United States Postal Service

National Labor Relations Board - Board Decisions

Nov 19, 1973

207 N.L.R.B. 398 (N.L.R.B. 1973)

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and National Association
of Letter Carriers, AFL-CIO, Branch 4901. Case
5-CA-5533(P)
November 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 15, 1973, Administrative Law Judge
Charles W. Schneider issued the attached Order
Dismissing Complaint in this proceeding. Thereafter,
the Charging Party filed exceptions, a request for
review and reversal, and a brief in support thereof.
The General Counsel filed a memorandum in reply
to the Charging Party's exceptions, request, and
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 Order Dismissing Complaint in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed; provided,
however, that:
The Board shall retain jurisdiction of this proceed-
ing for the purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision, been either resolved by amicable settle-
ment in the grievance procedure or submitted
promptly to arbitration; or (b) the grievance or
arbitration procedures have not been fair and regular
or have reached a result which is repugnant to the
Act.
MEMBER JENKINS, dissenting:
For the reasons expressed in my dissents in Collyer
Insulated Wire, A Gulf and Western Systems Co., 192
NLRB 837, Radioear Corporation, 199 NLRB 1161,
and related cases, I would determine the case on the
merits instead of deferring it to an arbitrator.
ORDER DISMISSING COMPLAINT
1. On June 8, 1973, at the hearing, and over objection
by the Charging Party, I orally dismissed section 10(a) of
the complaint in the above-captioned case, subject to later
written order. The instant order, confirming that dismissal,
is issued at the request of the Charging Party, in
accordance with the terms of the oral order of dismissal.
The circumstances and the rationale for the dismissal are
set out below.
II. On December 7, 1972, upon motion of the Respon-
dent, and over objection by the General Counsel and the
Charging Parties, during the course of a consolidated
hearing in the instant case and in Case 5-CA-5517(P), I
orally dismissed the complaint in both cases, upon the
presumed authority of Collyer Insulated Wire, 192 NLRB
837. At the request of the General Counsel the oral order
was confirmed in a later written order dated December 19,
1972. Thereafter the General Counsel and the Charging
Parties filed exceptions with the Board to that order of
dismissal.
On April 12, 1973, the Board issued its Order overruling
the dismissal of the complaints and remanding the
proceeding for further hearing and decision. The ground
stated by the Board for the overruling of the dismissal was
that:
In the opinion of the Board , the record is insufficient to
determine , at this time, whether or not deferral to
arbitration under Collyer, supra, and subsequent cases
is proper or appropriate as to any part or all of the
issues herein.
The purpose of the remand was stated by the Board to be:
... for further hearing and for the preparation and
issuance of a Decision by the Administrative Law
Judge, containing findings of fact, conclusions of law,
and recommendations to the Board.
In conclusion the Board order stated:
IT IS FURTHER ORDERED that, upon conclusion of the
hearing, the Administrative Law Judge shall prepare
and serve upon the parties his Decision containing
findings, conclusions, , and recommendations based
upon the evidence received and that following service
of such Decision upon the parties, the provisions of
Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended, shall be applicable.
III. The unfair labor practices alleged are as follows:
The complaint in Case 5-CA-5533(P) alleged violations
by the Respondent of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, specifically that the
Respondent (1) refused to bargain by (a) refusing to sign a
memo of understanding agreed to during bargaining
negotiations (paragraph 9(a)), (b) failing to notify Branch
4901 that Respondent's bargaining representatives lacked
authority to reach agreement (paragraph 9(b)), (c) unilater-
ally eliminating postal carrier routes (paragraph 10(a)), and
(d) failing to furnish Branch 4901 with maps of the postal
carrier routes unilaterally eliminated (paragraph 10(b),
(c)); (2) interfered with, restrained, and coerced employees
by the action of its supervisor, the superintendent of mails,
in requesting an officer of Local 4901 to discontinue his
union activities and to support Respondent (paragraph
207 NLRB No. 5
UNITED STATES POSTAL SERVICE 399
11); (3) discriminated against four named members of
Local 4901 's negotiating committee by eliminating their
carrier routes because of their union membership and
activities (paragraph 12).
The complaint in Case 5-CA-5517(P) alleged a violation
of Section 8(a)(1) and (5) of the National Labor Relations
Act by the Respondent in (1) refusing to reduce to writing
and sign a memorandum of understanding incorporating
matters agreed , to during negotiations, and (2) failing to
notify Branch 4066 that Respondent 's bargaining repre-
sentatives lacked actual authority to reach agreement.
IV. Pursuant to the Board's remand order of April 12,
1973, a further hearing was held on June 8, 1973. At that
hearing, with the exception of one item (the subject of the
instant Order), all allegations of both complaints were
settled and withdrawn by agreement of the parties. In Case
5-CA-5517(P) the entire complaint was withdrawn, and
the case severed and closed . The allegation of unfair labor
practices not settled and withdrawn is that in paragraph
10(a) of Case 5-CA-5533(P). That allegation is as follows:
10. (a) At all times material herein, specifically since
on or about March 15, 1972, March 31, 1972, and April
2, 1972, Respondent has refused, and continues to
refuse, to bargain in good faith with NALC and its duly
designated agent, Branch 4901, by unilaterally elimi-
nating postal carrier routes.
This action is alleged as violative of Section 8(a)(1) and
(5) of the Act.
As has been seen, the independent 8(a)(1) and the 8(a)(3)
allegations in the proceeding have been withdrawn.
V. At the hearing on June 8, 1973, in addition to the
agreed upon disposition of the allegations of the com-
plaints noted above, the General Counsel, over objection
by the Charging Party, moved to dismiss paragraph 10(a)
of Case 5-CA-5533(P), on the authority of Collyer
Insulated Wire, supra.
The basis for the General Counsel's motion, concurred in
by the Respondent, to dismiss paragraph 10(a) is that the
policies of the Collyer case require that that issue be
submitted to the arbitral processes of the parties' collec-
tiv2-bargaining contract, reserving jurisdiction in the
Board, upon appropriate invocation, to adjudicate section
10(a) if there is not an arbitral disposition consistent with
the National Labor Relations Act.
The Charging Party contends that the issue is not one
appropriate for disposition under the principles of Collyer.
In addition the Charging Party asserts that deferral on
Collyer grounds is inconsistent with the Order of the Board
remanding the case for hearing, findings and decision by
the Administrative Law Judge for the reason that the
record was insufficient to determine whether or not
deferral on Collyer grounds was appropriate as to "any
part or all of the issues." As to this, the General Counsel
and the Respondent reply that the settlement and
withdrawal of the other allegations of the complaints have
resulted in a substantial alteration of the nature of the
proceeding, such as to make inapplicable prior objections
to "Collyerizing" the matter. Thus it is pointed out that the
sole issue remaining-unilateral action by the Respondent
on conditions of employment , is one involving essentially,
and unavoidably, an interpretation of mutual rights and
obligations under the collective-bargaining contract.
VI. The Respondent's defense to section 10(a) is
twofold: (1) a denial that it engaged in unilateral action
and (2) that, in any event, the contract permits the
Respondent to take unilateral action of the nature alleged.
Thus the Respondent asserts that the legislative history of
the contract negotiations will establish the intent of the
contracting parties to authorize the Respondent to elimi-
nate postal carrier routes unilaterally. Beyond that the
Respondent asserts that the Postal Reorganization Act of
1970 also contemplated lodgement of such authority in the
postal service.'
The General Counsel and the Respondent state that, if
hearing before the Administrative Law Judge on section
10(a) is required , a substantial period of time will be
involved.
VII. Among the contractual provisions bearing on the
issue are the following : article III, management rights;
article IV, technological and mechanization changes;
article V, prohibition of unilateral action ; and article
XIX-a "zipper" clause . Thus section 1, D, of article III
provides that the Respondent shall have the "exclusive
right, subject to the provisions of this Agreement and
consistent with applicable laws and regulations .... to
determine the methods, means, and personnel by which
... operations are to be conducted." Section 2, of article
IV provides for the establishment of a Joint Labor-
Management Committee composed of management and
union representatives to discuss the impact of proposed
technological and mechanization changes upon affected
employees. The section specifies that notice to the
committee of proposed changes satisfies notice require-
ments as to the Union. It further provides that any
questions not resolved within a reasonable time within the
committee may be submitted by the Union to arbitration
under the grievance arbitration procedure. Section 3 of
article IV specifically states that, "The obligation herein
above set forth shall not be construed to in any way
abridge the right of the Employer to make such changes."
Article V of the contract binds the Respondent not to
take any action affecting conditions of employment as
defined in Section 8(d) of the National Labor Relations
Act which violate the terms of the agreement or "are
otherwise inconsistent with its obligations under law.-
In article XIX all parties acknowledged that each had
opportunity to submit proposals on "all collective bargain-
ing subjects ," and further agreed that, for the life of the
agreement, no party is obligated to bargain on any subject
not covered in the agreement or reserved therein for later
negotiation.
It is conceded by the Charging Party that the issue raised
by paragraph 10(a) is one which may be resolved under the
grievance and arbitration machinery of the contract. The
basis of the Charging Party's opposition to such disposition
is, as I understand it, that the contract does not evince a
clear waiver by the union, and that in such circumstances
the Respondent's unilateral action constituted so funda-
i Public Law 91-375, 91st Cong_ H.R. 17070, Aug. 12, 1970, 84 Stat. 719.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental an impairment of statutory policy as to make
inappropriate its private resolution. In this connection it
points to the specific language of article V.
Whether the contract is to be construed to grant the
Respondent such authority involves construction and
accomodation of the language of paragraphs III, IV, V,
and XIX of the contract, and ascertainment of the intent of
the parties as manifested in that language and, perhaps, as
manifested in the negotiations. Those are problems
peculiarly appropriate for initial arbitral disposition pur-
suant to the procedures of the agreement. In the case of
Radioear Corp., 199 NLRB 1161, a case involving the
legality of unilateral termination of a traditional holiday
bonus, the Board held, applying Collyer, that the arbitrator
should decide whether a "zipper" clause in the contract
permitted such action, and whether the committment
constituted a "clear and unequivocal" waiver by the
Union. That holding seems apposite here.
In agreement with the General Counsel and the
Respondent, I hold that the situation has been so
substantially altered by the reduction of issue since the
Board's remand order, as to make appropriate deferral of
the remaining issue pursuant to Collyer.
In summary , it being conceded that the subject of
paragraph 10(a) of the complaint is capable of being
resolved pursuant to the contract procedures, and it
appearing that resolution of that controversy is substantial-
ly dependent upon the construction of the contract, I
conclude that deferral on Collyer grounds is presently
appropriate . It is so ordered.
Section 10(a) of the complaint in Case 5-CA-5533(P) is
dismissed , reserving jurisdiction in the Board to review the
issue in accordance with the conditions generally applica-
ble in Collyer and Spielberg situations.