United States Postal Service

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 292 (N.L.R.B. 1973)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Capital City Branch
#531,' National Association of Letter Carriers,
AFL-CIO. Case 9-CA-6912(P)
June 20, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 18, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent, by repudiating an oral agreement entered into
with the Charging Party concerning the scheduling of
1972 vacations at the Charleston Post Office, violated
Section 8(a)(5) and (1) of the Act. For reasons herein-
after set forth, we disagree.
The essential facts found by the Administrative
Law Judge are not in dispute and can be summarized
as follows:
The events preceding the dispute arose from the
parties' agreement that 1972 vacation scheduling
would be arranged under the local supplement to the
1968 national agreement.' At a meeting held in late
A memorandum of understanding dated January 6, 1972, provides
[T]he Employer agrees to follow a policy which provides for following
the provisions of any local agreement which evolved out of the 1968
National Agreement in formulating the leave program for calendar year
1972 except where the local parties have or may agree otherwise.
Art XVI, "Vacation," of the Charleston local agreement provides-
A. The choice vacation period shall be designated as May I through
September 30.
C. Vacation shall be granted on a basis of seniority.
Art. XVI, "Leave," of the 1968 national agreement provides:
A Basic Agreement
It is agreed to establish a nationwide program for vacation planning.
with emphasis upon the choice vacation period(s) or variations
thereof
B. Formulation of the Leave Program
... within a local installation shall be a subject of. . negotiation
and shall be within the following general framework
I Installation heads and supervisors shall be responsible for scheduling
and granting annual leave on an equitable basis with due regard for the
needs of the service and the welfare of employees. .
3 Establishment of the choice vacation period(s) shall be determined by
local negotiation . . . before December I for the following year .
7 The number of employees granted annual leave during any given
1971, Respondent's officer-in-charge, C. N. Gilles-
pie, agreed to increase the maximum number of car-
riers who could take leave in any given week during
the contractual 5-month vacation "choice period"
(also known as prime time) in 1972 from 12 to 17
employees? He also agreed to do everything in his
power to see that each carrier received one of his first
three vacation choices, and the Union acquiesced in
Respondent's suggestion that an increment system,
whereby each carrier had to confine his vacation re-
quest to designated 2- or 3-week intervals, be institut-
ed for the first time. With this agreement established,
Respondent posted the available vacation increments
on December 9, 1971.
Of the 140 carriers at the Charleston post office, 130
requested choice period vacations, and 121 of those
requests were for the 3-month period of June, July,
and August.' Respondent's personnel assistant,
George Moose, who was assigned to draw up the va-
cation schedule, found it impossible, given the num-
ber of choice period requests and the fact that some
employees ignored the increment system, to give each
of the carriers one of his first three choices, while still
adhering to seniority and remaining within the au-
thorized absence figure of 17 per week. Sometime in
January 1972, Moose discussed the situation with
both the employees involved and with the Union.
Union president, Gerald Mollohan, took the position
that each carrier was entitled to one of his first three
choices even if Respondent had to abandon the
agreed-upon increment system. Finally, in an effort to
meet the Union's demand, Respondent abandoned
the increment system and reworked the schedule, but
was still unable to grant all of the requests within the
established guidelines of no more than seventeen em-
ployees on vacation per week.
In February, Moose again advised Mollohan of his
insolvable predicament, but Mollohan adamantly
maintained his position. On March 13, Moose told
Mollohan that the vacation list was ready for posting,
period shall be governed by service requirements and the number of
employees available for necessary replacement
C Implementation
I The installation head and [the union ] . shall meet . . . not later
than the month of January to implement the vacation planning program,
as previously established in B-3
3 The installation head shall: . b Determine the maximum number
of employees that may be granted leave each week during the choice
vacation periods d . . With due consideration to service re-
quirements , make every effort to grant vacations as desired by employ-
ees.
6 Whenever for justifiable reasons an employee desires to take his
vacation during a period which conflicts with that of other employees
already scheduled, every reasonable effort will be made to work out a
mutually agreeable exchange of periods
2 An unrealized object of the Union in the local negotiations was to reduce
the choice period from 5 to 3 months.
7 It is also noted that some employees disregarded the designated incre-
ments in making their requests, and that in previous years choice period
requests had averaged only 90 per year
204 NLRB No. 44
UNITED STATES POSTAL SERVICE
but that 23 carriers had been left off the list for the
reasons previously explained to him. Mollohan said
he would get in touch with Moose after he saw the list.
On March 14, Respondent posted the vacation sched-
ule, omitting the names of 23 employees whose re-
quests could not be granted. Later that day Mollohan
called Moose and protested the omission of the 23
carriers' names. During the next 2 days the parties
held several meetings which failed to lead to a resolu-
tion of the issue. Finally, Respondent announced that
it would post the remaining choice period vacancies
so that the 23 carriers left off the schedule could re-
quest vacations in remaining prime time openings.
On Friday, March 17, six union representatives
came to Moose's office to discuss the matter.4 During
the multifaceted discussion which ensued, Kermit
Kiser, Respondent's superintendent of mails, who had
not been previously involved in the vacation schedul-
ing, and who was unaware that 121 of the carriers had
requested their vacations during June, July, and Au-
gust, entered Moose's office for a cup of coffee. He
soon became involved in a side discussion with Strat-
ton. While the union representatives surrounding
Moose continued to insist on their demand, Kiser told
Stratton "we are not going to be suckered to let you
people cram in your vacation applications during
June, July and August." Stratton assured Kiser that
the Union would not do that. Subsequently, Kiser
told Moose that, if the Union insisted, Respondent
was obligated to give each carrier one of his first three
choices for vacation during prime time and instructed
Moose to revise the schedule to that end. As the meet-
ing broke up, Mollohan asked Kiser, "am I correct in
understanding that all carriers will be given one of
their three choices?" Kiser replied "yes."
On Monday, March 20, Moose reported to Gilles-
pie that he carried out Kiser's instructions and had
come to the conclusion that the ceiling of 17 would
have to be raised to 20 in order to give each carrier
one of his first three choices. Gillespie decided that
Respondent could not meet such an economic burden
and had Moose telephone the Union and tell Mollo-
han that "the deal was off" and that Respondent
would proceed with its plan to allow the 23 individu-
als omitted from the list to rebid for other available
prime time vacations.' Mollohan then telephoned Gil-
lespie and protested this action by the Respondent.
Gillespie replied that Kiser had no authority to make
such a deal and that 17 absences each week were all
that Respondent could spare.
Mollohan was accompanied by Harold Campbell , union vice president,
Roger Kennedy, union recording secretary , Thomas Stratton , shop steward,
Glen Facemire and Forrest Talbert , two of the carriers omitted from the list
5 Subsequently this was done and all of the employees received prime time
vacations , although the 23 did not get their first three choices.
293
On the foregoing facts the Administrative Law
Judge concluded that Kiser and Mollohan had
reached an oral agreement on March 17 which Re-
spondent unilaterally repudiated on March 20 and
that such repudiation violated Section 8(a)(5) and (1)
of the Act.
Respondent contends, inter alia, that no binding
agreement was reached on March 17, inasmuch as
there was no meeting of the minds between Respon-
dent and the Union, due to the fact that Kiser was
operating on a mistaken belief of fact as to the num-
ber and monthly distribution of prime time requests.
We agree with Respondent's contention.6
Initially we note that we are not concerned here
with a recalcitrant employer who is acting in bad
faith, but rather one who has attempted to bargain in
good faith with the Union over the scheduling of 1972
vacations in order to accommodate as many of the
requests of the unit employees as it feasibly could,
within allowable personnel limits designed to absorb
a maximum number of weekly absences without ad-
versely affecting its operations. Although Respondent
did its best to satisfy the Union's demands, it persis-
tently maintained, as it had a right to do, that it could
not economically increase the maximum number of
employees who would be given vacation leave during
any week in the prime time vacation period.
As we have noted above, Kiser had not been previ-
ously involved in the vacation scheduling discussions
and was unfamiliar with the operative facts underly-
ing Respondent's position when he inadvertently en-
tered the March 17 conversation. However, at the
outset he made it clear that Respondent was not going
to allow the Union the opportunity to compress the
5-month prime vacation time into a 3-month period,
and it seems apparent from this statement that Kiser
was under the impression that the vacation requests
were not congested into the latter time period .7 Strat-
ton assured Kiser that the Union had no such inten-
tions. But the record clearly shows that 121 of the 140
carriers in the unit had in fact requested vacations in
June, July, and August, and although the record does
not show that the Union encouraged its members to
compress their vacation requests into this 3-month
span of time, Stratton obviously was aware of this fact
when he so responded. In any event, the effect of the
6 Respondent also contends that even if Respondent 's conduct constitutes
a breach of contract , such , absent a finding of bad-faith motivation on
Respondent 's part, does not constitute a violation of Sec 8 (a)(5) and (1) In
view of our disposition of Respondent's other contention , we do no reach this
issue.
7 The Administrative Law Judge did not find nor does the record show that
Kiser prior to the March 17 meeting had any knowledge that the prime time
vacation requests were not evenly distributed over the entire 5-month choice
period . In this regard we also note that Kiser's statement to Stratton was
consistent with both his lack of knowledge and with Respondent 's position,
as expressed by Gillespie, that Respondent's contractual obligation was "to
do its best to see that each employee got one of his first three choices "
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' bunched requests was therefore the same I would adopt it.
as if the Union had intended it. Since Kiser was un-
aware of these facts and their economic conse-
quences, his affirmative response to Mollohan's
departing question can not be fairly construed as a
binding agreement either to grant each employee one
of his first three vacation choices if all their choices
collectively fell within June, July, and August, or, as
a result thereof, to increase the weekly maximum
number of authorized absences from 17 to 20 employ-
ees per week, or whatever figure that would be re-
quired to achieve that end. Whatever poor judgment
was exercised by Kiser in agreeing to grant the em-
ployees one of their three choices, it is evident to us
that Kiser would not have done so if he had known
the underlying facts of the situation. In these circum-
stances, we conclude that a meeting of the minds
necessary to establish a binding agreement never
came to fruition. Industrial Engineering Co., Inc., 173
NLRB 77. Therefore, we find that Respondent's fail-
ure to accord the 23 carriers one of their first three
prime vacation choices did not in these circumstances
violate Section 8(a)(5) of the Act.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
CHAIRMAN MILLER , dissenting:
The majority present an appealing position, but one
which I think cannot withstand careful scrutiny.
When Superintendent Kiser committed to the
Union that all carriers would be given one of their
three choices for vacation time, he was making an
agreement within the scope of his authority. When the
Postal Service subsequently reneged on that agree-
ment without negotiating bilaterally a modification of
that agreement, I believe it failed to live up to its
bargaining obligations under this act.
Kiser's agreement may have been hasty, ill advised,
and uninformed. But it was an agreement. And that
gives rise to an obligation either to honor the agree-
ment or to obtain, through negotiation, a change
therein.
I also realize that many Postal Service representa-
tives are new to the obligations imposed by this Act.
But that does not excuse violations. The remedy rec-
ommended here by the Administrative Law Judge is
a modest and appropriate one-an order and a notice
to cease and desist from repudiating oral agreements.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in this case was filed on March 23, 1972.1 The com-
plaint was issued on September 12. The hearing was held on
November 8 in Charleston, West Virginia. The complaint
alleges that Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, by repudiat-
ing, on March 20, an oral agreement entered into on March
17. For the reasons set forth below, I find Respondent vio-
lated the Act as alleged.
Upon the entire record and after due consideration of
briefs filed by Respondent and the General Counsel, I make
the following:
FINDINGS OF FACT
I JURISDICTION
The Board has jurisdiction over this case by virtue of
Section 1209(a) of the Postal Reorganization Act, 39 U.S.C.
Sec. 101, et seq. The Charging Party and its parent organiza-
tion , the National Association of Letter Carriers, AFL-
CIO, are labor organizations within the meaning of Section
2(5) of the National Labor Relations Act, as amended.
11 THE UNFAIR LABOR PRACTICE
A Facts
1. The issue
The factual core which the General Counsel contends
constitutes a violation of Section 8(a)(5) can be stated in
three sentences . On Friday, March 17, in the course of a
conference over the Charging Party's objections to the man-
ner in which management was scheduling summer vaca-
tions for letter carriers, Kermit Kiser, superintendent of
mails in the Charleston post office, conceded the Charging
Party was right in its argument that each carrier was entitled
to one of his first three choices of weeks to be off and
instructed George Moose, the personnel assistant who was
preparing the schedule, to redraft it to that end. On Mon-
day, March 20, C. N. Gillespie, Kiser's immediate superior,
overruled Kiser. As a result, 23 of 130 carriers failed to get
one of their first three choices. The situation arose in this
manner:
2. Background and events before March 17
The National Association of Letter Carriers , AFL-CIO,
represents city letter carriers employed by Respondent, in-
cluding those in Charleston . A new national contract was
negotiated by the Association and Respondent in 1971.
1 Dates are 1972 unless otherwise specified
UNITED STATES POSTAL SERVICE
However , since it was negotiated late in the year , the parties
agreed that 1972 vacations would be arranged under the
terms of the prior contract, negotiated in 1968 . Article XVI-
(Leave), 'section C (Implementation ), paragraph 5, of the
1968 contract provided:
In order to meet advance commitments for granting
annual leave when normal replacements are not suffi-
cient , the work week of substitutes and/or regular em-
ployees may be expanded through the authorization of
overtime or additional temporary substitutes may be
employed.
Paragraph 3b of the same article and section provided:
The installation head shall determine the maximum
number of employees that may be granted leave each
week during the choice vacation period (s). In making
this determination, consideration must be given to mail
volume and other workload data for comparable pen-
ods in preceding years as well as anticipated workloads
and current volume trends.
The national contract between the Association and Re-
spondent is supplemented by local agreements . The 1968
local agreement in Charleston provided in article XVI (Va-
cation Planning), section C (Granting Annual Leave ), para-
graph 2:
A regular carrier may apply for all or any part of his
allotted annual leave and , when a request is made for
more than one continuous period during the choice
period , he shall be granted the choice of only one unless
management is able to grant it also.
Postal employees earn 13, 20, or 26 days of annual leave
each year, depending on their length of service . By contract,
those who earn 13 days are entitled to take 10 of them (i.e.,
2 full workweeks) during the choice period (also referred to
in the record as "prime time "). Those who earn 20 or 26
days are entitled to take 15 during prime time . Prime time
begins on May I and ends on September 30. An unrealized
bargaining objective of the Association is to reduce prime
time from 5 months to 3; i.e., June , July, and August.
Carriers submit their request for time off during prime
time on a form which indicates their first , second , and third
choices. Requests are granted on the basis of seniority. Dur-
ing prime time in 1971 the head of the Charleston post office
set 12 as the maximum number of carriers who could take
leave in any given week . At a meeting held in late 1971
between officials of the Charging Party and representatives
of Respondent, this figure was upped to 17 for 1972. Re-
spondent agreed to do everything in its power to see that
each carrier got one of his first three choices. The Charging
Party acquiesced in Respondent 's suggestion that an incre-
ment system be tried for the first time in setting up the
vacation schedule. Under this plan, prime time was to be
divided into 2-week increments which did not overlap each
other and 3-week increments which did not overlap each
other and the carriers were to be asked to make their re-
quests without bidding across the line which separated two
increments . Pursuant to this plan, a list of increments was
posted in the various postal installations in Charleston on
December 9, 1971.
Gerald K. Mollohan succeeded Silas C. Jordan, Jr., as
president of the Charging Party in January. George Moose
received requests for prime time vacations in 1972 from 130
295
letter carriers . (In prior years, prime time requests averaged
90. There are approximately 140 carriers employed by the
Charleston post office.) Of the 130, 121 limited their re-
quests to June, July, and August. A number of the carriers
ignored the increment system and requested 2- or 3-week
vacations which fell into two increments . Moose talked first
with the individual carriers and then with Mollohan about
the complications this was causing in trying to fill the car-
riers' requests within the confines of seniority and the ceil-
ing figure of 17 per week . Mollohan took the position that
each man was entitled to one of his first three requests even
if it meant abandoning the increment system . After confer-
ring with his superiors , Moose abandoned the increment
system and reworked the schedule on the basis of each
man's choices, whatever they were . He chose the 17 carriers
to be off in each week of prime time by seniority. However,
in the case of carriers who were 18th or lower by seniority
in 1 or more weeks of a period they had requested, he
eliminated the carrier's request for the entire period even
though he might be 17th or higher on the seniority list in 1
or 2 weeks of that period . In the cases of 23 carriers this led
to elimination of all their requests even though , in some
cases , men lower than they on the seniority list got what they
asked . In February Moose discussed the problems he was
having with Mollohan and tried to explain the system he
was following, absent the increment plan. Mollohan was
engaged in other union matters with Respondent at the time
and, apparently, did not fully comprehend what Moose was
saying. In any event, he continued to insist that each carrier
was entitled to one of his first three choices.
On Monday, March 13, Moose telephoned Mollohan and
told him the 1972 vacation list was ready for posting. He
warned Mollohan that 23 carriers who had requested prime
time vacations had been left off and explained why. Mollo-
han said he would get in touch with Moose after he saw the
list.
The list was posted in the various postal installations on
Tuesday, March 14. Mollohan telephoned Moose and pro-
tested the leaving off of 23 carriers. On Wednesday, March
15, he visited Moose in his office for the same purpose. On
Thursday, March 16, he returned to Moose's office in the
company of Forest Talbert, another carrier. Moose took
them to see C. N. Gillespie, officer-in-charge of the
Charleston post office. In all of these conversations as well
as the crucial meeting on Friday, March 17, Mollohan took
the position that carriers had a right to one of their first
three choices of vacation time by seniority and argued vehe-
mently that Respondent must resort to overtime and the
hiring of casuals as substitutes in order to give the carriers
what they were entitled to. (Hiring of casuals as substitutes
requires the approval of district headquarters, the next level
above the Charleston post office in the hierarchy of the
Postal Service.) The upshot of the meeting on March 16 was
Gillespie's instruction to Moose to restudy the problem and
come up with some recommendations. Gillespie made no
commitment to Mollohan and Talbert.
On the morning of March 16, prior to Mollohan's and
Talbert's conference with Moose and Gillespie, Moose had
telephoned Mollohan and told him of a notice Respondent
planned to post offering to let those carriers who had been
left off the vacation list rebid for periods which were still
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open. This proposal came up during the March 16 meeting
and was rejected by Mollohan on the ground that the 23
carriers would be denied their seniority rights. On March 16
Respondent posted the following notice in the various post-
al installations:
NOTICE-ALL CARRIERS
SUPPLEMENT TO 1972 VACATION NOTICE
Before any other annual leave may be granted during
prime time for Carriers, all Carriers who put in during
the initial Vacation Schedule which closed on February
15, 1972, will be given an opportunity to re-apply for
vacation time which has not been filled. Check your
unit Vacation Schedule to see the periods that remain
open.
witnesses on these details. Kiser told Moose that, if the
Charging Party elected to hold Respondent's feet to the fire,
Respondent was obligated by contract to give each carrier
one of his first three choices for vacation during prime time.
Kiser said that Respondent could hire casuals and pay over-
time as necessary to meet that obligation. Kiser instructed
Moose to figure out how much the ceiling figure of 17 would
have to be increased as he reworked the schedule once again
to meet the obligation. At the end of the meeting Mollohan
asked Kiser directly, "Now, am I correct in understanding
that all carriers will be given one of their three choices?"
Kiser's reply was an unequivocal yes. Mollohan and his
colleagues left the meeting satisfied that the issue had been
resolved to the Charging Party's satisfaction. Moose began
redrafting his master schedule again to carry out Kiser's
instructions.
4. Events after March 17
Please use Form PS 3971. Under remarks place your
choice-you may make up to 3 choices.
Completed applications must be received in the Per-
sonnel Office no later than March 23, 1972, to receive
consideration. After this date, Carriers who did not put
in for vacation during the initial period will be given
consideration.
3. The March 17 meeting
On March 17 Mollohan returned to Moose's office in the
company of Talbert; Harold Campbell, the Charging
Party's vice president; Roger Kennedy, recording secretary;
Thomas Stratton, shop steward; and Glen Facemire, anoth-
er carrier. During the course of the conversation which en-
sued, Kermit Kiser, the superintendent of mails, came into
Moose's office to get a cup of coffee from the office pot. The
conversation-or, more precisely, the conversations-was
many faceted. The record is too confused to permit any
precise findings as to the sequence in which arguments were
advanced, which persons were speaking to which other per-
sons simultaneously, or the moment in the discussion at
which Kiser entered the room. It is undisputed that Mollo-
han and his colleagues once again argued vehemently for
what they perceived to be the rights of the carriers, relying
on the contracts in effect, their understanding of the com-
mitment made by Respondent to honor the carriers' vaca-
tion requests made to Mollohan's predecessor in late 1971,
and the precedent of what had happened in prior years. It
is undisputed that Kiser, at one point, commented to Strat-
ton when Stratton showed him a copy of a contract, "We're
not going to be suckered to let you people cram in your
vacation application during June, July, and August," a ref-
erence to Respondent's fear that the National Association
of Letter Carriers was plotting nationwide to bring pressure
in this manner in support of its bargaining objective of a
shorter prime time vacation period. More important, how-
ever, is the lack of dispute about the words Kiser spoke
which the General Counsel contends underlie the unfair
labor practice alleged, for Kiser and Moose, Respondent's
witnesses, testified to the same effect as General Counsel's
On Monday morning, March 20, Moose reported to Gil-
lespie that he had carried out Kiser's instruction and had
come to the conclusion that the ceiling of 17 carriers off
each week during prime time would have to be raised to 20
in order to give each carrier one of his first three choices.
Gillespie decided there was no way Respondent could meet
such an economic burden. As a result, Moose telephoned
Mollohan and told him the deal was off. Mollohan tele-
phoned Gillespie and protested. Gillespie said that Kiser
had no authority to make such a deal, that 17 men off each
week were all that Respondent could spare, and that the
hiring of casuals and the payment of overtime could not be
authorized to make up the difference.
The Charging Party carried its fight to the Postal Service's
district level . At a meeting held on March 23, Harold Tuck-
er, district manager, told Mollohan he would not authorize
the hiring of casuals. He referred Mollohan back to the
Charleston post office level for any further discussion of the
issue.
Despite the Charging Party's objections, Respondent
went ahead with the plan set forth in its March 16 notice for
taking care of the 23 carriers left off the first vacation sched-
ule. As a result, all carriers who still wanted a prime time
vacation got one in 1972. However, none of the 23 received
one of his first three choices. Some of them were senior to
carriers who did recieve one of their first three choices.
Neither the Charging Party nor any carrier filed a griev-
ance in connection with the scheduling of vacations during
1972 prime time.
B. Analysis and Conclusions
For the sake of clarity, I mention first a number of issues
which are not presented by this case. First is the question
of Kiser's authority to enter into an oral agreement with the
Charging Party. Respondent does not raise such a defense.
It concedes that Kiser was acting as an agent of Respondent
when he told the Charging Party's representative on March
17 that each carrier would get one of his first three choices.
Even absent such a concession, it is clear that Kiser was one
of the high-ranking officials in the Charleston post office
with whom the Charging Party was accustomed to deal.
UNITED STATES POSTAL SERVICE 297
Second is the question of whether the carriers had a con-
tract right to one of their first three choices. I have set forth
above those parts of the national and local contracts which
the Charging Party and Respondent haggled over during
their negotiations in order to set forth the dispute in proper
context. However, the General Counsel does not contend
that Respondent has violated either or both of the written
contracts I have quoted from. The gravamen of his com-
plaint is that Respondent reneged on the oral agreement
with the Charging Party which Kiser made on Respondent's
behalf on March 17. Therefore, whether or not the Charging
Party was correct when it argued that it had a contract right
is not an issue before me . I do not pass on it.
Third and last is the question of whether carriers had a
right to one of their first three choices on the basis of past
practices. The record is extremely muddy in this area. At
one point Mollohan testified there was such a past practice.
At another, he apparently retreated from that position. In
any event, like the issue of contract right, past practice plays
no part in the General Counsel's theory. Therefore, whether
there is, in fact, such a past practice is not an issue before
me. I do not pass on it either.
The first facet of Respondent's defense can also be dealt
with somewhat summarily. It is that no "agreement" was
entered into on March 17 because no meeting of the minds
took place. In support of this proposition, Respondent con-
tends that the Charging Party was not negotiating during
the week of March 13 but, rather, demanding, and that
Kiser was unaware of all that had gone before when he
accidentally wandered into the March 17 meeting. (Respon-
dent also takes the interesting position that there was no
agreement because the Charging Party gave no consider-
ation and did not rely on Kiser's statement to its detriment
before Gillespie overruled him on March 30, arguing that
the rule which says consideration is not applicable to collec-
tive-bargaining agreeements relates only to written con-
tracts. No authority has been cited by Respondent in
support of this proposition, and I am aware of none. I,
therefore, find it without merit.) In the face of Kiser's ad-
mission that he replied with a simple and unequivocal "yes"
when Mollohan asked him whether the instructions Kiser
had given to Moose meant that each carrier would get one
of his first three choices, a finding that Respondent's mind
did not meet the Charging Party's mind on March 17 would
be absurd.
The narrow issue presented by this case is best stated in
per se terms, as the General Counsel argues. Absent any
evidence of bad faith on the part of Respondent in its over-
all dealings with the Charging Party, did Respondent refuse
to bargain with the Charging Party within the meaning of
Section 8(a)(5) of the Act when Gillespie overruled Kiser's
decision, thus reneging on the agreement which the Charg-
ing Party had reached with Kiser? The General Counsel
does not concede that Respondent was not motivated by
bad faith. However, the only element he relies on to estab-
lish bad faith, other than the reneging itself, is the fact that
Respondent pursued the plan of its March 16 notice over
the Charging Party's objections. I view that as affirmative
evidence of Respondent's general good faith, for it demons-
trated Respondent's sincere effort to give all the carriers
who wanted them vacations during prime time. And, of
course, to rely on the reneging itself to supply the evidence
of bad faith to meet a putative rule that a party to collective
bargaining only violates the Act when he acts in bad faith
would beg the question. I conclude, therefore, that bad faith
in the usual sense of that phrase is not the touchstone on
which this case turns. For that reason I do not find the cases
cited in the General Counsel's brief particularly helpful. He
argues that this case is similar to cases such as Shannon &
Simpson Casket Company, 99 NLRB 430, which stand for
the proposition that withdrawal from agreement to substan-
tial issues during contract negotiations violates the Act and
cases such as M & M Oldsmobile, Inc., 156 NLRB 903,
which stand for the proposition that repudiation of entire
collective-bargaining agreements already executed violates
the Act. In each of these cases the respondent was found to
have acted in overall bad faith. I can make no such finding
here.
Respondent advances two major arguments; i.e., no find-
ing of a violation is possible absent a finding of overall bad
faith and, even if such a finding is possible, no remedial
order should issue because the Charging Party has not come
to the Board with "clean hands." The latter argument is
based on Respondent's contention that the Charging Party,
after unilaterally repudiating the agreement to use an incre-
ment system reached in late 1971, "encouraged employees
who had never sought summer vacations before or who had
considered their seniority too low to secure June, July, or
August vacations to bid for such periods, in order to com-
press vacations into this period and thereby force a conces-
sion it had been unable to secure through negotiations." I
have found that the Charging Party did, in fact, unilaterally
repudiate the increment system. However, I have not found
and do not find that the Charging Party tried to bring pres-
sure on Respondent to agree to a compression of prime time
into 3 months by "encouraging" carriers to limit all their
requests for 1972 vacations to that period. The only evi-
dence in the record which could support such a finding is
the statistics on 1972 requests received by Respondent as
contrasted with prior years. In the face of Mollohan's deni-
al, which I credit, that he or any of the leaders who came
into office with him in January pointed out such a course
of action to carriers, it will not support such a finding. I do
not think (and I do not understand the Respondent as argu-
ing) that the Charging Party's repudiation of the increment
system, in the context of this case, dirties its hands suffi-
ciently insofar as the events of March 17 and 20 are con-
cerned to excuse Respondent's conduct.
In the final analysis, then, the ultimate question is wheth-
er the Board should order Respondent to cease and desist
from reneging on oral agreements entered into with the
Charging Party even though Respondent may have entered
into the oral agreement involved in this case too hastily and
may have had sound business reasons for not living up to
it. (The General Counsel explicitly abstained from asking
any affirmative remedy with respect to the 1972 vacation
season . Even if he had not, I would not recommend any, for
I can think of no meaningful remedy now that 1972 is
history and all the carriers who wanted them got prime time
vacations, albeit a few of them did not get one of their first
three choices.) Respondent's most cogent argument that it
should not is contained in this paragraph from its brief, just
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after its discussion of Industrial Engineering Co., 173 NLRB
77:
It should also be noted that the General Counsel's
overly technical approach herein, of picking out for
enforcement a single statement made during the course
of months of long discussion of the topic, inconsistent
with contractual provisions, and other positions and
statements made by Employer during this period, can
only inhibit rather than enhance the collective bargain-
ing process. Tactics, strategy, and devious techniques
will be encouraged rather than orderly, open, face-to-
face collective bargaining. Open discussion and will-
ingness to compromise or suggest novel solutions to
problems will be discouraged lest one's good-faith at-
tempts to accommodate come back to haunt him.
Its weakness lies in its failure to give proper weight to the
core facts: Kiser agreed with the Charging Party's position
and ordered Moose to follow it. Gillespie overruled Kiser,
thus reneging on the agreement Kiser had entered into with
the Charging Party. As a result, some carriers failed to re-
ceive the fruits of the bargaining which the Charging Party
had engaged in on their behalf. The objective of the Act to
resolve labor relations issues amicably through collective
bargaining was thwarted, and this litigation resulted. That
poses a greater threat to the collective-bargaining process
than requiring an employer to live up to its oral agreements
even though its overall relationship with the union involved
is characterized by good rather than bad faith.
Support for this proposition is, I think, found in Industrial
Engineering, supra, the case which Respondent principally
relies on to support its argument that no remedial order is
warranted herein. As Respondent points out, there the
Board dismissed an 8(a)(5) complaint on the ground that it
would not make its processes available to a union so that the
union could obtain a subcontracting provision which the
employer had rejected during face-to-face negotiations. (Af-
ter taking that position, the employer agreed to be bound by
whatever contract the union and a multiemployer associa-
tion subsequently negotiated, then balked when the associa-
tion agreed to a subcontracting clause.) The rationale of
that decision is:
President Davis obviously had no idea that the A.G.C.
and the Union, contrary to past practice, would seek to
incorporate in the regular 3-year trade agreement the
subcontracting provisions which were already in effect
by virtue of the July 6, 1966, supplemental agreement.
While Davis may not have exercised the best judgment
in signing an agreement which was susceptible of being
construed as a wide-open commitment to sign whatev-
er agreement was reached between the Union and the
A.G.C., there can be no doubt that Davis in signing the
Interim Agreement did not contemplate agreeing to
limiting subcontracting to union subcontractors... .
Plainly there was no meeting of the minds between
the Union and the Respondent on the subcontracting
issue at the time the Interim Agreement was signed.
The Union's effort to use the Interim Agreement which
Davis had unwittingly signed as the means of obtaining
the one provision which the Union knew the Respon-
dent had steadfastly refused to grant to it in collective
bargaining in the past hardly reflects the good faith
which the Act requires of parties to the collective bar-
gaining process. It should be noted that we are not
concerned here with a recalcitrant employer who is
acting in bad faith but one who through the years has
bargained in good faith with the Union as the exclusive
representative of its carpenters and apprentices, and
which stands ready today to fulfill the commitment
which it thought it was making when it signed the
Interim Agreement , that is by signing the A.G.C.-
Union agreement , omitting only Article XVII, the pro-
vision limiting subcontracting to union subcontractors.
Here, there was no mistake of fact comparable to that made
by the president of Industrial Engineering. Kiser knew pre-
cisely what the Charging Party was claiming when he agreed
it was right and agreed to give it what it wanted, Here, there
was clearly a meeting of the minds reached as the result of
face-to-face, good-faith bargaining on both sides, and the
Board should not stay its hand. I find, therefore, that Re-
spondent violated Section 8(a)(5) and (1) of the Act when,
on March 20, 1972, it repudiated the oral agreement it had
entered into with the Charging Party on March 17 that letter
carriers in the Charleston post office could have one of their
first three choices of vacation time during 1972 prime time.
I will recommend that Respondent cease and desist from
such practices and spot a notice to that effect.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The United States Postal Service falls within the juris-
diction of the National Labor Relations Board by virtue of
Section 1209(a) of the Postal Reorganization Act, 39 U.S.C.
Sec. 101, et seq.
2. The National Association of Letter Carriers, AFL-
CIO, and its Capital City Branch #531 are labor organiza-
tions within the meaning of Section 2(5) of the National
Labor Relations Act, as amended.
3. All city letter carriers employed by Respondent, ex-
cluding managerial personnel, professional employees, em-
ployees engaged in personnel work in other than a purely
nonconfidential clerical capacity, Postal Inspection Service
employees, Christmas casual employees, guards, and super-
visors as defined in the National Labor Relations Act, as
amended, are a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of said
Act.
4. At all times material herein the National Association
of Letter Carriers, AFL-CIO, has been and is now the rep-
resentative for the purposes of collective bargaining of the
employees in the unit described above within the meaning
of Section 9(a) of the National Labor Relations Act, as
amended.
5. By repudiating, on March 20, 1972, an oral agreement
entered into with the Charging Party on March 17, 1972,
Respondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, as amended.
6. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the National Labor Relations Act, as amend-
ed.
[Recommended Order omitted from publication.]