for any agency subject thereto to "encourage
or discourage membership in a labor organization by
discrimination in regard to hiring, tenure, promotion,
or other conditions of employment." Section 19(d) of
the Executive Order further provides that when an
alleged violation of Section 19(a)(2) is subject to an
established grievance or appeals procedure, that
procedure is the exclusive procedure for resolving the
matter.
In the present case, it is uncontroverted that the
alleged altercation between Adams and his foreman,
and Adam's removal from his job, occurred at a time
when the parties were subject to the provisions of the
Executive Order. Following that altercation, Adams
resorted to the elaborate grievance procedure provid-
ed for in the extant collective-bargaining agreement.
Thereafter, each step taken by Adams, and each
response thereto by the Postal Service, was in
conformity with the remedial procedures set forth in
that agreement, as sanctioned by the provisions of
the Executive Order.
Nothing in the Postal Reorganization Act invests
in this Board the power to remedy an alleged
wrongdoing resulting from action which occurred at
a time when we did not have jurisdiction and which
therefore is clearly beyond the scope of our authori-
ty. Here, all of the operative facts occurred at a time
when the parties were subject to the provisions of the
Executive Order. The only event which occurred
after July 1, 1971, was the appeal to the BAR. In our
view, the attempt to overturn Respondent's already
effectuated discharge action does not detract from
the fact that we had no jurisdiction over that
discharge when it occurred.
Accordingly, we find that we do not have jurisdic-
tion over the subject matter alleged in paragraph 6 of
the complaint. We have already found that para-
graph 5 of the complaint raises substantial and
material issues which cannot be resolved without a
hearing. Thus, we shall grant Respondent's Motion
for Summary Judgment with respect to paragraph 6
of the complaint and shall deny the Motion for
Summary Judgment with respect to paragraph 5 of
the complaint.
ORDER
Pursuant to the provisions of Section 10(b) of the
Act, it is hereby ordered that Respondent United
States Postal Services' Motion for Summary Judg-
ment be, and it hereby is, granted in part and denied
in part, and that paragraph 6 of the complaint herein
be, and it hereby is, dismissed. It is further ordered
that this proceeding be, and it hereby is, remanded to
the Regional Director for Region 9 for such further
action as he may deem appropriate consistent with
this Decision.
4 The National Labor Relations Act was made applicable to postal effective within 1 year after the enactment of the PRA on the date or dates
employees by virtue of Section 1209(a) of the Postal Reorganization Act established therefore by the board of governors of the Postal Service.
(PRA), 39 U.S C. § 101 , et seq. Section 15(c) of the PRA provides that chapter Pursuant to resolution no. 71-9 of the board of governors, July 1, 1971, was
12 of the PRA, dealing with employee-management relations, shall become established as the effective date of chapter 12.