906 F.

2d 482
134 L.R.R.M. (BNA) 2545, 59 USLW 2071,
116 Lab.Cas. P 10,195

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
UNITED STATES POSTAL SERVICE, Respondent.
No. 89-9511.

United States Court of Appeals,

Tenth Circuit.
June 19, 1990.

Howard E. Perlstein (David Seddelmeyer, with him on the brief),

Supervisory Atty., N.L.R.B., Washington, D.C., for petitioner.
Lynn D. Poole (Stephen E. Alpern, Associate Gen. Counsel, Jesse L.
Butler, Asst. Gen. Counsel, with him on the briefs), U.S. Postal Service,
Office of Labor Law, Washington, D.C., respondent.
Before SEYMOUR, MOORE and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.

This matter comes before the court on application of the National Labor
Relations Board ("NLRB" or "the Board"), pursuant to Sec. 10(e) of the
National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. Sec. 160(e),
for enforcement of the Board's decision and order in United States Postal
Service and Charles B. Richardson, 290 NLRB No. 20, 1988-89 NLRB Dec.
(CCH) p 15,081. The Board affirmed the findings and conclusions of the
administrative law judge ("the ALJ") that respondent United States Postal
Service ("USPS") violated Sec. 8(a)(1) and (3) of the Act by refusing to
reassign and promote Charles Richardson because he had engaged in protected
concerted activity and that respondent violated Sec. 8(a)(1) by threatening to
harass and retaliate against Richardson because he had engaged in protected
concerted activity.

* Charles B. Richardson was hired by respondent on April 9, 1977, as a part-

* Charles B. Richardson was hired by respondent on April 9, 1977, as a parttime clerk at respondent's Joplin, Missouri, facility. In the fall of 1979,
Richardson contacted the Galena, Kansas, postmaster Clarence Bounds
concerning a possible transfer to the Galena facility and, in November 1979,
Bounds offered Richardson a position as a "part-time clerk-carrier." Richardson
accepted the offer and transferred to Galena effective December 1, 1979, at
least in part because of the possibility he would be able to transfer to a full-time
carrier position in Galena within a few years. At the time of Richardson's
transfer, the Galena facility work force consisted of two full-time rural carriers,
two full-time city route carriers and three part-time clerks.1 Postmaster Bounds
held the only supervisory position.

In February 1983, Richardson was assigned to work holidays and days off for
Lester Clarkson, a full-time city route carrier. Thereafter, during the summer of
1984, a part-time carrier position was created in Galena in anticipation of
Clarkson's retirement. Both Richardson and Timothy Weston, a part-time clerk,
applied for reassignment to the new position. In early July, Bounds asked
carriers Clarkson and Teddy Watkins to recommend an employee to fill the
new position. Clarkson and Watkins then wrote a letter recommending Weston
for the vacancy. In September 1984, after Bounds formally recommended
Weston for reassignment to the new carrier position, USPS management in
Wichita approved Weston's reassignment effective October 13, 1984, and
notified Richardson that his reassignment request had been denied. After
Clarkson retired in January 1985, Weston, Galena's only part-time carrier, was
promoted to fill Clarkson's full-time letter carrier position.

Between 1981 and the time the new carrier position opened in 1984,
Richardson filed several successful grievances against Bounds pursuant to the
grievance machinery of the collective-bargaining agreement.2 Richardson filed
his first grievance in Spring 1981 when Bounds insisted that Richardson work
as a temporary supervisor in Bounds' absence. The grievance was withdrawn at
the first step when a union steward informed Bounds that the collectivebargaining agreement expressly prevented the postmaster from requiring an
employee to work as a supervisor.

On September 21, 1981, Richardson filed a grievance over a warning Bounds

issued to him. Bounds denied the grievance at the first step and Richardson
appealed the denial of his grievance to the second step, where Bounds was
overruled and the warning withdrawn. On October 13, 1981, Richardson filed a
grievance when Bounds suspended Richardson for fourteen days. Bounds' first
step decision was again overturned at the second level and Richardson received
forty hours back pay (Richardson also received forty hours of back pay through
a separate Equal Employment Opportunity ("EEO") complaint).

On February 24, 1984, Bounds disciplined Richardson for misdelivery of the

mail and discourtesy to customers by issuing a letter of warning. In March
1984, Richardson filed a grievance concerning the letter and at the second stage
of the grievance procedure the warning was reduced to a nondisciplinary "job
discussion." Also in March 1984, Bounds denied Richardson a regular pay
increase and Richardson filed a grievance in protest on March 28. (About
March 26, Bounds also relieved Richardson of his substitute carrier duties,
ostensibly because of customer complaints related to Richardson's performance
and Richardson's inefficient work.) On April 6, the grievance concerning the
pay increase was decided in Richardson's favor at the second level.

The General Counsel of the Board issued a complaint April 1, 1985, against
respondent based upon charges filed by Richardson on January 9, 1985. The
complaint alleged that respondent, through postmaster Bounds, violated Sec.
8(a)(1) and (3) of the NLRA by threatening, harassing and refusing to reassign
and promote Richardson because he had engaged in protected concerted activity
by utilizing the grievance procedures of the collective-bargaining agreement.

A hearing was held before the ALJ July 10-12, 1985, and in a decision dated
February 19, 1986, the ALJ held: (1) "By threatening to harass, retaliate against
and prevent the advancement of Charles B. Richardson because he filed
grievances, Respondent has engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act," and (2) "By refusing to reassign and promote
Charles B. Richardson because he filed grievances, Respondent has engaged
and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act."

Accordingly, the ALJ ordered respondent to cease and desist engaging in the
unfair labor practices and ordered respondent to perform certain affirmative
actions designed to further the purposes of the Act. Specifically, respondent
was ordered to offer Charles B. Richardson a full-time regular carrier position
at the Galena facility, "displacing if necessary any employee assigned to such a
position since 31 December 1984," and to make Richardson whole for any loss
he may have suffered as a result of respondent's discriminatory activities.

10

Respondent filed exceptions to the ALJ's decision with the NLRB, which, in a
decision and order dated July 29, 1988, "affirm[ed] the [ALJ]'s rulings,
findings, and conclusions as modified" and modified the interest rate to be used
in calculating the ordered remedy. 1988-89 NLRB Dec. (CCH) p 15,082 at
28,296 (footnote omitted). Respondent subsequently refused to comply with the
Board's decision and order, necessitating the Board's instant application to this
court for enforcement.

II
11

Respondent first contends the Board erred in concluding that the USPS had
violated Sec. 8(a)(1) and (3) of the Act. Section 8(a)(1) and (3) of the NLRA,
29 U.S.C. Sec. 158(a)(1) and (3) provides:

(a) It shall be an unfair labor practice for an employer-12

13 to interfere with, restrain, or coerce employees in the exercise of the rights
(1)
guaranteed in section 157 of this title;3
14

....

15 by discrimination in regard to hire or tenure of employment or any term or

(3)
condition of employment to encourage or discourage membership in any labor
organization....
16

A violation of Sec. 8(a)(3) is established where General Counsel demonstrates

that an employer's opposition to protected union activity was a motivating
factor in a decision to take adverse action against an employee and the
employer is unable to demonstrate that the adverse action would have been
taken even absent the protected activity. NLRB v. Transportation Management
Corp., 462 U.S. 393, 403, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983), aff'g
Wright Line, 251 NLRB No. 150, 1980 NLRB Dec. (CCH) p 17,356.

17

In conducting our review, we must uphold the Board's factual findings if they
are supported by substantial evidence on the record considered as a whole.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
(1951); Artra Group, Inc. v. NLRB, 730 F.2d 586, 590 (10th Cir.1984). "The
substantiality of evidence must take into account whatever in the record fairly
detracts from its weight." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464.
However, the substantiality calculus does not mean that "a court may displace
the Board's choice between two fairly conflicting views, even though the court
would justifiably have made a different choice had the matter been before it de
novo." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465. "[This] court
certainly does not retry the case. It [does not] undertake[ ] to weigh the
credibility of witnesses"--the credibility determinations of an ALJ will not be
upset absent extraordinary circumstances. Artra Group, 730 F.2d at 590, 592.

18

In our opinion, substantial evidence in the record supports the ALJ's

conclusions that Bounds threatened to harass and retaliate against Richardson
and prevented Richardson's advancement because Richardson had repeatedly

filed grievances challenging Bounds' conduct.4

19

Richardson testified that on July 11, 1984, Bounds told him that he would not
be reassigned to the new carrier position "due to EEO complaints and union
grievances [Richardson] filed against [Bounds]" and because Clarkson and
Watkins had objected to Richardson's reassignment. According to Richardson,
when Richardson reminded Bounds that he had originally transferred to Galena
because Bounds had indicated that a regular letter carrier position might later
become available, Bounds replied that he did "remember, but due to past
actions on [Richardson's] part, it would not be to the Postal Service's advantage
to reassign [Richardson] at this time."

20

In recommending Weston for reassignment to the new carrier position, Bounds

supplied Wichita management with employment histories he had prepared
concerning Weston and Richardson. The history about Richardson noted that
Richardson had "filed several EEO Complaints and several Grievances since
his transfer to the Galena office" and that he did not "perform as a team
member."

21

Richardson also testified that on September 29, 1984, when Bounds informed
Richardson that the new carrier position had been given to Weston, Bounds
again said that Richardson did not get the position "due to EEO complaints and
Union grievances" filed by Richardson against Bounds. According to
Richardson, Bounds also told Richardson that "if [Richardson] didn't like his
decision, [Richardson] had several ways of filing complaints available to
[him]." The content of this conversation was confirmed in the testimony of Earl
Williams, an employee in the Galena facility who overheard the conversation.
Williams testified that, when Richardson asked Bounds why Bounds wouldn't
transfer Richardson to the carrier position, Bounds replied: "Due to the EEO
Complaints and Union Grievances you have filed against me." (Williams was
the only employee to overhear the conversation.) Not surprisingly, Bounds
testified that he made no such statement.

22

Richardson also testified that around November 23, 1984, Bounds rejected a
request by Richardson for additional working hours, adding that "if
[Richardson] didn't like the hours in the Post Office, [Richardson] could quit
and find a job elsewhere" and that "[Bounds] was going to make things as hard
on [Richardson] as he could." Also on November 23, Richardson complained
that Bounds had scheduled Weston to work across craft lines as a clerk when
Richardson, a clerk, was available. Bounds again replied that Richardson could
file a grievance or find another job. Richardson subsequently filed a grievance
and was awarded back pay at the second grievance step for the time Weston

was assigned to work as a clerk.

23

Finally, on January 21, 1985, Bounds reduced Richardson's pay by six minutes
over a time-clock dispute. At the time of the incident, Richardson told Bounds
he would file a grievance, to which Bounds responded, "Chuck, you just keep
filing grievances and I'll keep finding ways of getting back at you."

24

Respondent's challenge to this portion of the ALJ's findings focuses on the

credibility determinations made by the ALJ. In arriving at his findings, the ALJ
made specific reference to conflicts in the testimony of the parties' respective
witnesses and determined to credit the testimony of Richardson and Williams
over that of Bounds. Specifically, the ALJ commented that Bounds
demonstrated a lack of candor, evasiveness and nervousness during his
testimony, which reflected adversely on his credibility.

25

Respondent disagrees with the ALJ's findings as to credibility, especially as to

the testimony of Williams, a man admittedly on unfriendly terms with Bounds.
However, the ALJ was in a unique position to observe the demeanor of the
testifying witnesses, and we find no cause to overturn his credibility
determinations. As such, we affirm his findings that Bounds threatened to
harass and retaliate against Richardson for Richardson's grievance-filing
activity and that Bounds prevented Richardson's advancement and reassignment
for the same impermissible reason.

26

Having affirmed the finding that Bounds' opposition to Richardson's protected

union activity was a motivating factor in his actions against Richardson, we
now examine, consistent with Wright Line's allocation of the burdens of proof,
whether respondent demonstrated that the adverse action would have been
taken even in the absence of the protected activity. To that end, the USPS
contends that, notwithstanding his history of filing grievances, "overwhelming
evidence" demonstrates that Richardson was not reassigned to the open carrier
position because he was a singularly dreadful mail carrier.

27

In support of its position, respondent directs our attention to evidence in the

record of a series of documented customer complaints logged against
Richardson. (Twelve of the nineteen documented complaints concerned
reported incidents of mail misdelivered by Richardson.) Additionally,
respondent's witnesses testified that postal customers repeatedly approached
Bounds, Clarkson and Watkins on the street to complain about Richardson's
performance as a carrier. Clarkson testified that these complaints formed the
basis for Clarkson's and Watkins' written opposition to Richardson's

reassignment as a carrier. Bounds and Weston also testified that Richardson

was a difficult employee to supervise, that he was prone to make mistakes, and
that he resented authority. Clarkson further testified that he found Richardson
extremely difficult to train.
28

In evaluating the above evidence of Richardson's purported incompetence, the

ALJ noted that most of the customer complaints formally documented against
Richardson were documented by Bounds and that Bounds only bothered to
formally document complaints against Richardson, not his other carriers. The
ALJ noted that although most of the complaints documented against
Richardson concerned misdeliveries of mail, Bounds admitted that he did not
consider identical reports of carrier Weston's misdeliveries to be "complaints"
and did not formally document them as such. The ALJ found no evidence that
any other carrier had ever had a customer complaint of misdelivered mail
formally documented against him by Bounds, even though the city route
carriers who testified admitted that they also had made misdeliveries.
Accordingly, the ALJ concluded that he could not sufficiently weigh the
significance of the documented complaints against Richardson for purposes of
evaluating Richardson's level of performance. He also concluded that Bounds
appeared to have singled Richardson out for disparate treatment by
documenting his misdeliveries:

29

Respondent contends that Bounds made the reassignment decision based on the
superiority of Weston's performance, the "customer complaints" against
Richardson and the Clarkson/Watkins' letter recommending Weston. The
significance of the superiority of Weston's performance as a carrier is rendered
suspect by the fact that Bounds made his decision no later than 11 July--over
two months before Weston began carrying mail.5 Similarly, the timing and
manner of collection and the disparate nature of the "complaints" documented
by Bounds against Richardson rob them of any probative value. Even if it were
concluded that Bounds had not been "papering a case" against Richardson, the
absence of any probative evidence concerning the number and nature of
complaints received about other carriers makes it impossible to evaluate the
significance of the "complaints" relating to Richardson.... Accordingly, I
conclude that the justifications advanced by Respondent were wholly
pretextual. The real reason for refusing to reassign Richardson was the one
repeatedly iterated by Bounds: Richardson filed too many grievances, almost
all of which resulted in Bounds' decisions being reversed by his superiors.

30

In light of the evidence chronicled above, and based on our review of the record
as a whole, we conclude that substantial evidence supports the ALJ's finding
that Bounds' proffered justification for not reassigning Richardson was

pretextual and thus that the adverse actions would not have been taken absent
Richardson's history of filing grievances against Bounds.
III
31

In an alternate challenge to the NLRB order, the USPS asserts the Board erred
in refusing to defer the charge to the parties' collective-bargaining procedures.6

32

The NLRB is empowered with the exclusive statutory authority to prevent

unfair labor practices:

33 Board is empowered ... to prevent any person from engaging in any unfair labor
The
practice (listed in section 158 of this title) affecting commerce. This power shall not
be affected by any other means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise ....
34

NLRA Sec. 10(a), 29 U.S.C. Sec. 160(a). Notwithstanding this exclusive grant
of jurisdiction, the Board also has wide discretion to decline to exercise its
authority and to defer to the method of dispute resolution mandated by a
collective-bargaining agreement if deferral will serve the fundamental national
labor policy objectives established by Congress in the NLRA. Carey v.
Westinghouse Elec. Corp., 375 U.S. 261, 264-66, 84 S.Ct. 401, 405-06, 11
L.Ed.2d 320 (1964); NLRB v. Northeast Oklahoma City Mfg. Co., 631 F.2d
669, 673 (10th Cir.1980). However, "[o]nce the Board has exercised its
discretionary authority to establish a deferral policy, its original discretion is
displaced. The Board must thereafter follow the policy it has adopted 'unless
and until it explicitly changes that policy.' " 631 F.2d at 673-74 (quoting NLRB
v. Pincus Bros., Inc.-Maxwell, 620 F.2d 367, 380 (3d Cir.1980) (Garth, J.,
concurring)).7

35

The Board's present pre-arbitration deferral policy was first announced in

Collyer Insulated Wire, 192 NLRB No. 150, 1971 NLRB Dec. (CCH) p
23,385, and later reaffirmed in United Technologies Corp., 268 NLRB No. 83,
1983-84 NLRB Dec. (CCH) p 16,027 (1984):

36 Collyer majority articulated several factors favoring deferral [to the parties'
The
grievance-arbitration machinery]: The dispute arose within the confines of a long
and productive collective-bargaining relationship; there was no claim of employer
animosity to the employees' exercise of protected rights; the parties' contract
provided for arbitration in a very broad range of disputes; the arbitration clause
clearly encompassed the dispute at issue; the employer had asserted its willingness to
utilize arbitration to resolve the dispute; and the dispute was eminently well suited to

resolution by arbitration.
37

United Technologies, 1983-84 NLRB Dec. 16,027, at 27,310-11; Collyer, 1971

NLRB Dec. p 23,385, at 30,226.

38

The USPS first moved for deferral to the grievance arbitration procedures
before the ALJ. The ALJ denied the motion because:

39

First, it is not altogether clear that the issues presented in the grievance process
and the issues presented here are of sufficient similarity [to warrant deferral].
Clearly, if the prima facie case presented by General Counsel were to be
believed, deferral aside as a legal issue, there's no question that the Act would
have been violated.

40

Apparently there is significant difficulty in the Union's mind as to whether the

contract would have been violated by the identical content.

41

Secondly, and more significantly, the Charging Party in this case is Mr.
Richardson, not the Union. Mr. Richardson, as you pointed out in your
argument, sought to use the grievance process and the utilization of that process
was denied him by the Union. Mr. Richardson's rights are the ones at stake, not
the Union's.

42

Consequently, it would be totally inappropriate to deny him the protection of

the National Labor Relations Act, based upon the actions of the Union.

43

In his written order, the ALJ reaffirmed without further discussion his denial of
respondent's motion to defer.

44

On review, the Board agreed that deferral was inappropriate, but noted that "in
doing so we rely on the fact that this grievance-arbitration procedure has been
totally ineffective in curbing the Respondent's proclivity to retaliate against the
Charging Party for filing grievances." 1988-89 NLRB Dec. (CCH) p 15,081, at
28,297. The Board continued:

45

We find that the record evidence establishes that the Respondent has engaged
in a series of reprisals against Richardson for his grievance-filing activity. This
pattern of hostile conduct is fundamentally at odds with the Act and the policy
behind deferral. The facts of the case at bar show a continuation of the earlier
coercive conduct, and the Respondent's recent statements reveal an intent to

retaliate against Richardson in the future. In these circumstances, the grievancearbitration machinery we are being asked to defer to has become meaningless in
the extended campaign of reprisals against Richardson. Accordingly, we will
not require Richardson to perform what has clearly become a futile act. The
Respondent's own words have established the futility of future grievance-filing
by Richardson.
46

Here, we hold that the Board's focus on the futility of Richardson's further use
of the grievance machinery amounts to a finding, consistent with the second
Collyer factor set forth above, "of enmity by Respondent to employees' exercise
of protected rights." Collyer, 1971 NLRB Dec. (CCH) p 23,385, at 30,226. We
have already recited the record evidence demonstrating that Bounds had
retaliated against Richardson and had threatened further retaliation because of
Richardson's grievance-filing activities. (See section I.) At a minimum, that
evidence ably demonstrates that Bounds was not planning on altering his
conduct towards Richardson as a result of the grievance process. To repeat,
Richardson testified that Bounds told him, "Chuck, you just keep filing
grievances and I'll keep finding ways of getting back at you."

47

We therefore conclude that, because the Board's decision is consistent with its
pre-arbitration deferral policy as expressed in Collyer and United Technologies,
the Board did not abuse its discretion in declining to defer its jurisdiction over
this case.

IV
48

In conclusion, we hold that the findings of the NLRB and the ALJ are
supported by substantial evidence based on the record considered as a whole.
Accordingly, we Affirm the NLRB's determination that respondent's challenged
activities violated Sec. 8(a)(1) and (3) of the NLRA. Additionally, we hold that
the Board did not abuse its discretion in refusing to defer this case to the
grievance arbitration machinery of the collective-bargaining agreement. The
order of the NLRB shall be enforced.

Pursuant to the collective-bargaining agreement, postal work in the clerical

craft and in the carrier craft are not normally combined in a single job position.
Collective Bargaining Agreement ("CBA"), Art. 7.2. When the USPS wishes to
fill a full-time position, the agreement mandates that the most senior part-time
employee in the same craft as the vacancy shall, under most circumstances,
receive the job. When there are no eligible employees within the same craft, the

USPS is free to select an outside applicant or choose an employee from another

craft. CBA, Art. 33.2
2

Under the grievance procedure established by the collective-bargaining

agreement, grievances arising at the Galena facility are heard at the first level
by the local postmaster and at the second level by USPS management in
Wichita, Kansas. CBA, Art. 15.2

Section 7 of the NLRA, 29 U.S.C. Sec. 157, provides in part:

Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all of such activities....

Filing grievances pursuant to a collective-bargaining agreement constitutes

protected concerted union activity within the meaning of Sec. 7.NLRB v. City
Disposal Systems, 465 U.S. 822, 836, 104 S.Ct. 1505, 1513, 79 L.Ed.2d 839
(1984)

Weston began carrying the mail on September 13, 1984

Article 15 of the collective-bargaining agreement ("the agreement") between

the USPS and the American Postal Workers Union and the National
Association of Letter Carriers (collectively referred to hereinafter as "the
Unions") establishes a grievance arbitration procedure and defines a grievance
as:
a dispute, difference, disagreement or complaint between the parties related to
wages, hours, and conditions of employment. A grievance shall include, but is
not limited to, the complaint of an employee or of the Unions which involves
the interpretation, application of, or compliance with the provisions of this
Agreement or any local Memorandum of Understanding not in conflict with this
Agreement.
Additionally, Article 3 of the agreement provides that the USPS may transfer
and assign employees and determine the personnel by which its operations are
to be conducted, but only consistent with applicable laws. Based upon these two
provisions, the USPS contends the instant "grievance" is arbitrable under the
collective bargaining agreement.

Unfortunately, with respect to claims such as the claim in the instant case-where the charge alleges unfair labor practices under Sec. 8 of the NLRA and

does not require interpretation of the collective-bargaining agreement--the

Board has explicitly and dramatically changed its policy twice in the past
thirteen years. Six years after Collyer Insulated Wire, 192 NLRB No. 150,
1971 NLRB Dec. (CCH) p 23,385 (1971), the Board held that it would not
defer cases alleging violations of Sec. 8(a)(1) and (3) and 8(b)(1)(A) and (2).
General American Transp. Corp., 228 NLRB No. 102, 1976-77 NLRB Dec.
(CCH) p 17,961 (1977). Seven years after General American Transp., in United
Technologies Corp., 268 NLRB No. 83, 1983-84 NLRB Dec. (CCH) p 16,027
(1984), the Board expressly overturned General American Transp. and held that
deferral would thereafter be allowed even in cases alleging unfair labor
practices, so long as deferral was consistent with the principles of Collyer. (One
commentator has suggested that the NLRB's shifting deferral policy is a
"meandering ... marked by advances as well as major retreats, followed by
uncertain returns to previously abandoned principles." Peck, A Proposal to End
NLRB Deferral to the Arbitration Process, 60 Wash.L.Rev. 355, 387 (1985).)
Recently, in Hammontree v. NLRB, 894 F.2d 438 (D.C.Cir.1990), the D.C.
Circuit held that the Board's pre-arbitration deferral policy as expressed in
United Technologies contravenes the plain meaning of Sec. 10(a) of the NLRA.
The Hammontree court concluded that the Board cannot, consistent with the
Board's exclusive power to remedy unfair labor practices under Sec. 10(a),
defer unfair labor practice claims that do not involve the interpretation or
application of provisions of the collective-bargaining agreement.
Here, the parties have not argued the related issues of whether United
Technologies is consistent with the NLRA and thus whether the NLRB could
ever properly defer unfair labor practice charges such as those alleged in the
instant case. Accordingly, and because we have affirmed the Board's decision
not to defer on alternate grounds, we leave these issues for another day.