281 NLRB No. 138

M 00725 JBS

D--4064 blunbur , OH Phoenix , A2

UNITED STATES OF AMERICA

BEFORE THE NATIONAL M O R RELATIONS BOARD

URITItD STATES POSTAL SSRVICE

and

MRRICAN POSTAL WORKERS UNION, COLUnSWS AREA LOCAL, AFL-410

MIERICAN POSTAL WORKERS UNION, m c w x nsTRc3 AREA LOCAL, AFL--CIO

Case 9--CA--l6503(P)

CI re 2B--CA--6540(P)

DECISION AND OBEeR

On 23 bust 1982 Administrative Law Judqe Clifford 8. Anderson issued

the attached decision. Ihe Respondent. the &acral Counsel, Charqing Part ies ,

and Intervenor f i led exceptions and supporting br ie fs .

The National Labor Relations Board'Ar delcqated i ts authority i n th i s

proceediq to a three-meber panel.

'Ihe Boars has considered the decision m d the record i n l i gh t of the

ucep t ions and br ie fs

findings, and conclusion^ only to the extent consistent wi th t h i s Decision and

Order.

and has decided to affirm the jud3e'r ruliqs, a-

b e r i c a n Postal krkers mion, AFPG-CIO war granted Intervenor s t a tus i n t h i s proceeding. * me Charging Par t ies and Intervenor have requerted that the Board, sua rponte, authorize injunctive re l ie f under Sec. iO(j1 of the kt. We find t h i s is not an appropriate case for such action, and deny that request.

281 NooD. 138

M 00725 0-406b

kt issue in t h i s proceedinq i s t h e quertion of whether the Union must be

given the opportunity to be present uhen the Portal Service adjusts or

attempts to d j u s t Equal Finplopent Opportunity cauplaints v i t h individual

unit aployeer when the rme incident. or course of conduct cwprir inq thore

complaints are concurrently t h e subiect of contractual grievances. lbe j d q e

engaged in t balancing of uhat he found to be conflicting s ta tutory pol ic ier

Of Title VI1 of the Civil Rights kt of 1964 and Section 9(a)-of the National

labor Relations Act, and arrived a t an accomaodation scheme uhich he found

bes t harmonized the important in te rer t r rouqht t o be protected by each.

Specifically, he concluded that the Union's r ight t o be present a t Equal

lhployment Opportunity (EEO) precomplaint settlement oeetinqs with uni t

employees at which individual's grievances are adjusted rhould yield to EEO

proeerser mandating anonpi ty of the cwplainant a t the precanplaint r t 4 e of

that proceediaq, thereby l imiting the requirements of Section 9(a) of the Act

t@ the extent necersary to be consistent with federally enacted BE0

re8ulationr p e r t a i n i q to the Postal Se,rvice.4 An a necessary consequence of

t h i s limitation, he concwi tmt ly guarantead the Union's r i qh t to protect the

interests of a11 -it employees by l i n i t i nq the Respondent's a b i l i t y t o r a i r e

88 a defenre to the Union's purruit of a contract grievance based on the snne

facts the SZO precdpla in t rettlement reached with the i d i v i d u a l cnployee.

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' The term "canplaints" i r used here in its generic sense. t o connote oatterr of concern to employees, rather than as an indication tha t the i d i v i d u r l has fi led a formal complaint of discrimination within the meaning of Federal W O Regulations. See En. 4 below. 29 CFR 4 1613.213, vhich applier t o t h i s employer and provides for an agqrieved employee's precauplsint r i gh t of conrultatioa with an BE0 COlmse1Ot to t r y to resolve the matter, rtster. i n relevaat part:

The Equal Employment opwrtunity Cotmaelor sha l l not reveal the ident i ty of an aggrieved perron uho conrulted the counrelor, except when authorized to du so by the aqgrieved permr u n t i l the agency has ucepted a camplaint of discrimination frau tha t ' wrson.

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W-4064 M 00725

' Contrary to the judqe, w find that the clear statutory mndr te of Section

9(a) of the kt must prevail over the EEO administrative regulstionr.

Accordingly, we diaaqree with the judge's conclusions and find that the Postal

Service violated the kt +en it rdiuated or attempted to adjuat contract

grievances with individual enployees without affording their collective-

b8rq8iniag representative the opportunity t o be present a t the d j u s h e n t a .

Section 9(a) of the kt gives individual CimplO~ee8 the r ight to present

and adiust grievances with management, but the second proviso to that section

guarantees to the bargaininq representative an opportunity t o be present at

the adjustment of grievances. The expl ic i t lanquage of the Act secures t h i s

r i sh t to the bargaining r cp resen ta t i~e vithout qualification. Further,

legislative history and the ent i re statutory bargaininp scheme discloac that

the second proviso to Section 9(a) was inserted in recognition of the

bargaining representative's interest in adminiatering i ts contract. Bethlehem

Steel b 89 NLRB 341, 3*7 (1950). As noted in -- Bethlehem Steel , the dangers -. ' of permitting an employee, o r a jroup of employees. the unqualified r ight to I

present and settle grievances were ex~0unded upor, in the &use debates on

k c t i o n 9(a) as f01lowe:6

' Sec. 9(a) of the,&t provides that: Representatives designated or selected for the purposes of

col lect ive barrqainins by the maioritp of the smployees in a unit appropriate for such purposes, shal l be the exclusive representatives of a11 the empIoyees in ruch unit for the purposes of col lect ive bargaining i n respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided. That m y individual employee or a group of aplOyee8 shall have the r k h t at any time to present grievances to their mployer md t o have such grievances adiusted w i t b u t the intervention of the barqaining representative. as long as the d i u s o e n t is not inconsistent with the terms of a collective-barq&tiaq contract or qreement then in effect: Provided further. m a t the bsrqaining representative has been l iven opportunity to be present a t such adjustment.

. ti Bethlehem Steel CO. , supra a t fn. 8.

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M 00725 0--4064

To *rant individual employeea or a minority Sroup of employees the risht to preaent and ne t t le grievances which r e l a t e to waqes, hours, and conditionr of employment, without p a a i t t i n q the representative of the majority of the employers to particinate in the conference and join i n any adiurtment is to undernine the very foundations of the kt. To create r ivalry, diarension, auspicion, and fr ic t ion anong emplayeea, to peait employerr to play of f one qroup of employee8 4ain.t another, t o confuse the QplOpe8 would canpletely undernine t h e collective-barqainiq repreeentative and would be diraatrour. !93 Gong. kc. 3702 (daily ed. Apr. 17, 19971.1

The &use version of Section 9(a) did not include any requirement that

the bargaining representative be qiven an opportunity to be pteeent a t the

rdjurtment of Irievancea (see B.R. 3020, 80th Cow. l a t Sear. a t 28). The

requirement war included i n the Senate B i l l (8. 1126, 80th COng. l e t %sa. a t

19) and was retained i n the Conference Agreement (H.R. b n f . Rep. 80th Conq.

1st Sera. a t 46). Thus, by includinq the aecond oroviao to Section 9(a).

Co-ress clearly indicated an intent t o insure that the institutional role of

the collective-bargaining representative of a11 the employees i n a barqaining

unit i a not aubordinated to tha t of individual employees. 7

. Balanced wainst t h i s c lear statutory imperative of Section 9(a) is t h e

EEO regulation requirinq an BgO counrehr not to reveal the ident i ty of an

qqrieved person except when authorized to do ro by tha t individual. This

a m p i t y r b h t obtains only at the precaaplaint atape, before a f o r n d

emplaint of discrimination has been f i led by an aggrieved person. The m0 regulations provide for i n i t i a l preewplaint counael iq , which i a a required

’ The Supreme Court her recogniwd the importance of r a j o r i t a r i a n r iqhts in the statutory scheme, noting i n bporirn Capwell CO. V. &stern Mdition Eammrmity OIganization, 420 U.S. 50. 62 (19751: - % et- a r e g h e of majority rule, Cbqreaa aought to iecure

to a11 members o f the unit, the benefits a f their col lect ive *strengths and bargaininq power, i n fu l l awareneaa t ha t the auperior strenqth of rme individuals or groups mhht be subordinated to the interest of the majority. - Vaca V. 8&8, 386 8.8. 171, 182 (1967); J.I. Care Co. v. I.L.R.B., 321 U.S. 332, 338-339 (1944); - B.R. Ilta 972. 74 t h C o n ~ r r . , 18 (1935).

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M 00725

D--4064

f i r s t step in the BE0 coopl.int procedure. Within specified tine limits the

aggrieved prson must contact an BE0 counselor uho, follow in^ an i n i t i a l

consultstion, makes uharever inquiry he deems appropriate into the matter,

seeks a solution on an informal basis , sad counsels the aggrieved permon

concerninq the i88WIr in the matter. While selection of'EEO counselors i m s

responsibil i ty o f management, the EBO cormrelor may be a bargainim rmi t .

employee. Applicable Federal Personnel BU11t t i118 provide that an BE0 counselor

"srhowld wt serve ae a representative for a c m p h i n m t or for m sgency i n

conmection 6 t h the proceasing of a direrimination caplsint ."*

Guidance 8s t o the reason for the anonpi ty requirement was provided in

the Federal Personnel Manual st section 713-B--2, issued on December 21, 1976.

As stated there, t h i s provision "serves t o protect the ident i ty of an

employce who uants to discuss a problem but uho does not want the attention o f

agency management a t t racted to him." While the Aopeadix containing t h i s

- statement in the Federal Personnel Manual was revoked uhen the EBCC assmed

enforcement responsibil i ty for BE0 in the Federal Goverment and Foat.1

Service. the anonp i ty provision was retained i n regulations adopted by the

EBQC. sad there is no evidence tha t the reason for inclu8ion of the prwi8ion

bas altered by v i r tue of the chsnqc i n enforccnent authority. &nee, it w u l d

appear that the anogmity requirament is to protect the ident i ty of the

* Federal Personnel Manual utter No. 713-21, issued September 21, 1973. adopted by the =HOC on December 29, 1978, following t ransfer to tha t .qency of tbe LBO enforcement functions formerly vested i n the Civil Service bmaission pursuant t o T i t l e PI1 of the Civil Piqhts kt of 1964, 8s amended, under the Beoqsniaation ptsn #l af 1978 md Executive Order 12106. Federal Personnel Manual Bulletin 720-5, issued Rwember 29, 1979-

The j d g e stater' tha t EEO comselorr a r e .cleats of the Postel Service. Ib party has excepted to t h i s finding. While the -0 COUUmEbK8 i a o l v c d in t h i s poceediag may have been q e n t r of the b s t a l Service, yc m a k e no f i d i q that %EO courYseIors .are generally msnaqement aqmts .

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M 00725 D--4060

.allgrieved employee from manatpent , not €ran the union. Moreover, rince

contract qrievmcer wre alro filed d t h reqard to the matters which are the

aubiect of tb. EEO inquirier in the carer before ua , the Union urr already

auara of the identitier of the qprieved a n p l ~ y e e s . ~ kcordinqly. &atever

v a l i d i t y the confident i r l i ty requirement may have i n qeneral, we do not find

that fit i r suf f ic ien t to outwish the Uaion'r c l ea r statutory r iqhtr set forth

in (kction ac.1 of the kt. - a i r conselidated proceeding encomparrer &ited Stater Portat &mice

cases arising i n two different segraphica l rqions. In Case 28--CA-6540, the

moenh l k t r o k e a Lacs1 Union fi led contract grievances with the Portal

Senrice on behalf of four ~ ~ p l o y e e r rho hrd received noticer of tea ina t ion .

There grievmccs aIleqe d i s t i n c t and specific violat ions of sections of the

10

Respondent' I co~1tc t ive-bargr in ia qreement with the Ihion. The parties'

contract pravidca for the f i l inq of grievancer because of alleged

d i r r imina t ion on the bas i l of race. color. re l igion, and rex, inter a l ia , and

the grievance8 in dispute ra iae , a- other i r suer , rlteged d i r c r b i n a t i m on

the basis of these factors. Escb of the clerk# additionally fi led m EEO

Ikr yare a11 of there sp loyees rho had f i led contract qrievances concerned uith, r ~ ~ a i n i n g amupour to the Portal &mice mana~5ent . Phoenix BE0 QuaseYor Ik. 0 ' 0 . n ~ t a r t i f i ed , for instance. t ha t mplojycer hit. (ktis .od L o r u Topar had sent a t e l e q r r to tha PDsharter requerth3 amcet iw u i t h regurdl ta the i r $rievancer. A meeting aoaq the tw CpptoJcer, O e a ~ s , Pertal &mice bployee a d h b o r Relation. Sectional Center Director t o (;*tierraz, and the Portmaster resulted fran t h i r contact. O ' h a r t e s t i f i ed that t h i r meeting, uhich occurred before the t W e E f l O p e 8 -re offered m Ell0 rettlement, war pert of the Io cocmrelinq at-=.

lo The ~mticar, ksrued on variour dates in 1981, noti f ied four dirtr ibutiou clerk8 that the i r pertomanee on the letter sorting machine -0 a*EtiBfaCtotg and that they wuld be terminated by a cer ta in date waleas they could qualify on t h e machines before thm. Each clerk rrrerted that her inab i l i t y t o achieve proficiency rerulted from not being given as much training time ar other r l a d that the Fmt.1 Service'r action was cmiurt .ad discriminatory.

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M 00725 D--4064

request for couareliry with respect to the terminstion notices, pursuant t o

the Postal Service's a 0 x q u l a t i a a s prwidiq an Et0 preearplaint adjustment

rechania , Lluh employee vas o f f e r d a r e t t l c r en t at the pcecmplaint meetin&

Vith the EBQ counselor, e i c h prwided for additional t r a i n i q time a d

purported to s e t t l e a11 grievances. The employees ycre advircd that acceptance

Of t h i s r t t l emen t offer #uld rewlve

th ree of the four siqned the sett leent agreements offered. The Union was

grievances coacerniq the r e t t e r ;

neither notified of nor invited LO part ic ipate i n the EEO grievance djustment

process . With the exception of one o f the grievances which was resolved a t s tep

tvo of the contractual srievance procedure, the Union hat continued to process

the corntract griavmces f i led on behalf of the clerb. At the t h e of the

hearing, the r e a i n i n g three qrievances were pendixq arbitration. The Postal

Service has not to date attempted to r a i se the W O settlements as a bar t o

frather proceedings d e r the contract, but counsel for the Postal Service

8tated at the h e a r i q tha t Ucspoudent rauld resenw the r ight to a88ert the

settlements as a defense a t the pedinf arbi t ra t ions.

me judse, bared on h i s conclusion that the &hion's r ight t o be present

at BE0 precapla in t o e t t l a e n t meetings should yield to BE0 procesme8 -rWi=

monpity to the cclplainant a t the BSO piecomplaint stage, dimisred the

General ODmsel'a emplaint alleging tha t the Bcspoadent bypassed the Union,

acted in derogation of the IRion's representative s ta tu#, and o t h e r d s e failed

t o cooply vi th -tion 9Ca) of tbe kt in v i o h t i o n of section 8(a)(S) and

(1). lor the reasons stated abwe, we disaqree, a d therefore find tha t the

bspoadent violated the &t in the Phoenix case.

In CSK 9--CA-16503, b l t n b u s , *io, d i s t r ibu t ion clerk Joan Ocler, uho

arserted that a 5-d.y suspcnrion dtbut pay for p a k i q in m uaauthorircd

i I M 00725

I D--4064

request for counselinq vi th respect to the termination notices, pmsuant LO

the Portal Service' s EEO regulations providinq an Et0 precamplaint adjustment

rechaniw. Each employee vas offered a settlement a t the precamplaint aeetinq

with the BE0 cornselor, which provided for additional traininq time arvl

purported to aett le a11 qricvancea. The employees were advised that acceptance

of this sett lcoent offer cnuld resolve 11 grievances concerninq the matter:

three of the four signed the s e t t l e e n t agreements offered. The Union was

neither notified of nor invited to participate i n the EEO frievance adjustment

proceas .

~

With the a c e p t i o n of one of the grievances which vas resolved at s t e p

I two of the contractual grievance procedure, the Union has continued t o process

the contsact grievances f i led on behalf of the clerk#. A t the t h e of the

hearing, the remaining three grievances were pendiq arbitration. l'he Postal

Service ha. not to date attempted t o raise the EEO sett lanents as a bar to

further proceedings d e r the contract, but counsel for the Postal Service

.rated a t the hearing that Respondent w u l d reserve the r igh t t o assert the

settlements as a defense a t the peadinp arbitrations.

Ihe j,udge. based on h i s conclurion t h a t the Union's r ight to be present

at EEO precamplaint aett lemmt mectinqa should yield to BE0 processes assurins

anangmitp to the c a p l a i n a n t a t the EEO preccmplaint stage, d imisred t h e I

General Counsel's camplaint alleging that the Respondent bypassed the UaiOn.

acted in derogation of the Union's representative status, and otherwise failed

to camply with Section 9(a) of the Ac t in violat ion of Section 8(s)(5) and

(1). lor the reaaons stated above, we dhagree, and therefore find that the

Respondent violated the A c t i n the Phoenix case.

In Caac 9--CA--16503. Colmbur, Ohio, distribution clerk Jean Otler, who

asserted that a 5 d a y suspension w i t b u t pay for parking in m rmau thor id I : 1 .

~

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Id 00725

D-4n64

area resulted from dircriminatory and unfair treatment by the Portal

sCruice,ll f i led both an EEO precomplaint form with the Uerwndent'r LEO

author i ty and a contract grievance rcgardinq the rurpenrion. The Rerpondent'r

SI30 precomplaint procedure resulted in a meetinq a t uhich Otler aecuted an

EEO precamplrint resolution providing for expunction of the surpenrion from

her pcrronnel record, but no backpay. This rettlement d i d not purport to

settle amy other grievancer. r ta t ing merely tha t : I

It i n agreed between Joan L. Ocler and Portal Officiulr, Main Fort Office, that pursuant to C.C.0 Re-Caapl.int filed on September 3. 1980, the folloving conrt i tuter an acceptable rerolution.

The Coluubur Area Local Union war not not i f ied of the EEO rettlement

meeting , and did not participate in thoae .proceediaqr. It continued procerriaq

Orler's contractual grievance throuqh the normal steps, and the grievance war

.et for arbitration. Otler nought to recmer backpay through the contractual

procedure, and she wan not told that the EEO settlement wuld affect her

contract grievance. The settlement war not ra ised by the Portal Service d e n

it denied the qrievance at rtep 3 of the contractual qriwance procedure.

although the EEO reaolution had been accepted by Otler almost a month before.

uhem Qtler'r care came t o 8rb i t r a t im , the *.tal Service arrerted the BE0

settlement a8 a defense to the grievance under the contract. zhe arb i t ra tor

ruled that the matter war not arbi t rable *'as the a rb i t r a tm i r without

8uthority to abrogate a contract freely entered into be tnen Joan Otler and

the Postal Service."

.

me judge found that the Reapondent 8abotaged the grievance procesr md,

in ef fec t , repudiated the arbitration clause of i t a contract by arrer t inp the

Otler claimed in the EHO form that the ruspenrion war in reprisal for a previous EEO f i l ing .

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M 00725

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Otler settlement agreement as a defense to contract arbi t ra t ion in violation

o f Section 8(a)(5) and (1) of the kt. We agree w i t h the judge that the

Respondent violated that section of the Act in the Colunbua case, but find

tha t t h e violation occurred when the Respondent entered into a qrievance

resolut ion Vi thout the hrion * e not i f ic a t ion or participation. 12

The Postal Service was doing more in there cases than simply adiurtinq

EEO complaints--it was also attempting to adiust o r , in some instances

adjusting, concurrent grievances under the terms of its contract w i t h the

m i o n through i ts internal EGO p r o ~ e d u r e r . ' ~ As we have found above that the

Portal Service was not privileged to resolve contract grievances with

individual employees i n derogation of the lhion'r statutory rhhts , ye find

tha t it violated Section 8(a)(5) and (1) of the kt by not affordinq the

The cooplaint allcqes tha t the Reepondent violated Sec. 8(a)(1) and (5 ) of the kt by asserting the precomolaint resolution of Otler's EEO d a h as a defense to a rb i t ra t ion proceedinqs on the contract grievance. tbuzver , i t also seeks a remedy for the "unfair labor practices alleged above in paragraphs 8 and 9" of the canplaint, and par. 8 alleqes (a) that (kler fi led the CEO precomplaint form on 3'September 19Rn; (b) that Otler filed a contract grievance uith respect t o the sme subject matter on 29 September 1980; (e) that Otler md the Respondent entered into a resolutioa with r q a r d to the LIB0 precaaplaint matter on 12 member 1980, and (d) that neither the Union nor m y of its representatives participated i n the pmceedhqs.culoinating in the resolution of Otler'r FJ50 d a h . At the heari% counsel for the General a u n s e l moved to mend the canplaint to delete the reference t o par. 8 i n the rcnedy section, but later vitMrew that motion t o m e d . In there circamstnnces, we find the canplaint ol1egations suf f ic ien t ly broad to support our f i n d i q tha t the violation occurred at the time of the grievance adiustment. rather than a t the t h e the 6ettYcment was arserted as a contract grievance defenee.

l3 We need not decide here whether the mion would have a r iqh t to be present a t grievance adjurtmeuts with individual employees in which no contract grievance had been f i l e d . In a11 of the incidents a t issue contract grievances had been f i led , and the collective-barqainiq representative was never given the not ice and opportunities to be present a t the adjustments of the grievances as mandated by the second proviso t o Sec. 9 ( d .

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collective-bargaining reprcrenratives an opportunity to be present a t

grievance adjustments as required by Section 9 ( d of the kt. 14

Conclusions of l a w

1. me h i t e d Stater Portal Service i s an employer over hap the b a r d

has iuriadiction by v i r tue of Section 1209 of the Postal Bcorqmiration kt,

39 U.S.C. E 101, et req.

2. lhe phoenix )(etto Area Ipcal, the Culmbus Area b c a l , and the

h e r i c m Portal Workers Union are labor orqaniratimr within the meaning of

Section 2(51 of the kt.

.

3. By d jua t in$ or artcoptins to adjust contract grievances with

individual un i t employees w i t b u t a f f o r d i q the employee's collective-

h q a i n i n g representative the opportunity to be pre8ent a t auch djur tments aa

required by Section 9(a) of the kt, the Respondent has violated Section

8Ca)CS) and (1) of the Act .

4. me above unfair labor practicer affect caopIerce within the meaninq of

Seetien 2(6) and (7) of the Act .

l4 L g . * TopdWk 9.. 249 mpd 424 (1980). a d cases cited therein, cited i n P.8. Ibst rvpLEe, 268 RI&E 876 (1984).

m b e r Johanaen does not .pree tha t "an attemmt to d j w t gricrrancer,* a t an rmpIoyee*a Gqusst , w i t b u t more; t r m a e k s SCC. 9(a)'r r e s e r v a t h of ttp r ight of mployeer to present ~ r i evances to their csployer vithout the internention of the barpaining representative.

Members Babaon md Stephens do not dispute that under the f i r r t proriso to Sec. 9(a) ef tbe kt mpleyaaa h e the r ight to present grievmcer to the i r rp loye r vithout the intervention of the barqaininq repremntative. Ibwever, thcy conclude that d e r the s e e d proviw, to that aection, the collective-bargainin$ reprerentative must be eiven an ' Opportmbity to be present a t a conference with an iIdividu81 ap10-e a t

uhkh the W i v i d u a l is offered a f inal settlement of a p d i w contract &wmtce, v h e t b a t h i r a t tmp t a t adjustment resul ts in the Q p l O d S acceptance of the settlement or not. Ihcy intimate 110 view on h a t other c i rcrnr tmcer mijht b r i q a coaference 00 a ~r iorance within the second prmilo *

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M 00725

0-4064

k e n d e d Bcmedy

Ravinq found that the Respondent has enqaqed i n , and i r engqinq in.

unfair labor practices in violat ion of Section B(a)(5) and (1) of the kt. we

sha l l order the Respondent to cease and desist therefran and to take cer ta in

affirmative action desiqned t o effectuate the policies'of the kt.

Ilr we have found that the Rerpondent unlawfully adjusted or attempted t o

d i u s t contractual qrievances without qivinq the Lmployee'a collective-

bargaining representative the opportunity to be present a t the djustmcnte, ye

sha l l order it t o cease and desist fran t h i s conduct. We rhall also prohibit

the Uszapondent frw raining or otherwire arserting the unlawfully obtained EEO

grievance settlements reached with the individual cmployeer a6 a bar to the

contractual grievance and arbi t ra t ion procedures, so that in those cases h e r e

the Respondent negotiated settlcmente with individual employees w i t h o u t the

Ihrion's not i f ica t ion or participation but has not yet asserted the sett lementi

as a defense t o contract grievance proceasing that unlawful conduct may be

effect ively rcmedied. With respect t o the case in vhich the Respondent

succesafully anserted an HE0 settlement as a defense in a contract a rb i t ra t ion

proceeding. ue 8hal l adopt the judge's r c c m m d e d remedy. Thus, yc Shall

order the Respondent t o take a l l appropriate rteps t o r e c m e n e the Otler

a rb i t ra t ion or to kqld the arbi t ra t ion de novo, as provided by the iudge, and

to pay the Union for a11 reasonable increased expenses result inq frm i t 6

assertion of the Otler EKO settlement as a contract defense in the manner set

gortb in h is recmeded remedy. In th i s way the s ta tus quo ante may be

restored. We sha l l ala0 order the Respondent t o afford the Union the

opportunity t o be present at any attempts t o adjuet contractual qrievancee.

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A nev notice which confoms v i th our Order shall be issued, a d we sha l l

require its postiag at both the Phoenix and bluubus f ac i l i t i e s . Like the

judqe, we do not find nationwide postins t o be warranted.

ORDER

Ihc National bbor Relations b a r d orders that the Rerpoadent. h i r e d

Stares Postal Service, Phoenix, &imna, a d Colmbus, Ohio, i t s off icers ,

aqents , ~ u c c e s ~ o r s , and assigns, shal l *

1. Cease and desist from

(a) M j u s t i q or a t t e p t i n q to d j u s t contract grievanctr m t h individual

unit emptoyees without affordin? the employee's collective-barqaining

repreaentative the opportunity t o be present at much djustments.

(bE Giving contractual e f fec t t o , ra i r inq or othervise a s s e r t i q in the

contractual grievance process, grievance settlements reached d t h individual

uni t employees where the employee's collective-bargaining representative vas

mot afforded the opportunity t o he present a t such diuatment.

(el In m y l i k e or related manner interferinq with. restrainiag, or

coercing employees in the a e r c i s e of the r igh ts guaranteed them by Ssction 7

o f the Ilct.

2. Take the folloviag a f f i r sa t ivc action necessary t o effectuate the

policies of the kt.

(a). Afford the employee's collec t ivrbarqainiaq representative the

oppmtunity to be present a t any a t t n p t s to adiust contractual prierranees

with unit employees throuqh any form.

lb l Peti t ion the a rb i t ra tor in the Joan M l e r arbi t ra t ion, ioimtlp vith

the Union be it w i l l i n g , t o reopen the a rb i t ra t ion or. the arbi t ra tor b e i w

unavailable or unuitling, convene a de novo arb i t ra t ion to consider the issues

io the Mler grievance on their merits, waiving a11 defenses not r i p at the

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time of the oriqinal arbi t ra t ion and, fur ther , withdrawing at the recomrened

arb i t ra t ion , or not advancing a t a de novo arb i t ra t ion , the EEO ae t t lmen t

reached w i t h Otler an a defense t o the Union's asserted contract violat ion.

(e) Pay a11 reasonable increased expenses of the Union and t h e arbi t ra tor

r p e c i f k a l l y reaultinq from t h e delay in the arbi t ra t ion caured by the

8uceessful acaertion of the EEO settlement aa a defense in the or ipinal

a rb i t ra t ion of the Otler grievance, with appropriate interest . a s more fu l ly

8eL forth in the section of the judge's decieion en t i t l ed "Remedy."

(d) Post a t its Phoenix, Arizona, and Colmbus. Ohio f ac i l i t i e s . copier

of the attached notice8 marked Copier of the notices, on forma

pravi&ed by the Regional Directors for Bcqiona 28 and 9, a f t e r being signed by

tbe fltspondent's authorized representative, sha l l be ported by the Pcapondent

h e d i a t e l y upon receipt and maintained for 60 consecutive days in conspicuous

places including a l l place8 where notices to smployeea are cuatooarily posted.

Reasonable atepr shal l be taken by the Respondent to cnaure that the notices

are not altered. defaced, or covered by any other material.

'Appendix.

'' If t h i s Order is enforced by a judgment of a United Stater court of appeals, the vords in the notice reading "POSTED BY ORDEU OF TBE WATIONAL LABOR UELAT€ONS BOARD" shall read "POSTED PURSUANT TO A JUDGlfEIR OP TEE DRiITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THS NATIONAL LABOR BLLATIOWS BOARD."

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[e) t b t i f y the Reqiona1 Directors for Keqions 28 and 9 , in uritinq within

20 days from the dstc of th is Order uhat steps the Respondent has taken to

eoaply.

Dated, Uashiuqtoa. D.C. 30 September 1986

( SEAL)

Member

a

. . _... .- . .. . ...

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Posted by Order of the National t b o r Bclations b a r d

A n keney of the United States Gaverment

The Mtionmk t b o r Pelations Board has found that ye violated the Wational Labor Relations kt and bas ordered UI to post md abide by t h i s notice.

WE WILL NO3 refuse to bargain collectively with the k e r i c m Portal Workers Union and the Phoenix Bktro Area Local and Eolrnbur Area local by adjusting or attemptiup to d j u r t contract grievances v i tb individual -it caplopes u i t b u t affording those Unions the opportunity t o be present a t such

UE YIU HOT give contractual e f fec t to , ra i se or othervise asser t in the contractual grievance process, grievance settlements r e r h e d v i th individual unit employees *ere the caplope's col lect ivcbarqaini t~q representative vas not afforded the opportunity t o be present a t such adjustment.^

AdjW8rsleUtS.

W3 MILL NOT la m y lib or related manner interfere v i t h , res t ra in . or coerce you in the exercise o f the r iqh ts guaranteed you by Section 7 of the kt.

WE WILL afford the cap lope ' s collective-barqahing representative the opportunity t o be present a t my 8ttmpts to adjust contractual grievances v i th d t cnp lopes t h r o q h m y form.

US W I L L pe t i t i on the a rb i t r a to r of the Joan Otler grievance. j o in t ly with the Union i f they a p r ~ . to rcopco the 0 t h arbitration. I f reopenin$ is not possible. rre sha l l reek a new arbi t ra t ion of the Qtler ~ r i e v m c e . At the rrcemrened or the new arb i t ra t ion w shall d t h d r s r OT aot r8i.a the EEO 8Lttlment betwren Otter .ad the N a t a l Senice as a defeme t o the lhion's ~rhv.nce; nor rill we asser t my other defense which vas not r ipe a t the time of the o r i s iu s l arbi t ra t ion.

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US WXLL pay a l l reasonable increrred apenaer o f the Union and the arbi t ra tor caused by the delay in the arbi t ra t ion &ich resulted from our improper 8ssertio11 of ttu BE0 re t t l rca t as defcare i n the oriqin.1 arbi t ra t ion, ui th appropriate foterest .

IRQITF.0 STATZR POSTAL SERVICE --1----_1---------

(*player)

-I------- BY- -_I Dated - (Phoenix, k i m n r , Btprerentrtive) (Title)

. &rad -I------ By --- ------- -----

(B lmbur , *io, Representative) ( T i t l e )

Tbim is an of f i c i a l notice and murt not be defaced by mpna.

a i r notice must r eds posted for 60 consecutive days fraa the date of p o s t i q and must net be altered, defaced, or covered by m y other material. b y qUe8tiOnS concerning t h i s notice or coopliancc u i th its provisions may be d&ractd t o tha b a r d ' s Office, 3030 lk r th Central beaus, Second Floor. .. -mix, &irOW 850.12, 6@2-2~1--2362; Ieder.1 Office a t i ld ing , 550 Bhiu 8tr-L, 3003, Cincinnati, Ohio 45202, 513-684-3663.

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. . .

APPEi4DDIX B

Forced by Order of the kt ional labor k l a t i o n r b a r d

An dqeacy of the Onitd Stater Covermeat

The Rational Labor %lat iour b a r d has found that w violated the Ratioan1 l r b a Relatioar Act rad b e ordered UI to port and rbide by t h i r notice.

WE flIu llof refuse to barlain collectively with the kerican Portal Morkerr blon and the Phoenh Metro Area l e a l and blcpbus &ea Local by a d i u r t i q or attempting to adjust contract grievancee with irulividusl u n i t employees without affording thore &ions the opportunity to be prerent at ruch djwtrentr . l 4 l W I U AOT pive contractual effect to , r a i r e or othervire reser t i n the cmtractual grievance procerr I grievance rettlclltcntr reached with individual =it employee8 *ere the mployee'r collective-bargaining reprtrentativc war not atforded the opportunity t o be present at much adiurbent.

Wg V U you in the aercire of the riqhta guaranteed you by (kction 7 of the Act .

Ve WILL afford the amployee' I collective-bargaining reprerentatire the opportunity' to be prerent at m y attempts t o adjust contractual cJricvance8 n t b =it employees through m y form.

WE U U pet i t ion the arbi t ra tor of the Joan Otter grievance, jo in t ly with the Union i f they ajree. t o reopen the Otlcr arbitration. I f reopening is not poreibllr, we ab11 seek a new a r b i t r a t i m of tbc Otler grievance. At the recowend ob the new arbi t ra t ion vt ahall withdraw or not ? a i r the MO r t t l s c o t betwsen Qtler .Id the Fostal Service as a defense to the thion'r @avmce; nor Vi11 ue asser t my other defense which -8 not r i p at the time et the original arbitration.

i n any l ike or related manner interfere d t h , r e s t r a in , or coerce