United States Postal Service

National Labor Relations Board - Board Decisions

Jun 11, 1981

256 N.L.R.B. 502 (N.L.R.B. 1981)

502 DECISIONS OF NATIONAL LABOR RELATIONS OARD
United States Postal Service, Employer-Petitioner
and American Postal Workers Union, AFL-
CIO and National Association of Letter Carri-
ers, AFL-CIO and National Post Office Mail
Handlers, Watchmen, Messengers and Group
Leaders Division of the Laborers' International
Union of North America, AFL-CIO and Na-
tional Rural Letter Carriers' Association.' Case
5-RM-866 (P)
June 11, 1981
RULING ON ADMINISTRATIVE
APPEAL
On April 17, 1981,2 the United States Postal
Service (USPS or Postal Service) filed the instant
RM petition with the Regional Director for Region
5 of the National Labor Relations Board, seeking
an election in a unit of "all employees at facilities
engaged in mail processing and delivery." This
unit, alleged by USPS to be appropriate, consists of
an estimated 600,000 employees. The petition stated
that the current contract expires on July 20. On
April 20, USPS filed a letter in support of its peti-
tion asserting that it is now confronted with de-
mands for fragmented bargaining by four Unions 3
which represent units inappropriate for separate
bargaining and which do not conform to the
Board's criteria for appropriate units generally or
as contemplated by the Postal Reorganization Act
(PRA)4 to maintain an efficient postal service for
the United States.
On April 21, APWU and NALC filed a motion
to dismiss the petition, arguing that the petition
was filed untimely and that it failed to raise a ques-
tion concerning representation. On April 24, Mail
Handlers and NRLCA filed a motion to dismiss ar-
guing that the petition, although timely filed, failed
to raise a question concerning representation. On
April 27, the Postal Service filed its response to the
APWU/NALC motion to dismiss.
On April 30, Acting Regional Director Louis
D'Amico administratively dismissed the instant pe-
tition on the ground that, although timely filed,5 it
I In his petition, the Postmaster General deemed "N/A" the form's
question on "recognized or certified bargaining agent" but, instead, listed
the designated unions, and the National Alliance of Postal and Federal
Employees as "known to have a representative interest in any employees
in the unit described" as appropriate in the RM petition As the National
Alliance has not responded to the various documents served upon it
herein, it is omitted from the present caption.
2 Unless otherwise indicated, all dates are in 1981.
3 American Postal Workers Union, AFL-CIO (APWU); National As-
sociation of Letter Carriers, AFL-CIO (NALC); National Post Office
Mail Handlers, Watchmen, Messengers and Group Leaders Division of
the Laborers' International Union of North America, AFL-CIO (Mail
Handlers); and National Rural Letter Carriers' Association (NRLCA).
4 Pub. L. 91-375, Aug. 12, 1970, 84 Stat. 733; 39 U.S.C.A., Chapter
12-Employee-Management Agreements, Secs 1201-09
b The instant petition was filed on April 17 approximately 95 days
before the expiration of the current agreements. Sec. 1207(a) of the PRA
256 NLRB No. 95
failed to raise a question concerning representation
in that:
. . . no contention is made by the Employer
that any of the labor organizations which it
currently recognizes has lost its majority status
within the postal craft unit in which it is re-
spectively recognized. Nor is there any evi-
dence or contention that any labor organiza-
tion claims or in any other respect seeks to
represent the employees in the petitioned-for
unit.
With regard to the contention that the PRA re-
quires the Board to act on the petition, he observed
that:
. . . it does not appear that there is anything
in either the PRA or its legislative history or
the Board Rules and Regulations as well as
decisional authority which would indicate that
Congress intended the Board to alter its tradi-
tional principles in the processing of cases in-
volving postal employees.
On May 18, the Postal Service filed its request
for review and hearing contending that a question
concerning representation exists because the postal
bargaining units are inappropriate and the Unions
thus lack majority status in an appropriate unit,
that the PRA provides independent authority re-
quiring the Board to determine the appropriate unit
for collective bargaining in the postal service, and
that, at the very least, the Postal Service and the
NLRB are entitled to a hearing and the benefit of a
record. On May 18, the Postal Service also filed a
supplement to its request for review alleging a new
APWU claim to represent a single, national bar-
gaining unit consisting of four "crafts," "an amal-
gam of the four historic accidents called 'crafts."'
On May 22 and 27, Mail Handlers/NRLCA and
APWU/NALC, respectively, filed opposition to
such requests.
On the basis of the Acting Regional Director's
investigation and decision, prior proceedings in-
volving the Employer, and the submissions of the
parties, the Board, for the reasons set forth below,
has decided to deny the Postal Service's request for
review and to affirm the conclusions and ultimate
disposition of the Acting Regional Director.
provides for 90 days' notice by a party desiring to modify or terminate an
agreement as did the 1974 health care amendments. As the Board had
modified the length of the "insulated period" for collective-bargaining
agreements in health care institutions to 90 days to coincide with the 90-
day notice provision contained in Sec. 9(d)(l) and (4) of the National
Labor Relations Act (NLRA), the Acting Regional Director concluded
that, in light of the clear parallel between the time periods enacted by the
PRA and the 1974 health care amendments, the instant petition was
timely Review was not requested of this ruling. We therefore do not
pass on it.
UNITED STATES POSTAL SERVICE 503
Background
The history of bargaining between the Postal
Service and the Unions is described more fully in
the Acting Regional Director's dismissal letter, as
well as in a prior case before the Board.6 Some-
time in 1962, pursuant to Executive Order 10988,
the Post Office Department determined that appro-
priate bargaining units should be national in scope
and coincide with seven traditional "craft" lines. In
1962 and 1963, elections were held, following
which the Post Office recognized seven "craft"
unions as exclusive bargaining representatives in
national units.
In 1970, Congress passed the PRA, which ap-
plied the NLRA to labor relations in the Postal
Service "to the extent not inconsistent" with the
provisions of the PRA. Section 10 of the PRA pro-
vided for a transitional period during which the
Postmaster General and labor organizations hold-
ing national exclusive recognition rights granted by
the Post Office Department were mandated to "ne-
gotiate an agreement or agreements not later than
30 days following the delivery of a written request
therefor by a labor organization to the Postmaster
General [PG] or by the PG to a labor organiza-
tion." Such agreement was to continue in force and
effect after the reorganization as if entered into be-
tween the Postal Service and a recognized collec-
tive-bargaining representative under the PRA.
Between 1962 and 1970, four successive national
agreements were negotiated jointly between the
Post Office Department and the seven national
unions. In 1971, four of the unions merged into
APWU, and the four remaining Unions-APWU,
NALC, Mail Handlers, and NRLCA-negotiated a
joint national "interim" agreement, effective to
1973.
This pattern of bargaining, with recent excep-
tions, has continued to date, with a master agree-
ment being executed by the Postal Service and the
four national craft unions, continuing in effect sub-
stantial, separate articles relating to the respective
unions. There were in this manner successor con-
tracts in 1973 and 1975.
In 1978, NRLCA informed USPS that it wished
to negotiate a separate agreement, and did so, with
APWU, NALC, and Mail Handlers continuing to
bargain jointly and negotiate a separate national
contract. This year, 1981, USPS has been advised
by APWU and NALC that they wished to bargain
jointly with USPS on behalf of their constituents,
while the NRLCA and Mail Handlers have indicat-
° United States Postal Service, 208 NLRB 948 (1974).
? Each such agreement recognized the continued existence ofseparate
craft representation by including articles applicable only to and negotiat-
ed by each of the Unions involved.
ed they wished to "coordinate" their bargaining
and to execute separate contracts.
It is against this history of successive national
agreements formulated along "craft" lines that the
USPS now files a petition with the Board seeking
an election in a single, national 600,000-employee
unit.
Precedent
The Board agrees with the Acting Regional Di-
rector that, under existing Board precedent, there
exist no grounds for granting the USPS request for
an election in a single national unit.
The Postal Service acknowledges that "the only
issue was, and remains, whether the Postal Serv-
ice's petition raises 'reasonable cause to believe that
a question concerning representation' [QCR]
exists." As used in Section 9(c)(1) of the NLRA
and section 1203(c) of the PRA a "question of rep-
resentation" describes the circumstances which
must exist before the Board is empowered to direct
an election in an appropriate unit. Both statutes re-
quire claims or demands for recognition by a labor
organization.8 In particular, an RM petition is ap-
propriate when (1) the employer is faced with or-
ganizational or recognitional picketing without a
petitionhaving been filed, 9 (2) the employer is con-
fronted with a demand for exclusive recognition or
faced with conflicting representation demands in
the unit alleged as appropriate;'1 or (3) the em-
ployer has a good-faith doubt as to the union's con-
tinued majority support within the unit it already
represents" None of these required circumstances
is present here and the Employer does not claim
that they are. Under these circumstances, i.e., in
the absence of a claim by any union for recognition
in the 600,000-employee USPS unit, there was no
"reasonable cause to believe that a question of rep-
resentation" existed in this unit, the one alleged to
be appropriate by the Employer, and therefore the
" Congress strictly limited the reasons for which an employer could
seek an RM petition. NLRA Sec 9(c)(l)(B) and PRA Sec 1203(c)(2)
provide for "a petition . . filed, in accordance with such regulations as
may be prescribed by the Board--.. . alleging that one or more labor
organizations have presented to it a claim to be recognized as the repre-
sentative"
' Sec. 8(bX7)(C) of the NLRA
'0 The implementing regulation, the Board's Rules and Regulations,
Series 8, as amended, Sec 102.61(bX3). requires from the employer:
A brief statement setting forth that one or more labor organi-
zations have presented to the petitioner a claim to be recognized as the
exclusive representative of all employees in the unit claimed to be appro-
priate; a description of such unit; and the number of employees in the
unit [Emphasis supplied.)]
i" United States Gypsum Company, 157 NLRB 52 (1966). In such a
situation, the employer must demonstrate by objective considerations that
it has some grounds for believing that the incumbent union has lost its
majority status
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board had no basis to proceed with its investiga-
tion under Section 9(c)(1). 12
The Acting Regional Director cited several cases
to support his conclusion that, in the absence of a
claim for recognition in the unit alleged as appro-
priate by the Employer in its RM petition, such pe-
tition will not be processed by the Board. LTV
Aerospace Corporation (Range Systems Division), 170
NLRB 200, 202 (1968); The Housatonic Public Serv-
ice Company, 111 NLRB 877 (1955); Maclobe
Lumber Company of Glen Cove, et a, 120 NLRB
320 (1958). The cases so holding, many of which
were cited in the oppositions, are legion.
The Employer alleges, first, that such cases are
distinguishable because in them the existing, recog-
nized units all were deemed appropriate by the
Board. Here, the Employer contends, the existing
units never have been appropriate because they do
not constitute traditional crafts and, moreover, re-
cently have become even less appropriate because
of raiding, technological change, and other factors.
We find no merit in this contention. The Board has
never held, nor do we choose to hold here, that
merely because an existing, recognized unit may be
inappropriate for certification, an employer may
force a labor organization to an election in a larger
unit alleged to be appropriate. As we stated in Ny-
Lint Tool and Manufacturing Co., supra at 643, "To
force the Union . . . to an election in a unit which
it does not claim to represent would result, not
only in a futile act leading toward a purely nega-
tive result, but also in depriving the employees of
any opportunity to select any bargaining repre-
sentative for an entire year after the election."
In further pressing its point that its RM petition
should be entertained, USPS calls the Board's at-
tention to several cases in which, notwithstanding
the absence of an immediate present claim in the
larger unit by any labor organization,' a the Board
directed an election in the unit requested by the
employer. The cases cited by USPS are Westing-
house Electric Corporation, 144 NLRB 455 (1963);
Boston Gas Company, 221 NLRB 628 (1975); Mas-
sachusetts Electric Company, 248 NLRB 155 (1980);
and The Denver Publishing Company, 238 NLRB
207 (1978). The Postal Service urges that the type
of "practical reasoning" displayed in those cases be
applied here. However, in each of these cases, an
employer transferred employees from separate bar-
gaining units to new departments or merged facili-
ties, the different unions involved had competing
12 Bernard Klint, Grace Klint, David H. Nyberg and Emma Nyberg, co-
partners, d/b/a Ny-Lint Tool & Manufacturing Co., 77 NLRB 642, 643
(1948). See discussion of limitations of RM petitions.
Is In its opposition, APWU/NALC note that in the cases cited by
USPS there was, in fact, at least at one time, a claim by a labor organiza-
tion to represent employees in the overall unit.
claims of representation, and only an all-employee
unit could be appropriate. The merger of the units
was the tangible event triggering the need for the
RM petition. In the instant case, it is undisputed
that the four postal Unions merely have sought to
continue to represent the distinct crafts or groups
that they traditionally have represented. There has
been no recent merger of units, no substantial
change in the Postal Service's operations with re-
spect to those units, and no ongoing disputes con-
cerning which labor organizations represent the
employees within the traditional units. Moreover,
in contexts in which employees already are orga-
nized, limiting the use of an RM petition to certain
tangible events-i.e., objective evidence giving rise
to good-faith doubt of majority status or a merger
of units with resulting conflicting claims-is essen-
tial to prevent the unacceptable results identified in
Ny-Lint, supra.1 4 We therefore deem the rationale
of the four decisions relied on by USPS inapplica-
ble here.
Other Claimed Bases for Processing the
Petition
The Postal Service contends there are other rea-
sons for processing its petition, one of which is its
assertion that the "proposed union bargaining
structure" for the current 1981 negotiations is "un-
workable" and that the problems in reaching agree-
ments are "further exacerbated by the raiding cam-
paigns by two of the unions, APWU and NALC,
to win over members of the other two unions,"
Mail Handlers and NRLCA, respectively. The
APWU and NALC, which together represent ap-
proximately 500,000 of the approximately 600,000
postal employees, jointly have notified the Postal
Service that they intend to renegotiate the National
Agreement expiring at midnight on July 20, 1981.
The APWU and NALC formed a Joint Bargaining
Committee headed by NALC President Sombrotto
and APWU General President Biller. These union
representatives have met on several occasions with
the collective-bargaining representatives of the
Postal Service to establish ground rules for the par-
14 In its request for review, the Employer suggests that, should the
Board find no question concerning representation, the Board might treat
its RM petition as one seeking unit clarification. The Employer cites
Coca-Cola Bottling Company of New York. Inc., 133 NLRB 762 (1961), in
which an employer converted represented drivers to owner-operators
and alleged they were independent contractors. Finding no question con-
cerning representation the Board treated the RM petition as a UC peti-
tion and clarified that the individuals were employees. See also Brother-
hood of Locomotive Firemen and Enginemen, 145 NLRB 1521 (1964). The
Employer confesses that even it does not deem a UC petition appropriate
since, if it is correct in its argument that one overall national unit is solely
appropriate, an election would be necessary to determine the majority
bargaining representative. A UC petition is never appropriate to deter-
mine a question concerning representation, and could therefore not
achieve the single, national unit sought by the Employer.
UNITED STATES POSTAL SERVICE 505
ties' negotiations. To this end, the Joint Bargaining
Committee and the Postal Service agreed to meet
on April 22, to begin negotiations. At the same
time, as previously described, the Mail Handlers,
representing approximately 35,000 mail handlers,
and the NRLCA, representing approximately
43,000 rural carriers, notified the Postal Service
that they wish to coordinate their negotiations and
execute separate collective-bargaining agreements.
Thus, the only change since 1978 is that the Mail
Handlers has chosen to negotiate with the
NRLCA, rather than with the Joint Bargaining
Committee established by the APWU and NALC.
In the context of such demands, the Postal Serv-
ice admits that what it seeks by its RM petition is a
Board determination of:
.. a structure for postal bargaining which
has some hope of success and some reasonable
likelihood of serving both the end of maintain-
ing an efficient Postal Service for the Ameri-
can public as directed by the PRA and that of
stable labor-management relations, the primary
goal of the NLRA.
It proposes as a solution the establishment of a
single unit of "all employees at facilities engaged in
mail processing and delivery" and alleges that such
a unit includes all the employees claimed to be rep-
resented by the four labor organizations involved
in the seven "craft" units. The Postal Service al-
leges that the 15-year history of joint bargaining by
the four Unions and their seven predecessors
masked the inappropriateness of the units because
they were "de facto" one unit. However, the brea-
koff of the NRLCA in the last negotiations and the
fragmentation of bargaining proposed now, alleged-
ly, have "exposed that inappropriateness and re-
quired that it be dealt with." We disagree.
While we recognize that bargaining in the Postal
Service has its unusual and, to the USPS, perhaps
undesirable characteristics, the Employer seeks a
solution to which it is not entitled, by either the
NLRA or the PRA, through an RM petition. As
we have indicated, processing such a petition to its
logical conclusion would result in the holding of an
election in a unit which no union claims to repre-
sent. Moreover, insofar as a basis for the Postal
Service's position is the withdrawal by some of the
unions from joint or coalition bargaining, the
Board is not at liberty to remedy the situation in a
representation proceeding. Such proceedings are
designed to determine the identity of the bargain-
ing agent or agents, not the structure or pattern of
bargaining. To the extent that coalition bargaining
may have been involved, we note that while the
Board has approved'5 coalition bargaining it never
has compelled it. Furthermore, there is no evidence
that separate bargaining is unworkable beyond the
Employer's assertion that it is. Partial fragmenta-
tion occurred in 1978 and the parties reached
agreements.
Nor is there a basis for relying on the Postal Re-
organization Act as creating an independent
ground for entertaining the instant petition. The
Postal Service contends that "the PRA created
special labor-management provisions, of which unit
determination is one." This contention is based on
the fact that section 1202 stands alone, separate
from the wholesale incorporation of the NLRA in
section 1209. Section 1202 of the PRA provides:
The National Labor Relations Board shall
decide in each case the unit appropriate for
collective bargaining in the Postal Serv-
ice.
Such contention is undermined by the text of the
PRA itself, which closely tracks the language of
Section 9 of the NLRA. 1 6 The legislative history
shows that the Joint Congressional Conference
noted their intention to:
. .. leave to the National Labor Relations
Board the judgment as to what will be the ap-
propriate units for collective bargaining in the
Postal Service on the basis of the same criteria
applied by the Board in determining appropri-
ate bargaining units in the private sector.
[Conference Report, H.R. 17070, H.R. Rep.
No. 91-1363, pp. 81-82, cited in United States
Postal Service, 208 NLRB 948, 952-953 (1974).]
Congress intended that the collective bargaining in
the Postal Service be treated like any other em-
ployer under the NLRA (except for specifically
stated exceptions, such as prohibiting strikes by
postal workers and imposing binding arbitration in
the event the parties reach an impasse in collective
bargaining). Section 1202, in its amended form,
does no more than "mirror" Section 9(b) of the
NLRA. Despite the fact that section 1202 stands
separately, Congress intended only that "postal
unions which are not craft unions will have . . .
the opportunity, subject to recognition procedures by
the National Labor Relations Board, to compete
for recognition." (116 Cong. Rec. S. 12635, August
Is See General Eiectric Company, 173 NLRB 253 (1968), enfd 412 F 2d
512 (2d Cir 1969)
r Sec 9(h) reads:
The Board shall decide il each case shether, in order lt assure to
employees the fullest freedom i exercisitg the rights guarnileed by
this Act, the unit appropriate for he purposes of collectist: bargain-
ing shall he the employer unit, craft unit. plant unit, or uh-dilsion
thereof .
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3, 1970). (Emphasis supplied.) Contrary to the
Postal Service's contentions in this case, and like
the United States Court of Appeals for the District
of Columbia Circuit, "we do not read section 1202
of the PRA as mandating the NLRB to make such
a determination before representation petitions are
filed," which require determination of the unit ap-
propriate for bargaining in the postal service. Na-
tional Alliance of Postal and Federal Employees, et
al. v. Klassen, 514 F.2d 189, 193, fn. 5 (1975), cert.
denied 423 U.S. 1037.
Requirement of a Hearing
Noting that the Acting Regional Director dis-
missed its petition administratively, the Employer
contends that, at the least, it is entitled to a hearing
and the benefit of a record. In its brief, the Postal
Service alleges that it "has found well over a hun-
dred RM cases and the only ones found in which
an RM petition was dismissed without a hearing
were those cases in which the RM petition was not
timely filed." The Acting Regional Director's fail-
ure to hold a hearing, it contends, is entirely arbi-
trary and capricious.
We do not agree. Both section 1203(c) of the
PRA and Section 9(c)(1) of the NLRA provide
that the Board shall investigate a petition filed in
accordance with such regulations as may be pre-
scribed by the NLRB "and, if it has reasonable
cause to believe that a question of representation
exists, shall provide for an appropriate hearing
upon due notice." Both section 1203(c)(2) and Sec-
tion 9(c)(1)(B) provide for petitions by the Postal
Service "alleging that one or more labor organiza-
tions have presented to it a claim to be recognized
as the representative."
The Employer's petition failed to comply with
these statutory requirements, and with the imple-
menting regulation. See footnote 10, supra. It there-
fore was defective in that it merely sought to have
the Board determine the appropriate unit without
regard to the admitted lack of any claim for recog-
nition in the unit alleged by the Employer to be ap-
propriate.
The NLRB Casehandling Manual, Part Two,
Section 11010.4, provides for preliminary investiga-
tion of representation cases and authorizes dismissal
if the petition is not withdrawn "where no repre-
sentation question affecting commerce exists." In
these circumstances, "[n]either hearing nor consent-
election possibilities should be explored .... "
Section 102.71 of the Board's Rules and Regula-
tions, supra, also provides for dismissals of petitions
without hearings. Such administrative dismissals
are routine but typically are unpublished.
Conclusion
The Employer here requests the Board to hold a
hearing and possibly to conduct an election in cir-
cumstances which would be contrary to precedent
and also not mandated either by provisions of the
National Labor Relations Act or the Postal Reor-
ganization Act. Moreover, such a hearing, if con-
ducted, would consume many days, weeks, or even
months, at a time when the parties' current collec-
tive-bargaining agreement is about to expire. The
conduct of an election in the entire postal service
would entail the balloting of approximately 600,000
employees, a task of mammoth proportions which
the Board of course would undertake in appropri-
ate circumstances. We find no such circumstances
to be present here. Despite the scattered raiding al-
leged by the Employer to have occurred among
some of the incumbent unions, the documents filed
by the Employer demonstrate that it does not truly
question the representative status of the various
unions in the long-established units. Even accept-
ing, arguendo, the allegations of the Employer per-
taining to the inappropriateness of the existing bar-
gaining units or the unworkability of the present
bargaining structure, we find the Acting Regional
Director's dismissal of the Employer's RM petition
to have been proper and required. Accordingly, we
affirm his action and deny the Employer's request
for a review.
MEMBER JENKINS, concurring:
For the reasons expressed by the Acting Region-
al Director in his attached dismissal letter, I would
deny review without further comment, as is our
usual course in such cases.