United States Postal Service

National Labor Relations Board - Board Decisions

May 10, 1974

210 N.L.R.B. 560 (N.L.R.B. 1974)

M0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and New Haven, Conn.
Local, American -Postal - Workers Union,- AFL-
CIO. Case 1-CA-8858(P)
May 10, 1974
DECISION AND ORDER
On October 12, 1973, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
Counsel for the General Counsel filed exceptions and
supporting briefs. Respondent filed an answering
brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety except that jurisdiction is
retained as detailed in said recommended Order.
MEMBERS FANNING AND JENKINS, dissenting:
If ever a case revealed the quagmire of legal
technicality and nice distinction to which the
Collyer2 policy of deferral has led it is this case. In
Collyer and its progeny our colleagues repeatedly
assert the principle that a close examination of the
relationship between the parties is highly relevant to
the question of whether deferral is appropriate. In
United Aircraft Corporation, 204 NLRB No. 133, for
example, the majority stated that 'iwihere the facts
show a sufficient degree of hostility, either on the
facts of the case at bar alone or in the light of prior
unlawful conduct of which the immediate dispute
may fairly be said to be simply a continuation, there
is serious reason to question whether we ought to
defer to arbitration."
In much the same vein in Joseph T. Ryerson & Sons,
Inc., 199 NLRB 461, our colleagues appeared to
accept the proposition that deferral is not appropri-
1 We do not find it necessary to respond to those portions of the dissent
which merely once again reiterate our dissenting colleagues' continuing
frenetic unhappiness with our Collyer policy, despite its approval by every
reviewing court which has had an opportunity to pass upon it. To the extent
that the dissenters base their views on Joseph T Ryerson & Sons, Inc, 199
NLRB 461, we note that the contentions of General Counsel based on that
case were carefully and exhaustively considered by the Administrative Law
Judge, and we concur in his analysis. As he pointed out, the record
demonstrates the existence of a workable and freely resorted to grievance
procedure, and evidences no hesitation or reluctance by Respondent to
adhere to and comply with the grievance and arbitration provisions of the
ate when the unlawful acts alleged in the complaint
strike at the very foundation of the grievance and
arbitration procedures. Thus, for example, where an
employer threatened reprisal against an employee
because of his participation in the grievance proce-
dure sanctioned by the contract, the majority refused
to defer the matter to arbitration. North Shore
Publishing Co., 206 NLRB No. 7. In deferring this
case to arbitration, our colleagues now ignore these
principles.
The Administrative Law Judge recommended
deferral here largely on the basis of his reading of the
decision in United Aircraft, supra. In that case,
despite allegations of company harassment and
discrimination against employees because of their
activities as union stewards, the Collyer majority
deferred to arbitration. In so doing, they stressed the
importance of their finding-a finding with which we
disagreed-that there was both "effective" dispute-
solving machinery available to the parties and little
evidence of company hostility to the use of that
machinery.
Although he made mention in passing of the
factual differences between the instant case and
United Aircraft, the Administrative Law Judge failed
to address himself in any real way to the legal
significance of these differences. Instead, he content-
ed himself with the bare-bones conclusion that
United Aircraft provides a "rationale" for deferral
here. He also ignored the ample record evidence that
the Employer's conduct, while directed most immedi-
ately against an individual steward, was calculated
ultimately to restrict employee access to the griev-
ance procedures established by the contract. It is
these conclusions, unsupportable if our colleagues'
prior statements have any meaning, which our
colleagues now adopt.
In United Aircraft, the majority stressed the size of
the company work force of over 40,000 as well as the
number of company facilities at which unlawful
practices allegedly occurred. It was in this context of
a large and scattered employee population that the
majority professed to find no "pattern" of continuing
unfair labor practices. As for other evidence of
company hostility to unions and to the realities of
collective bargaining, the majority suggested that the
alleged misconduct was largely the responsibility of a
parties' agreement We are at a loss to understand how our colleagues can
conclude that Respondent has "rejected the grievance -arbitration proce-
dure" when the record evidence shows that it has been successfully utilized
in the processing of 275 grievances during the time the Charging Party has
been a steward As is our policy, however, and as the Administrative Law
Judge below noted , we shall retain jurisdiction for Spelberg review purposes
against the possibility that those procedures should go awry to dtie
particular case or should not reach a result consistent with the poBas of
our Act.
S Colyer Insulated Wire, 192 NLRB 837.
210 NLRB No. 95
UNITED STATES POSTAL SERVICE 561
few "first-level" supervisors. Our colleagues coun-
seled that such "occasional first-level misconduct" is
not necessarily enough to show an employer's
"disinclination" to accept and honor his contract
commitment to collective bargaining.
The present case , like United Aircraft, involves
allegations of a persistent management campaign of
harassment and intimidation of union stewards. This
case , however, involves alleged misconduct at a
single facility employing approximately 1,700 people
and at which grievance and arbitration procedures
were established only in early 1972. Furthermore,
most of the conduct complained of here was initiated
not by "first-level" supervisors but by Postmaster
Maloney, the highest management official at the
facility. As even the Administrative Law Judge
acknowledges in his Decision, if the matters alleged
in the complaint are true, then as regards at least the
employees on Steward Jamilkowski's shift, "the
means of processing grievances are effectively cut off
Furthermore, the record here hardly indicates a
stable or harmonious relationship between the
parties. Although this is the first unfair labor practice
involving this particular post office to be processed
to complaint, approximately a year ago the Union
filed charges alleging in substance identical unlawful
conduct by management. These earlier charges were
withdrawn only after an informal settlement by
management . Steward Jamilkowski testified, howev-
er, that following this settlement he was warned by a
foreman that management was still "out to get" him
and other union stewards.3
We believe that even a cursory examination of the
record evidence supports the Charging Party's
contention that this dispute is simply an outgrowth of
Postmaster Maloney's continuing determination to
"get" Steward Jamilkowski and thereby restrict
employee access to the grievance procedures estab-
lished by the contract. Maloney himself testified to
his "concern" over Jamilkowski's involvement in the
filing of grievances. He acknowledged that he took
this into account in suspending Jamilkowski.4 Final-
ly, he admitted that in deciding to "postpone" and
then to "reinstate" the suspension he was motivated
by his desire to establish a more "favorable" labor-
management relations climate on Jamilkowski's
tour.5
Postmaster Maloney's letter of February 7, 1973,
one of three letters sent to Jamilkowski and alleged
by the General Counsel to be violative of Section
8(a)(1), probably best illustrates Maloney's version of
a "favorable" labor relations climate. In the letter,
even while acknowledging the merit of the particular
grievance that was the ostensible subject of the letter,
Maloney described Jamilkowski 's alleged encourage-
ment of the grievant in filing as "certainly not
conducive to good labor-management relations."•
Apparently, insofar as Maloney was concerned,
"good" labor-management relations exist only when
union stewards like Jamilkowski cease filing griev-
ances on behalf of employees. Compare, North Shore
Publishing Co., supra.
As we have elucidated elsewhere the reasons for
our disagreement with the Collyer policy of deferral
we see no need to restate them here . Accordingly, we
will content ourselves with the observation that in
affirming the Administrative Law Judge's Decision
the majority has chosen to ignore the facts of record
which clearly show that the Respondent has not
accepted the basic realities of collective-bargaining
but rather has rejected the grievance-arbitration
procedure which is an essential part of any collective-
bargaining agreement. In deferring, the majority has
once again demonstrated that its Collyer doctrine is
nothing more than a device for avoiding our duty
under the Act. We would remand this case to the
Administrative Law Judge to make credibility
findings and to issue a Supplemental Decision on the
merits.
3 According to the Charging Party Steward Jamilkowski aroused
management's enmity by his diligence in assisting employees on his tour in
filing grievances . The Administrative Law Judge took note of the number of
grievances filed on Jamilkowski 's shift by way of buttressing his conclusions
that the grievance procedure was open and effective and that there was no
employer hostility to its use . We confess our astonishment at learning that a
steward's diligence in performing his duties , even in the face of an alleged
employer campaign of harassment and intimidation , can be used as
evidence of a lack of employer hostility to unions and to the use of the
grievance procedure.
4 Jamilkowski was ostensibly suspended for remarks he allegedly made
to Foreman Giulietti during the course of a first-stage grievance meeting.
The Administrative Law Judge's Decision erroneously indicates that the
remarks were contemporaneous with Giulietti 's order to Jamilkowski to
raise his seat.
5 On the whole Maloney 's testimony is marked by evasiveness and
convenient lapses of memory For example, he initially testified that in
suspending Jamilkowski he had merely acted on Foreman Giulietti's report
and recommendation. When the 13-day lag between the report and his
signing of the suspension was pointed out he testified that he "assumed" he
had investigated Jamilkowski 's conduct. Later , he acknowledged refusing to
retract the suspension even at Giulietti's request that he do so . Finally, he
testified that Jamilkowski 's position as union steward had a bearing on the
decision to "postpone" the suspension since 'Jilt was directly involved in
the climate that I as a manager was trying to establish."
6 In the other two letters , both of which also ostensibly dealt with
particular employee grievances, Maloney warned Jamilkowski that "solicit-
ing" grievances or "interfering" with personnel assignment would not be
tolerated
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Ju e:
Upon a charge filed on February 6, 1973, an amended
charge filed on March 28, 1973, and a second amended
charge filed on April 9, 1973, by New Haven, Conn. Local,
American Postal Workers Union, AFL-CIO, herein called
the Union or the Charging Party, the Regional Director for
Region 1 of the National Labor Relations Board, havin
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Board, issued a complaint on May 11, 1973, on
behalf of the General Counsel of the Board against United
States Postal Service, herein called the Postal Service or the
Respondent, alleging violations of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, herein
called the Act. In its duly filed answer, the Postal Service,
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Pittsburgh, Pennsylvania, on June 19, 20, and 21,
1973. All parties were represented and were afforded full
opportunity to be heard.
At the outset of the hearing, counsel for the Postal
Service made two motions. The first was directed to
paragraph 5(c) of the complaint which alleged that the
New Haven, Connecticut, postmaster, Donald M. Malo-
ney, in a letter dated February 7, 1973, to Chief Steward
Thomas Jamilkowski, threatened and coerced Jamilkowski
in the performance of the latter's duty as a steward of the
Union in violation of Section 8(a)(1) of the Act. Counsel
for the Postal Service argued that the statement was a
protected statement within the meaning of Section 8(c) of
the Act.
The second motion made by counsel for the Postal
Service was that, in accordance with the terms of the
collective-bargaining agreement between the Union and
the Postal Service, the matters alleged in the complaint
should be deferred to the grievance and arbitration
procedures of the said collective-bargaining agreement in
conformity with the Board's policy as established in Collyer
Insulated Wire Co.' Deferral had also been raised as an
affirmative defense in the Respondent's answer to the
complaint herein.
After hearing argument of counsel for all parties, the
motion to defer to arbitration and the motion to dismiss
paragraph 5(c) of the complaint were, themselves, deferred
because, in my opinion, at that stage of the proceeding,
there were insufficient facts before me upon which it could
be decided whether the Respondent's motions had merit. It
was therefore ruled that sufficient record on the merits
should be made to enable me to gain a more comprehen-
sive view of the facts and the issues in order to make ruling
on said motions.
Thereafter, as noted above, counsel for the General
Counsel developed the record to the extent of completing
her case subject to calling one possible additional witness.
Thereupon, counsel for the Postal Service renewed the two
motions made at the outset of the hearing and I adjourned
the hearing sine die to enable the parties to submit
memoranda of points and authorities with regard to the
issues raised by the motions in the light of the record as it
had been developed up to that point.
Pursuant to the said ruling, the parties thereafter
submitted memoranda as noted. After due consideration
and after a review of the Collyer line of cases then extant, I
issued an order on July 18, 1973, denying the said motions
of counsel for the Postal Service. Thereafter, by motion
dated July 25, 1973, counsel for the Postal Service moved
for reconsideration of the order denying the Postal
Service 's motion to dismiss, said motion for reconsidera-
tion being based on the decision of the Board in the case of
United Aircraft Corporation, 204 NLRB No. 133, which had
not been considered by any of the parties on the original
motion, because that case had not been published at the
time of the denial of the Respondent's motions . Thereafter
counsel for the General Counsel and counsel for the Union
submitted written opposition to the motion for reconsider-
ation.
Upon consideration of the entire record herein , including
the various posthearing motions , orders, and motion for
reconsideration , and upon my observation of each witness
appearing before me at the hearing herein , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent provides postal service for the United
States of America and operates various facilities through-
out the United States in performance of that function,
including the facility involved in this proceeding, the
United States Post Office located on Church Street, New
Haven, Connecticut. It is conceded and I find that the
Board has jurisdiction over the Respondent in this matter
by virtue of the Postal Reorganization Act, 39 U.S.C., Sec.
101, et seq. (herein called the PRA).
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the
National Labor Relations Act and within the meaning of
the PRA.
III. BACKGROUND, PLEADINGS, AND ISSUES
The complaint, in substance, alleges that the Respondent
through its supervisors and, in particular, the postmaster of
the New Haven Post Office, by memoranda written to
Thomas Jamilkowski, the chief steward on Tour I of the
Brewery Street Terminal of the New Haven Post Office,
threatened and coerced Jamilkowski in the exercise of his
Section 7 rights and the Section 7 rights of other employees
of the Post Office and, furthermore, did threaten to
suspend and finally did suspend Jamilkowski for 3 days in
retaliation for Jamilkowski's protected activities as chief
steward, in filing grievances with his immediate superior,
Tour Foreman Dominic L. Giulietti. The answer filed by
the Respondent denies the import of the memoranda or
letters and, in substance, alleges that they constituted free
speech within the meaning of Section 8(c) of the Act and
were not in any manner coercive or interfered with the
Section 7 rights of the employees. In addition, the answer
alleges that the suspension of Jamilkowski was for cause
and was not in retaliation for Jamilkowski's engaging in
protected union activity. By way of affirmative defense the
Respondent contends that the issues raised by the
complaint involve interpretations of the collective-bargain-
ing agreement between the Respondent and the Union and
that said matters should be resolved through the grievance
1 See Collyer Insulated Wire, 192 NLRB 150.
UNITED STATES POSTAL SERVICE 563
and arbitration procedures provided in the said collective-
bargaining agreement. As noted above, at the outset of the
hearing herein , counsel for the Respondent moved that the
entire matter be deferred to the grievance and arbitration
procedures of the collective-bargaining agreement and that
the complaint be dismissed for that reason. Additionally,
the argument was made by counsel for the Respondent
that although Jamilkowski was suspended, after a griev-
ance was filed following the suspension, and pursuant to
discussions between the parties under the arbitration and
grievance procedures, Jamilkowski's loss of pay was fully
restored and, accordingly, he suffered no loss by reason of
his suspension.
Counsel for the General Counsel argues, in substance,
that the arbitration proceedings did not fully satisfy the
requirements of the Act in that they did not remedy and
could not remedy the violations alleged in the complaint
inasmuch as the complaint alleges that Jamilkowski was
punished for using the grievance procedures of the contract
and, therefore, those procedures should not here be
pursued because the unlawful acts of the Respondent go to
the very heart of those procedures and actually are
designed to prevent access thereto. Accordingly, counsel
for General Counsel contends that only a Board cease-and-
desist order can remedy the situation, and this is so even
though Jamilkowski has already been made whole for the
pay he lost by reason of his suspension.
Thus the issues are set forth as follows:
1. Did the Respondent's letters or memoranda to
Jamilkowski constitute interference with Jamilkowski's and
other employee's Section 7 rights and thereby violate
Section 8(a)(l) of the Act?
2. Was Respondent's suspension of Jamilkowski for 3
days retaliatory and, therefore, discriminatory or was
Jamilkowski suspended for cause?
3. Should the entire matter involved herein be deferred
to the grievance and arbitration procedures of the
collective-bargaining agreement between the Charging
Union and the Respondent?
In order to resolve these issues, it is necessary to recite
some of the facts leading up to the memoranda given to
Jamilkowski by the New Haven postmaster and to his
suspension.
IV. THE FACTS
A. The Applicable Provisions of the Bargaining
Agreement
Article XV, Grievance Procedure , defines the right to
grieve as follows:
When an employee covered by the terms of this
Agreement or the Union believes that the Employer
has violated the terms of this Agreement and that by
reason of such violation his or its rights arising out of
this Agreement have been adversely affected, the
employee or Union shall be required to follow the
procedures set forth below in presenting the grievance.
Section 2 of article XV sets forth a four-step grievance
procedure beginning with employee discussion of his
complaint with his immediate supervisor and ending with a
meeting between the Postal Department representatives
and national representative of the Union on a national
level. If after all of these steps the parties are not able to
resolve the grievance, the Union is given the right to refer
the grievance to a panel of arbitrators.
Article XVI of the bargaining agreement provides for the
discipline procedure which the Postal Department may
impose upon employees. The pertinent paragraphs read as
follows:
No employee may be disciplined or discharged except
for just cause such as, but not limited to, insubordina-
tion, pilferage, intoxication (drugs or alcohol), in-
competence, failure to perform work as requested,
violation of the terms of this agreement, or failure to
observe safety rules and regulations. Any such discipline
or discharge shall be subject to the grievance arbitration
procedure provided for in this agreement, which could
result in reinstatement and restitution, including back-
pay.2
The balance of the section is concerned with the various
types of discipline which the Employer may impose
pursuant to the contract terms depending upon the type of
misconduct with which an individual employee may be
charged.
Article XVII, Representation, provides that stewards
may be designated for the purpose of presenting and
adjusting grievances. That article also provides the number
of stewards which can be appointed in accordance with the
number of employees engaged at each Post Office or
subdivision thereof. The article also sets forth the rights of
the steward to represent employees during working hours
and to present grievances at that time.
The foregoing recited paragraphs of the National
Collective Bargaining Agreement represent the contractual
context under which the alleged unfair labor practices
herein arose.
B. The Events
As stated above, Thomas H. Jaimlkowski, a clerk on
Tour I at the Brewery Street terminal, is the chief steward
on that tour, which has one other steward. Jamilkowski has
been steward since the adoption of the grievance proce-
dures on February 13, 1972. From that date until the date
of the hearing herein, Jamilkowski has participated and
been involved in approximately 275 grievances. From the
record as it developed, it is evident that most, if not all, of
these grievances Dominic L. Giulietti. The record does not
reveal how many of these involved the actions or activities
of the tour supervisor, Foreman grievances were meritori-
ous, how many were disposed of at the first stage of the
grievance procedure, or how many of them went beyond
that stage even up to arbitration at the national level. At
any rate, it is evident from the testimony not only of
Jamilkowski but of other General Counsel witnesses that
the relationship between Giulietti and a number of the
employees on the shift was not harmonious during the
2 Emphasis supplied
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period covered by the collective-bargaining agreement.
Whether this was due to fault of the individuals involved in
the grievances, the stewards, including Jamilkowski or
Giulietti, is not pertinent at this time. However, there were
certain incidents which resulted in thletters of reprimand
sent to Jamilkowski by Postmaster Maloney upon reports
given to Maloney by Giulietti and which also led to
Giulietti's recommending to the Postmaster that Jamilkow-
ski be suspended for 3 days.
Because it is the gravamen of the complaint and the
contention of counsel for the General Counsel that it was
Jamilkowski's forceful presentation of certain grievances
which led to these incidents which allegedly constituted
unfair labor practices, it is necessary to briefly touch on
each of these incidents.
Some time during the Christmas rush of 1972, Postal
Clerk Betty Clark volunteered to work on the pouch table,
contrary to what Jamilkowski contended was union policy
not to volunteer. Because of this, Jamilkowski filed a
grievance which went through the second step of the
grievance procedure to the Postmaster who, on January 26,
1973, sent to Jamilkowski a letter denying the grievance.
That letter contained a statement that Jamilkowski had no
right to advise any clerk not to accept an assignment; that,
when an employee volunteers to accept an available detail
or assignment, "We will not tolerate the interference of any
steward or any other employee who attempts to dictate the
assignment of personnel." It was this statement in this
letter which the complaint alleges was a violation of
Section 8(a)(1) in that it interfered with the rights of
Jamilkowski and other employees to engage in union or
concerted, protected activity.
On January 24, 1973, clerk Robert A. Celone was
ordered by Foreman Giulietti to push a heavily loaded
skid. Janulkowski contended to Giulietti, on behalf of
Celone, that Celone should not have been required to push
the skid because the skid was too heavy and Celone could
have been injured. Evidently, Giulietti reported this matter
to the postmaster contending that Jamilkowski had
attempted to persuade, indeed coerce, Celone to file a
grievance. Accordingly, on January 30, Postmaster Malo-
ney sent a memo or letter to Jamilkowski in which he
stated that it was reported to Maloney that Jamilkowski
stated that no employee should be required to push a skid
at any time. Maloney stated in this letter that such a
decision is not within the authority of the steward but
solely within the authority of management. Then, Maloney
went on to state that it was alleged to Maloney that
Jamilkowski attempted to coerce Celone into filing a
grievance . Maloney then stated that "This type of action is
certainly not conducive to good labor-management rela-
tions and is dangerously close to violation of the National
Labor Relations Act. If you believe that local management
will continue to tolerate the practice of soliciting griev-
ances and the harassment which results, you are mistaken.
I will take whatever action may be necessary to correct the
situation." The complaint alleges that this letter and this
statement was a second attempt on the part of Maloney to
violate the Section 7 rights of Jamilkowski and other
employees in violation of Section 8(a)(1) of the Act. It
should be noted, in connection with all of the foregoing,
that it was admitted by Jamilkowski that, during the
discussion with Giulietti with regard to this incident,
Giulietti promised that he would attempt to secure a tow
motor to move the skid in future situations. A formal
grievance was never filed by reason of this promise.
A third incident involved a dispute between Clerk Joseph
0. Spellman and Foreman Giulietti. On the night of
January 29, 1973, Spellman reported for work and found
that his partner, the clerk who usually sorted the mail with
him at his particular station, had not arrived. Without
going into the details of the work which these employees
normally performed, it is sufficient to state that Spellman
had to perform the work without the help of an assistant.
Quite naturally, according to Spellman , he was unable to
perform the volume of work that was normally performed
by two individuals, and at one point, thereafter, Foreman
Giulietti came to him and told him that if the mail did not
get out he was going to hang Spellman . Step 1 of the
grievance procedure, which was filed by Jamilkowski on
behalf of Spellman, stated that the remark attributed to
Giulietti was "If they hang me for not getting this mail out,
I'll hang you." At the second stage of the grievance
procedure , the postmaster sustained the grievance and
found that the remark by Giulietti was out of order. In his
memorandum to Jamilkowski dated February 7, 1973,
Maloney informed Jamilkowski of this but stated further
"On the other hand, the supervisor's report alleges that you
encouraged the filing of the grievance . This is certainly not
conducive to good labor-management relations." The
complaint alleges that these last two sentences above
quoted constituted coercion, interference , and restraint in
violation of Section 8(axl) of the Act.
The foregoing three instances and the letters sent by
Maloney to Jamilkowski are the only three instances of
8(a)(1) violations alleged in the complaint.
The allegation of discrimination in violation of Section
8(a)(3) of the Act involves the suspension of Jamilkowski
for 3 days. This arose out of an incident involving
Jamilkowski himself as the individual who allegedly was
improperly treated by Giulietti. The incident occurred on
the night of March 4 or 5, 1973. Giulietti and Jamilkowski
had evidently had some words while Jamilkowski was "off
the clock," which meant he was on a break. When
Jamilkowski returned to work after the break, he was
working at an area known as the "first class flat cases." In
doing this work, the mail sorter or clerk sits on an
adjustable seat which has several notches so that the seat
can be lowered or raised according to the clerk's needs in
order to reach the various compartments in which the mail
is to be placed in sorting. After Jamilkowski returned to his
place of work, and was sorting mail, Giulietti came up to
him and told him to raise his seat. Jamilkowski, according
to his own testimony, felt that Giulietti was "picking on
me" because of the earlier argument and because Jamil-
kowski was steward. At any rate, the argument over the
seat raising became quite heated and at one point,
according to the report written by Giulietti to Postmaster
Maloney, Jamilkowski raised his voice and stated to other
employees who were nearby words to the effect of "how
many times do I have to tell you idiots that there are no
production standards." According to the Respondent,
UNITED STATES POSTAL SERVICE 565
these remarks were made in the middle of the work floor
and in a tone designed for all employees to hear the
steward 's defiance of Supervisor Giulietti's authority.
Jamilkowski, in testifying, denied making any such
statement and gave a different version of the conversation.
However, in any event, Giulietti recommended to Maloney
that Jamilkowski be suspended for 3 days. Jamilkowski
was given notice of a suspension which notice was then
retracted upon Giulietti's request to Postmaster Maloney
and, then finally after a period of time, was given a second
notice of suspension, and was actually suspended for 3
days without pay.
Sometime thereafter, after Jamilkowski's filing of a
grievance over the matter of his suspension, the Union and
the Respondent, outside the grievance procedures, reached
a mutual agreement whereby Jamilkowski' s suspension was
revoked and Jamilkowski was paid for the 3 days during
which he was suspended. It is this suspension which is
alleged in the complaint to have been a violation of Section
8(a)(3) upon the theory that Janulkowski, a union steward,
was discriminated against, for his protected, concerted
activities. Respondent, of course, stated that Jamilkowski
was suspended for cause in telling all of the other
employees in his capacity as steward that there were no
such things as work standards in the post office.
The foregoing briefly states what is involved in the entire
proceeding as alleged in the complaint and as framed by
the pleadings. Of course, as in most cases, there are
credibility resolutions to be made as to whether or not any
of the remarks attributed to Jamilkowski or to Giulietti or
to others were actually made. However, in view of my
disposition of this proceeding, I do not find it necessary to
resolve these credibility issues.
V. THE ISSUE OF DEFERRAL-THE CONTENTIONS,
DISCUSSION, AND CONCLUSIONS
As previously noted, couneel for Respondent moved at
the outset of the hearing and in the Respondent's answer to
dismiss the complaint and to defer the matters hereinabove
set forth to the grievance and arbitration procedures
provided in the collective-bargaining agreement between
the Respondent and the Union. At the hearing and in his
original submission in support of his motion, counsel for
the Respondent based his motion on the Board's Collyer
doctrine and the line of cases following Collyer which
expanded upon the Collyer doctrine to permit the deferral
of matters involving violations of Section 8(a)(l) and (3) of
the Act as well as those involving refusals to bargain in
violation of Section 8(a)(5). Counsel for the General
Counsel and counsel for the Charging Union argue, in
opposition to counsel for the Respondent, that the matters
herein cannot be deferred to arbitration by reason of the
fact that the allegations of the complaint and the matters
under consideration involve the alleged threats to a union
steward for carrying out his duties as such steward and a
suspension of the steward in violation of Section 8(a)(3) for
the same reason. They further argue that by reason of this
the very access of employees to the grievance and
arbitration procedure of the contract was being attacked
by the Respondent and rely in support of their argument
upon the rationale of the Board in the case of Joseph T.
Ryerson & Sons, Inc, 199 NLRB 461, in which case the
Board held that alleged violations involving restrictions
upon steward access to the grievance procedure "bite at the
very heart of the grievance arbitration procedure" and
therefore are not deferrable. Moreover, counsel for the
General Counsel and the Respondent further argue that
deferral is inappropriate in this case because there is no
specific contractual provision which would permit a
contractual resolution of the 8(a)(l) issues involved.
On the other hand, in support of the Respondent's
contention that the matters herein be deferred to arbitra-
tion, Respondent's counsel cited National Radio Company,
198 NLRB No. 1, in which the Board deferred 8(a)(1), (3),
and (5) allegation3 relating to an employer's restrictions on
the movement of union representatives throughout the
plant to resolve grievances and the discharge or suspension
of the main u-uon representative for refusal to comply with
the employer's rules in this regard. Counsel for Respondent
also cited the case of Todd Shipyards Corp., 203 NLRB No.
20, in which the Board sustained the Administrative Law
Judge's Decision deferring a matter concerning the alleged
violation of Section 8(a)(1) of the Act whereby a supervisor
threatened to physically assault a union steward if the
union steward entered a certain area of the plant, allegedly
for the purpose of carrying out his duties as steward. Both
of these cases involved, to a great degree, the rights of
stewards to perform their duties as against the right of the
employer and the employer's supervisors to regulate the
operations of the particular plant involved. These matters
involved, also to a certain extent, interpretations of various
portions of the collective-bargaining agreements between
the employers involved and the unions with whom they
had contractual relationships.
Upon consideration of all of the arguments and of the
submissions of the parties, and upon close scrutiny of the
bargaining agreement between the Respondent and the
Charging Union herein, and after giving due consideration
to the testimony presented by the counsel for the General
Counsel, I arrived at the conclusion that the instant case
falls somewhere between the Ryerson case on one hand and
the National Radio Company and Todd Shipyards Corp.,
cases on the other. Accordingly, the conclusion was
reached that the best way to resolve all of the issues
presented was to complete the hearing of the case, decide
the matter on the merits, or defer after completion of the
entire hearing, and then give access to the parties to file
such exceptions as they found necessary for the Board's
ultimate disposition of the question of deferral. By reason
of this conclusion, an order was issued by me on July 18,
1973, denying the Respondent's motion to dismiss the
complaint and to defer and ordering the hearing to be
continued.
However, unknown to me and to the parties as of the
date of that order, the Board had issued on or about July
15, its decision in the case of United Aircraft Corporation,
204 NLRB No. 133. Upon the publication of the Board's
decision in United Aircraft Corporation, supra, counsel for
the Respondent made a motion for reconsideration of the
order of July 1S denying the Respondent's original motion
to dismiss the complaint and to defer to the grievance and
arbitration provision of the bargaining agreement between
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties. Thereafter, an order to show cause why the
motion for reconsideration should not be granted was
served on counsel for the Respondent and counsel for the
Charging Union and thereafter they timely filed written
opposition to the motion for reconsideration.
Counsel for the Respondent, in effect, argues that United
Aircraft Corporation overrules Ryerson, supra, and that,
therefore, whatever impediment existed to the deferral of
the matters involved in this proceeding by reason of
Ryerson are now removed and, accordingly, the original
motion to defer should be granted. Although I do not agree
that the Board either specifically or sub silentio overruled
its Ryerson decision in United Aircraft Corporation, I do
find that there is merit in the Respondent's argument that
United Aircraft Corporation does provide the rationale upon
which all of the matters presented in the instant case
should be deferred. It is true that in all of the cases
following Collyer and, particularly, even in United Aircraft
Corporation, the Board has maintained that "an explora-
tion of the nature of the relationship between the parties is
relevant to the question of whether in a particular case we
ought or not defer contractually resolvable issues to the
parties own machinery. Where the facts so show a
sufficient degree of hostility, either on the facts of the case
at bar alone or in the light of prior unlawful conduct of
which the immediate dispute may fairly be said to be
simply a continuation, there is a serious reason to question
whether we ought to defer to arbitration." The Board then
evaluated the facts of the case and concluded that there
existed no such hostility or prior unlawful conduct which
would preclude the deferral to the grievance and arbitra-
tion procedures of the collective-bargai{::aig agreement
between United Aircraft and the charging union in that
case.
In United Aircraft Corporation the basic complaint was
that the company harassed and discriminated against shop
stewards in violation of Section 8(a)(1) and (3) of the Act
and that the company violated the union's representation
rights by failing to give timely notice of layoffs and by
refusing to supply information necessary for the handling
of merit rating grievances in violation of Section 8(a)(5) of
the Act. The facts of the case showed, after a full hearing,
that the United Aircraft had enforced, or threatened to
enforce, plant and security rules more vigorously against
shop stewards than against other rank-and-file employees;
suspended and otherwise discriminated against shop
stewards because of their activities in processing griev-
ances; threatened to discipline employees for requesting to
be represented by shop stewards; and refused to deal with
shop stewards concerning merit rating grievances and even
went so far as to refuse shop stewards permission to talk to
supervisors in connection with the processing of such
grievances. The Board accepted these facts and also the
fact that United Aircraft had been involved in a number of
very serious unfair labor practice proceeding cases before
the Board in the past. Thus, as in the case at bar, the
allegations of the complaint and the facts substantiating
such allegations in United Aircraft involved harassment
and discrimination against union stewards because of their
grievance processing activities. This is precisely the
gravamen of the complaint in the case at bar, since the
complaint alleges that Postmaster Maloney and Foreman
Giulietti harassed union steward Jamilkowski because he
vigorously presented and processed grievances in great
numbers and also suspended him discriminatorily for like
reason . In arriving at its decision to defer , the Board in
United Aircraft Corporation considered not only the fact
that United Aircraft had been involved in a number of
unfair labor practice proceedings before the Board as a
respondent, but also took into consideration , as more
important, the fact that the parties had an effective
dispute-solving machinery available and that in the
combination of the past and presently alleged misconduct
such conduct did not appear to be of such character as to
render the use of that machinery unpromising or futile. In
the case at bar, I find the parties have , and have had since
the institution of their collective-bargaining agreement,
effective dispute-solving machinery available.
It is true that in United Aircraft Corporation the number
of minor supervisors involved and the number of stewards
involved was rather small in comparison to the total
number of plants, plant departments , and employees
overall employed by the corporation and, by way of
comparison , in the present case involved are the postmas-
ter, the individual with the highest authority at the
particular installation here involved and only one depart-
ment with a limited number of employees on a particular
shift. Also involved, only for all practical purposes, are the
single chief steward and a single supervisor on that shift or
tour. The distinction sought to be made by counsel for the
General Counsel and counsel for the Charging Union is
that in United Aircraft the totality of the individuals
involved was rather insignificant while here the position of
the Postmaster and the fact that only one individual
steward on one shift were involved is a distinction which
makes it apparent that on that particular shift regarding
that particular steward and that particular supervisor the
means for processing grievances are effectively cut off by
the fact that the very individual supervisor and Postmaster
involved have threatened and harassed the particular
steward for the performance of his duties as such steward.
This does , indeed , present a factor which must be
considered. However, I also note the fact that at this
particular post office , this is the first unfair labor practice
charge to be processed to complaint . While it is true that
another unfair labor practice charge was filed approxi-
mately 1 year before the charge in the instant case and was
then withdrawn, there is no record of any proven past
unfair labor practice on the part of the particular
individual supervisor or postmaster here involved . Counsel
for the General Counsel and counsel for the Charging
Party cite the fact that over 275 grievances have been
presented and/or processed during the period of time that
Jamilkowski has been steward on the particular tour and
argue that this presents a situation which can be remedied
only by a Board order. However, it can likewise be
concluded that the fact that as many as 275 grievances
have been filed and/or processed in that period of time
concerning that particular tour, and evidently concerning
the particular supervisor and steward involved , equally
demonstrates that the processes for filing and processing
grievances are readily open and available to the Union and
UNITED STATES POSTAL SERVICE
the union's constituents and that, therefore, the actions of
the particular supervisor and of the postmaster are not
necessarily indicative of either hostility toward the Union
and its stewards and/or a reluctance on the part of the
Respondent herein to adhere to and comply with the
grievance and arbitration provisions of the collective-
bargaining agreement. I, therefore , conclude from the facts
presented by counsel for the General Counsel based on the
evidence presented at the hearing that there exists now
effective dispute-solving machinery available to the parties
by which the matters involved in the allegations of the
complaint can be resolved.
With regard to the argument that the alleged 8(aXl)
violations, as hereinbefore set forth and described, are not
cognizable within the terms of the collective-bargaining
agreement and especially within the terms of the grievance
and arbitration procedures, I have above set forth portions
of that section of the collective-bargaining agreement
which deals with discipline. As noted, article XVI,
Discipline Procedure, provides that "any such discipline or
discharge shall be subject to the grievance arbitration
procedure provided for in this agreement ...." Without
attempting to interpret that clause of the collective-
bargaining agreement, it is certainly arguable that the three
letters from Maloney to Jamilkowski, cited above, and
which are alleged to constitute the three specific violations
of Section 8(a)(1) of the Act, are letters of reprimand to
Jamilkowski by Postmaster Maloney for Jamilkowski's
allegedly having overstepped himself in his conduct as
steward . Thus not only is Jamilkowski's right as steward
under the contract involved, which would ordinarily be a
matter for arbitration, but also the reprimand involved in
these letters constitutes a form of discipline. Since
disciplinary action under the agreement as heretofore cited
may be grieved under the grievance terms of the contract
and may even go to arbitration, it is concluded that the
contract does provide for a means of resolving the alleged
8(axl) violations and that they are, therefore, cognizable
under the terms of the collective-bargaining agreement.
Accordingly, I find and conclude that all the matters
alleged in the complaint, in the light of the record as
developed, and in accordance with the rationale of the
Board as laid down in United Aircraft Corporation, supra,
the entire matter involved herein should be deferred to the
grievance and arbitration procedures of the contract. In
3 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
567
arriving at this conclusion, I have considered the fact that
the matter of Jamilkowski's suspension was settled and
Jamilkowski has been paid the earnings he lost during his
3-day suspension and that this was accomplished outside
of the grievance and arbitration procedures of the contract.
I have taken into consideration the argument of both
counsel for the Charging Union and the counsel for the
General Counsel that there is little for the arbitrator to
consider, therefore, with regard to Jamilkowski's suspen-
sion and that, therefore, a Board order would be more
effective in resolving the underlying dispute than would an
arbitrator's decision. However, as in the case of any
proceeding deferred by the Board to grievance and
arbitration procedures, the arbitrator's award is reviewable
pursuant to the Board's decision in Spielberg Manufactur-
ing Company, 112 NLRB 1080, and if, for any reason, the
Board should find upon further review after the arbitration
award is handed down that the said award is repugnant to
the Act or does not fully rectify the situation involved, then
the Board can reopen the case and decide it upon a fully
developed record on the merits presented by such record.
I also do not rule on the Respondent's motion to dismiss
paragraph 5(c) of the complaint on the ground that the
matter stated therein is protected free speech within the
meaning of Section 8(c) of the Act. This is so because that
matter is deferred to the grievance and arbitration
procedures for disposition.
Upon the foregoing findings and conclusions, and the
record heretofore developed herein, and pursuant to
Section 10(c) of the Act, I hereby recommend the
following:
ORDERS
The complaint herein is dismissed in its entirety except
that jurisdiction is hereby retained for the purpose of
entertaining an appropriate and timely motion for further
consideration upon a proper showing that (a) the dispute as
alleged in the complaint has not been submitted promptly
to grievance and arbitration, (b) the dispute has not been
resolved by the arbitration procedure or the decision of the
arbitrator is not wholly dispositive of the issues in this case,
and (c) that the grievance or arbitration procedures have
not been fair and regular or have reached a result which is
repugnant to the Act.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes