Postal Service

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1385 (N.L.R.B. 1984)

POSTAL SERVICE
United States Postal Service and James Edward
Wiles and National Association of Letter Carri-
ers. Cases 11-CA-10270-P and I I-CA-
10632-P
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 August 1983 Administrative Law Judge
Richard A. Scully issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings,2 find-
ings,3 and conclusions only to the extent consistent
with this Decision and Order.
The Respondent has excepted to the judge's con-
clusion that it violated Section 8(a)(1) of the Act
when it did not inform Charging Party Wiles
before he reported for work on the morning of the
hearing in this case that he could have the 2 addi-
tional hours of leave that he had requested from
the Respondent the previous evening. We find
merit in this exception.
The Respondent had originally arranged for
Wiles to work only 2 hours (from 7 to 9 a.m.) on
I The General Counsel has excepted to the judge's denial of his motion
to strike certain portions of the Respondent's posthearing brief. We find
merit in this exception, to the following extent. The Respondent in its
brief relies on off-the-record discussions concerning the establishment of
a witness release schedule, and the judge refers to such discussions in his
decision. These references do not appear to have resulted in any preju-
dice, for the judge's conclusion that the Respondent did not interfere
with subpoenaed witnesses is amply supported by credited testimony in
the record. Nonetheless, we wish to make it clear that we place no reli-
ance on any off-the-record matters set forth by the judge, and hereby
grant the General Counsel's motion to strike all references to such mat-
ters from the Respondent's brief.
s The Respondent has excepted to the judge's denial of its motion to
dismiss the complaint in Case I l-CA-10632-P, which contained both the
allegation discussed later in this decision, and another allegation that the
judge dismissed on the merits. Citing Jefferson Chemical Co, 200 NLRB
992 (1972), the Respondent argues that the original complaint in Case 11-
CA-10270-P should have been amended to include these allegations
while the original hearing was still in session, that the two complaints
should not have been consolidated, and that the hearing should not have
been reopened to adduce evidence on the second complaint. Because, as
set forth below, we dismiss this entire matter on the merits, we find it
unnecessary to rule on the Respondent's procedural contentions.
a The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
268 NLRB No. 214
20 August 1982 so that he could attend the hearing,
which was scheduled to begin at 10 a.m. After
work on 19 August, around 6 p.m., Wiles asked Su-
pervisor Blackwood to release him from the fol-
lowing day's schedule so that he could meet with
counsel for the General Counsel before the hear-
ing. Blackwood told Wiles that, because another
supervisor was in charge of scheduling, Blackwood
could not authorize the leave. Wiles requested that
Blackwood look into the matter and call Wiles at
home if he obtained the necessary authorization.
After Wiles left, Blackwood arranged the leave and
attempted to telephone Wiles but was unable to
reach him. The next day, Wiles drove 40 miles
from his home to report to work at 7 a.m. When
he arrived, Supervisor Riley told him that his leave
request had been granted, and Wiles left the prem-
ises.
In view of the belated timing of Wiles' request,
the Respondent's obvious need to follow orderly
staffing procedures, Supervisor Blackwood's good-
faith attempt to accommodate Wiles' request, and
the lack of evidence that the Respondent deliber-
ately deceived Wiles, we find that the General
Counsel has not proved by a preponderance of the
evidence that the Respondent unlawfully interfered
with Wiles' right to participate effectively in this
proceeding. Accordingly, we shall dismiss the com-
plaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
RICHARD A. SCULLY, Administrative Law Judge:
Upon charges filed by James E. Wiles on January 20,
1982, and by National Association of Letter Carriers (the
Union) on October 7, 1982, the Regional Director for
Region 11 of the National Labor Relations Board (the
Board) issued complaints on March 3, 1982, and Novem-
ber 19, 1982, alleging that United States Postal Service
(the Respondent) had committed certain violations of
Section 8(aXl) of the National Labor Relations Act, as
amended (the Act). The Respondent has filed answers
denying that it has committed any violation of the Act.
The cases were consolidated for hearing and were
heard in Durham, North Carolina, on August 20 and Oc-
tober 13 through 15, 1982, and in Chapel Hill, North
Carolina, on January 24, 1983. The parties were given a
full opportunity to participate, to examine and cross-ex-
amine witnesses, and to present other evidence and argu-
ment. Briefs submitted on behalf of the General Counsel
and the Respondent have been given due consideration.'
I The General Counsel's motion to strike portions of the Respondent's
brief is denied. The General Counsel's motion to file a reply brief, which
the Respondent has opposed, is also denied. All issues were adequately
treated in the parties' initial briefs.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record and from my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaints allege, the Respondent admits, and I
find that the cases are within the jurisdiction of the
Board by virtue of Section 1209 of the Postal Reorgani-
zation Act (the PRA), 39 U.S.C. 101, et seq.
II. THE LABOR ORGANIZATION
The Respondent admits and I find that, at all times
material, the Union was a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
James Wiles is a regular city letter carrier employed at
the Respondent's Post Office in Chapel Hill, North
Carolina. He is a member of the Union and has worked
for the Respondent since April 1973. He has been at the
Chapel Hill post office since transferring there in August
1976. Prior to February 1981, Wiles was a part-time
flexible carrier (PTF) working on an as-needed basis, fill-
ing in for regular carriers on their days off, when they
were on leave, or assisting regular carriers when the
volume of mail was heavy. A PTF's assignment was gen-
erally determined by management until mid-1978 when
PTF's were given a right to bid, on the basis of seniori-
ty, for mail routes which were to be vacant for a period
of 5 or more days, in the national collective-bargaining
agreement entered into by the Respondent and the
unions representing its employees.2 A successful article
41 bidder would "case and carry" the route chosen
during the period that the regular carrier on the route
was off. "Casing" is the process of taking pieces of mail
of various types, letters and flats, and putting them in a
case which has the addresses on the route in sequence.
After casing, the mail is bundled, placed in the carrier's
vehicle, and delivered. The Respondent has minimum
casing standard requirements and attempts to adjust its
routes so that they can be cased and carried in 8 hours
on an average day. A special office count is a procedure
wherein the volume of mail on a route is determined by
manually counting each piece, the time the carrier takes
in casing and carrying the route is recorded, and the
volume of mail and time used are compared in order to
determine if the carrier meets the Respondent's efficien-
cy standards.
The General Counsel contends that the Respondent
violated Section 8(a)(1) of the Act by conducting special
office counts on James Wiles in order to harass him be-
cause he exercised the contractual right to bid on tempo-
rarily available routes while he was a PTF and because
he filed grievances pursuant to the contract, and that it
also harassed Wiles by requiring him to work overtime
on the day prior to the start of the hearing herein and by
requiring him to report to work as scheduled on the
morning the hearing opened.
2 This is commonly referred to as an "Article 41 bid."
The first special office count alleged as a violation in
the complaint was conducted on Wiles on July 23, 1981,
while he was carrying city Route 3. Other alleged viola-
tions were special office counts conducted the following
day, July 24, on July 28 and 30, on city Route 2, and on
August 13, on city Route 20. In the absence of any
direct proof that these special office counts were the
result of protected activity on Wiles' part, the General
Counsel points to various incidents which occurred over
a period of nearly 5 years preceding these special counts
and contends that they create an inference that protected
activity motivated the Respondent's alleged harassment
of Wiles. The incidents the General Counsel relies on are
as follows: (1) In 1977, Wiles was discharged by the Re-
spondent and was later reinstated with backpay pursuant
to an arbitrator's decision. (2) A conversation between
Chapel Hill Postmaster Fred Reigher and then Union
Local President Emmett Pendergraph in which Reigher
said he "didn't think he would accept another transfer"
and made a "vague reference" to Wiles as being the
reason he felt that way. (3) In early 1979, Supervisor of
Mails Charles Holloway threatened Wiles and other
PTF's that if they exercised the new contractual right to
bid on vacant routes, they would be subjected to special
office counts and, if they did not perform satisfactorily,
they would be given letters of warning, and confirmed
this threat in writing. (4) Thereafter, Wiles was the first
Chapel Hill PTF to bid on a route pursuant to the new
contract right. He was given a special office count on his
first day on the route and received a letter of warning.
Wiles filed a grievance with the Respondent and an
unfair labor practice with the Board, which issued a
complaint. The grievance and the complaint were infor-
mally resolved, the warning letter was withdrawn, and a
notice posted. (5) During early 1979, Postmaster Reigher
and Supervisors Robert Blackwood and Cecil Riley
warned Wiles that he would be disciplined if he made a
bid on a route pursuant to section 41. (6) In July, 1981,
Wiles made a successful article 41 bid on Route 3. On
July 14, his second day on the route, Wiles was given a
special office count and street supervision and he filed a
grievance over this. (7) Wiles filed more grievances than
other carriers. (8) Wiles was given substantially more
special office counts than other PTF's.
After looking closely at the circumstances surrounding
all of these incidents and allegations I find that, taken
singly or together, they fail to establish, or to create a
reasonable inference, that the special mail counts con-
ducted on Wiles during July and August were in retalia-
tion for or were intended to harass him because he filed
article 41 bids and/or grievances pursuant to the collec-
tive-bargaining agreement.
The evidence concerning Wiles' termination in 1976
indicates that he had asked Postmaster Reigher for an ex-
tended leave of absence in order to attend law school,
which Reigher was unable to grant. Thereafter, Reigher,
believing that Wiles was going to attend school and had
orally tendered his resignation, processed the resignation.
After he was terminated as a result of this, Wiles filed a
grievance. Ultimately, an arbitrator ordered Wiles rein-
stated with backpay, having found that Wiles had not, in
1386
POSTAL SERVICE
fact, resigned and that there had been "a breakdown or
misunderstanding of communications." Reigher credibly
testified that the outcome of the arbitration "doesn't agi-
tate me now, nor has it ever." Reigher testified that he
believed, on the basis of supervisors' reports that Wiles
used unnecessary overtime on the job; however, there is
no evidence that he conducted or ordered that special
mail counts be conducted on Wiles and nothing to sug-
gest that they were the result of unhappiness on his part
because of the arbitrator's ruling more than 3 years earli-
er. Reigher was not asked about his statement to Pender-
graph about not accepting other transfers. While Pender-
graph's testimony is uncontradicted, I do not find it to be
persuasive evidence of anything. The date of this conver-
sation was never pinpointed and, even if Reigher did
make a "vague reference" to Wiles, as Pendergraph
stated, this cannot be considered as establishing that
Reigher harbored animus toward Wiles because of his
union or other protected activity.
Sometime in 1979, Wiles was the first Chapel Hill PTF
to make a bid on a vacant route pursuant to article 41.
According to Wiles, Charles Holloway told Wiles and
other PTF's that they had better not exercise their rights
under article 41 or they would be given special office
counts and, if they did not perform satisfactorily, they
would be given a letter of warning. Holloway also gave
him a written statement to the same effect. Wiles filed a
grievance and an unfair labor practice charge with the
Board based on Holloway's alleged threat. Both the
grievance and an unfair labor practice complaint issued
as a result of Wiles' charge were informally resolved in
January 1980. The Respondent posted a notice disavow-
ing any threats of reprisals against employees for exercis-
ing contractual rights and stating that employees would
not be given special office counts or otherwise be retali-
ated against because they filed grievances or exercised
other contractual rights. In the absence of evidence to
the contrary, it may be assumed that Wiles and other
PTF's continued to bid on routes pursuant to article 41
after this notice was posted. There is no evidence that
the Respondent did not act in accordance with the state-
ments in that notice between January 1980 when it was
posted and July 1981 when the special office counts that
are the subject of the instant case took place. From all
that appears, no adverse action was ever taken against
Wiles or any other PTF because they made an article 41
bid.
Wiles also testified that within a month of the time
that Holloway made his alleged threat, Postmaster
Reigher and Supervisors Robert Blackwood and Cecil
Riley, all made similar threats that PTF's would be disci-
plined if they exercised the right to bid under article 41.
Each of the three supervisors denied making any such
threats and, while the threats were supposedly directed
to all PTF's, Wiles was the only one to testify that he
heard them. Although, according to Wiles, these threats
were similar to and made around the same time as
Holloway's alleged threat, Wiles did not mention them in
the charge he filed with the Board or while it was being
investigated and there are no references to them in the
complaint issued on the basis of Wiles' charge. I do not
credit Wiles' testimony concerning the threats by
Reigher, Blackwood, or Riley.3
There are significant differences between the situation
in 1979, in which Holloway allegedly threatened Wiles
with a special office count if he made an article 41 bid
on a route, and that in July 1981 when Wiles was given
a special office count following an article 41 bid on
Route 3, which convince me that the Respondent was
not reverting to the policy it had renounced in settling
the unfair labor practice case arising out of the 1979 inci-
dent. Holloway's oral and written statements to Wiles in
1979 related to a bid on a route Wiles' was unfamiliar
with and, thus, involved a situation where Wiles might
be expected to encounter delays in casing and carrying
the mail. He also stated that Wiles would be given an
office count on his first day on the route. Wiles' July
1981 bid on Route 3 was not on a route he was unfamil-
iar with, since he had previously carried that route on
several occasions, and he was not scheduled for a special
office count on his first day on the route simply because
he had made an article 41 bid. While Wiles was given a
special office count and street supervision on July 14 his
second day on Route 3, the evidence indicates that this
came about because of Wiles' use of overtime on that
route on July 13. Supervisor Blackwood testified that he
told Wiles he would have a special office count and
street supervision the following day after Wiles took
nearly 7 hours to deliver a route which Blackwood said
should have been delivered in about 5-1/2 hours. Ac-
cording to Blackwood, he had previously had problems
with Wiles' taking longer on routes than other carriers.
Blackwood said he had talked to the regular carrier on
the route, Danny Straub, who had cased the route in the
morning before going on leave, about the volume of mail
and was told by Straub that it was a regular day and that
there would be no problems with the delivery. Under
the circumstances, 4 I find no basis for concluding that
s After observing Wiles' demeanor during the hearing and considering
his testimony, I find that he had an obvious bias against the Respondent
and his supervisors which countered any enhanced credibility his testimo-
ny might normally have by reason of the fact that he is still employed by
the Respondent. See Gold Standard Enterprises, 234 NLRB 618 (1978).
Wiles' testimony contained several self-serving interjections and seemed
calculated to portray himself as continually being the innocent victim of
unresonable supervisors Typical was his story about Supervisor Cecil
Riley, who Wiles said was waiting for him when he came out of a restau-
rant in March 1981. Riley told Wiles he was giving him an "official
write-up" for taking 2 extra minutes for lunch. According to Wiles, he
filed a grievance with then Acting Postmaster Cassell who agreed that
Wiles had not exceeded his allowed lunch break, but told Wiles he could
not destroy the writeup "because it was Cecil Riley's form." I did not
believe Wiles' story for several reasons. Fred Reigher was the postmaster
in March 1981, not Cassell, who had been acting postmaster in Chapel
Hill for a 120-day period in 1980. There was no record of any grievance
in the Respondent's grievance files and Wiles produced no evidence that
he filed one. The alleged resolution of the grievance, as described by
Wiles, that the postmaster, although he vindicated Wiles, could not
remove the writeup "because it was Cecil Riley's form" borders on being
ludicrous. Wiles appears to have placed this alleged incident in March
1981 in order to make it appear that a special mail count conducted on
him in April 1981 was part of a pattern of continuous harassment.
4 The General Counsel contends, based on testimony of Wiles, that the
volume of mail on the route on July 13 was unusually heavy, that be-
cause Wiles had not cased the route it took longer to deliver, and that
these factors accounted for the prolonged delivery time. Wiles testified
Continued
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blackwood acted unreasonably in scheduling Wiles for
an office count and street supervision or to believe that,
if Wiles had delivered the route on July 13 in a timely
fashion, he would have been counted and street super-
vised on July 14. There is no reason to believe that pro-
tected activity on Wiles' part was in any way responsible
for the special supervision he received on July 14.
Wiles filed a grievance because of the office count and
street supervision on July 14. Special office counts were
conducted on him on July 23 and 24, while he was still
on Route 3, and on July 28 and 30 on Route 2 and on
August 13 on Route 20. As noted above, while there is
evidence that, in 1979, the management at the Chapel
Hill post office may have sought to discourage PTF's
from bidding pursuant to article 41, that policy was
abandoned not later than January 1980. There is no evi-
dence which would support an inference that any of the
special mail counts on Wiles in July or August 1981 was
the result of his having made an article 41 bid on a
vacant route. A question remains whether the special
counts on July 23, 24, 28, and 30 and on August 13 were
done because Wiles filed a grievance over the supervi-
sion he was given on July 14. There is little direct evi-
dence one way or the other.
The fact that Wiles was counted several times after he
filed a grievance might raise some suspicions. On the
other hand, a special office count is not a form of disci-
plinary action. According to Charles Holloway, who
conducted these special counts, it is not only a method of
measuring a carrier's efficiency, but is also a means of
training and correcting bad habits a carrier may have de-
veloped. Holloway testified that such counts may be
given to all carriers, but are given to PTF's more often
than to regular carriers, who usually are proficient in
casing their routes. He also testified that most carriers do
not complain about having special counts conducted on
them. Consequently, there is some question as to wheth-
er conducting a special count on a carrier should neces-
sarily be considered harassment. No disciplinary action
was taken against Wiles as a result of his performance on
any of these special counts. However, even assuming
that a special office count can be used as a means of har-
assing a carrier, I find no evidence to support the allega-
tion that these special counts of Wiles were conducted
because he had filed a grievance, with the exception of
the fact that they began after it was filed. It has not been
established exactly when his grievance was filed. If it
were on July 14, the day of the supervision Wiles object-
ed to, the next special count was more than a week later
on July 23. Holloway, whom I found to be a credible
and convincing witness, was not specifically asked about
the reasons he conducted the five special counts in issue,
but he denied that he ever conducted special counts in
that the regular carrier, Straub, had told him that the mail was "very
heavy, that three days of mail had been stuck up by him but had not been
delivered." However, Straub testified that he did not recall talking to
Wiles about the volume of mail that day, which he described as "average
to just barely above average" despite the fact that 2 days of third-class
mail was included. There is nothing in the record to establish that the
fact Wiles had not cased the mail or the fact that he had trouble starting
his vehicle that day would have added more than an hour to the normal
delivery time for the route.
order to harass an employee. He testified that he had
conducted special counts on Wiles to improve his job
performance. He said that Wiles' work was inconsistent;
that some days he did a good a job and other days it was
not so good; that he had discussed Wiles' faults with him
numerous times; and that he had tried to get Wiles to
correct them. Wiles did not deny this. While Wiles may
have received more special counts than other PTF's,
Holloway also testified that Wiles' productivity seemed
to increase when he was being counted. Postal Service
records in evidence support this. They indicate that on
July 22, the day prior to the first special count of Wiles
alleged as a violation in the complaint, he used over 2
hours of overtime on Route 3, which, at that point, he
had been delivering for more than a week. On July 23
and 24, days on which special counts were conducted, he
used only .14 and .30 hours of overtime, respectively. On
July 27, he used 1.24 hours of overtime on a day when
the mail volume was apparently light. 5 He was given a
special mail count on July 28 and incurred only .06
hours of overtime. On July 29, Wiles used .84 hours of
overtime, but, when counted on July 30, he used only
.13. Considering all of the evidence, I find it substantially
more likely that the special mail counts in issue were
conducted on Wiles in order to improve his job perform-
ance and reduce his use of overtime than that they were
done in order to harass him because he filed a grievance.
Accordingly, I find that the General Counsel has failed
to prove these allegations by a preponderance of the evi-
dence and shall recommend that they be dismissed.
The complaint also alleges that special mail counts
were conducted on Wiles on January 8 and 12, 1982, be-
cause he bid under article 41 and, on January 11, 1982,
because he filed a grievance. There is no evidence that a
special mail count was conducted on Wiles on January 8,
1982, although he was the subject of street supervision
by Supervisor Blackwood that day. There is nothing to
suggest that this was anything but routine supervision pe-
riodically given all carriers; that it was meant to harass
Wiles;6 or that it was the result of an article 41 bid or
the filing of a grievance by Wiles. 7
s On the 24 other routes delivered that day, only 3, all being delivered
by PTF's, incurred overtime of .06, .13, and .11 hours, respectively.
6 The alleged harassment apparently was what Wiles described as
Blackwood's "outrageous" conduct of parking his car beside Wiles' vehi-
cle and glaring at Wiles while he ate his lunch. According to Blackwood,
during the course of the street supervision he parked his car in a parking
lot about 40 feet to the rear of Wiles' vehicle "where he wouldn't ob-
serve me and I wouldn't observe him." I credit Blackwood's testimony.
I The General Counsel may be relying on the testimony of employee
Rudolph Tempesta as providing evidence that Blackwood was continual-
ly engaged in harassing Wiles. According to Tempesta, "roughly around
Labor Day" in 1981, he overheard Blackwood speaking to Holloway
about Wiles and Blackwood said: "I am going to get that son-of-a-bitch."
Blackwood credibly denied making the statement and Holloway credibly
denied that Blackwood made it to him. Although recognizing that Tem-
pesta is a current employee, I do not credit his testimony, which was
often argumentative, exaggerated, and evasive. For example, on cross-ex-
amination, although he said he has worked at the Chapel Hill Post Office
for 38 years, he said he did not know that Blackwood was the number
two man at the post office and it took four questions to get him to grudg-
ingly admit that Postmaster Reigher was the number one man. He gratu-
itously accused counsel for the Respondent of trying to insult him and
claimed that he had been harassed by the Respondent for 30 years. I con-
sider his testimony unreliable and find there is no credible evidence that
Blackwood made the statement attributed to him by Tempesta.
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POSTAL SERVICE
Wiles was given street supervision on January 11,
1982, and was also given a special office count on the
next day. According to Wiles, on the morning of Janu-
ary 11, Cecil Riley came to him while he was casing his
mail and told him that, based on the measured volume of
mail on his route, he should be out of the post office by
8:30 a.m. Wiles disputed the correctness of the volume
measurement, but Riley insisted he should be out by 8:30.
Wiles then complained to Union President Pat Morris
who was nearby and Morris spoke with Riley on Wiles'
behalf. Wiles told Riley he wanted to speak with Morris
about filing a grievance, but Riley refused to permit him
to do so. Wiles then asked Blackwood for permission to
discuss a grievance with Morris, but he also refused and
ordered Wiles back to work. Riley later allowed Wiles
to speak with Morris and, when he returned to his desk,
Riley came over to him and told him he would have a
special mail count on the following day and that Riley
would follow him on the street that day.
Robert Blackwood testified that, when he began street
supervision of Wiles at 12:55 a.m. on January 8, Wiles
was running behind schedule. When Blackwood returned
to the post office that afternoon, he told Riley that Wiles
had lost time on the early part of his route, and that he
should street supervise Wiles at least on the first part of
his route and that he should give Wiles a special office
mail count because of his low productivity in the office.
Blackwood directed Riley to do the street supervision on
Monday, January 11, and they decided to do the special
office count on January 12. On the morning of January
11, Blackwood entered the carrier section while the car-
riers were on break and found Riley at Wiles' case. Riley
pointed out Wiles' low productivity in casing to Black-
wood. When Wiles returned from his break, Riley told
him he would have a special mail count the next day.
Wiles got very excited and called for Morris to come
over because Riley was harassing him and was going to
give him a mail count. Riley told Wiles to quiet down
and continue casing and he would make arrangements
for him to see his steward. Wiles then approached Black-
wood about seeing the steward and he told Wiles that
Riley would have to handle it. Riley's testimony cor-
roborates that of Blackwood both as to the fact that
Blackwood ordered both street supervision and a special
office count on Wiles on Friday, January 8, after he had
street supervised Wiles and that Wiles' demand to see his
union steward on January 11 occurred after Wiles re-
turned from his break and Riley told him he would have
a special office count the next day.
I credit the consistent testimony of Blackwood and
Riley as to what prompted the special office count of
Wiles on January 12 and that it was decided upon on
January 8. 1 also credit their testimony as to what oc-
curred on the morning of January 11 over that of
Wiles.8 Accordingly, I find no basis to conclude that the
8 Wiles' testimony, that Riley told him he should be out of the post
office by 8:30 a.m. on January II1, is uncorroborated and other factors
convince me that Wiles' testimony about this incident should not be cred-
ited. Union President Morris, to whom Wiles says he complained at the
time and who Wiles says spoke at some length with Riley on his behalf,
was not called as a witness. Although Wiles testified that he was in-
formed of the special office count immediately after he had spoken with
special office count was as a result of Wiles' having filed
a grievance on January 11 and shall recommend that this
allegation be dismissed.
At the hearing on August 20, 1982, the complaint in
Case I l-CA-10270-P was amended to allege that the
Respondent had violated Section 8(aXl) by requiring
Wiles to work longer hours because of his protected con-
certed activities and because of his participation in that
case. Wiles testified that on August 19, 1982, when he re-
ported for work, he showed Cecil Riley his subpoena to
appear at the hearing scheduled to begin on the follow-
ing day and began casing his mail. He later requested
auxiliary help on his route. He was given help in casing
his mail but his request for 1.25 hours of delivery help
was denied. He delivered his route which had a heavy
volume of mail and upon returning to the post office
around 5:15 p.m. was ordered by Riley and Blackwood
to stay and case third-class nonpreferential mail. Accord-
ing to Wiles, this was something that he usually did not
do since he had become a regular carrier. However, that
evening he was ordered to do it until 6 p.m. and he did
so. Wiles said that he did not recall having to work 10
hours in a day since becoming a regular carrier. Before
leaving the post office, Wiles, who was scheduled to
begin work at 7 a.m. on the next day, asked Blackwood
if he could be off in the morning in order to meet with
his attorney and be fresh for the trial. Blackwood denied
his request. Wiles asked Blackwood to contact trial
counsel for the Respondent to see if he could be let off
and, if he could, to telephone him at home. Wiles, who
lives about 40 minutes from the post office, received no
telephone call and reported for work at 7 a.m. on August
20. After he had been there a few minutes, Riley told
him he was not needed and could leave.9
Morris about filing a grievance, the written grievance form filled out by
Morris states that Wiles discussed the grievance with Union Steward
Tempesta on January II. Wiles also testified that just before he argued
with Riley about whether the measurement of the volume of mail on
Wiles' route was correct, another carrier, Riley's brother, had com-
plained that the measurement of his mail was incorrect and Riley had
changed it. However, the Postal Service document on which the meas-
urements were recorded shows no evidence that the measurement for
Riley's brother had been changed. Finally, the Postal Service document,
in which the expected times for leaving the office (expressed in hun-
dredths) based on each carriers' volume of mail is entered, shows that
Wiles was expected to leave at 9:84 not 8:50 (8:30 a.m.).
9 This incident, involving the Respondent's failure to timely grant
Wiles' request for leave was one of the violations alleged in the com-
plaint in Case l-CA-10632-P, which issued on November 19, 1982, fol-
lowing the filing of a charge by the National Association of Letter Carri-
ers on October 7, 1982, alleging that the Respondent interfered with wit-
neases subpoenaed to appear on August 20. The Respondent contends
that the complaint in Case Il1-CA-10632-P should be dismissed because
it involves an attempt to litigate or relitigate matters which should have
been heard in Case l-CA-10270-P, citing the Board's decisions in Jef-
ferson Chemical Ca, 200 NLRB 992 (1972), and Union Electric Ca, 219
NLRB 1081 (1975). Its argument is somewhat surprising given its posi-
tion in response to the General Counsel's motion to amend the complaint
in Case II-CA-10270-P, made at the hearing on August 20, to include
the other allegations of harassment of Wiles on August 19. Then, the Re-
spondent argued that that incident should be the subject of a new or
amended charge which it should have a chance to respond to and the
General Counsel to fully investigate before being included in a complaint.
Now, when other alleged violations occurring on August 19 and 20 were
made the subject of a new charge and complaint, it claims they should
have been litigated as a part of Case Il-CA-11270-P. This, after it op-
Continued
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the uncontradicted and credited testimony of
Cecil Riley, I find that all of the carriers in the Chapel
Hill Post Office cased third-class mail upon returning
from their routes on August 19, as did Wiles, and that
they did so on other occasions. It appears that requiring
Wiles to case this mail was nothing out of the ordinary
and that the reason his workday lasted 10 hours was pri-
marily because of the extra time it took him to case and
carry his route. The preponderance of the evidence does
not establish that Wiles was required to work longer
hours than he normally would have on August 19 or any
other day or that he was required to work an extra 45
minutes that day because of his union or other protected
activities or because he was involved in the hearing in
this matter.
As for the Respondent's action in refusing to excuse
Wiles from coming into work at 7 a.m. on August 20,
the morning the hearing in this case was to start, I find
nothing which would justify that action. Wiles gave his
supervisors timely notice that he had been subpoenaed to
attend the hearing and they were certainly aware of his
role as the charging party in the case. He specifically
asked to be excused from reporting to work that morn-
ing so that he could talk with his attorney and prepare
for the hearing, but was refused. That the Respondent
had no particular need for Wiles' services that morning is
evident from the fact that he was excused immediately
after he reported for work. By refusing to excuse Wiles
beforehand, the Respondent caused him to make the 40-
minute trip from his home to the Chapel Hill Post Office
prior to 7 a.m., while the hearing was scheduled to com-
mence in Durham, North Carolina, at 10 a.m. Whether it
was deliberate or not, I find such action clearly inter-
fered with Wiles' rights to participate in this proceeding
in violation of Section 8(a)(1). °0
posed the General Counsel's motion at the conclusion of the hearing to
hold the record in that case open until the charge concerning those inci-
dents could be investigated and resolved.
The violations alleged in Case I -CA-10632-P involve matters which
occurred long after the charge in Case I l-CA-10270-P was investigated
and a complaint had issued. Indeed, certain of the actions involved oc-
curred the day the hearing in that case commenced and the General
Counsel finished presenting evidence (with the exception of certain docu-
ments offered when the hearing resumed). Under the circumstances, I
find no evidence that the Respondent has been prejudiced or denied due
process by reason of the fact that certain incidents occurring on August
19 and 20, 1982, were the subject of a new charge and new complaint. I
also find that the issue of whether Wiles' rights were violated by the Re-
spondent's refusal to timely grant his request for leave to attend the hear-
ing on August 20 was fully litigated during the hearing on Case It-CA-
10270-P and, if the General Counsel's posthearing motion to reopen and
consolidate cases should properly have been considered as a motion to
amend the complaint in that case to include that issue, it should be grant-
ed. The Respondent should not be permitted to avoid responsibility for
its unlawful actions because of a procedural technicality.
'O Blackwood testified that he told Wiles on August 19 that Riley was
handling the scheduling for August 20 and that he could not let him off.
He later spoke with counsel for the Respondent who told him to let
Wiles off, but he was unable to reach Wiles by telephone in two attempts
that evening. I find Blackwood's actions in no way lessened the interfer-
ence with Wiles' Section 7 rights caused by the Respondent's refusal to
excuse Wiles from reporting to work on August 20 and/or by its failure
to timely and effectively communicate to Wiles that he did not have to
report for work after all. Neither does the fact that Riley may have
thought Wiles was one of the carriers counsel for the Respondent told
him should be released to attend the hearing on August 20, only when
needed, as discussed, infra.
The complaint in Case 1 l-CA-10632-P also alleges
that the Respondent violated Section 8(a)(l) of the Act
by telling subpoenaed employees that they would not be
allowed to attend the hearing on August 20, 1982. Prior
to August 20, James Wiles had obtained and served
Board subpoenas on at least six employees of the Chapel
Hill post office directing them to appear at the hearing in
Durham at 10 o'clock that morning. Wiles and Rudolph
Tempesta had been subpoenaed by the General Counsel.
Wiles testified that on the morning of August 19 he gave
Cecil Riley the names of the employees he had subpoe-
naed. Riley wrote the names down, looked at the sub-
poena of each employee, and said there would be no
problem in letting all of the subpoenaed employees off at
9 a.m. on August 20. He said that Riley changed the
schedule to show all of the employees as getting off at 9
a.m. and the replacements on their routes. At 6 p.m.,
while Wiles was casing mail after returning from his
route, Riley told him that he had changed the schedule
back, that his witnesses were not going to be let off and
the reason was that trial counsel for the Respondent
"had ordered them not to be let off."
Employee Emmett Pendergraph testified that he re-
ceived a subpoena from Wiles prior to August 20 and
took it to his supervisor who told him he would have to
check with Blackwood about it. Pendergraph spoke with
Blackwood on August 20 at 7 a.m. and was told Black-
wood would get back to him. He said that Blackwood
came back to him about 9:30 a.m. and told him that he
would have to stay and work because the Respondent's
attorney had told Blackwood not to let him off. On
cross-examination, Pendergraph reluctantly admitted that
what Blackwood said to him was "that some arrange-
ments would be made in the future for us to appear in
such a manner that they could continue the operation of
the Chapel Hill Post Office."
The testimony of the other employees Wiles subpoe-
naed fails to establish that any of them was told that he
would not be allowed to attend the hearing on August
20, as alleged in the complaint. On the contrary, their
consistent testimony was that, when each discussed at-
tending the hearing with a supervisor, he was told that
an arrangement would be made whereby they would be
let off work to go to the hearing as needed and, in the
case of carriers out delivering mail, their routes would be
covered for them. The testimony of Riley and Black-
wood is consistent with that of the subpoenaed employ-
ees. Upon learning that several employees had been sub-
poenaed to appear at the hearing on August 20 and that
there was a shortage of manpower, counsel for the Re-
spondent informed Riley and Blackwood that he would
attempt to work out a plan whereby witnesses would be
called to the hearing as needed. Accordingly, Riley told
subpoenaed employees not to go to the courthouse in
Durham, but to report to work and that they would be
relieved to attend the hearing as needed. As it turned
out, none of the witnesses was called on August 20.
From all that appears, when the hearing resumed on Oc-
tober 13, Wiles' witnesses were released to appear when
needed by Wiles.
1390
POSTAL SERVICE
Under the circumstances presented here, I find no evi-
dence of interference with the employees' protected
rights and no violation of the Act. I am mindful of the
need to safeguard the Board's subpoena power from un-
lawful infringement and recognize that care should be
taken to assure that a charging party, who is not an at-
torney and may not be aware of or appreciate all the
legal niceties involved in an unfair labor practice pro-
ceeding, has an opportunity to participate and present
evidence. However, in the present case, it appears that
the Charging Party, Wiles, obtained and served"I a rela-
tively large number of subpoenas on post office employ-
ees and that, had all appeared in Durham on the morning
of August 20, the Respondent's ability to deliver the mail
in Chapel Hill that day could have been hampered. At
the same time, it was apparent that, given the large
number of subpoenaed documents counsel for the Gener-
al Counsel had to examine, the hearing would not com-
mence until the afternoon of August 20 at the earliest.
Consequently, it would have served no purpose for all of
the subpoenaed employees to have appeared in Durham
at 10 a.m. and sat around waiting for the hearing to start.
As the day went on, it also became clear that it was un-
likely that any of the witnesses subpoenaed by Wiles
would be needed on August 20.12 Counsel for both the
Respondent and the General Counsel recognized this
and, as might be expected, proposed an arrangement
whereby witnesses who were working on August 20
would be relieved and called to the hearing only when
they were needed, which I approved. This arrangement
was reasonable and accommodated the interests of all
concerned.
" It appears that none of the subpoenas Wiles handed out was proper-
ly served inasmuch as Wiles delivered them to the subpoenaed parties
himself and did not tender the prescribed witness fee and mileage. I find
this had no bearing on the issues presented here since there is no sugges-
tion that the Respondent acted as it did because it believed the subpoenas
were invalid. On the contrary, I find that the Respondent treated the sub-
poenas as valid in arranging to have Wiles' witnesses appear at the hear-
ing as needed on August 20 and when the hearing resumed on October
13.
12 When the hearing resumed on October 13, Wiles actually called to
testify only three of the employees he had subpoenaed.
As noted above, the witnesses were not told that they
could not appear at the hearing, rather, that they would
be released to attend as needed. Accordingly, no rights
of theirs were infringed. As for Wiles, the alleged viola-
tion is that he was told his witnesses would not be let off
to attend the hearing. The evidence does not establish
this as I do not credit Wiles' testimony that Riley told
him his witnesses would not be let off. There is no
reason why Riley would tell Wiles this when his instruc-
tions were that the witnesses were to be released as
needed and each witness was told arrangements would
be made for him to attend the hearing when called to
testify. Even if Wiles misunderstood the proposed ar-
rangement when he spoke to Riley, it was made clear to
him on the morning of August 20, long before he sought
to call any witnesses. I shall recommend that this allega-
tion be dismissed.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over these matters pursu-
ant to Section 1209 of the PRA.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing employee James Wiles' request for leave
and requiring him to report for work on the morning the
hearing on the unfair labor practices complaint on which
he was the Charging Party was to commence, the Re-
spondent violated Section 8(a)(1) of the Act.
4. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. The Respondent did not violate the Act in any
other manner alleged in the complaints in these matters.
REMEDY
Having found that the Respondent engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
1391