Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 13 (N.L.R.B. 1992)

13
309 NLRB No. 3
POSTAL SERVICE
1 The General Counsel and the Charging Party moved to strike the
appendix attachments to the Respondent’s brief in support of excep-
tions. This appendix contains an affidavit, copies of prior contract
negotiation proposals of the American Postal Workers Union, and a
copy of a United States General Accounting Office report of testi-
mony before the House of Representatives Subcommittee on Em-
ployment and Housing, Committee on Government Operations. We
grant the motion as this material was not introduced as evidence at
the hearing and is not part of the record in this proceeding. See Sec.
102.45 of the Board’s Rules and Regulations. Member Devaney
would deny the motion to strike but would find the materials in-
cluded in the appendix irrelevant to the issues in this proceeding.
The American Postal Workers Union’s motion to intervene is
granted.
The Charging Party’s and Intervenor’s motion to strike certain of
the Respondent’s exceptions is denied.
The General Counsel’s motion to strike the Respondent’s response
to the General Counsel’s answer to the Respondent’s exceptions is
denied. See Sec. 102.46(h) of the Board’s Rules and Regulations, as
amended, September 27, 1991.
The Charging Party’s and Intervenor’s motion to take official no-
tice is denied.
2 The Respondent has excepted to the judge’s finding that the
Charging Party is a labor organization, apparently because the Amer-
ican Postal Workers Union, AFL–CIO is the collective-bargaining
representative of its employees with whom it has a national agree-
ment. The Respondent admits, however, that the Local is an agent
of the National Union (although it contends a very limited agency
exists). It is also undisputed that the Local has the authority to initi-
ate and process grievances through the first two steps of the griev-
ance procedure. Further the Charging Party and the Respondent are
parties to a memorandum of understanding covering local terms and
conditions of employment, authorized under the national agreement.
We therefore find that the Charging Party is a labor organization
within the meaning of Sec. 2(5) of the Act. Moreover, the Respond-
ent has not contended that its failure to process grievances within
the time limits prescribed in the agreement was because the Local
was not a labor organization, or that the Local was not a proper
party to this proceeding.
United States Postal Service and Philadelphia PA
area Local American Postal Workers Union,
a/w American Postal Workers Union, AFL–
CIO. Case 4–CA–18057–P
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 25, 1990, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, an opposition to Charging Party’s and Interve-
nor’s motion to strike certain exceptions, and a re-
sponse to General Counsel’s answer to Respondent’s
exceptions and to the General Counsel’s motion to
strike. The General Counsel filed cross-exceptions with
a supporting brief and an answer to the Respondent’s
exceptions, an opposition to the Respondent’s request
to attach appendix to its brief in support of exceptions
and a motion to strike portions of the brief, and a mo-
tion to strike Respondent’s response to the General
Counsel’s answer to Respondent’s exceptions. The
American Postal Workers Union, AFL–CIO filed a
motion to intervene. The Charging Party and Interve-
nor filed an answering brief, an opposition to the Re-
spondent’s request to attach appendix to its brief in
support of exceptions and a motion to strike appendix
and portions of brief, a motion to strike certain of the
Respondent’s exceptions, a reply to the Respondent’s
opposition to their motion to strike certain exceptions,
and a motion to take official notice.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in the light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order as
modified.
The national collective-bargaining agreement be-
tween American Postal Workers Union and the Re-
spondent provides, under article 15, for a four-step
grievance procedure, with arbitration as the fourth step,
and sets specific time limits for the processing of
grievances through each step, as described by the
judge in footnote 3 of his decision. The unfair labor
practices found here result from the continuous failure
of the Respondent to process grievances as prescribed
in the agreement, thus causing a logjam of grievances
filed as long ago as 1986.
In the remedy section of his decision, the judge
found that because of the Respondent’s unwillingness
or inability to process grievances within the time limits
set forth in article 15 of the national agreement, an ex-
traordinary remedy was necessary. He therefore or-
dered, inter alia, that the Respondent adjust all pending
and future grievances, not processed within the con-
tractual time limits, in favor of the grievant, thereby
waiving any objections to the merits of the grievance.
The judge’s remedy also provided that these pending
grievance matters could be appealed within 30 days of
the effective date of his order to the Regional Director
to determine if the presumed waiver of the Respond-
ent’s position would result in an unduly prejudicial or
harsh result.
Both the Respondent and the General Counsel have
excepted to these provisions of the judge’s remedy,
contending that the remedy, in effect, adds a new, sub-
stantive provision to the national agreement, and is be-
yond the authority of the Board, citing H. K. Porter
Co. v. NLRB, 397 U.S. 99 (1970). In addition, the
General Counsel contends that it is inappropriate to
vest in the Regional Director the authority to determine
if a given remedy is unduly harsh or prejudicial. We
agree that the judge’s remedy is inappropriate. We also
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See J. P. Stevens & Co., 157 NLRB 869, 878–879 (1966), enfd.
as modified 380 F.2d 292 (2d Cir. 1967), cert. denied 389 U.S. 1005
(1967).
4 Contractual grievances, as distinguished from disciplinary griev-
ances, are those arising under the parties’ collective-bargaining
agreement, and are described as involving matters such as overtime,
out of schedule pay, holidays, and withholding step increases. Dis-
ciplinary grievances involve disputes concerning , for example, let-
ters of warning, suspensions, and notices of removal. The record
shows that disciplinary grievances are given preference in scheduling
over contractual grievances.
5 The remedy imposed is only a temporary measure to correct the
logjam of grievances created by the Respondent’s unilateral modi-
fication of the collective-bargaining agreement’s grievance proce-
dures. It is not meant to replace the parties’ agreed-upon procedure
for the processing of any future grievances, and it does not require
agreement by the parties concerning the merits of any grievances.
agree with the judge, however, that an extraordinary
remedy is required to alleviate the backlog of griev-
ances caused by the Respondent’s unlawful actions.3 In
fashioning the following amended remedy, we have
drawn extensively from the General Counsel’s pro-
posed remedy.
Our remedy is tailored to correct the horrendous log-
jam in the grievance/arbitration process created by the
Respondent’s unfair labor practices. Among other
things, this remedy provides time limits under which
the Respondent will be required to meet with the
Union to resolve grievances at steps 2 and 3; requires
the Respondent to consider grievances by assigned cat-
egory for more efficient resolution; directs the Re-
spondent to answer unresolved grievances within cer-
tain time limits; and, in consideration of the need to
expedite the large number of contractual grievances4
that are pending, permits the Union to bypass step 3
and proceed directly to arbitration. To further improve
grievance processing, our remedy requires that steps 2,
3, and arbitration hearings be held within certain time
limits that we have imposed to correct the grievance
logjam created by the Respondent’s unlawful action.
The relief we provide is procedural. We do not in-
trude into the parties’ substantive decision making with
respect to grievance resolution. Cf. H. K. Porter Co.
v. NLRB, supra.5 We do require that the Respondent
attempt to resolve grievances in good faith, which is
what is required by Section 8(a)(5) and Section 8(d) of
the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices, the Respondent will be ordered to
cease and desist and to take the following affirmative
action.
Grievances now awaiting action at step 2 of the
grievance procedure will be processed in the following
manner:
(a) Step 2. (i) The Respondent and the Union will
meet within 30 days of the date of the Board’s Order
to cross-reference and exchange information in order
to identify all grievances not yet heard at step 2, and
those that have been heard but not yet answered as of
that date. The Union will separate the grievances into
class action and individual grievances, and will iden-
tify those grievances that raise disciplinary issues and
those that involve contractual issues.
(ii) The Union will sort contractual grievances
awaiting step 2 hearing into categories based on the
type of issue and contractual violation alleged. Once
the grievances have been sorted, the Union will des-
ignate those contractual grievances it claims are gov-
erned by prior arbitration awards and settlements at the
local, regional, or national level. The Respondent will
then promptly meet with the Union and in good faith
seek to resolve all grievances so designated by the
Union.
(iii) All remaining contractual grievances involving
the same or similar issue will be heard together, ac-
cording to the priority established by the Union. Such
step 2 hearings will be held within 30 days of the date
of the completion of the Respondent’s and Union’s ef-
forts to resolve the grievances described in subpara-
graph (a)(ii) above. For those grievances not resolved
at the step 2 hearing, answers must be provided by the
Respondent within 30 days of the hearing.
In the event that any grievance or group of griev-
ances cannot be resolved at step 2, the Union will have
the right to bypass step 3 and certify the grievance or
group of grievances for arbitration. Grievances so cer-
tified will be scheduled for arbitration and heard by an
arbitrator within 90 days of the certification.
(iv) The Union will also assign all disciplinary
grievances awaiting step 2 hearing into categories
based on the type of discipline imposed and the basis
for the discipline (e.g., attendance-policy violations).
Once these designations have been made, all pending
grievances involving the same or similar issues will be
heard together, in accordance with a priority list estab-
lished by the Union. These step 2 hearings will be held
within 90 days of the date of the Board Order. For
those grievances not resolved at the step 2 hearing, an-
swers must be provided by the Respondent within 30
days of the hearing.
(v) For grievances that have been heard as of the
date of the Board’s Order, but not yet answered, the
Union will make the same designations referred to
above in subparagraphs (ii), (iii), and (iv). All these
grievances, contractual and disciplinary, must be an-
swered by Respondent within 30 days of the Union’s
designation. The Union will have the right to certify
for arbitration those contractual grievances not re-
solved within that time in the manner described above
in subparagraph (iii).
(vi) The Respondent will take whatever steps are
necessary, including the assignment of additional per-
15POSTAL SERVICE
sonnel, to hear and answer all grievances within the
time periods set forth above, and to ensure accurate
and complete recordkeeping in its labor relations de-
partment with respect to the status of step 2 griev-
ances.
Grievances awaiting step 3 action will be processed
in the following manner:
(b) Step 3. (i) The Respondent and the Union will
meet within 30 days of the Board Order to cross-ref-
erence and exchange information in order to identify
all grievances awaiting step 3 hearing and answer. The
Respondent will assign a ‘‘regional number’’ to each
step 3 grievance at the time it is identified as a pend-
ing grievance, unless a number has already been as-
signed. The Union will separate the grievances into
class action and individual grievances, and identify
each as to whether it raises disciplinary or contractual
issues.
(ii) The Union will sort contractual grievances
awaiting step 3 hearing into categories based on the
type of issue and contractual violation alleged. Once
the grievances have been sorted, the Union will des-
ignate those contractual grievances it claims are gov-
erned by prior arbitration awards and settlements at the
local, regional, or national level. The Respondent will
then promptly meet with the Union and in good faith
seek to resolve all grievances so designated by the
Union. In the event that any of these grievances or
group of grievances cannot be resolved at step 3, the
Union may certify the grievance or group of griev-
ances for arbitration. Grievances so certified will be
scheduled for arbitration and heard by an arbitrator
within 90 days of the certification.
(iii) All remaining contractual grievances involving
the same or similar issue will be heard together, in ac-
cordance with the priority established by the Union.
These step 3 hearings will be held within 30 days of
the completion of the Respondent’s and Union’s ef-
forts to resolve the grievance described in subpara-
graph (b)(ii) above. For those grievances not resolved
at the step 3 hearing, answers must be provided by Re-
spondent within 30 days of the hearing.
(iv) The Union will also divide disciplinary griev-
ances awaiting step 3 hearing into categories based on
the type of discipline imposed and the basis for the
discipline (e.g., attendance policy violations). Once
these designations have been made, all pending griev-
ances involving the same or similar issues will be
heard together, in accordance with the priority estab-
lished by the Union. These step 3 hearings will be held
within 90 days of the date of the Board Order. For
those grievances not resolved at the step 3 hearing, an-
swers must be provided by the Respondent within 30
days of the hearing.
(v) For grievances that have been heard as of the
date of the Board’s Order, but not yet answered, the
Union will make the same designations referred to
above in subparagraphs (ii), (iii), and (iv). All such
grievances, contractual and disciplinary, must be an-
swered by Respondent within 30 days of the Union’s
designation. The Union will have the right to certify
for arbitration those contractual grievances not re-
solved within that time, in the manner described above
in subparagraph (ii).
Grievances awaiting arbitration will be processed in
the following manner:
(c) Arbitration. The Respondent will maintain the
‘‘pre-arbitration review’’ process implemented in early
1990 until all contractual grievances now pending arbi-
tration have been discussed. The Respondent will un-
dertake a similar good-faith review of all disciplinary
grievances awaiting arbitration. Those grievances not
resolved during the review will be scheduled for arbi-
tration on completion of the review, and heard by an
arbitrator within 120 days of the review, or other mu-
tually agreed-upon date.
(d) On request, the Respondent must provide the
Union with periodic reports of the status of grievances
pending at steps 2 and 3, in addition to the arbitration
reports already provided. The reports will include the
Local Union grievance number and the ‘‘regional num-
ber,’’ if applicable, for each grievance listed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, United States
Postal Service, Philadelphia, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the order as modified.
1. Cease and desist from
(a) Failing and refusing to process and decide steps
2 and 3 grievances and to process matters progressing
to arbitration in a timely manner consistent with its ob-
ligations under article 15 of its collective-bargaining
agreement with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Process all pending step 2 and 3 grievances and
matters progressing to arbitration that have not been
processed in accordance within the time limits of arti-
cle 15 of the collective-bargaining agreement as pro-
vided in the remedy section of this decision.
(b) Process all subsequent steps 2 and 3 grievances
and matters progressing to arbitration within the time
limits set forth in article 15 of the collective-bargaining
agreement.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 See H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
2 Despite the mandatory nature of the quoted language, the evi-
dence indicates that the Union can choose not to place the grievance
into the next step.
3 By contrast, the failure of the Union to meet a deadline results
in the waiver of the grievance.
records, reports, and other documents necessary to ana-
lyze the processing of grievances and matters going to
arbitration.
(d) Post at its Philadelphia, Pennsylvania Division
facilities copies of the attached notice marked ‘‘Appen-
dix.’’6 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER RAUDABAUGH, dissenting in part.
Although I agree with my colleagues that Respond-
ent has violated the Act, I do not agree with the rem-
edy that they have imposed. In my view, they have
written for the parties an elaborate scheme that is at
odds with what the parties themselves have agreed on.
Because the Board is powerless to foist an agreement
on private parties, even as a remedy for unfair labor
practices,1 I would not impose the remedy ordered by
my colleagues.
In brief, the parties agreed to a multistep grievance-
arbitration procedure culminating in arbitration. There
are time limits for actions within each grievance step,
and there are time limits between steps 1 and 2 and
between steps 2 and 3. There is no time period for the
holding of the arbitration hearing.
The contract provides that if the Employer fails to
adhere to a time deadline at any step in the grievance
procedure, the grievance ‘‘shall be deemed to move’’
to the next step.2 The contract imposes no other proce-
dures to govern the situation where the Employer fails
to comply with a time deadline.3 Notwithstanding this
fact, my colleagues have imposed their own procedures
to govern that situation. These procedures consist of
new deadlines that differ from those set forth in the
contract. In addition, my colleagues permit the Union
to bypass step 3, notwithstanding the absence of such
a procedure in the contract.
In sum, my colleagues have imposed a regimen of
their own, different from that agreed upon by the par-
ties. Under Section 8(d) and H. K. Porter, the Board
is forbidden from doing this. My colleagues seek to
avoid these statutory principles by asserting that the
rules which they impose are merely procedural. As-
suming arguendo that they are procedural, there is
nothing in Section 8(d) or Porter to suggest that the
Board can impose even procedural arrangements on
the parties. To the contrary, time deadlines in a con-
tract are mandatory subjects of bargaining under Sec-
tion 8(d). Accordingly, under the express language of
Section 8(d), these matters are to be bargained by the
parties, not imposed by the Government.
My colleagues state that their remedy does not re-
quire agreement by the parties as to the merits of any
grievance. I agree. However, their remedy does require
a new procedure for the resolution of grievances, and
this procedure differs from that agreed on by the par-
ties.
My colleagues also state that the procedure which
they impose is ‘‘only a temporary measure.’’ I think
that it is clear that Section 8(d) forbids the Board to
impose any modification of the agreement of the par-
ties temporary or otherwise.
This is not to say that there can be no meaningful
remedy for the violations in this case. With respect to
the future, a cease-and-desist Board order and court
decree, coupled with the availability of contempt sanc-
tions, can offer protection against a recurrence of the
problems that gave rise to this case. With respect to
the past, there are unfortunately many grievances that
have languished for far too long. As to these matters,
I would order the Respondent to adhere to the contract
that it has agreed to. The parties have agreed, in their
contract, that they will meet ‘‘promptly’’ on grievances
unresolved in step 3. If they cannot reach accord, they
will proceed to arbitration ‘‘at the earliest date pos-
sible.’’ Thus, if the Union cannot achieve a satisfactory
resolution of these grievances, it can force the Re-
spondent to a prompt meeting and to prompt arbitra-
tion. Concededly, neither the Union nor the Respond-
ent is in a position to handle this backlog all at once.
With respect to this problem, I would order good-faith
bargaining as to which grievances should be handled
first. If Respondent drags its heels in this bargaining,
contempt sanctions would be available.
I do not suggest that this approach will be a pana-
cea. But it does offer a reasonable prospect for clean-
ing up the backlog and it does offer protection against
a recurrence of the problem. Most importantly, my ap-
proach is consistent with the statute.
17POSTAL SERVICE
1 All following dates will be in 1989 unless otherwise indicated.
2 A second case, Case 4–CA–18305–1(P), was consolidated for
hearing with the instant complaint. The parties reached a non-Board
settlement in that case prior to the commencement of the hearing and
the complaint was withdrawn.
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 pro-
tected concerted activities.
WE WILL NOT fail and refuse to process and decide
steps 2 and 3 grievances or to process matters pro-
gressing to arbitration in a timely manner consistent
with our obligations under article 15 of our collective-
bargaining agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL process all pending steps 2 and 3 griev-
ances and matters pending arbitration which have not
been processed in accordance within the time limits of
article 15 of the collective-bargaining agreement, as
provided in the Board’s decision.
WE WILL process all subsequent steps 2 and 3 griev-
ances and matters pending arbitration within the time
limits of article 15 of the collective-bargaining agree-
ment.
UNITED STATES POSTAL SERVICE
Dona A. Nutini, Esq., for the General Counsel.
Michael Propst, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Nancy Lassen, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Philadelphia, Pennsylvania, on Feb-
ruary 27 through March 2, 1990. Subsequent to a requested
extension of the filing date, briefs were filed by General
Counsel and the Respondent. The proceeding is based on a
charge filed May 8, 1989,1 by Philadelphia, Pennsylvania.
Area Local, American Postal Workers Union a/w American
Postal Workers Union, AFL–CIO. The Regional Director’s
complaint2 dated October 20, 1989, alleges that Respondent,
United States Postal Service, violated Section 8(a)(5) and (1)
of the National Labor Relations Act by unilaterally modify-
ing the parties’ collective-bargaining agreement by (1) failing
and refusing to schedule step 2 and step 3 hearings within
the time period set forth in the contractual grievance proce-
dure; (2) failing and refusing to answer step 2 and 3 griev-
ances within the time period set forth in the contractual
grievance procedure; and (3) failing and refusing to assure
the efficient scheduling and hearing of cases by arbitrators,
as provided in the contractual grievance-arbitration proce-
dure.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent provides postal services for the United States
and operates facilities throughout the United States in the
performance of that function. It admits that the Board has ju-
risdiction over its operations by virtue of Section 1209 of the
Postal Reorganization Act. It denies that the Local Union is
a labor organization within the meaning of Section 2(5) of
the Act, apparently because it is the National with whom Re-
spondent has its primary bargaining relationship, and which
is designated as representative of Respondent’s employees in
the national agreement. This argument is inconsistent with
numerous Postal Service cases, some cited subsequently
herein, which have recognized the appropriateness of the sta-
tus of the Local Union within a national agreement and I
find that both the Local Union and National Union are in-
cluded as a labor organization within the meaning of the Act.
Under the circumstances, I find that the action by Re-
spondent and its counsel in contesting this matter is inappro-
priate and they are admonished to refrain from this practice
in the future.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The American Postal Workers Union represents approxi-
mately 5000 clerk craft, maintenance, motor vehicle, and
special delivery employees in the Philadelphia division of the
United States Postal Service. Some 80 percent of these em-
ployees are located at the 30th Street General Post Office in
Philadelphia. The Postal Service and the Union (APWU) are
parties to a national collective-bargaining agreement cur-
rently effective for the period from July 21, 1987, to Novem-
ber 20, 1990. Local agreements, covering topics reserved or
not specifically addressed in the national agreement, have the
same expiration date. The Philadelphia Area Local, APWU,
has such a local agreement, and is responsible for represent-
ing the employees in the Philadelphia division of Respond-
ent.
Article 15 of the national agreement provides for a
multistep grievance procedure, ending with binding arbitra-
tion. Grievances can be filed on behalf of individual employ-
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As explained by the Postal Service at step 1 an aggrieved em-
ployee (or union representative) discusses the grievance with the em-
ployee’s immediate supervisor. The discussion must occur within 14
days of the date on which the employee or the Union first learned
or may reasonably have been expected to have learned of its cause.
The supervisor’s decision, is required not more than 5 days after the
meeting. The Union may then request the supervisor to initial a step
2 grievance form, confirming the date upon which the decision was
rendered. The Union may appeal an adverse decision at step 1 to
step 2 within 10 days.
When the grievance reaches step 2, the appeal form is given by
the Union to the labor relations office for processing. The grievance
is logged in and given to a labor relations assistant (appeals involv-
ing an employee’s termination are generally handled by the labor re-
lation’s representative, a higher level employee). The grievances
from a particular shift, are assigned to an assistant working on that
shift who then schedules the grievance for hearing as soon as pos-
sible, but not necessarily within the 7 days provided in art. 15.
The assistant sends a scheduling letter to the Union, with available
dates and a list of grievances to be heard, and a union representative
is assigned to handle the matter.
If the grievance is not settled or otherwise resolved at the step 2
meeting, the assistant prepares management’s answer. Art. 15, re-
quired this response within 10 days of the step 2 meeting. An appeal
to step 3 must occur within 15 days of receipt of management’s de-
cision.
Step 3 appeals from the Philadelphia Division are directed to the
regional director of human resources for the eastern region also lo-
cated in Philadelphia. Step 3 grievances also are handled by the
Union’s regional representative. Cases arising out of the various di-
visions are also assigned for under art., representatives of the parties
are to meet within 15 days after appeal to step 3 and have the au-
thority to settle, withdraw, or grant the grievance, as appropriate, but
may also return the matter to step 2 for ‘‘full development of all
facts and further consideration,’’ if necessary. A written decision to
the Union is required within 15 days after the step 3 meeting, unless
the response time is extended by agreement of the parties. The
Union then may appeal an adverse decision directly to arbitration at
the regional level within 21 days of its receipt.
ees or the Local Union. Class action grievances are either
grievances filed on behalf of the Union alleging contract vio-
lations, or on behalf of a group of similarly situated individ-
ual employees. The Local Unions have sole responsibility for
initiating grievances, except for ‘‘interpretive’’ issues in-
volved in the national agreement,
The national agreement provides for a four-step grievance-
arbitration procedure as set out at article 15 of the national
agreement.3
Section 3(c) of article 15 provides that failure by the Post-
al Service ‘‘to schedule a meeting or render a decision in any
of the Steps of [the grievance-arbitration procedure] within
the time herein provided . . . shall be deemed to move the
grievance to the next step of the grievance-arbitration proce-
dure.’’ While specific time limits are set forth for grievances,
arbitration is to be scheduled at the ‘‘earliest date possible.’’
By letter dated March 30, 1989, to Philadelphia Postmaster
Charles James, Union President Greg Bell listed 324 class
action and individual (shift) tour grievances that were wait-
ing to be heard. The list of grievances attached to Bell’s let-
ter was forwarded to tour 1 labor assistant, Charles Polk, for
verification. Of the class action grievances listed, Polk admit-
tedly had no record of 10, from 1985, 1986, and 1987. For
the 1988 class action grievances, Polk found that 22 had
been scheduled and heard by April 28, 1989, and that an-
other 32 were scheduled between September 1988 and March
1989 for a hearing, but he had no way of knowing whether
they had in fact been heard and it was established that the
Respondent’s lacked a central recordkeeping system and that
only when a grievance is settled or denied is the file moved
from the labor assistant cubicle to a central filing system.
General Counsel’s Exhibit 16 is a list of 1647 grievances
awaiting step 2 hearing, most of which dated back to 1986,
1987, 1988, and 1989. There were, however, a few from
1984 and 1985, and one from 1983. A comparison of Gen-
eral Counsel’s Exhibit 16 with Respondent’s Exhibit 10
shows that of the 1647 grievances on Exhibit 16, 56 had
been resolved by June 22, 1989, and should not have been
listed. Another 193 were resolved after June 22, 1989. Ex-
hibit 15 (which list grievances waiting a step 2 decision)
shows 503 grievances awaiting step 2 answers, most of
which date from 1986 through 1989. A comparison of Gen-
eral Counsel’s Exhibit 15 and Respondent’s Exhibit 10
shows that 64 grievances were answered prior to June 22,
1989, and should not have been listed, and that 56 were an-
swered after June 22.
Respondent was provided with copies of General Coun-
sel’s Exhibit 15 and 16 during the course of the investigation
of the instant charges. As of October 12, 1989, after a few
months of review, Respondent could not locate the files for
384 grievances listed on Exhibit 16, and 279 for grievances
listed on Exhibit 15. Of those files missing in the ‘‘waiting
to be heard’’ category, 161 were from 1988 and 134 from
1989. With respect to the grievances that were not answered,
Respondent could not locate 132 files for 1988 grievances
and 79 for 1989 grievances.
General Counsel’s Exhibits 17 and 18 are updated versions
of Exhibits 15 and 16 prepared by the Union in February
1990, in anticipation of the hearing, and demonstrate the con-
tinuing nature of the problem, as shown specifically in Ex-
hibit 17 list of grievances waiting for step 2 decisions which
includes:
Employee Grievances Class Action Grievances
1984 1 0
1985 4 0
1986 41 1
1987 48 19
1988 39 52
1989 231 210
1990 175 92
539 *374
* = 913 Grievances Waiting For Step 2
Although the grievances listed in Exhibits 15, 16, 17, and
18 had been awaiting hearings or answers for well beyond
the contractual time limits imposed on Respondent, the
Union declined in most cases to move the grievances to step
3, as is its option under the national contract, because the
Union views the step 2 discussion as necessary, both in
terms of ‘‘due process’’ for an individual grievance, and be-
cause such discussion can lead to resolution of the dispute
at the lowest level. In addition, lack of exchange of informa-
tion and facts and a written decision at step 2 can hamper
the process at step 3 (the Union has moved step 2 grievances
19POSTAL SERVICE
up to step 3, only to have them remanded back to the Union
because there was insufficient information for the step 3 rep-
resentatives to resolve the grievance intelligently). Finally,
appealing all of the grievances currently beyond the time
limits for hearing and answers at step 2 would add hundreds
of cases to the step 3 docket, and if not heard and answered
timely this would add to the backlog of cases awaiting arbi-
tration, delaying final resolution of those cases for several
more years.
As pointed out by the Respondent there was an increase
in the number of grievances filed in 1989. The credible testi-
mony by the Union President Bell shows that the situation
worsened after the appointment of Charles James as Post-
master and it reflected an apparent reluctance or refusal by
Respondent to resolve the types of grievances that had been
settled under prior administrations as well as an increase in
perceived violations of the contract. The number of griev-
ances filed by the Union increased from 2600 in 1988 to
4100 in 1989. Respondent’s regional and national managers
were aware of the problems in Philadelphia and Respondent
National Discipline Task Force Report drafted by the man-
agement representative on the task force, said that super-
visors and human resource representatives responsible for re-
solving grievances are reluctant to do so because they ‘‘are
afraid of the repercussions.’’ The report further noted that
while management feels too many grievances are filed, the
Union ‘‘feel they have no alternative other then to file griev-
ances and protest in their forum, because all lines of commu-
nication have been cut.’’ In this regard the report states that
management made policy changes without any union input or
notification, leading to additional grievances. The rec-
ommendation of the task force included a good-faith effort
by management to resolve grievances at the local level and
that the labor relations staff ensure that the Union be in-
formed far in advance of operational changes.
Delays in processing grievances at step 2 have existed for
some time in Philadelphia, both in scheduling the grievances
for hearing, and in rendering decisions after the hearing.
Union Industrial Relations Director Bob Reid has sent nu-
merous letters to Respondent management and labor assist-
ants particularly beginning in 1988, requesting that griev-
ances be scheduled for hearing and requesting decisions in
cases that were heard (in these letters, the Union identified
the specific grievances in question by the Union designated
Local number). Despite the Union’s persistence, in some
cases two or even three requests were made over the course
of several months for hearings involving the same griev-
ances. Only on rare occasions did any labor assistant contact
the union representative and discuss extending the time limits
for either hearings or decisions.
The Union also has requested information pertinent to the
grievance prior to the step 2 hearing, and in many cases such
requests are denied. This in turn results in the filing of addi-
tional grievances over denial of such information, which
grievances are often, but not necessarily, resolved at a sepa-
rate step 2 hearing. This problem escalated in 1989, when
more information requests were denied than in the past, and
the Union was less successful at calling labor relations per-
sonnel and receiving the information without having to file
a grievance.
Some 90 percent of the grievances denied at step 2 are ap-
pealed to step 3. The appeal is made by the Union within
15 days after receipt of the step 2 decision. At step 3 the
grievance is removed from the local level, and handled by
Respondent’s regional director for human resources and the
union regional representatives who are national business
agents (NBA).
When an appeal is made a copy is sent to the Union’s of-
fice, where it is logged in with a union regional number.
Business Agent James Burke testified that he will call Re-
spondent’s regional representative at the beginning of each
month to set step 3 hearing dates for later in the month. By
the time of the actual hearing dates, both the NBAs and Re-
spondent’s representatives can hear all of the cases that were
appealed during the month.
Until the fall of 1989, only grievances alleging contract
violations were heard by regional level management rep-
resentatives. Disciplinary cases were handled by division
level management and the business agents. Because of the
backlog in getting answers in discipline cases at the division
level, and in an effort to get a better ‘‘resolve’’ rate, Re-
spondent transferred the step 3 responsibility for disciplinary
grievances from the divisional level to the regional level
making Philadelphia the only division in the country where
discipline is heard at the regional rather than the divisional
level.
As many as 50 grievances can be heard at a step 3 hear-
ing, as many are repetitive issues that have come up fre-
quently in the past. The vast majority of contract issues at
step 3 involve some sort of monetary remedy, Respondent
generally fails to respond in such cases and upon denial all
are appealed to arbitration by the Union. According to
Burke, most of the contract issues appealed to arbitration
have already been covered by prior national level arbitration
awards or clear criteria spelled out in the national agreement,
and therefore should never have gone beyond step 2 for reso-
lution.
Regarding discipline cases at step 3, management has the
burden of justifying the discipline imposed on the employee
and the resolution rate is high on letters of warning, but if
the issue becomes money in the form of backpay for suspen-
sions or removals, the grievances are usually denied.
Respondent is obligated under the national agreement to
provide a written step 3 answer within 15 days of the step
3 hearing. In most cases, the Union allows 45 days before
it automatically appeal the grievance to arbitration. In divi-
sions other than Philadelphia in the eastern region, answers
in disciplinary cases heard at the divisional level usually
come within that 45-day period, or sooner. In Philadelphia,
however, the Union experiences delays of 6 months, and has
complained about it. It also states that when step 3 answers
are received they normally state only that investigation into
the issue revealed a lack of fact documentation that would
be necessary to support the Union’s position, and therefore
the corrective action requested by the Union is not granted
with no further explanation given to support the denial.
In July and August 1989, the union agents in the eastern
region attended step 3 hearings expecting to hear 50 or so
grievances, but found Respondent’s representatives did not
have the files of the grievances to be heard. Respondent’s
representatives told the agents that they did not have the files
or that no regional number had yet been assigned to the
cases, a problem that had never happened before.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Business Agent Burke called Union Eastern Region Coor-
dinator Phil Flemming and told him that something was
wrong, that management did not have any files at the step
3 hearings, and that grievances were getting backed up and
the system, was stopped because the grievances at step 3
could not be appealed to arbitration without the regional
numbers.
At the time Burke called Flemming, Flemming received a
letter from the National Union Executive Vice President Bill
Burrus informing him that several of Respondent’s regions
have adopted a modification to the step 3 process by remand-
ing step 3 appeals back to the divisional level for ‘‘rediscus-
sion.’’ Flemming called Respondent’s Regional Labor Rela-
tions Official Tony Suriano and asked him what was going
on. Suriano admitted that step 3 grievances were being sent
back to the division level to be resolved. Suriano also indi-
cated that this remanding program was part of an effort by
the Postmaster General to reduce grievances by 52 percent.
Flemming told Suriano that he did not approve of or agree
with the program and that any remanding had to be by mu-
tual agreement of the parties at step 3.
On September 26, Flemming sent a letter to John Mar-
shall, Respondent’s regional manager for labor relations, pro-
testing Respondent’s ‘‘unilateral action of remanding griev-
ances’’ in violations of article 15, section 2, step 3(b) of the
national agreement which provides that the parties must mu-
tually agree to remand step 3 appeals back to step 2.
Flemming requested that the remanding program be halted.
By reply dated October 6, Marshall confirmed that Re-
spondent’s action was part of a ‘‘grievance reduction strat-
egy’’ implemented in July 1989, which he asserted was
‘‘communicated’’ to the Union; however, Flemming had not
been informed of the program’s implementation except by
being given a copy of a memo and he was never approached
to bargain about the proposed system.
Despite Flemming’s protest about the remanding system in
September 1989 as late as November 24, 1989, step 3 griev-
ances were still being remanded unilaterally by Respondent
to the divisional level.
Respondent’s remand or ‘‘trapping’’ program contributed
to the creation of a further backlog of cases to be heard at
step 3. Thus, instead of the agents being fairly current on a
month-to-month basis holding hearings, by October 1989
there were more cases dating as far back as July 1989 that
had not yet been heard at step 3. Also, hundreds of cases
were not assigned regional numbers, and step 3 could not be
bypassed by an appeal to arbitration. As of the date of the
hearing, there were still 250 grievances going back as far as
September 1989 that the Union had appealed to step 3 that
were ‘‘trapped’’ and had still not received regional numbers.
Approximately 95 percent of the grievances denied at step
3 are appealed to arbitration. This process involves certifi-
cation of the grievance for arbitration by the NBA, who noti-
fies both management and the local union of the appeal to
arbitration. Under article 15 Respondent is responsible for
the scheduling of arbitrations and the designation of each
grievance for regular or expedited arbitration. Grievances are
also separated into removals and suspensions of 14 days or
more, lesser discipline, and contract cases. For scheduling
purposes, disciplinary cases take priority over contract cases,
and removals take priority over lesser discipline. In Philadel-
phia, from the date of the step 3 appeal, removals take about
6 months to be heard at arbitration, suspensions about a year,
and contract cases can take as long as 3 to 4 years.
At the time of the hearing, Philadelphia had approximately
3000 grievances pending arbitration. This is four times the
number of grievances pending in any of the other eastern re-
gion divisions except Pittsburgh, in comparison to which
Philadelphia had twice as many grievances pending arbitra-
tion.
III. DISCUSSION
The alleged unfair labor practices are the outgrowth of ad-
mitted management difficulty in meeting contractual ‘‘Article
15’’ time limits regarding processing of step 2 and 3 griev-
ances and matters progressing to arbitration. Respondent’s
manager of labor relations for the Philadelphia Division of
the Postal Service attributes the delays ‘‘largely’’ to the sheer
volume of grievances, and notes that while the parties do not
necessarily agree about what precipitated the increase in
grievance activity in Philadelphia, there is no dispute that
grievances increased dramatically in 1989.
Respondent describes various steps taken or proposed
since 1988 to reduce the backlog and contends that it has
made a good-faith effort to meet its contractual obligations.
It argues that despite any time limit failures at step 2, step
3 and arbitration, such failures should not be found to con-
stitute a renunciation of its collective-bargaining obligations
and therefore no violation of the Act can be found. It also
reasserts a position repeatedly raised at the hearing that there
is no apparent remedy that can be applied to the operation
of the grievance procedure itself and that therefore violations
of article 15 of the national agreement are not relevant to
charges against it.
The General Counsel, on the other hand, alleges that Re-
spondent’s breach of contract is so clear and flagrant as to
amount to a unilateral modification of the collective-bargain-
ing agreement and a renunciation of the bargain reached dur-
ing negotiations, citing Paramount Potato Chip Co., 252
NLRB 794, 797 (1980), and Nedco Construction Corp., 206
NLRB 150, 151 (1973).
Although no specific argument is made relative to the fol-
lowing provision of article 15, section 3:
D. It is agreed that in the event of a dispute between
the Union and the Employer as to the interpretation of
this Agreement, such dispute may be initiated as a
grievance at the Step 4 level by the President of the
Union. . . . In the event the parties have failed to
reach agreement within sixty (60) days of the initiation
of the grievance in Step 4, the Union then may appeal
it to arbitration, within thirty (30) days thereafter.
The Respondent does refer to the Board’s decision in Postal
Service, 270 NLRB 1022 (1984). In this case the General
Counsel argued that Respondent’s repudiation of the griev-
ance resolution amounted to a repudiation of the entire bar-
gaining process, however, the Board granted a Motion for
Summary Judgment and found that the allegation should be
deferred to further stages of the grievance-arbitration proce-
dure.
In this proceeding I find that there is no showing that
question of interpretation of the agreement is involved. Ac-
cordingly, I find that the issue of significant violations of
21POSTAL SERVICE
bargaining agreement imposed time limits is not a matter
subject to any further grievance-arbitration procedure. I fur-
ther find that deferral is not appropriate in this case and that
it is necessary and appropriate to resolve the question of
whether Respondent’s practices constitutes a violation of the
Act.
It is apparent that both sides to the agreement have dem-
onstrated some flexibility in seeking to process grievances
and in making allowances pertaining to the specific time lim-
its provided in the agreement, and I find that such prior ac-
tions do not constitute a waiver of any sort by either party.
The statistical evidence presented by the General Counsel
persuasively shows that over the past several years Respond-
ent’s Philadelphia Region and Division has consistently and
progressively failed to meet its contractual time limit obliga-
tions. The Postal Service clearly has been aware of the
Union’s concern and has been aware of serious and signifi-
cant backlog problems, even though its apparent deficiencies
in recordkeeping clearly have inhibited its precise awareness
of the total extent of its failures.
The Local Union has made reasonable efforts to commu-
nicate its concerns to the Respondent and, despite Respond-
ent’s suggestion to the contrary, it has not made inappropri-
ate contributions to the delay that would significantly alter
the existence of the problem. Moreover, it is not incumbent
upon the Union to give some lesser degree of representation
to its duties to its members in order to assist Respondent in
its responsibilities under the bargaining agreement.
For example, in Respondent’s view, the filing of both
class actions and individual grievances over the same inci-
dent is unnecessarily duplicative. Respondent admits, how-
ever, that if individual grievances were not filed and the
Union were to rely only on an arbitrator’s decision regarding
the class action, it would refuse to apply the arbitrator’s deci-
sion to the situations referred to in each individual case.
Then, the Union would be time barred from addressing any
of the issues as they related to affected individuals.
There is no indication that the Union was uncooperative
in assisting to reducing the backlog and some progress was
made in late 1988 and early 1989, with agreements to add
more step 2 personnel, and with the proposed modified arti-
cles 15 and 16 provisions, however, each of these programs
was eliminated or rejected when Charles James was ap-
pointed as the Philadelphia postmaster in early 1989. James’
policies resulted in a significant increase in the number of
grievances filed by the Union, and reflected an apparent
change in Respondent’s attitude toward grievances, as indi-
cated by a lack of preparation by step 2 representatives, an
increase in instances of supervisors refusing to initial griev-
ances (which generated another grievance), refusals to pro-
vide requested information, and a perceptible reluctance and
failure to settle grievances at step 2.
It also is shown that prior to mid-1989 the parties gen-
erally scheduled and heard step 3 grievances promptly, how-
ever, answers both in disciplinary and contract grievances
were frequently delayed. Respondent addressed divisional
delays in answering step 3 disciplinary grievances by taking
responsibility for those grievances away from the Division
and concentrating it at the regional level (as noted, Philadel-
phia is the only division in the country where disciplinary
grievances are heard at the regional, rather than divisional,
level).
In July 1989, Respondent unilaterally implemented a re-
mand or ‘‘trapping’’ program, which adversely affected the
step 3 hearing process as well. This was done without the
consent of the Union, despite the fact that the national col-
lective-bargaining agreement specifically states that any re-
mand of grievances back to the local level from step 3 must
be mutually agreed upon by the step 3 representatives for
both parties.
Although the Union’s regional coordinator proposed a
prearbitration review program for Philadelphia, it was re-
jected by Respondent even though it had been implemented
in other regions. And, as noted, the arbitration backlog tends
to be adversely affected by Respondent’s reluctances and
failure to settle grievances at a lower step, especially such
matters as apparent repetitive and clear cut contract violation.
Under these circumstances, I find that the General Counsel
has demonstrated significant and continuous violations of the
Respondent’s duties under the time limit requirements of its
collective-bargaining agreement with the Union. I further
find that Respondent has failed to show mitigating cir-
cumstance for its failure to comply with or to substantially
mollify the extent and effect of its failure. I conclude that
the circumstances shown are sufficiently egregious to con-
stitute a unilateral modification of its collective-bargaining
agreement with the Union and I therefore conclude that it has
engaged and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, as alleged, see
the decision in Paramount, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer subject to the jurisdiction of
the Board pursuant to Section 1209 of the Postal Reorganiza-
tion Act, 39 U.S.C. § 101, et seq.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to process and decide steps 2
and 3 grievances and process matters progressing to arbitra-
tion in a timely manner consistent with its obligations under
article 15 of the appropriate collective-bargaining agreement
with the Union, Respondent has unilaterally modified such
agreement and has thereby engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
The Postal Service has demonstrated an adamant attitude
that it voluntarily will take only minimal steps to remedy its
processing failures and it is clear that it is unwilling to take
the steps necessary to process grievance in the timely manner
specified in the bargaining agreement. It is apparent that Re-
spondent is unwilling to voluntarily devote appropriate re-
sources or to take other managerial actions that would tend
to reduce the generation of new grievances or resolve the
processing of grievances within system with due diligence
and therefore a standard cease-and-desist remedy is insuffi-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cient in this instance, see Postal Service, 281 NLRB 215
(1986).
Respondent must accept responsibility for its wrongful
failure to comply with the terms of the bargaining agreement.
I consider the remedy described to be necessary to restore as
nearly as possible the situation that would have prevailed if
matters had processed in a timely manner. Otherwise, I find
that the Respondent has merely argued that ‘‘no’’ remedy is
possible and it has not met its burden of demonstrating that
a remedy such as that set forth below is not appropriate, see
Rebel Coal Co., 259 NLRB 258 (1981).
Under the circumstances, it appears necessary to recognize
a presumption or legal fiction regarding the merits of the
grievances in order to remedy the grievances within the con-
tractual time limit or otherwise induce the Respondent to
take sufficient efforts to meet its obligations. Accordingly,
Respondent shall be considered to have waived its objections
to any step 2 or 3 grievances not processed or decided within
the time provided in its bargaining agreement or arbitration
matters not scheduled with all due diligence and Respondent
will be ordered to adjust in favor of the grievant, all such
pending and future matters that are not so processed, de-
cided, or scheduled within the time limits. This waiver shall
be subject to a provision that such waiver shall not apply in
matters where the Union or grievant in the future request or
otherwise causes a delay or postponement and it shall be
subject (both for scheduling and deciding) to a 7-day grace
period to temporarily allow for processing difficulties. Arbi-
tration matters not scheduled within 120 days shall be con-
sidered to be beyond due diligence except matters subject to
arbitration at the national level. Objection to all such griev-
ances and arbitration matters meeting this criteria, pending
on the date of this decision shall be deemed to have been
waived except for any such matter that is subject to a motion
to be filed within 30 days of the effective date of this deci-
sion; to the Regional Director for good cause shown (with
an opportunity for a reply by the Charging Party), which is
found by the Regional Director to be of such an exceptional
nature that a presumed waiver of its position would result in
an unduly prejudicial or unduly harsh result. Such matters
shall be processed and decided with all due diligence or as
otherwise established by the Regional Director.
Otherwise, it is not considered to be necessary that a broad
order be issued.
[Recommended Order omitted from publication.]