United States Postal Service

National Labor Relations Board - Board Decisions

Apr 2, 1973

202 N.L.R.B. 823 (N.L.R.B. 1973)

UNITED STATES POSTAL SERVICE 823
United States Postal Service and Branch #559,
National Association of Letter Carriers , AFL-CIO.
Case 12-CA-5486(P)
April 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 6, 1972, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, findings
and conclusions of the Administrative Law Judge as
modified herein and to adopt his recommended
Order.
We agree with the Administrative Law Judge, for
the reasons set forth below, that Respondent violated
Section 8(a)(5) and (1) by refusing to bargain with
the International through the Local Union so long as
Attorney Hamilton participated in the negotiations.
Respondent's obligation to bargain at the local
level arises from the parties' current national agree-
ment which provides, in article XXX, that designated
agents of the Union will engage in local negotiations.
This agreement does not, as the past one did, exclude
nonpostal employees from participating in such
negotiations. Pursuant to this agreement, the Interna-
tional designated the local union officers as its
bargaining representatives at the local level and they
in turn chose Attorney Hamilton as an addition to
their negotiating team. In our view, neither article
XXX of the parties' agreement nor the Internation-
al's broad designation of all local officers as its
agents for the local negotiations can be fairly
interpreted as precluding participation of counsel in
such negotiations. The parties' failure specifically to
exclude nonpostal employees and attorneys as local
negotiators was a significant omission and, we
believe, must be viewed as a conscious departure
from their past practice. Therefore, it is our view that
the Local Union was not prohibited from utilizing its
attorney as one of its participating negotiators.
Furthermore, we are inclined to view with some
doubt the Respondent's rather belated claim that its
conduct was warranted by the failure of the
International to expressly designate Attorney Hamil-
202 NLRB No. 119
ton as one of the local negotiators. During negotia-
tions it did not raise this as a specific ground for
objecting to his serving in such a capacity, but
instead merely protested that "outsiders"-meaning
nonpostal employees-could not be used by the
Local Union to negotiate for it. Had Respondent
been explicit in its reasons for objecting to Hamilton
when negotiations were taking place, the Internation-
al would have been clearly put on notice through its
Local as to the nature of what Respondent now
asserts was the real basis for its objection. Such a
course would have enabled the parties to deal with
the matter at issue, and if no agreement was reached,
at least the International could have removed any
question concerning his authorization to act as a
negotiator by clarifying its designation of local
negotiators, a matter over which it appears to have
retained full discretion. The terms of the national
agreement would not appear to have provided
Respondent with any real basis for opposing any
such designation.
But Respondent's consistent reliance, until the
matter came before this Board for determination, on
the exclusion of "outsiders" was, under the circum-
stances here, that kind of impediment to negotiations
and interference with the rights of employees to be
represented by persons of their own choosing which
constitutes a violation of Section 8(a)(5) and (1) of
the Act. We so find.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, United States
Postal Service, Tampa, Florida, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I Respondent 's request for oral argument is hereby denied as, in our
opinion , the record, exceptions, and briefs adequately present the positions
of the parties
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Tampa, Florida, on September 11, 1972,1
pursuant to a charge filed on February 8 by Branch #599,
National Association of Letter Carriers, AFL-CIO (herein
referred to as the Union), and a complaint issued on July
31.
The complaint alleges that the United States Postal
Service (herein referred to as the Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations
I All the dates referred to are in 1972 unless otherwise stated
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, as amended (herein referred to as the Act), by refusing
to bargain collectively with the Union by refusing to
negotiate if the Union's attorney, other than being an
observer, participated in the negotiations.
Respondent in its answer filed on August 14 and
amended on August 18 denied having violated the Act and
asserted as a defense it had bargained in good faith with
the duly designated bargaining agent pursuant to provi-
sions of the collective-bargaining agreement.
The issues involved are whether the Union's attorney
could participate in negotiations and, if so, whether
Respondent's refusal to permit him to participate violated
Section 8(a)(1) and (5) of the Act. An additional issue is
whether the matter in dispute should be deferred to
arbitration.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
Upon the entire record in this case and from my
observation of the witnesses, and after due consideration of
the oral arguments of counsel at the hearing and briefs
filed by the Charging Party and the Respondent,2 I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an independent establishment of the Execu-
tive Branch of the Government of the United States is
engaged in the operation of various facilities throughout
the United States providing postal services to the Nation.
As part of its operations Respondent operates the Sectional
Center Facility located at Tampa, Florida (herein referred
to as the Tampa Facility), where it is engaged in processing
mail and furnishing postal services. This is the only facility
involved in this proceeding. Respondent's operations
under the authority of the Postal Reorganization Act, 39
U.S.C. § 1209(a)3 are subject to the Board's jurisdiction
over unfair labor practices.
Respondent admits, and I find that it is subject to the
Board's jurisdiction
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that the Union and the
National Association of Letter Carriers , AFL-CIO (herein
referred to as the International), are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
Iii. THE UNFAIR LABOR PRACTICES
A. Background
The International, consistent with provisions of the
Postal Reorganization Act, is the exclusive bargaining
representative of Respondent's employees in the following
described unit:
All city letter carriers employed by Respondent,
2 General Counsel did not submit a brief
3 This section provides
Employee-management relations shall, to the extent not inconsistent
excluding managerial personnel, professional employ-
ees, employees engaged in personnel work in other than
a purely non-confidential clerical capacity, Postal
Inspection Service employees, Christmas casual em-
ployees, guards, and supervisors as defined in the Act.
The pleadings admit, and I find, the unit described is an
appropriate unit for the purposes of collective bargaining.
Respondent and the International are parties4 to a
collective-bargaining agreement (herein referred to as the
Agreement) which became effective on July 20, 1971, and
extends through July 20, 1973, and includes automatic
renewal provisions.
The Agreement contains the following provision:
The parties recognize that it is impractical to set
forth in this Agreement all detailed matters relating to
local conditions of employment and further negotia-
tions regarding local conditions will be required with
respect to local installations, post offices, and facilities.
Accordingly, designated agents of the Unions signatory
to this Agreement and the representatives of the
Employer shall negotiate such matters on a local level,
and any agreement reached shall be incorporated in
memoranda of understanding. No such negotiations or
memoranda of understanding shall be inconsistent or
in conflict with this Agreement, nor deprive any
employee of any rights or benefits provided for under
this Agreement
Local negotiations shall commence on February 1,
1972. If agreement is not reached at the local level
within 30 days, the issues remaining in dispute shall be
referred for impasse resolution to the regional level.
Impasses at the regional level which are not resolved
by May 1, 1972, shall be referred for settlement to the
national level. Unresolved impasses at the national
level may thereafter be submitted to arbitration at the
national level at the option of a Union or Unions
signatory hereto or the Employer if agreement has not
been reached by June 15, 1972.
For the purposes of providing such arbitration, the
following procedure shall be wollowed [sic]: The
Unions and the Employer shall each name one
arbitrator. The two arbitrators thus selected shall seek
to agree upon a third neutral arbitrator. In the event
they fail to do so within 5 days, the neutral arbitrator
shall be appointed by the American Arbitration
Association. The cost of the neutral shall be shared
equally by the Unions and the Employer.
Among other provisions of the Agreement are those
giving authorized or designated agents of the International
the right to enter postal installations for the purpose of
performing and engaging in official union duties and
business related to the Agreement; serving on the safety
and health committee; and participating in labor-manage-
ment committee meetings held for the purpose of discuss-
ing, exploring, and considering with management matters
with provisions of this title, be subject to the provisions of subchapter
II of Chapter 7 of title 29
i The Agreement also includes as parties other International Unions
UNITED STATES POSTAL SERVICE 825
of mutual concern. The Agreement also contains a
grievance procedure providing for binding arbitration.5
The International's constitution provides that all mem-
bers of the International shall be affiliated with a
subordinate branch which shall have jurisdiction over
those members working under one or more postmasters as
determined by the branch charter. The Union, chartered in
1937, is the branch of the International for those
employees employed at the Tampa Facility.
Certain evidence was adduced at the hearing to establish
that the Union performed functions under the Agreement
pertaining to those employees at the Tampa Facility.
Howard Carter, who is president of the Union and also the
International's business agent for the State of Florida, in
April requested and was granted permission by Respon-
dent's postmaster, J. A. Gonzalez, an admitted supervisor,
to enter certain installations of the Tampa Facility for the
purpose of performing and engaging in official union
duties and business.
President Carter and members of his committee in April
attended a labor-management meeting held with manage-
ment representatives at which various items pertaining to
working conditions at the Tampa Facility were discussed.
Carter was notified to attend the meeting by Postmaster
Gonzalez who also requested him to inform his committee
members.
Carter also participated in onsight inspections of the
Tampa Facility relating to health and safety.
Again in April Carter filed an appeal under the grievance
procedure with Postmaster Gonzalez concerning a suspen-
sion imposed upon an employee. Gonzalez in response to
the appeal notified Carter of his decision and reasons for
denying the grievance. The parties further stipulated that
the Union acting by and through its stewards6 process
grievances under certain steps of the grievance procedure.
According to the unrefuted testimony of President
Carter, he has the authority at the local level to reach
agreements with management concerning problems raised
at the labor-management meetings and to settle grievances
involving discipline and violations of the Agreement.
Based upon the foregoing evidence which is undisputed,
I find, contrary to Respondent's denial in its answer, that
the Union acting through its representatives is a duly
designated agent of the International and has responsibili-
ty for policing and administering the Agreement with
respect to members of the bargaining unit at the Tampa
Facility.
President Carter testified he has participated in all
collective-bargaining negotiations on local items pertaining
to the Tampa Facility. These negotiations began in 1964
when the first collective-bargaining agreement was signed
and were held in 1966, 1968, and included the, 1972
negotiations According to Carter he is authorized, consist-
ent with past practices, to negotiate with Respondent and
reach an agreement on the local bargainable items
pertaining to the Tampa Facility and to enter into a
memorandum of understanding as contemplated by the
Local Implementation (42) provision of the Agreement
without the approval of the International. Respondent
offered no evidence with respect to past practices relating
to negotiations at the local level.
On January 24, the International 's president, James
Rademacher , sent James Blaisdell , Respondent 's special
assistant to the postmaster general a letter providing in
pertinent part as follows:
The agreement concerning Local Implementation of
the National Agreement provides that the National
Unions who are signatory to the Agreement shall
designate their agents who will negotiate with repre-
sentatives of the Employer concerning implementation
of the National Agreement at the local level . Accord-
ingly, the National Association of Letter Carriers,
AFL-CIO, hereby designates the Officers of the
respective affiliated local Branches of the National
Association of Letter Carriers as its agents for the
purpose of effecting local implementation of the
National Agreement at each of the respective postal
installations.
B. The Refusal to Permit the Union's Attorney to
Actively Participate in Negotiations
On January 24, President Carter by letter notified
Postmaster Gonzalez of the forthcoming local negotiations
beginning February 1 and requested a meeting be held
with representatives of the Union to work out preliminary
details connected with negotiations.
The following day Respondent's chief of employment
services section, Ray Salgado, an admitted supervisor,
telephoned President Carter whereupon they agreed to
hold a prenegotiation meeting on January 28. On January
25, Postmaster Gonzalez confirmed the date by letter to
Carter recommending that Carter be prepared at the
meeting to submit an agenda of those subjects he intended
to make proposals on.
The prenegotiation meeting was held on January 28.
Those persons representing the Union were President
Carter, Vice President Garland Tickle, and Recording
Secretary Jim Scaglione. Respondent was represented by
Ray Salgado, who acted as chief negotiator, Director of
Operations Houston Harris, Assistant Director of Opera-
tions R. Hebble, and B. A Delp. In addition to these
representatives there were also present representatives
from Local 259, American Postal Workers Union, and
Local 147, Post Office Mail Handlers.
Carter presented Salgado with a copy of proposed rules
and procedures for the local negotiations. Item 4 of the
proposal listed the following named persons who would
serve as negotiators for the Union: Howard R. Carter,
Garland B. Tickle, A. Arnold, J. Scaglione, W. Vasden, J.
Fernandez, M. Randels, S. Dolcimascolo, F. Puleo, and V.
Leto. Among this group, namely, S. Dolcimascolo, A.
Arnold, and J. Fernandez were not officers of the Union.
Carter testified when the item relating to the Union's
negotiators was brought up he stated he wanted to add to
the list of the Union's negotiators the name of the Union's
attorney Frank Hamilton. Salgado's response was there
4 Under the terms of the Agreement, a moratorium was placed upon
implementing this procedure
b The stewards are elected by members of the Union
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be no negotiations with outsiders or with nonpostal
workers 7 Carter insisted the Union had the right to have
anyone it wanted present to bargain for and represent the
Union. Salgado after repeating his position stated it looked
like they had reached their first impasse. Following a
caucus by Respondent, Salgado informed the Union he
would like to discuss the possibility of Hamilton being
present as an observer or technician but not as a
negotiator. Carter refused, maintaining his position the
Union had the right to have Hamilton present in any
capacity it saw fit.
After neither party changed its position, Salgado stated it
looked like they wouldn't have any local negotiations
because they couldn't decide who was going to negotiate.
The Union then called a caucus and decided in view of
the limited period in which they had to conclude the local
negotiations under the Agreement and Respondent's
position of refusing to negotiate if Hamilton participated
as a negotiator the Union would have to give in if they
were to proceed. President Carter's version of the conversa-
tion was substantially corroborated by the Union's Vice
President Tickle and Harry Smith, who is general president
of Local 259, American Postal Workers Union.
Salgado admitted refusing to permit Hamilton to
participate as a member of the Union's negotiating team.
According to his testimony the reasons he gave the Union
were Hamilton was not a member of the Union and he was
not a designated officer of the International. Salgado
refused to deny any statement was made by management
to the effect it looked like they had reached their first
impasse
President Carter, Vice President Tickle, and General
President Smith all contradicted Salgado's testimony
concerning the reasons he gave for refusing to permit
Hamilton to participate. There was no discussion concern-
ing the officer status of the other representatives of the
Union including those three representatives8 discussed
supra who were not officers and who subsequently
participated as negotiators in the negotiation meetings
without objection. Salgado admitted he made no investiga-
tion to determine whether they were officers of the Union.
I am not persuaded by Salgado's uncorroborated
testimony9 as against the corroborated testimonies of
Carter, Tickle, and Smith, who impressed me as more
credible witnesses than Salgado, who expressed uncertainty
in his own testimony and I find that the only reason given
by Respondent at the meeting for refusing to permit
Hamilton to participate as a negotiator was because he was
an outsider or nonpostal worker. Moreover, it appears had
an objection been raised concerning the fact Hamilton was
not an officer in the Union the issue would have provoked
discussion as to the eligibility of the other negotiators on
the list who were not officers to participate. Further,
Salgado's interpretation of the ground rules in his letter set
forth infra tend to support the reason Hamilton was
7 According to President Carter, during the 1968 negotiations there was a
prohibition against nonpostal employees participating in negotiations
8 Salgado stated of these three employees one was a state officer, one was
past president, and the other held some official function with the union hall
9 The other management representatives of Respondent present at the
meeting did not testify
refused the right to participate was because he was a
nonpostal employee.
The minutes of the prenegotiation meeting held on
January 28 provided in pertinent part as follows:
1. There will be no more than three (3) persons
from each party serving on the principal negotiating
team . No more than two (2) observers will be allowed
to attend each session . Persons attending as observers
will not be allowed to take part in negotiations. All
observers must be members of the official negotiating
team , except that any non -postal employee attending as
an observer may not be a member of the negotiating
team.
2. Each party will advise the other in writing of the
persons serving on their respective negotiating teams.
The Union did not abandon its position of seeking to
have Attorney Hamilton serve as a member of the Union's
negotiating committee . On January 28, following the
prenegotiation meeting, President Carter by letter notified
Ray Salgado, pursuant to the ground rules , of the names of
the Union 's negotiators previously set forth in addition to
including Hamilton 's name . Salgado 's response by letter
dated January 31 provided in pertinent part as follows:
You list F. Hamilton , Atty, as a member of your
negotiating team . This is contrary to the established
ground rules.
Agreement was reached that only postal employees
could be members of respective negotiating teams. A
non-postal employee considered as a technical advisor
by either party could attend only as an observer.
Ray Salgado , at the first negotiation meeting held on
February 2, insisted that Hamilton attend the meeting only
as an observer and not participate in negotiations and
threatened to discontinue negotiations with the Union
unless Hamilton ceased participating and moved to a table
at the end of the room.
Salgado, at a negotiating meeting held on February 11,
after being informed Hamilton would continue on the
Union 's negotiation team , threatened the Union that he
(Salgado) would continue to sit at the negotiation table but
wouldn't respond to any union proposals.io
The above findings with respect to the negotiation
meetings held on February 2 and 11 are based upon the
pleadings."
The negotiations between Respondent and the Union
were completed at the local level without Hamilton being
permitted to participate as a negotiator , and subsequently
an agreement which did not include a discussion of the
issues here was reached between the International and the
Respondent.
C. Analysis and Conclusions
General Counsel contends while Respondent denies that
Respondent violated Section 8(a)(1) and (5) of the Actiz
10 It was stipulated at the hearing that Attorney Hamilton was not
permitted to participate at that meeting
11 Respondent amended its answer at the hearing to admit these
allegations
12 Sec 8(a)(5) of the Act prohibits an employer from refusing to bargain
collectively with the representatives of its employees and Sec 8(a)( I) of the
UNITED STATES POSTAL SERVICE 827
by its refusal to. bargain and by refusing to permit the
Union's attorney to participate in negotiations . Respon-
dent also asserted , contrary to the positions of General
Counsel and the Charging Party, that the issue could be
resolved through the grievance procedure which provides
for binding arbitration under the Agreement and therefore
the Board 's policy of deferring to arbitration as enunciated
in Collyer Insulated Wire13 was applicable . However, the
parties stipulated the grievance procedure under the
Agreement was not effective until February 14 and the
grievance procedure under the previous collective -bargain-
mg agreement14 which did not include binding arbitration
was the sole avenue of contractual release for grievances
occunng prior to February 14.15 Inasmuch as the viola-
tions here occurred prior to February 14 during a period
when there was no binding arbitration provisions in effect
to resolve grievances , I do not find the Collyer policy of
deferring to arbitration applicable even assuming the refusal
to negotiate with a union 's representative which strikes at the
very foundation of collective bargaining is a proper subject
for deferral.
Respondent's defenses were that only the Union's
officers had been designated by the International to
conduct negotiations and they had no authority to appoint
Attorney Hamilton , that if the officers had such authority
it was never communicated to Respondent ; and that the
Union by an agreement with Respondent on January 28
waived its right , if any, to appoint Hamilton. These
defenses except for the latter , presuppose a finding that the
refusal to permit Hamilton to participate was because he
was not a duly designated officer of the Union.
Section 7 of the Act provides employees the right to
select representatives of their own choosing for collective
bargaining without restraint or coercion by their employer.
N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33.
This right with certain limitations not applicable here
includes a union 's selection of its own bargaining commit-
tee. See General Electric Company, 173 NLRB 253. Only
the employees or their duly designated bargaining repre-
sentative may seek to exercise the right of selecting the
members of their negotiating committee . F W Woolworth
Company, 179 NLRB 748. An employer, either by
unilateral act or by contrast with the exclusive representa-
tive of its employees, may not limit the class or group from
among whom the employees may thereafter be represented
for the purposes of collective bargaining . The Oliver
Corporation, 74 NLRB 483.
The evidence here established the Union through its
representatives acted as the agent of the International in
policing and administering the Agreement at the Tampa
Facility and negotiated with Respondent on local bargain-
able items pertaining to the Tampa Facility without
requiring the International 's approval.
The local negotiations in issue here were, consistent with
past practices, delegated by the International. Those
persons designated as its agents for the purpose of
Act prohibits an employer from interfering with, restraining , or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act
13 192 NLRB No 150
14 This Agreement was not submitted in evidence
15 The procedures for settling disputes contained in Local Implementa-
tion (42 ), although not specifically excluded from the stipulation, do not
effectuating local implementation under the Agreement
were the officers of the local branches . The Union's
representatives selected Attorney Hamilton to represent
and assist in negotiations.
Respondent in refusing to negotiate with the Union only
questioned the right of the Union 's attorney , Hamilton, to
participate as a negotiator . Based upon my findings supra,
the reasons Respondent refused to permit Hamilton to
participate was because he was an outsider or nonpostal
worker and not as Respondent contends because he was
not a duly designated officer of the Union.
There is no requirement under the Act prohibiting either
"outsiders" 16 or persons not employed by the employer 17
from participating in collective-bargaining negotiations
and a refusal by an employer for such reasons to bargain
collectively with a union violates Section 8 (a)(1) and (5) of
the Act.
Therefore, since Respondent 's refusal to permit Attorney
Hamilton to participate in negotiations held on or about
January 28, February 2, and II was for unlawful reasons, I
find Respondent thereby violated Section 8(a)(5) and (1) of
the Act.
Assuming arguendo the reason given by Respondent for
refusing to permit Hamilton to participate as a negotiator
was because he was not a designated officer of the Union, I
would still, under the circumstances of this case, find a
violation. These circumstances include the practice of
conducting local negotiations whereby the Union without
the approval of the International has the authority to enter
into an agreement, Respondent 's failure to object to other
nonofficers of the Union participating in negotiations and
the fact the selection of Hamilton was not to replace the
officers as negotiators but only to have him assist them in
negotiations . Further, the language of Local Implementa-
tion (42) of the Agreement does not prohibit those selected
from obtaining assistance especially of counsel.
The remaining defense urged by Respondent that the
Union by an agreement with Respondent waived its right
to appoint Hamilton as a negotiator is also rejected. Any
such agreement made only after Respondent had refused
to negotiate with the Union if Hamilton participated was
coerced and the fact the Union proceeded in negotiations
culminating in an agreement , without his participation,
would not preclude finding a violation of the Act. See
Lufkin Telephone Exchange, Inc.,` 191 NLRB No. 151.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
appear applicable for resolving the issue here
16 See General Electric, supra, American Radiator & Standard Sanitary
Corp v N L R B, 381 F 2d 632, 634 (C A 6)
17 See N L R B v Deena Artware, 198 F 2d 645 , 651 (C A 6), cert
denied 345 U S 906
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United States Postal Service is covered by the Act
and subject to the Board's jurisdiction.
2. Branch #599, National Association of Letter Carri-
ers, AFL-CIO and the National Association of Letter
Carriers, AFL-CIO, are each labor organizations within
the meaning of Section 2(5) of the Act.
3 All city letter carriers employed by Respondent,
excluding managerial personnel, professional employees,
employees engaged in personnel work in other than a
purely nonconfidential clerical capacity, Postal Inspection
Service employees, Christmas casual employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein the International has
been, as is now, the exclusive representative of all
employees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing, specifically on or about January 28,
February 2 and 11, 1972, to bargain collectively with the
International as the exclusive representative of the employ-
ees in the aforesaid appropriate unit by refusing to meet
and negotiate for the purposes of collective bargaining with
its representatives at the Tampa Facility as long as those
representatives included the Local's attorney, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
The Charging Party contrary to the position of the
General Counsel seeks a remedy patterned after that
ordered in Tndee Products, Inc.18 requiring Respondent to
reimburse the Charging Party and/or the Board for
expenses. However, the Board's Order issued in Tudee
following a remand from the United States Court of
Appeals for the District of Columbia involved, as distin-
guished from the instant case, frivolous litigation I do not
find Respondent's conduct here sufficient to warrant a
special remedy and since it is a well-established principle
recognized by the Board that litigation expenses are
ordinarily not recoverable,19 I find the remedy requested
by the Charging Party for the violation found here is not
appropriate. Cf. Gates Rubber, Inc. 199 NLRB No. 108
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 20
ORDER
Respondent , United States Postal Service, its officers
and agents , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Internation-
al as the exclusive bargaining representative of its employ-
ees in the appropriate unit by refusing to meet and bargain
with those representatives duly appointed and chosen by
and through the International for purposes of conducting
negotiations covering the employees at the Tampa Facility
as long as the representatives include the Local's attorney,
Frank Hamilton.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Notify the International forthwith in writing, with a
copy served upon the Local, that it will, upon request,
when conducting negotiations for the purposes of collec-
tive bargaining covering employees at the Tampa Facility,
meet at reasonable and mutually convenient times with
representatives appointed by or through the International,
irrespective of whether such representatives are either
employees in the bargaining unit, members of the Local, or
include the Local's attorney, Frank Hamilton.
(b) Post at its Sectional Center Facility, located at
Tampa, Florida, copies of the notice attached hereto and
marked "Appendix."21 Copies of said notice, on forms,
provided by the Regional Director for Region 12, shall,
after being duly signed by an authorized representative of
Respondent, be posted immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.22
It is further ordered that the complaint be dismissed
insofar as it alleges unfair labor practices not specifically
found herein.
11 194 No 198
19 See Heck's Inc, 191 NLRB No. 146
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
21 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 12, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
UNITED STATES POSTAL SERVICE
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to meet and bargain collectively
with the National Association of Letter Carriers,
AFL-CIO or its representatives at the Sectional Center
Facility located at Tampa, Florida, as long as the
representatives include the attorney for Branch #599,
National Association of Letter Carriers , AFL-CIO.
WE WILL, upon request , when conducting negotia-
tions for the purposes of collective bargaining covering
employees at the Sectional Center Facility located at
Tampa , Florida, meet at reasonable and convenient
times with those representatives appointed by or
through the National Association of Letter Carriers,
AFL-CIO, without regard to whether the representa-
tives are employees in the bargaining unit, members of
Branch # 599, National Association of Letter Carriers,
AFL-CIO, or include Branch #599 's attorney.
829
WE WILL NOT refuse to meet with Branch #599's
attorney or in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their
rights under the National Labor Relations Act, as
amended.
Dated By
UNITED STATES POSTAL
SERVICE
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Room 706, Federal Office
Building, 500 Zack Street, P.O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227