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CONSOLIDATED EDISON COMPANY
OF NEW YORK,

and                                                                                 2-CA-21757

 CARMINE PRATA, An Individual.

In this case, a member of a dissenting faction of Utility Workers Local 1-2 ("the Local") filed an unfair labor practice ("ULP") charge alleging that his employer, Consolidated Edison Company of New York ("Con Ed"), had suspended him without pay, and imposed other forms of discipline short of discharge, for having engaged in concerted activities that were related to his dissident activities. The Region deferred the charge to the grievance procedure under the collective bargaining agreement ("CBA") between Con Ed and the Local, reasoning that his charge could be resolved under the anti-discrimination clauses of the CBA. However, the grievance procedure is extremely back-logged, and cases like the one at issue here have the lowest priority for disposition. As a result, five and a half years have passed since the case was originally deferred, and there is no indication when the grievance is likely to be heard by an arbitrator.

Prata now asks the General Counsel to instruct the Regional Director to file a complaint forthwith on one of four grounds: (1) that the Con Ed/Local grievance procedure is not "adequate" to warrant deferral under Collyer Insulated Wire; (2) that, as a matter of law, a charge may not be deferred to the grievance procedure for as long as five years; (3) that the Regional Director has "unreasonably delayed" administrative action, in violation of the Administrative Procedure Act, 5 U.S.C. § 555(b), or (4) that there is sufficient animus between the union leadership and Prata to warrant non-deferral.

Carmine Prata is belongs to Local 1-2 and works for Con Ed. After a long history of dissenting activities within the Local, Prata Affidavit of February 13, 1992, ¶¶ 3-6, in 1982 he became a member of an intra-union group called the "Fight-Back Committee," which engaged in intra-union political activities directed against the incumbent leadership. Id. ¶¶ 7-11.

In the midst of this turmoil, Prata was subjected to five discrete forms of discipline by Con Ed, including manipulations of his vacation rights when he sought to take annual leave in order to engage in intra-union campaigning in the 1986 union election, a reprimand for disseminating intra-union campaign literature during a coffee break, to a ten-day suspension, allegedly for his behavior in the course of a meeting with his union representatives and Con Ed supervisors, during which he tried to persuade Con Ed's supervisors to grant him the schedule changes. Prata Affidavit of July 11, 1986.

On June 30, 1986, Prata filed a ULP charge against Con Ed, a charge that was amended on August 28, 1986. Exhibits A, C.⁽¹⁾ But on September 15, 1986, Regional Director Daniel Silverman deferred the charge to the grievance procedure, on the ground that the CBA between the Local and Con Ed contains "a grievance arbitration procedure which would appear to provide a means of resolving the allegations made in the charge." Exhibit D. The deferral letter said that Con Ed had stated its willingness to arbitrate the dispute underlying the charge, instructed Prata to promptly submit the dispute to the grievance and arbitration procedure, and included the following assurance:

It is my intention to revoke my decision to defer and to resume processing of the charge in the event the respondent, by conduct consistent with its expression of a willingness to arbitrate, prevents, or impedes the prompt resolution of the underlying dispute through the contract grievance-arbitration procedures.

Id. at 2.

Prata did, in fact, file a grievance over Con Ed's actions against him. However, to date no action has been taken on the grievance whatsoever. At least one reason for this inaction is that the Con Ed/Local 1-2 grievance procedure is overloaded. See generally Affidavit of Arthur Z. Schwartz, Esquire. Arbitrations are scheduled under the CBA at the rate of about 15 per month. Discharge grievances receive top priority, in chronological order from the discharge date, and major current contractual disputes are next in priority. According to Mr. Schwartz, who was at one time an attorney for the Local, "It is rare that a non-discharge grievance from an individual gets scheduled." Id. ¶ 4.

In these circumstances, it is scarcely surprising that there are hundreds of grievances awaiting arbitration at any one time. According to Mr. Schwartz, at the time of the 1986 deferral, there were more than 1000 grievances on the arbitration docket. Although the docket was reduced significantly in 1988 and 1989, it never had fewer than 400 cases, and currently has 700 cases pending. Id. ¶ 3. In 1990, there were still 1985 grievances on the "pending arbitration list." Id. ¶ 4.

During the time that Prata's case has been deferred, the Region contacted him and his attorney on four occasions, once orally and three times in writing. Schwartz Affidavit ¶¶ 5, 6, and Exhibits F, H, J. In each letter, the Region sought a report on the progress of the grievance and threatened to dismiss the charge unless Prata responded to the letter; otherwise, "we will assume that you no longer are interested in processing your case before the National Labor Relations Board." Prata's counsel, Mr. Schwartz, promptly responded to the first two letters with a status report, Exhibits G, I; in response to the third, Mr. Schwartz asked on May 30, 1990 that the processing of the case resume "in light of the extensive delay." Exhibit K. Almost a full year later, the Region responded to the May 30 letter by asking for a new status report as well as soliciting authority for the proposition that deferral was no longer warranted. Exhibit L. By letter dated May 2, 1991, Mr. Schwartz argued that deferral is appropriate under Collyer only when there is an "effective dispute solving machinery available," that an arbitration procedure under which a case can "languish for five years can hardly be considered effective," and that in any event the delay in Prata's particular case violated the Collyer requirement that the case be "promptly" submitted to arbitration. Exhibit M. The Region then replied that it was "now" contacting the employer with regard to the issue of continued deferral. Exhibit N. Although another ten months have elapsed, there has been no further contact from the Region. Schwartz Affidavit, ¶ 6.

At the same time, according to the Schwartz affidavit, other employees of Con Ed have faced the same problem. Region 2 not only continues to defer cases to the Con Ed / Local 1-2 grievance procedure, but often does not even bother to process the cases to the extent of taking an affidavit, Schwartz Affidavit, ¶ 7, knowing as they do that the grievance procedure is a black hole. Presumably, the Region has decided that scarce investigatory resources should not be allocated to ULP charges that can never go anywhere once they are "deferred" into the grievance procedure. In one case, indeed, Region 2 has continued to defer despite the fact that Con Ed, after stating its willingness to arbitrate, has repeatedly refused on procedural grounds even to docket a case for arbitration. Id. ¶ 8 and Group Exhibit O.

On January 15, undersigned counsel contacted the Region and inquired about the status of the case. Levy Affidavit, ¶ 2. The Supervisory Examiner responsible for the case acknowledged the delay, but said that he would not be able to get to the matter for another month. Id. ¶¶ 3-4. A month has passed without apparent action, id. ¶ 5, and so we now appeal from the unreasonable delay in the processing of this case.

The are four reasons why the Regional Director should be directed to file a complaint forthwith. First, the Con Ed/Local grievance procedure is not "adequate" to warrant deferral of any cases not involving a discharge under Collyer Insulated Wire, 192 NLRB 837 (1971). Second, as a matter of law, a charge may not be deferred to the grievance procedure for as long as five years. Third, the Regional Director has "unreasonably delayed" administrative action, in violation of the Administrative Procedure Act, 5 U.S.C. § 555(b). And fourth, deferral is not warranted because of the animus between Prata and the union leadership, which would represent Prata in any arbitration.

1. Collyer deferral is predicated on the existence of an "effective dispute-solving machinery." United Aircraft Corp., 204 NLRB 879 (1973). "[W]e guarantee that there will be no sacrifice of statutory rights if the parties' own processes fail to function in a manner consistent with the dictates of our law." Collyer Insulated Wire, 192 NLRB 837, 843 (1971). "[I]f the evidence should . . . indicate that the parties' own machinery is not functioning fairly or smoothly, it would seem obvious that we could not reasonably rely on the parties' voluntary machinery fairly and promptly to resolve the underlying problem." United Aircraft, supra, 204 NLRB at 879 (emphasis added).

Collyer makes clear that one of the conditions that a grievance procedure must satisfy in order to qualify for deferral is that it resolves grievances promptly. The Board there decided to defer because "the contract here made available a quick and fair means for the resolution of this dispute . . .." 192 NLRB at 839. And it retained jurisdiction to act in the event that "the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration." Id. at 843 (emphasis added). On the other hand, as the Board stated in Seng Co., 205 NLRB 200, 201 (1973), "we have declined to defer to arbitration in cases in which, for pragmatic rather than formal contractual reasons, the arbitration procedures do not in fact afford the aggrieved employee a 'quick and fair means' for resolving the dispute." (emphasis added).

The Con Ed / Local 1-2 grievance procedure fails this test because, except for discharge cases, it has proved to be incapable of promptly resolving the disputes underlying ULP charges of discrimination against union members. At various times during the past several years, there have been between 400 and 1000 grievances listed for arbitration, and cases involving suspensions and other forms of discipline short of discharge have virtually no chance of reaching the arbitration stage. Indeed, the Region apparently recognizes the uselessness of this grievance procedure because now, when a ULP charge comes in against Con Ed, it does not even take affidavits anymore, inasmuch as the case will never be removed form the deferral list anyhow. Prata's case is simply the tip of the iceberg, but it should be the occasion for the adoption of a general rule barring deferral in non-discharge ULP charges against Con Ed. Otherwise, Con Ed will be secure in the knowledge that it can violate its employees' rights with impunity, safe from effective redress either by the Board or by the grievance procedure.

2. Whether or not the General Counsel is willing to adopt a general rule involving Con Ed, it should at least direct that a complaint be filed in Prata's case. A delay of five-and-a-half years while the case is awaiting arbitration makes a mockery of the requirement that the submission to arbitration be "prompt." Statistics of the Federal Mediation and Conciliation Service indicate that the average delay between filing of a grievance and the appointment of an arbitrator is approximately 171 days. FMCS, Forty-Third Annual Report, FY 1990, at 43.⁽²⁾ We submit that, when a grievance has not been submitted to arbitration, and a particular arbitrator has not been appointed to hear that grievance, within six months following the date of the decision to defer -- i.e., when the passage of time is more than the national average, and more than the limitations period for filing a charge with the Board under section 10(b) -- then the General Counsel should presume that the underlying dispute will not be resolved "promptly," and a complaint should be issued.⁽³⁾

The publication of such a standard for deferral would go a long way toward encouraging the prompt and expeditious resolution of labor disputes. But regardless of the exact standard that the General Counsel may choose to adopt with respect to the time allowed for the grievance procedure to resolve a ULP charge, here it has been five-and-a-half years since this case was deferred to arbitration, which is more than eleven times the national average time that it takes for a grievance to be referred to an arbitrator. That delay is enough to warrant prompt issuance of a complaint in Prata's case.

3. The delay in the disposition of this case has become so great that the Board is now in violation of the Administrative Procedure Act, 5 U.S.C. § 555(b), which contains a "mandate that agencies decide matters in a reasonable time." Telecommunication Research and Action Center v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984); accord, British Airways v. Port Authority of New York, 569 F.2d 1002 (2d Cir. 1977). In addition to the fact that the underlying Board law permits deferral only when the underlying dispute is "promptly" settled or arbitrated, section 10(m) of the National Labor Relations Act expressly requires that cases involving charges of discrimination under section 8(a)(3), as this one does, are to receive the highest priority, yielding only to secondary boycott cases, in the speed with which they are to be handled.

In Hammontree v. NLRB, 925 F.2d 1486, 1495 (D.C. Cir. 1991) (en banc), section 10(m) was held not to bar deferral on the theory that deferral to the grievance procedure "facilitates the expeditious processing of [discrimination] cases by generally resolving complaints more quickly than Board proceedings could." Board cases do not normally take six years to be resolved. Yet 8(a)(3) cases against Con Ed generally, and this case in particular, have been allowed to languish indefinitely. In our view, this case is a prime candidate for mandamus under 5 U.S.C. § 706(1) and the All-Writs Act, in the event that the General Counsel does not promptly direct the Region to proceed to complaint in this case.

4. The final reason why this case ought not to be deferred is that the underlying dispute involves Prata's intra-union dissident activity, and the affidavits reflect a high degree of animus between Prata and the union leadership. Even if the case did go to arbitration, Prata would be represented by individuals against whom he has campaigned for union office, and who are currently pursuing a libel suit against Prata and several other members of his dissident caucus. Prata Affidavit, ¶¶ 3-13. And, of course, the discipline against which Prata seeks redress was imposed for his efforts to engage in intra-union opposition activity.⁽⁴⁾

The Board has made clear that cases will not be deferred under Collyer where the charging party is an overt dissident and the grievance would be handled or decided by political opponents, especially where the grievance itself related to dissident activity. Carolina Freight Carriers Corp., 295 NLRB No. 124, ALJ Decision at 2-3 (1989); General Motors Corp., 218 NLRB 472, 476 (1975); United States Steel Corp., 216 NLRB 874, 876-877 (1975); United States Postal Service, 215 NLRB 488, 489 (1974); Kansas Meat Packers, 198 NLRB 543, 544 (1972) see also Roadway Express, 145 NLRB 513, 515 (1963); Hammontree v. NLRB, 925 F.2d 1486, 1498-1499 (D.C. Cir. 1991) (en banc) ("Board abstention in such cases might indeed 'constitute not deference, but abdication'"). Given the intense animus between Prata and the union leadership, this exception to the deferral doctrine provides one more reason why the case should be removed from deferral.

Respectfully submitted,
 
 

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group
 
 
 
 

Arthur Z. Schwartz

Lewis, Greenwald, Kennedy, Lewis,

Clifton & Schwartz
 
 

Attorneys for Carmine Prata

March 9, 1992

1. All exhibits are attached to the Affidavit of Arthur Z. Schwartz, Esquire.

2. It takes three months from grievance filing to the beginning of the arbitral appointment process, and nine months from filing of the grievance to the arbitral hearing. Id.

3. Under our proposal, any delay on the part of the charging party in filing a grievance, assuming that one was not filed by the time of the deferral letter, would toll the six-month period.

4. It has been argued that deferral can best be justified on the theory that the union is waiving the right to Board enforcement of the underlying right which is, in turn, waivable. E.g., Plumbers Local 520 v. NLRB, No. 91-1098, Slip Opinion at 23 (D.C. Cir., February 11, 1992). On that theory, the charge in this case should not be deferred, because the right to engage in intra-union campaigning cannot be waived in collective bargaining. General Motors Corp. v. NLRB, 512 F.2d 447 (6th Cir. 1975).

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