United States Postal Service

National Labor Relations Board - Board Decisions

Jan 31, 1985

273 N.L.R.B. 1746 (N.L.R.B. 1985)

1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and American Postal
Workers Union, Baltimore (Stu Filbey) Area
Local, AFL-CIO. Case 5-CA-15203(P)
31 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 September 1983 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
Counsel for the General Counsel, the Charging
Party, and the Respondent each filed exceptions
and a supporting brief, and the Respondent filed an
answering brief to the exceptions of the General
Counsel and the Charging Party.
On 23 September 1983 the American Postal
Workers Union (APWU) filed a motion to inter-
vene in these proceedings. By executive order of 9
March 1984, the Board granted APWU's motion
and gave APWU the opportunity to file a separate
brief on its behalf. By letter dated 21 March 1984,
APWU notified the Board that it did not intend to
submit a separate brief but instead joined in the
Charging Party's brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(1) of the Act by
threatening to suspend Union Steward Robert
Ripoli because he stated that the Respondent had
violated the parties' national agreement and com-
mitted an unfair labor practice and that, for that
reason, he would leave a meeting of management
and union representatives.3
The complaint further alleges that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
announcing and implementing a policy requiring
the Union to process and file grievances within a
' The Respondent has excepted to some of the Judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Charging Party has filed a motion to strike part of the Respond-
ent's answering brief because the brief contains references to the answer
filed by the Intervenor, America Postal Workers Union, to a complaint in
United States Postal Service, Case 11-CA-1195(P), currently pending
before the Board Because it is well settled that the Board may take offi-
cial notice of its own proceedings and rely thereon, East Coast Equipment
Corp, 229 NLRB 825, 826 (1977), we deny the Charging Party's motion
3 In the absence of exceptions, and noting that none of the parties has
sought deferral of the 8(a)(1) allegation, we find it unnecessary to consid-
er whether the allegation could have been deferred, if a proper and
timely request for deferral had been made
specified period each day without affording the
Union an opportunity to negotiate and bargain
over the policy. The judge found that this matter
should not be deferred to the parties' grievance-ar-
bitration machinery. We disagree.
In United Technologies Corp., 268 NLRB 557
(1984), we reaffirmed the principle stated in Collyer
Insulated Wire, 192 NLRB 837 (1971), that when a
dispute arises from a contract between the parties,
it should be resolved in the manner that the con-
tract prescribes. The parties' collective-bargaining
agreement contains a grievance-arbitration proce-
dure which culminates in "final and binding" arbi-
tration and which defines a grievance as "a dispute,
difference, disagreement or complaint between the
parties related to wages, hours and conditions of
employment [including but not limited to] the com-
plaint of an employee or of the Union which in-
volves the interpretation, application of or compli-
ance with the provisions of the contract."
Article 17, section 3, of the parties' bargaining
agreement provides in part:
Rights of Stewards
When it is necessary for a steward to leave
his/her work area to investigate and adjust
grievances or to investigate a specific problem
to determine, whether to file a grievance, the
steward shall request permission from the im-
mediate supervisor and such request shall not
be unreasonably denied . . . .
The steward, chief steward or other Union
representative . . . may request and shall
obtain access through the appropriate supervi-
sor to receive the documents, files and other
records necessary for processing a grievance
or determining if a grievance exists and shall
have the right to interview the aggrieved
employee[s], supervisors and witnesses during
working hours. Such requests shall not be un-
reasonably denied.
The contract also contains a "management
rights" clause giving the Employer "the exclusive
right subject to the provisions of this Agreement
and consistent with applicable laws and regulations
. . . [t]o direct employees of the Employer in the
performance of official duties . . . [t]o maintain the
efficiency of the operations entrusted to it . . .
[and] to determine the methods, means and person-
nel by which such operations are to be conducted."
The facts of this case, no less so than those in
United Technologies, make it "eminently well suited
for deferral." The contract and its meaning in
present circumstances lie at the heart of this dis-
pute. The Respondent has also expressed its will-
273 NLRB No. 217
POSTAL SERVICE 1747
ingness to arbitrate the matter. 4 In these circum-
stances, we find that the dispute falls squarely
within the pronouncement of United Technologies
that complaint allegations should be deferred when
it is established that the parties' collective-bargain-
ing agreement contains a broad grievance-arbitra-
tion provision clearly encompassing the unfair
labor practice allegations. We shall therefore order
that the unfair labor practice allegations concerning
the Respondent's policy restricting the time for
union representatives to process grievances be de-
ferred to the parties' grievance-arbitration proce-
dure. As in United Technologies, however, we shall
retain jurisdiction over these allegations for the
purposes of entertaining a motion for further con-
sideration on a showing that either (a) they have
not been resolved through the grievance-arbitration
procedure or submitted to arbitration, or (b) the
grievance procedure has not been fair and regular
or has reached a result that is repugnant to the
Act. 5
AMENDED CONCLUSIONS OF LAW
We adopt the administrative law judge's conclu-
sions of law, with the following modification.
Delete Conclusion of Law 4.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United States Postal Service, Bel Air,
Maryland, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Substitute the following for the final unnumbered
paragraph.
"The complaint allegations not specifically found
herein are dismissed, provided that: Jurisdiction
over these proceedings is retained for the limited
purpose of entertaining an appropriate and timely
motion for further consideration upon a proper
showing that either (a) the dispute has not, with
reasonable promptness, been resolved by amicable
settlement in the grievance procedure or submitted
promptly to arbitration, or (b) the grievance or ar-
4 The judge found the Respondent's deferral contention to be without
merit because the record did not establish that the issues in this case were
fully considered in the course of processing a pending grievance We
note, however, that the deferral policy stated in United Technologies does
not preclude the Union from filing a second grievance specifically cover-
ing the subject matter of this unfair labor practice charge Thus, the Re-
spondent must waive any timeliness provisions of the grievance-arbitra-
tion clauses of the collective-bargaining agreement so that the Union's
grievance may be processed in accordance with the following Order
5 Because we find deferral appropriate for resolution of the 8(a)(5) alle-
gations, we find it unnecessary to pass on the other contentions related to
those allegations that were raised before and considered by the judge
bitration procedures have not been fair and regular
or have reached a result which is repugnant to the
Act."
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The original charge in this case was filed on March 17,
1983, 1 and amended on April 4, by American Postal
Workers Union, Baltimore (Stu Filbey) Area Local,
AFL-CIO (the Union) against United States Postal Serv-
ice (Respondent). On April 22 the complaint was issued
alleging, in substance, that Respondent restricted the
time alloted to stewards of the Union for the purpose of
conducting union business without affording the Union
an opportunity to bargain about the matter and thereby
violated Section 8(a)(5) and (1) of the National Labor
Relations Act and that Respondent further violated Sec-
tion 8(a)(1) of the Act by threatening to suspend employ-
ees in response to their protest of this unilateral change.
Respondent filed an answer in which it denied the com-
mission of any unfair labor practices
A hearing was held before me at Baltimore, Maryland,
on June 22. Following the hearing the General Counsel
and Respondent filed briefs, which have been considered.
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Pursuant to the Postal Reorganization Act, 39 U.S.C.
§ 1209(a), 2 Respondent's operations are subject to the
Board's jurisdiction over unfair labor practices. Accord-
ingly, I find, as the complaint alleges and the answer
admits, that Respondent is subject to the Board's juris-
diction in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
It is undisputed that, for some period of time not spec-
ified in this record, Respondent has recognized the
American Postal Workers Union, AFL-CIO (the Nation-
al Union) as the representative for separate nationwide
units of maintenance employees, special delivery messen-
gers, motor vehicle employees, and postal clerks. Re-
spondent also recognizes other labor organizations as
representatives of certain other classifications of employ-
ees in nationwide units; specifically, Respondent recog-
' All dates herein are in 1983 unless otherwise indicated
2 That section provides "Employee-Management Relations shall, to
the extent not inconsistent with provisions of this title, be subject to the
provisions of sub-chapter II of chapter 7 of title 29"
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nizes the National Association of Letter Carriers (the
Letter Carriers) as the representative of city letter carri-
ers, and recognizes the National Association of Rural
Carriers as the representative for rural letter carriers 3
The current collective-bargaining agreement, referred
to in the record as the National Agreement, between Re-
spondent and both the Letter Carriers and the National
Union is in effect from July 21, 1981, to July 20, 1984,
and applies nationwide. The contract includes a detailed
grievance procedure which, in essence, provides for four
steps prior to arbitration. At step 1 the aggrieved em-
ployee, accompanied and represented by a steward if the
employee so desires, discusses the grievance with the im-
mediate supervisor, who has authority to settle the griev-
ance; if no resolution is reached at step 1 the grievance
proceeds to step 2, at which the Union completes a
standard grievance form to be filed with the installation
head or other appropriate official; if no agreement is
reached at that step, the grievance may be appealed in
writing at step 3 to the Regional Director for Employee
and Labor Relations; the grievant is at that stage repre-
sented by a Regional Representative of either the Letter
Carriers or the National Union. The Union may appeal
an adverse step 3 decision directly to arbitration at the
Regional level if the Respondent's step 3 representative
states in his or her decision that no interpretive issue
under the National Agreement or supplement thereto
which may be of general application is involved in the
case; if such an issue is involved, the grievance may be
appealed to step 4, the national level of the grievance
procedure. The contract also provides that, "when it is
necessary for a steward to leave his/her work area to in-
vestigate and adjust grievances or to investigate a specif-
ic problem to determine whether to file a grievance, the
steward shall request permission from the immediate su-
pervisor and such request shall not be unreasonably
denied." Finally, insofar as is pertinent to this case, the
contract provides for bargaining on a local level with re-
spect to 22 specific items, primarily involving vacation
schedules, procedures for reserving light duty assign-
ments, the method of selecting employees to work on a
holiday, assignment of employee parking spaces, local
implementation of the contract with respect to seniority,
reassignment and posting, washup periods, and whether
days off would be fixed or rotating.
3 In Postal Service, 208 NLRB 948 (1974), the petitioners sought to rep-
resent employees in separate bargaining units in various geographical lo-
cations of Respondent The Board dismissed all the petitions on grounds
that "any less-than-nationwide unit which does not at least encompass all
employees within a district or sectional center is too fragmented for
meaningful collective bargaining" (208 NLRB at 954) However, the
Board noted that its decision was "not to be construed as an administra-
tive fiat to adhere to the preexisting national craft units which Congress,
under the PRA [Postal Reorganization Act], continued during the transi-
tion period or as precluding a finding of unit appropriateness for a unit
less than national in scope" (Ibid ) There have been no subsequent cases,
at least of which I am aware, in which the Board has determined that a
petitioned-for unit other than the national units reflected in the current
collective-bargaining agreement is appropriate Respondent concedes, and
I thus find, that Respondent is obligated to bargain with the National
Union for a nationwide unit of postal clerks
B The Alleged Unilateral Change and Threat of
Suspension
1. The meeting on March 10
The Be] Air, Maryland post office, the only facility in-
volved in this case, employs some 51 employees who are
covered by collective-bargaining agreements. The 16 dis-
tribution clerks are included in the national unit of postal
clerks represented by the National Union and their griev-
ances on the local level are handled by Robert Ripoli,
steward for the Union. The clerks are generally super-
vised by Robert Androsky, the supervisor of mails and
delivery, but they are sometimes also supervised, espe-
cially when Androsky is not at the facility, by Kenneth
Slagle, the superintendent of postal operations.
It is undisputed that during the morning of March 10
there was a meeting at the office of Mark Plakatons,
postmaster of the Bel Air Post Office. Present were Pla-
katons, who called the meeting, Slagle, Acting Supervi-
sor John Vitak, Ripoli, Michael Kennedy, alternate stew-
ard for the Union, and representatives from the Letter
Carriers and the National Association of Rural Carriers.
According to Slagle, 4 Plakatons said that from then on
the letter carriers and the rural carriers would conduct
their union business from the time they returned from
delivering mail until the end of their tour and that the
Union's representative would conduct its business from
12.10 to 12 30 p m.
Slagle further testified that the rural carriers' steward
raised the question of whether even in an emergency sit-
uation the steward would have to wait until the allotted
time to file a grievance and Plakatons responded that the
policy did not apply to emergencies and that in that situ-
ation the matter would be resolved immediately, but that
was the only exception to the new rule.5
According to Ripoli and Kennedy, both of whom I
credit on this point, 6 after Plakatons made his announce-
ment Ripoli said that he thought the new policy was a
violation of the contract and an unfair labor practice,
and Plakatoris replied that he was the postmaster and
4 Slagle, who was an adverse witness for the General Counsel, was the
most credible witness in this proceeding, for he testified in a straightfor-
ward and candid manner and appeared to generally exhibit a good recol-
lection Kennedy, who also testified for the General Counsel, also gener-
ally seemed to be a credible witness but did not Impress me quite as fa-
vorably as did Slagle Although Ripoll and Plakatoris also testified as to
what occurred at this meeting, I do not find either of these witnesses as
credible as Slagle or Kennedy Ripoll tended to give evasive and unre-
sponsive answers to questions, and much of his testimony appeared to be
shaded in favor of his own position Plakatoris' testimony was also at
times unresponsive Consequently, the account of what occurred at the
March 10 meeting is based on a composite of the credible testimony of
Slagle and Kennedy and on the testimony of Ripoli and Plakatoris where
their testimony is not inconsistent with that of the other two witnesses
5 Kennedy testified that he did not remember such an exchange I
credit Slagle
6 With respect to this credibility determination and others involved in
this case, it is worth repeating here the often-quoted maxim that "[1]t is
no reason for refusing to accept everything that a witness says, because
you do not believe all of it, nothing is more common in all kinds of judi-
cial decisions than to believe some and not all NLRB v Universal
Camera Corp, 179 F 2d 749, 754 (2d Cir 1950)
POSTAL SERVICE 1749
that was his policy 7 Ripon responded that in that case
he would not be a part of the meeting and that he was
leaving the office, and Plakatoris then said that if anyone
left he would suspend them. Ripon said that if Plakatoris
changed his attitude and tone of voice the union repre-
sentatives would stay but that they had to have some
input and Plakatons replied by saying that the meeting
was over and everyone should go back to work. The
entire meeting lasted about 15 minutes.8
2. The past policy with respect to time afforded to
union representatives to conduct union business
Ripon, Kennedy, and Slagle all testified that the pref-
erential mail was usually out by 8:30 or 9 a.m. and that
after that the clerks were free to discuss union business
at any time with the permission of a supervisor. Plaka-
tons testified that he was not aware of any prior policy
that grievances would not be discussed prior to 8:30 a.m.
I find it unneccessary to make a finding regarding Plaka-
tons' credibility on this point, for, in any event, whether
Plakatons was aware of this policy or no t, 8 I credit the
testimony of Slagle, Ripon, and Kennedy, that it existed.
3. The implementation of the new policy
It is undisputed that many of the clerks, including
Ripon, work from 4 a.m. to 12.30 p.m., 5 days out of 7.
The end of the letter carriers' shift is at 3 30 p.m., and
most of them return to the post office from their deliv-
eries at 3 10 or 3:15; consequently, under the new policy,
they, like the clerks, would have 15 to 20 minutes to
process grievances each workday.
Slagle credibly testified that the policy as of March 10
was that the Union would be limited to interviewing its
witnesses and reviewing documents and so on to the
12.10 to 12:30 p.m. period, and that although he did not
recall whether Plakatons specifically stated that the limi-
tation applied to both union business arid filing griev-
ances with management, it was his impression that Plaka-
tons meant the limitation to apply to both. However, it
is clear that Plakatons did not clarify the policy at the
March 10 meeting, and the record is not entirely clear as
to the implementation of this policy and the consistency
with which it was applied. Thus, Ripon testified that fol-
lowing the March 10 meeting he was restricted to han-
dling grievances to the time between 12:10 and 12:30
p.m. except on one occasion. However, Ripoles testimo-
ny about this purported occasion was, at best, confused
He first testified that the one time he was permitted to
continue discussing a grievance with an employee after
7 Ripoll testified that Plakatons said loudly that he "did not give a
damn," he was the postmaster and he could do what he wanted to do,
while Kennedy testified that Plakatons gat a little upset and said that he
did not care, he was the postmaster and that was the policy Slagle was
not asked about this exchange I credit Kennedy
Slagle was not asked about this exchange between Ripoli and Plaka-
tons Although Plakatons testified that he did not remember threatening
Ripoli with suspension, he conceded that he may have done so, and that
"the thing that flashed in my brain at that point, now what do you do
This is not a negotiation meeting where the Union could walk out This
is a case of calling my employees in, those who rein esent the Union and
Just staging] my policy"
9 I note that Plakatons normally does not arrive ai the post office until
a few minutes before 8 30 a m
the 12:30 p.m deadline was on March 17, concerning a
discrimination complaint by employee Charles Peaker.
According to Ripoli, Peaker asked Supervisor Robert
Androsky if he could talk to Ripoli and Androsky re-
plied that he could discuss his problem between 12:15
and 12:30. Peaker and Ripon went to the training
room" to talk and were interrupted and told to leave at
12 . 30 because Ripon was required to clock out. Accord-
ing to Ripon, he and Peaker refused to leave and Ripon
was eventually paid for the amount of time he stayed
overtime to talk with Peaker." However, Ripoli later
testified he was given extra time on the clock to write an
appeal in the Peaker case. Although I credit Ripoli's tes-
timony that he received extra time to work on griev-
ances on each of these occasions, I obviously do not
credit his testimony that there was only one time when
the 20-minute limitation was not applied to him.
The record is also confused as to whether the Union
was permitted only one 20-minute period to handle each
grievance or whether, if a grievance could not be re-
solved in one session, it could be investigated or dis-
cussed further on subsequent days. Slagle credibly testi-
fied that at some time after the March 10 meeting Plaka-
tons told him that if 20 minutes were not enough time to
resolve a matter the parties would arrange another meet-
ing at a later date, but the initial discussion was limited
to the 12:10 to 12:30 time period. Ripon testified that on
March 10 he had some union business which he could
not complete between 12:10 and 12:30 and asked the
acting supervisor if he could have additional time. Ac-
cording to Ripon, the acting supervisor told him he
would pass the request along to the supervisor, but when
Ripon asked again the next day he was told that the
12:10 to 12:30 period was a "one shot deal" and he
would not get any additional time. However, Ripon's de-
meanor as he gave this testimony was not impressive and
I do not credit him on this point. Indeed, Ripon further
testified that on one occasion in April or May Thomas
Keefe, president of the Union," was supposed to come
to the Bel Air Post Office to meet with Ripoli and repre-
sent him in a step 1 grievance at 10 or 10:30 a.m. but did
not arrive until 12:10 or 12:15. According to Ripon, nei-
ther he nor Keefe was wearing a watch that day, and
when they received permission to go to the training
room to discuss the grievance they inadvertently talked
past 12:30, the end of Ripoli's tour of duty Ripon fur-
ther testified that he and Keefe, thinking they may have
talked too long, came back up stairs to reschedule an-
other time when they could meet, and that permission
was granted for him to meet again with Keefe." Thus,
even if Ripon were told that he would only have one op-
portunity to use the twenty-minute period for each item
1 ° This room is apparently downstairs from the work floor and is used
by all the unions who represent employees in the Bel Air Post Office
" Ripoli could not recall how much time was involved
" Since both Keefe's and Plakatons' last names are spelled various
ways in the transcript and by the parties, I have taken the spelling of
both names from a memo prepared by Plakatons regarding a grievance
filed by Ripoli and which is in evidence
" However, the supervisor told him that the 12 minutes that they ran
overtime on their first meeting would be disallowed
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of union business, it is clear that this aspect of the policy
was not uniformly enforced.' 4
It is undisputed that Ripon was allowed to discuss
with his supervisor minor matters that would only take a
couple of minutes to resolve outside the 12:10 to 12:30
p.m. period, and that he was also permitted to make tele-
phone calls relating to union business at any time. How-
ever, Ripon credibly testified that he was only allowed
to interview employees with respect to potential griev-
ances during the limited period. It is also undisputed that
no management official ever retracted the policy an-
nounced March 10.
4. The reasons given by Plakatoris for the March 10
announcement
Plakatoris credibly testified that a survey team from
Respondent's Baltimore Sectional Center was at the Bel
Air Post Office on March 7 and 8 and that the function
of this team was to see if they could make suggestions on
the basis of their observations which would improve the
operation. Plakatoris further credibly testified that the
team told him that before he arrived at the post office in
the morning they had noticed Ripoli leave his work area
to discuss various matters with Slagle and they wanted
to know if Ripon was a supervisor Although these dis-
cussions were short, the team suggested that it would be
a good idea to set aside a specific time each day to listen
to complaints.
According to Plakatons, in light of the survey team's
comments he decided to announce a new policy about
grievances both in order to follow the survey team's rec-
ommendation and to prevent unnecessary waste of time
during the period when the post office employees were
getting mail ready for customers. Plakatons also testified
that he did not announce the new policy to try to pre-
vent the Union from discussing grievances, but because
he thought that the new policy would "present a case of
better understanding and harmony between the unions
and also the operation itself." On cross-examination,
however, Plakatoris testified that two reasons for the
new policy were that the clerks were filing grievances at
inopportune times and that they were using an unreason-
able amount of time on union business.' 5
Although Plakatoris testified that there was no inten-
tion to limit grievance discussions to 20 minutes and that
if a grievance needed to be discussed further a time
could be assigned to do so, I find that this clarification
was not announced along with the new policy. Plakatons
also testified that in the event a supervisor and a steward
were discussing a grievance at precisely 12:30 and the su-
pervisor felt that it would be productive to spend an
14 Kennedy also testified that as far as he could observe following
March 10 management permitted only the 20-minute period to process
grievances and any grievance that was not finished in that time had to be
done on the steward's own time However, it appears that from the time
of the announcement of the new policy until the heanng Kennedy had
very little involvement with grievance processing, and his testimony on
this point did not sound candid I therefore do not credit him with re-
spect to this matter
i5 is undisputed that for approximately 5 months prior to March 1
Ripoli was off work and on workmen's compensation According to Pla-
katons, whom I credit on this point, six or seven grievances filed by the
Union had reached step 2 between March 1 and June 22
extra few minutes on overtime in order to finish the dis-
cussion, overtime would be permitted 16
Plakatoris further testified that following the March 10
meeting he prepared a memo on what had occurred
there. That memo was introduced into evidence and
states, in pertinent part, that
[F]or the sake of not interrupting our operations we
will listen to the initial complaint or grievance as
follows:
Clerk Steward: at 12:10 PM
Also if the complaint or grievance can be resolved
during this time—then the matter is over
If Management and Labor believe that this matter
should be looked into further, appropriate manager
will arrange a time on the following day to meet
with the Steward.
However, Plakatons testified that he typed this memo
after the meeting "so I could keep this as a record for
myself," and there is no evidence that the memo was
posted or otherwise publicized to the employees or the
stewards as a clarification of the announcement as
made." I therefore find that even if Plakatons meant to
implement a policy of discussing grievances with the
Union only between 12.10 and 12:30 p.m. and did not
intend to restrict the time the Union spent processing
grievances or indicate that each grievance would only be
discussed for a maximum of 20 minutes with manage-
ment, that is not what he said and the Union was not ad-
vised of what he meant for at least 2 weeks afterwards
C. Analysis and Conclusion
1 The parties' contentions; the issues
The complaint, as effectively amended by stipulations
at the hearing, alleges that the National Union represents
all postal clerks in a nationwide unit. The complaint fur-
ther alleges that, by announcing and implementing a
policy requiring the Union to process and file grievances
within a specified 20-minute period each day without af-
fording the Union an opportunity to negotiate about the
matter, Respondent violated Section 8(a)(5) and (1) of
the Act. The complaint also alleges that by threatening
Ripon with suspension because he threatened to leave
the March 10 meeting, Respondent independently violat-
ed Section 8(a)(1) of the Act
With respect to the 8(a)(5) allegation, Respondent con-
tends, in essence, that no unilateral change cognizable
16 Ripoll testified that he felt that under the contract he was entitled to
be paid for all of the time that he spent on union business The contract,
in art 17, sec 4, specifies that stewards will be compensated for time ac-
tually spent in grievance handling including investigation, meetings with
Respondent, and writing grievances, and that such "payment will be
granted at the applicable straight time rate, providing the time spent is a
part of the steward's regular workday"
' 7 It appears that the memo was sent to Thomas Keefe in the course of
a step 3 discussion of a grievance filed by Ripoli concerning the failure to
pay him for time he spent processing grievances off the clock at home
Plakatons discussed Ripoll's grievance on March 25 with Keefe but it is
not clear whether he gave Keefe a copy of that memo at that time
POSTAL SERVICE 1751
under the Act was implemented, that if there were such
a unilateral change it was justified by business consider-
ations, that the Board should not be involved in inter-
preting Respondent's collective-bargaining agreement
with the National Union, that, in any event, Respondent
has no obligation to bargain with the Union and there is
no showing that Respondent has failed to bargain with
the National Union," and that the issues should be de-
ferred to the pending grievance process under the
Board's decision in Dubo Mfg. Corp., 142 NLRB 431
(1963).
With respect to the alleged independent 8(a)(1) viola-
tion, Respondent contends, in substance, that the allega-
tion should be dismissed because an employee has no
right to disobey management's legitimate order during
worktime when management is conveying to the em-
ployee the manner in which operations will be conduct-
ed and the contract will be implemented.
2. The deferral issue
In Dubo Mfg. Corp., supra, the Board deferred action
on certain allegations which were the subject of a court-
ordered arbitration pending compliance with that order,
holding:
[T]he Board has recognized existing arbitration
awards, and in certain circumstances has required
parties before resorting to Board processes to utilize
the grievance and arbitration procedure in agree-
ments to which they are signatory. These policy
considerations are clearly applicable here where not
only do the parties have available a procedure to
settle the dispute, but a United States District Court
has ordered them to utilize it."
In the instant case, Respondent contends that the
Union has already invoked the grievance procedure to
resolve the dispute at issue. However, that is not entirely
clear from the record. The grievance to which Respond-
ent refers is apparently one which Ripoli filed alleging
that on March 10 management refused to allow him time
on the clock to investigate, discuss, or write grievances,
and requesting 6 hours' pay for time spent processing a
grievance off the clock. On March 25 the grievance was
discussed between Plakatoris and Keefe, but it is not
clear when Keefe was advised of the policy restricting
grievance handling to 20 minutes at the end of the stew-
ard's tour. As noted, although the memo itself bears the
handwritten notation "cc: Tom Keefe Step 3," it is not
clear when Keefe received it. In these circumstances, al-
though there was a grievance filed which was pending at
the time of the hearing in the instant case, the record
does not establish that the issue in this case was fully
considered in the course of processing that grievance. I
" In this regard, Respondent notes that a grievance regarding the fail-
ure to pay Rip°li for time spent processing a gnevance off the clock was,
as of the time of the hearing in this case, at the third step of the griev-
ance procedure and the National Union is thus involved in It. However,
Respondent emphasizes, although the National Union was served with
copies of the charge and complaint It did not enter an appearance at the
hearing.
19 142 NLRB at 432.
therefore find no merit to Respondent's contention that
the instant case should be deferred under Dubo, supra.
3. The contention that the Board should not inject
itself into Respondent's collective-bargaining
relationship with the National Union
Respondent introduced into evidence a number of doc-
uments indicating that in other cases where charges were
filed alleging that Respondent violated Section 8(a)(5)
and (1) of the Act by making unilateral changes in the
amount of time permitted to stewards to investigate
grievances, various regional directors of the Board had
refused to issue a complaint, on grounds that the issue
presented was one of contract interpretation and/or that
the limitation imposed was not unreasonable. However,
of course, actions of the regional directors in declining to
issue a complaint are not precedent for either me or the
Board in any case where a complaint has issued and I
have held a hearing on the issues raised by the pleadings.
Further, I note that in at least one case, Postal Service,
263 NLRB 357 (1982), the Board has addressed the ques-
tion of unilateral changes in the grievance procedure.
4. Respondent's justification for the unilateral
change-
As discussed above, I have found that at the March 10
meeting Plakatoris announced that henceforth the Union
would be permitted to process grievances between 12:10
and 12:30 p.m., and that prior to March 10 the Union
representatives were allowed to file, process and investi-
gate grievances at any time during their tour of duty
after the preferential mail was finished i.e., after 8:30 or 9
a.m.
Respondent argues that the March 10 announcement
was based on business necessity, that there was no show-
ing that it had a negative impact on grievance processing
or otherwise diminished employee benefits, and that the
change was the type that is within the scope of normal
management prerogative to direct the work force during
the workday. I disagree.
First, although Plakatoris testified that the survey team
from Baltimore suggested that he set aside a time each
day for the discussion of grievances, he further testified
that it was his option whether to implement the recom-
mendations of the survey team or not; consequently the
survey team's suggestion, standing alone, does not justify
Respondent's unilateral change in the time allotted to the
Union for handling grievances. Second, the mere fact
that there may have been a real or perceived need for a
change in the policy did not relieve Respondent of its
obligation to bargain about it. 2° Third, although Re-
spondent correctly contends that not every unilateral
change in working conditions constitutes a breach of the
bargaining obligation, 2 ' and argues that the instant
change was not shown to have had any adverse impact
on grievance processing or otherwise diminish employee
benefits, Ripoli credibly testified that because of the uni-
lateral change he was required to work on processing
20 Peerless Food Products, 236 NLRB 161 (1978).
21 Peerless Food Products, supra.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances at home. 22 Finally, although the management
rights clause gives Respondent the right "[T]o direct em-
ployees of the Employer in the performance of official
duties," the contract also specifically gives stewards the
right to request permission to investigate and adjust
grievances, "and such request shall not be unreasonably
denied " I thus find that to the extent that the manage-
ment rights clause might have given Respondent the
right to determine when stewards could file grievances,
the specific provision granting them reasonable time to
attend to union business was a limitation on that manage-
ment prerogative. Accordingly, I find that the March 10
announcement of a limited period each day for the stew-
ards to handle union business constituted a unilateral
change in the grievance and arbitration procedure, about
which Respondent had an obligation to bargain."
5. The contention that the Union is without
standing to protest the change at issue
As noted above, the General Counsel concedes that
the Union is not the designated representative of the em-
ployees in the Bel Air Post Office and that Respondent
has no obligation to bargain with it.
In Spector Freight System, 260 NLRB 86 (1982), re-
spondent was party to the National Master Freight
Agreement, which provided that owner-operators em-
ployed by respondent would be paid rental at the rate of
13 percent of gross revenue for use of their trailers. Re-
spondent canceled a number of trailer leases and thereaf-
ter some of the owner-operators whose leases had been
canceled offered to enter into new leases for a lower
rental rate than that required by the contract. Respond-
ent told the employees to contact their union representa-
tive and declined to discuss the matter with them indi-
vidually. Subsequently, a business agent for the local
union informed respondent that the new proposed leases
violated the contract but that he would not prevent em-
ployees from signing the leases "under protest," and re-
spondent then executed the leases. The Board found, in
agreement with the administrative law judge, that neither
the international union nor the local union whose busi-
ness agent had discussed the matter with respondent was
the designated bargaining agent for the employees at
issue, but that the bargaining representative was all locals
affiliated with the international union and that these
locals had authorized a national negotiating committee to
act as their agent in negotiations. The administrative law
22 Although I credit Rip°ifs testimony that he had to spend some of
his own time in processing grievances I do not credit his testimony as to
how much time he spent In this regard, Rip°11 appeared to be evasive
and his demeanor was unimpressive
23 Respondent further contends that the General Counsel did not es-
tablish that the March 10 announcement constituted a change cognizable
under Sec 8(a)(5) of the Act because RipoII, the General Counsel's lead
witness, testified that there were severe restrictions on the time allotted
to him for union activity even before March 10 However, although
Ripoli testified that prior to March 10 he was denied time on the clock to
handle grievances, his testimony in this regard struck me as prompted
more by hostility to Respondent than by a due regard for truth, and I do
not credit it In any event, even if Rip()11 was denied time to process
grievances before March 10, there is no contention or evidence that Re-
spondent ever, before that date, limited the Union's steward to handling
grievances between 12 10 and 12 30 p m I therefore find no merit to Re-
spondent's contention in this regard
judge further found that the union agents who had
agreed to the new leases had no authority to negotiate
modifications in the contract and that there was no evi-
dence that the bargaining agent had agreed to those
modifications However, the Board reversed, on grounds
that there was no showing that respondent failed to bar-
gain with the designated bargaining representative and,
thus, the General Counsel had not met his burden of
showing that respondent had violated Section 8(a)(5) by
the change. As the Board said, "the General Counsel
was required to show that Respondent failed to bargain
and reach agreement with the designated bargaining repre-
sentative before implementing changes in the terms and
conditions of the contract. Similarly, an element of direct
dealing with employees is the lack of consent by the des-
ignated bargaining representative to the contacts made
with employees—in this case, the signing of new leases
containing terms which differ from those required by the
NMFA "24
Similarly, in Gulf-Wandes Corp., 236 NLRB 810
(1978), an international union was the certified represent-
ative of bargaining unit employees and unsuccessfully
sought to have respondent recognize a local union as
joint representative Thereafter, respondent agreed to in-
clude a checkoff clause in the contract which provided
that respondent had the right to approve the authoriza-
tion form to be used. The forms subsequently supplied
by the international union provided for the dues that
were deducted to be paid to the local and respondent re-
fused to use the form because the authorization was in
favor of the local instead of the international. The Board
found that respondent's refusal to use that form did not
violate Section 8(a)(5), on grounds that the contract re-
ferred to the international union, the international was
the bargaining representative, and therefore Respondent
had the right to refuse to honor checkoff authorizations
which did not require that the dues collected be remitted
to the international.
In the instant case, as noted above, it is undisputed
that theNational Union rather than the local Union is the
designated bargainingagent for the postal clerks at the
Bel Air Post Office. 25Although Plakatoris testified that
he did not discuss the new policy of when grievances
could be handled with Keefe, president of the Union,
before announcing the change, there is no record evi-
dence of what discussions, if any, were held between Re-
spondent and the National Union on this matter. In any
event, the complaint does not allege that there was any
refusal to bargain with the National Union, there is no
evidence of such a refusal, and, even after the question
was raised and discussed at the hearing, there was no
motion to amend the complaint to include such an alle-
gation. In these circumstances, I find that Spector Freight
24 260 NLRB at 87 See also Jones Motor Co, 260 NLRB 97 (1982),
and Branch Motor Express Co, 260 NLRB 108 (1982), involving similar
fact patterns and issues
25 I recognize that the National Agreement provides for certain mat-
ters to be negotiated at the local level However, the list of these matters
does not include any item relating to the grievance and arbitration proce-
dure
POSTAL SERVICE 1753
System, supra, is controlling," and I thus conclude that
the General Counsel has not established by a preponder-
ance of the evidence that Respondent has violated Sec-
tion 8(a)(5) of the Act. I shall therefore recommend that
this allegation be dismissed."
6. The alleged threat of suspension
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by Plakatoris' threat to suspend
Ripoli if the latter left the March 10 meeting. As dis-
cussed above, after Plakatoris made his announcement at
that meeting Ripoli said that he thought that the new,
policy was a violation of the contract and an unfair labor
practice and then threatened to leave the meeting. At
that point, Plakatoris said that anyone who left the meet-
ing would be suspended.
Respondent contends Ripoli had no right to threaten
to leave the meeting, and that Plakatoris' threat of sus-
pension was therefore not unlawful. In support of this
contention Respondent cites American ship Building Co.,
226 NLRB 788 (1976). However, in that case, a union
president was ordered to do some production work and
refused to obey the order. In the instant case, the meet-
ing which Ripoli threatened to leave was a meeting
about how grievances would be handled, not one about
normal work which might have been in Respondent's
sole control. Respondent cites no cases, and I am un-
aware of any, where the Board has found that an em-
ployer has the absolute right to require a union repre-
sentative to remain in a meeting to discuss union busi-
ness. Further, it is well established that an employee's at-
tempts to implement the terms of a collective-bargaining
agreement are protected by Section 7 of the Act, wheth-
er or not the employee's interpretation of the contract is
correct or whether the employee specifically refers to a
contract clause while making his complaint." Accord-
28 In Pittsburgh Postal Workers v. Postal Service, 105 LRRM 2415
(W.D Pa. 1978), a Federal district court considered the issue of the rela-
tionship between the National Union and the locals In that case, there
had been a settlement in 1976 over a local union's grievance concerning
where mall would be broken down into individual carrier routes. In 1978
Respondent announced a new procedure which the local union contend-
ed violated that settlement, and the local union brought a district court
action to enforce the settlement The court found that the provisions in
the then-national agreement regarding local unions did not include the
right to sue on matters concerning the national contract and that al-
though the action was brought to enforce a local settlement agreement, it
was brought under the grievance procedures in the national agreement.
Accordingly, the court found that the local's claim to the right to enforce
the provisions of the contract without permission of the National Union
was inconsistent with the terms of the contract and that this factor, to-
gether with the facts that the local was not signatory to the contract and
that there was no showing of a special grant pursuant to the National
Union's constitution or bylaws, "compels the conclusion that [the local]
cannot bring this action."
27 I note that in Postal Service, 263 NLRB 357 (1982), discussed above,
Respondent did not raise the defense that It was not obligated to bargain
with the local union which had filed the charge. However, I also note
that in that case, apparently, Respondent had, after the local union had
filed an earlier unfair labor practice charge on the matter, negotiated
about when stewards should be permitted to process grievances with the
local union, and, thus, it would appear that in that case Respondent
waived any contention that it had no obligation to bargain with the local
union about the matter. In any event, I also note, with respect to that
case, that the administrative law judge, affirmed by the Board, dismissed
this allegation on other grounds.
20 Firch Baking Co., 232 NLRB 772 (1977).
ingly, I find that Ripoli was protected in threatening to
leave the meeting even though I have found above that
the record in this case does not establish that the unilat-
eral change did not constitute an unfair labor practice
under the circumstances of this case. I therefore further
find that by threatening to suspend Ripoli, Respondent
violated Section 8(a)(1) of the Act."
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. The United States Postal Service is subject to the
Board's unfair labor practice jurisdiction.
2. Amerian Postal Workers Union Baltimore (Stu
Filbey) Area Local, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening an employee with suspension be-
cause he stated that Respondent had violated the Nation-
al Agreement and committed an unfair labor practice
and that he would consequently leave a meeting of man-
agement and union representatives, Respondent has vio-
lated Section 8(a)(1) of the Act.
4. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed30
ORDER
The Respondent, United States Postal Service, Bel
Air, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with suspension because
they protest in a meeting to discuss grievance-related
matters that Respondent is violating the national collec-
tive-bargaining agreement and/or committing an unfair
labor practice and that they will not further participate
in such a meeting.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Post at its Bel Air, Maryland facility copies of the
attached notice marked "Appendix." 31 Copies of the
29 I note that there is no evidence that when Ripoli threatened to leave
the meeting he indicated that he would refuse to return to work as well.
Indeed, Plakatons credibly testified that when Ripoli said he was going
to leave Plakatoris assumed that he was going back to work.
38 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 ' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the Unitejl States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint allegations
not specifically found are dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten employees with suspension be-
cause they refuse to participate further in a meeting re-
garding grievance-related matters on grounds that we
have violated the National Agreement and/or have com-
mitted an unfair labor practice.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
UNITED STATES POSTAL SERVICE