United States Postal Service

National Labor Relations Board - Board Decisions

May 3, 1979

241 N.L.R.B. 1253 (N.L.R.B. 1979)

12482(P)
8(a)(I)
."I
"of
Chargng
(i.e., unlawfully denied
"De-Colleryze;
Spielberg
' h r d apeciAcslly
Respondent dt-
pute grievance
&cow agreement
all parties. Genernl Gunnel aquiesccd dtmirsal
~ubject, coum, to review Spielberg M a n ~ f i ~ u r -
ing Conparry,
exhibits.=
a!leges
B ~ a r d . ~
Spielberg,
repre~entation.~
arbitrat~r.~
"beyond
'The Genernl Caunrel h u taken p i t i o n respect Chnrging
Piny's ' Sa
' Conscquendy, diwatm' a m d o n thia
w u disposed the ubittator's dctenninntion Lhat
Pnny w u discharged cause i wholly
Chnrging M y Qsc coatand her arbitrator's
respect subject tnnttn the repugnnnt
i nothiq h r d warrnnta
%me p a w Chuging Puty's arbitrator was con-
ccmed
cou* e a f d q ubitrators' decisions, upheld
oi evidentinry standards. Sa e.&, T d Terminal Enployees Smrs, Ra-
buck F.2d Cir. 1976), ckca
1253 UNITED STATES POSTAL SERVICE
United States Postal Service and Sally A. Nievelt.
Case 7-CA-
May 3, 1979
ORDER DENYING PETITION
A complaint issued in this proceeding on Decem-
ber 31, 1975, alleging that Respondent had violated
Section of the Act by denying the Charging
Party's request for the presence of a union represent-
ative at an October 18, 1975, meeting with manage-
ment concerned with certain of her alleged insubordi-
nate behavior. On June 25, 1976, the Board issued its
Decision and Order in which it granted Respondent's
Motion for Summary Judgment and dismissed the
complaint "in accordance with the desires of all the
parties herein to defer the resolution of the underly-
ing dispute herein to the parties arbitration process.
. . The Board, however, retained jurisdiction for
the limited purpose entertaining an appropriate
and timely motion for further consideration on a
proper showing that . . . the grievance or arbitration
procedures have not been fair and regular or have
reached a result which is repugnant to the Act."
It appears that the issue raised by the complaint,
along with a grievance that the Party's dis-
charge on December 1, 1975, was improper under the
applicable bargaining agreement, was submitted to
arbitration. It further appears that a hearing was held
before an arbitrator on various dates in 1976 and
1977 and that all parties were present and permitted
to participate fully at the hearing. On May 27, 1977,
the arbitrator issued his opinion and award in which
he found that Nievelt's discharge was for insubordi-
nation and was thus not in violation of the provisions
of the applicable bargaining agreement. With respect
to the subject matter of the complaint in this proceed-
ing whether Nievelt was the
services of a union steward in an interview with Re-
spondent), the arbitrator considered the evidence on
this matter and concluded that there was no infringe-
ment of Nievelt's statutory right because he found, on
the basis of credibility resolutions, that she had never
timely requested union representation at the October
18 meeting. On July 15, 1977, the Charging Party
filed with the Board her petition to
[sic] and for review, and certain related
documents. On October 25, 1977, Respondent filed a
225 NLRB 220. The there noted that the charging
party. the Union. and had agreed to submit the underlying
herein for resolution through the and arbitration procedures
of the parties' collective-bargaining agreement. of this by
of the the in the of the
complaint of limited under
I I2 NLRB 1080 (1955).
memorandum in opposition to the Charging Party's
petition with certain attached
In her petition, the Charging Party that the
"arbitration procedure was neither fair nor regular
and that the arbitrator was unduly biased and acted
in a prejudicial fashion toward the grievant, and be-
cause she had sought remedies before the National
Labor Relations Board" To the extent that the peti-
tion seeks to raise questions concerning the arbitra-
tion of the Charging Party's discharge, i t is attempt-
ing to litigate here a matter which is not part of any
unfair labor practice charge or complaint and which
is, therefore, not before this As for the claim
that the arbitrator was biased against the Charging
Party because she had initially sought relief from this
Board, there is nothing whatsoever in the petition it-
self or in the papers submitted in support of the peti-
tion to substantiate such allegation.
We have considered all of the Charging Party's al-
legations and have decided that we should, under
defer to the decision of the arbitrator. First,
the record shows that the issue of the Charging Par-
ty's request for a representative was fully litigated be-
fore the arbitrator, and that he decided the issue di-
rectly. He concluded on the basis of credibility that
the Charging Party nwer requested
Secondly, contrary to the Charging Party and to
the dissenters, the processing was regular; as required
by Spielberg, the Charging Party was accorded funda-
mental due process? Indeed, the Charging Party, who
was represented by counsel, was not improperly re-
stricted in any manner in the presentation of her case
to the Nor does the arbitrator's use of the
"clear, concise and direct" standard of proof under-
mine the adequacy of the proceeding. It is not neces-
sary, as the dissenters claim, that the arbitrator
phrase his findings in terms of judicial evidentiary
standards, such as proof a reasonable
doubt" or by a "preponderance of the evidence."' It
is sufficient that the arbitrator allowed all parties to
be heard, that he considered all of the evidence before
him, and that the hearing be conducted in proper
manner.
We have determined that the arbitral proceeding
was fair and regular on the basis of the entire record
no with to the
petition.
225 NLRB at 220.
the thnt we have "presumed" thnt
issue of by the Charging
for without foundation.
'The not in petition that the

decision with
to the of complaint was to
the Act, and there More the which such a conclu-
sion.
five of the brief to the

with such hue.

'Thus the
in have a variety
v.

and Co., 535
1072 (8th and cited therein.
241 NLRB No. 192
salely
eur
arbitration partles
aS
own
akguments
dersuasive
dnfair or
suggksting
etridentiary
CiQ C~mpany,~
needleskly
denied.9
"De-Colleryze"
'
'Membcr Truedale, war when
Dcciaion and issued this case M i s u a
SpieIberg, q r a , expreYa
deferral See concumng Kanm Ciiy Com.
PRY. w m
10
Our
msplaced.
wised
from
argJ-
rightslo
eration.
October ma11
carrier,
about mall
deliverie~.
C h
collective-
bafgaining
termination
she
October
Reglonal
the
grievance
retainedpjurisdiction
arbitration pr~cedures.~~
die-
'De-Collerym'
"Opinion
Director
proceeding.I2
lo gmmlly. Garment Qwlity Mamfmturiw ( ' 0 .
N.LR.B. Weingarfen, Im., 251 (1970.
" 225 220 noted hrd agreed "10
utilize grievance proasc," ccld
Dubo Manufiac~~nng Corpomfion. 1 ( 1 963).
'2 w was cedi.
fied wurt reporter attended Parly'a
rcquat. arbitratm Respondent coneiden d c ~ a l
transcript.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, including the pleadings and the parties'
arguments, and without reference to the unofficial
transcript which was prepared for the private
use of one of the parties. Contrary to dissenting
colleagues, we cannot rely on that document as evi-
dence at this time when it was not made an exhibit in
the Board or proceedings, and the
have not stipulated td the accuracy of its contents.
Furthermore, our dissenting colleagues are clearly
wrong in stating that the transcript is "possibly the
best, available evidence to what occurred during
the [arbitration] proceeding." The transcript itself is
the best evidence only of its existence and of its
own contents. It is at most secondary or hearsay evi-
dence as to what occurred at the arbitration proceed-
ing. Indeed, it is for purposes herein not a transcript
at all but simply one party's set of notes, however
elaborate, concerning what occurred at that proceed-
ing. Consequently, the pleadings and con-
tain the parties' most explanation of why
the arbitration proceedings should or should not be
accarded deference. From these pleadings and argu-
ments we have concluded that the Charging Party has
not shawn that the proceedings were even
that a hearing should be held on this issue. By going
beyond the official record and by the need
for a more formal standard, the dissenters
are once again, as in The Kansas Star
seeking to undermine Spielberg and the arbitral pro-
cess by substituting Board and court pro-
cedures for those traditionally used in arbitration.
Finally, the Charging Party's claim that the arbi-
trator was (for unspecified reasons) biased againsi her
is not supported by the incidents referred to in her
petition. Also there is no substantial indication of
how the arbitrator's purported bias allegedly preju-
diced the Charging Party's rights in the arbitration
proceeding. The Board having thus duly considered
the matter concludes that the Charging Party's peti-
tion is without merit and should be
ORDER
It is hereby ordered that the Charging Party's peti-
tion to [sic] and for Spielberg review
filed in this case on July 15, 1977, be, and it hereby is,
denied, as lacking in merit.
CHAIRMAN FANNING and MEMBER JENKINS, dissent-
ing:
236 NLRB 866 (1978).
who not on the Bard the underlying
Order herein views solely raising
unda and no views with respect to m y initial
to arbitration. his opinion in Star
We disagree with out colleagues' refusal to remand
these proceedings for a hearing with respect to the
Charging Party's allegation that she was compelled
attend an investigatory interview with a supervisor
without an opportunity for union representation.
colleagues' reliance on an arbitrator's finding that the
Charging Party's subsequent termination was for
"just cause" is The Charging Party has
substantial questions regarding the fairness
and regularity of that arbitration proceeding. Fur-
ther, it is evident the arbitrator's award that the
arbitrator did not give the Charging Party's
ments regarding Respondent's alleged infringement
af her Weingarten adequate or proper consid-
Accordingly, we dissent.
On 18, 1975, the Charging Party. a
attended a meeting with hey supervisor re-
garding a customer's complaints improper
deliveries. During this meeting, the Charging Party
apparently admitted responsibility for the improper
That same day she was notified that, as of
December 1, she was terminated. November 3 she
filed a grievance pursuant to the applicable
agreement, contended that her proposed
was "not for just cause." On November 7
she filed a charge with the Board, alleging that
had been compelled to attend the 18 meeting
alone despite her request to be accompanied by a
union steward. After an investigation the
Director issued a complaint on December 31. In
meantime, the was processed through the
intermediate steps; on February 2, 1976, it was certi-
fied for arbitration. On June 26 the Board granted
Respondent's Motion for Summary Judgment and
dismissed the complaint, but it
for the limited purpose of entertaining an appropriate
and timely motion for further consideration if the
grievance was not thereafter fairly and expeditiously
resolved by the contractual
Following the issuance of an arbitral award on
May 27, 1977, sustaining the Charging Party's
charge, the Charging Party fled with the Board on
July 15 a "Petition to [sic] and for
'Spielberg' Review." In addition, she filed a copy of
the arbitrator's and Award." Finally, it a p
pears that the Charging Party also filed with the Re-
gional a copy of a purported transcript of
the arbitration
See, Workers' Union v.
420 U.S. 276 (1975); v. 420 U.S.
NLRB (1976). The Bard that all parties

and be bound by the
and arbitration and
142 NLRB 43
The Charging Party that the transcript prepared by a
who had the proceeding at the Charging
Neither the nor i t to be an
alias
withdraw;13
placed
decision"
hearing.15
Admin-
11 Charging Party mteads that contained infomution
w u damaging Respondent's uw and thw w u rclevmt and n e c a
ury proar, grievance.
1' fundamental diugrmnent Boud's d l abdiu-
tion, rather than accommodation, arbitrd promr h u ban
sulcd md reatated numcrow cam. Sce, e.g.. Geneml
Tranqortatim Corporalion. 808 Electronic RqrorlLction
Service
'9 cnpmuvive cdluguer' that thk u n -
amdad beau= w u mrde an proceeding#
and p u t i a have accuracy ita urnme."
Obvio~uly, them "proceeding Board deferred
arbitration. fact that transcript w u
part ofRcial -d arbitration and p d a have
stipulated ita dou detract ita admimibility
that exists a a
Judge.16
unfair."
grievan~e'~-we
1976.19
disciplinary
spe-
l6 Cf. R Gmce 179 500. 505 (1969). where Boud
adopted a trial examiner's wmmcnt h t :
[ W b trLnrrjpt arbitration and them is
evideaa putpnu derogate a hnding swntid
fairneu proceeding, this itself may
detonninntion whether dcfmncc is aawrdcd arbiml award
k*: in record an
unfair labor practice proceeding.
"Sce Tmking cow pa^, Inc., 132
(1%1), whm Bolrd dcfcrnd a committee award despite tati-
mony h t membm committee had grievant and hi8
aritnam a "toque lashing." " Sce, generally, N.LRB. Industriu Co., US.
I' T ~ c d r l e , participate Board's
abstain adjudicating mcrlta unfair labor practice
degatiom the arbittadon belim
that Board's dcdion defer w u wrong, Thw. although rrc-
&ze Member Truedale's wjrh refrain from view
that initid defmrl, b e l i that circumunca
u r e i u u a preubitnl and ubitral &fern1 un lepmted.
Furthu. ruturc 8(aKI) unfair practice
at iuru arc d m constrained Member joins
nujority hare u -hat Grmml
Trampwtation. mp4 that "arbitraton fact arc qualified
unfair labor practia at 1, I 1 (then Qainnan
wncumng).
1255 UNITED STATES POSTAL SERVICE
In her petition, the Charging Party asserts that the
Board should not defer to the arbitration award be-
cause the arbitral proceeding was not fair and regu-
lar. She alleges, inter that during that proceeding
both the arbitrator and Respondent's counsel repeat-
edly berated and verbally abused the Charging Party,
her counsel, and her witnesses; that the arbitrator ad-
journed the proceeding when the Charging Party's
counsel refused to return to Respondent's counsel a
copy of a document which originally had been intro-
duced into evidence but which Respondent later
sought to and that top level supervisors
were present during substantial portions of the arbi-
tration, which contributed to the Charging Party's
nervous demeanor (upon which the arbitrator
considerable reliance in discrediting her testimony).
In addition, the Charging Party notes that, following
this arbitration, the arbitrator was removed, at the
Union's insistence, from the parties' permanent panel
of arbitrators.
Our colleagues' hasty and conclusional acceptance
of the arbitrator's is unwarranted. Their
conclusion that "the Charging Party was accorded
fundamental due process" in the arbitration must be
tempered by the fact that they have refused to exam-
ine possibly the best available evidence of what oc-
curred during that proceeding: the Charging Party's
transcript. Although it must be conceded that the
transcript is not official, there is no good reason for
our colleagues' failure to examine it to determine
whether the Charging Party's assertion that the pro-
ceeding was unfair can be substantiated. That is not
to say that we would consider this proffered evidence
as positive proof at this stage in the proceedings.
Rather, like an affidavit submitted in support of a
party's exceptions to a Regional Director's Report on
Objections to an election, it would be relevant only to
the question, indeed the very question before the
Board here, of whether there are substantial issues
which can only be resolved following an evidentiary
Assuming that a review of this transcript
would reveal such issues, we would then direct that
this case be remanded for a hearing before an
The the document
which to
to the
Our with the too frequent
proper to the
in prior American
228 NLRB (1977);
Corporation. 213 NLRB 758 (1974).
We And our insistence document
not be "it not exhibit in the
below the not stipulated to the of
were no below" dnce the this
ure-wrongly we believe-to The the
not nude of the of the the
not to authenticity. not from to
s h w there genuine issue for hearing.
istrative Law All parties would then have an
opportunity to present evidence regarding the fairness
and regularity of the arbitral proceeding. If the
Charging Party sought to introduce the purported
transcript into evidence, Respondent could, of course,
raise such pertinent arguments as it might have as to
its accuracy or authenticity.
Moreover, the allegations in the Charging Party's
petition, standing alone, cast doubt on the fairness
and regularity of the arbitration proceeding. We
agree with our colleagues that the arbitrator's alleged
shouting and abusive comments directed toward the
Charging Party, her counsel, and her witnesses, if
proven, would not necessarily demonstrate that the
proceeding was But in light of the Charging
Party's other allegations-particularly regarding the
arbitrator's refusal to proceed with the arbitration un-
less the Charging Party's counsel returned to Respon-
dent a document which allegedly was necessary and
relevant to processing the believe
that there are substantial questions which cannot be
resolved without a hearing.
An examination of the arbitrator's award reveals
additional grounds for declining to defer. We would
not have initially abstained from deciding this case in
In doing so, the Board panel committed to the
arbitrator a statutory question which he was not au-
thorized under the contract to decide." In Respon-
dent's 1976 Motion for Summary Judgment there was
no allegation that the collective-bargaining agreement
provided for a right of union representation at inves-
tigatory interviews with supervisors. Indeed, the con-
tract characterized "counseling" sessions
as "a private matter between the supervisor and the
employee."And the applicable arbitration clause
W. d Co., NLRB the
there is no of the proceeding
some which to From of

in the be litigated. The ultimate
of to be the
can be nude on the of evidence developed the of
Denver-Chicalp NLRB 1416, 1419
the to joint
of the joint given the
v. Acme 385 432 (1967).
Although, like Member we did not in the
decision to from the of the
pending outcome of the proceeding, we
the initial to we
to stating his with re-
spect to we & not in the of
this the of p a t be
given the of the labor allegation
herein, we to view Murphy's
the inconsistent with her position in
American in not to
decide iuua." Id. 81 fn. Mur-
phy
"[a]ll
terms
arbitrat~r."~'
detemination
Transporlation Corp., 809.U
is'born
[Tlhe
rcauirements Aareement.
matier under
corners
find,
reprding
complaining
"[tlhe represen-
" Kyrface ~ f n l d Divirion Kyrfone Cmol i I fcd I h f r i e r ,
Inc., (1975X the Bard
d u d avaihbk prmdurg
presented thh case. Administrative
rcuoned
becaw
repmentation called
r o m a diriplinary spsific~lly
precluded "amedingj, deleqingJ, aMing] proviiom
agrament."
Contrary coUeagues, a c e d them prauming
p a s d C h g i n g
dinchargal may wl-
lugua presumed had
lo. Contnry contract the
irsues law way
the tmns
agreement. demonatrated herrcrltcr. himaelf
clear an cornm
tation
fact
be
Act.% wrn-
consider
it.15
~ c & r d i n a ~ ,
dc-
Rupondent, contmdn lhrl
arbitrator dimedited Party's reprding her d.
lcged request repraenration. bowever, SUM nu
basil d i d t i n g thia issue.
collagua' usertion stm&rd d pmd
arbitrator imp& Chargiw regarding her protTerod
a r m a t ia imlevant the ubiuara's
that ia mtitkd Mmna Gmtruy
colleague* Genzml D n m s H+r3 Truck Tcnniml E&m.
Lacll120 Seam, & C o w , F.2d dolr
proporition an resolution sututory Ir
sua entitled defe- rr(udlsu ofthe standard p r d a p p l i d clw
me arbitration p r d
ex& confmn~al requiring to suppod
poeition eonrmaual dispute evidcna. Tbr
-ned language barelrun(
e x p d y specifically ubitratioa panel uticulai.
ing pr0of.r H m however, arbitrator applud
con~raclwl the Charging Jraturoy conlendon.
"elcar, conck dimc" .r(.
denee inco~istcnt md more pnpla.
dcrcuw evidtna ~tandard SCF. Iqc) Cf. P ~ I ~ I I O I ) r.
Lwiry Corp.. F.2d Dmafurville
C m n y , Inc., N.LRB., F.2d uw, ol
counc. the standard must prevail w 4.
leagues Moreover. wUeagues' d i a n a oa judicial ds~siono un-
dcr Sec. u defmna B w d awmd
arbitrd decisions meals fuadamentd misundentanding the JiITr,
cncc role a d b u d r w o l v r l y
disputes, M e m h
Truedale &c I n r c m l i d Union o / ~ m l I n # f rpr .
neerr, Local 18, (Davi~-McKu, IIK.), In, I0
'I Sa IIIinoir TeIephone Cmpany, 989
1256 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
cifically provided that decisions of the arbitrator
shall be limited to the and provisions of this
Agreement, and in no event, may the terms and pro-
visions of this Agreement be altered, amended or
modified by the Thus, in presuming that
the arbitrator's that the Charging Par-
ty's discharge was for "just cause" necessarily in-
cludes a resolution of the statutory violation of deny-
ing union representation, the majority's view is either
plainly contrary to the contract provision empower-
ing the arbitrator, or it is based on nothing more than
speculation and surmise. See also General American
supra, at
Further, that the Board's initial deferral was un-
wise out in the arbitrator's purported disposi-
tion of the statutory issue in his award. It is evident
that the alleged illegality of the October 18 meeting
was vigorously argued to the arbitrator by the Charg-
ing Party's counsel. Nevertheless, in his decision the
arbitrator observed:
arbitral process is not a creature of the
National Labor Relations Act. It is a creature of
the collective bargaining agreement by and be-
tween the parties. The fact that a matter was de-
ferred to arbitration does not enlarge or diminish
the contractual of the
Therefore this was decided the four
of the collective bargaining agreement.
He went on to relying significantly on testimony
the October 18 incident, that the Charging
Party in fact had been insubordinate in disregarding
her supervisor's instructions regarding the delivery of
mail to the customer. In passing, he
noted that issue of request for Union
In Win. of
217 NLRB 995 adopted an Administrative Law
Judge's to defer to arbitration a statutory issue
virtually identical to the one in The Law
Judge that the statutory issue did not come "within the ambit of
the arbitration provision of the contract" the wntract did not "deal
. . . in any way with the issue of union of an employee
into foreman's for action"and, the contract
arbitrators from or to
of the
to our we have not of that
the arbitrator on the Party's statutory arguments in deter-
mining that she was for cause. What we & is that our
have that the arbitrator authority under the contract
to do to this presumption, it is clear from the that
arbitrator did not have authority to resolve of public in
which might alter, amend, or modify of the collective-barpining
And. an the arbitrator made
that he viewed his authority circumscribed by "the four of
the collective-bargaining agreements."
needs some attention." Asserting that the
grievant had the burden of proving her allegations
"by clear, concise and direct evidence;" and appar-
ently finding that her direct testimony was not in it-
self sufficient," he found that "no such request for
Union representation was made."
Our colleagues apparently consider the that
the arbitrator purported to pass on the statutory issue
a signal to end their inquiry. But, as is plainly evident
from the foregoing, the arbitrator's casual disposition
of the issue through the application of a strict "clear,
concise and direct" standard of proof can hardly
deemed consistent with the Further, his
ments regarding the limits of his decisional authority
under the contract make clear that he did not view
the statutory issue as clearly before him. Thus, unlike
our colleagues, we his supposed resolution of
the statutory issue to be no more entitled to deference
than it would have been had he expressly refrained
from passing on
for the reasons stated above, we
would not defer to the arbitrator's award insofar as it
purports to resolve the Charging Party's alleged
nial of her right to be represented by a union steward
at the October 18 meeting. Rather, we would remand
this proceeding for a hearing on the merits.
in opposing the Charging Party's petition.
the the Charging statement

for union The arbitrator,

for her on

We do not accept our that the
which the on the Party

statutory to the question of whether
resolution of argument to by thia Board.
to our and
v. Roebuck
535 1072 (8th Cir. 1976).
not stand for the that arbitrator's of

is to
of by
arbitrator. Rather, the court in that held only that an
did not its authority in an employer
its in a by "clear and convincing"
wurt that "neither the of the contract nor the
history or prohibits an from
a standard [of Id at 1076. the
a standard ofproof to Party's
It cannot be disputed that the arbitrator's and
standard is with far stringent than the
of the of of the Act.
Clark 451 1291. (9th Cir. 1971); Sport-
v. 573 929 (6th Cir. 1978). In such
statutory an outcome which
thwart. our
301 indicative of the level d the should
to a of

between the
of the courts the role of the in
labor-management a distinction which we thought Mur
phy and had accepted.
AFL-CIO 238 NLRB 652.
(1978).
Bell 221 NLRB (1975).