Postal Service

National Labor Relations Board - Board Decisions

Sep 21, 1992

308 N.L.R.B. 893 (N.L.R.B. 1992)

893
308 NLRB No. 119
POSTAL SERVICE
1 On October 10, 1991, the judge issued a document entitled ‘‘Er-
rata.’’
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
3 We find without merit the Respondent’s argument that the judge
erred in failing to give collateral estoppel effect to factfindings made
by an administrative judge of the Equal Employment Opportunity
Commission concerning the Respondent’s discharge of Charging
Party Bowie. See Central Broadcast Co., 280 NLRB 501 fn. 1
(1986).
4 We modify the recommended Order to correct its omission of
customary language requiring the Respondent to reinstate the
discriminatee to a substantially equivalent position if his former job
no longer exists.
In Member Oviatt’s view, there are numerous legitimate reasons
why an employer might reasonably, and lawfully, limit a union’s ac-
cess to its facility. Here, however, the judge found that the Respond-
ent had: (1) previously demonstrated animus towards the chief stew-
ard because of his union activities; (2) sharply curtailed the chief
steward’s access to its facility without warning or explanation; and
(3) imposed this limitation immediately after the chief steward, in
his capacity as union representative, appointed additional members
to the recreation committee. Member Oviatt, therefore, agrees with
his colleagues that the limitation on access violated the Act.
Further, in the normal course of events Member Oviatt would find
unprotected the chief steward’s actions on September 23, 1989, of
shouting, cursing, waiving his briefcase, and throwing it on a desk
when ordered by the Respondent to leave its premises. In this case,
however, because of the Respondent’s prior, unexplained, and un-
lawful limitation on the chief steward’s access, the unlawful warning
it issued him, and—as credited by the judge—the Respondent’s arro-
gant treatment of the chief steward when ordering him to leave the
premises or face arrest, Member Oviatt joins his colleagues in find-
ing the consequent suspension and discharge unlawful.
United States Postal Service and Dennis Bowie and
North Jersey Area Local, American Postal
Workers Union, AFL–CIO. Cases 22–CA–
16504(P) and 22–CA–16638(P)
September 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 18, 1991, Administrative Law Judge
James F. Morton issued the attached decision.1 The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
States Postal Service, Paterson, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Dennis Bowie immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT suspend or discharge you in order to
discourage support for North Jersey Area Local, Amer-
ican Postal Workers Union, AFL–CIO, or any other
union or to discourage the filing an unfair labor prac-
tice charge with the Board.
WE WILL NOT restrict you from access to our
Paterson, New Jersey facility in order to discourage
support for the Union.
WE WILL NOT issue a warning to you in order to
discourage support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dennis Bowie immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Dennis Bowie that we have re-
moved from our files any reference to his suspension
and discharge and to the unlawful warning issued to
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 His name is spelled as it is in the General Counsel’s brief. The
transcript appears to contain a phonetic spelling.
him and that the suspension, discharge, and warning
will not be used against him in any way.
UNITED STATES POSTAL SERVICE
Tracy Galligan, Esq., for the General Counsel.
Nancy B. Lavine, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint, which was issued in these consolidated cases and
which was amended at the hearing, alleges that the United
States Postal Service (the Respondent) has committed unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act (the Act). Spe-
cifically, the Respondent is alleged to have restricted Dennis
Bowie, a chief steward, from entering its facilities outside his
working hours, and to have issued a written warning to him,
both in order to discourage him in the performance of his du-
ties for North Jersey Area Local, American Postal Workers
Union, AFL–CIO (the Union) at that facility. The Respond-
ent is further alleged to have, in effect, later suspended him
and then discharged him because of his union activities and
also because he had filed an unfair labor practice charge with
the Board.
Respondent, by its answer, denies the commission of any
unfair labor practice and it asserts that the entire matter
should have been deferred to the arbitral process. No merit
is found respecting the latter assertion as the Board has held
that allegations of an employer’s violations of Section 8(a)(4)
will not be deferred to arbitration. Nor will the 8(a)(3) alle-
gation be deferred as it is closely intertwined with the al-
leged 8(a)(4) violation. See International Harvester Co., 271
NLRB 647 (1984). Moreover, the arbitration award which
found against Bowie expressly noted that it was confined to
a determination as to whether Respondent had just cause
under its contract with the Union to discharge Bowie and
that it was not giving consideration to the assertion that
Bowie was unlawfully denied access by Respondent to the
Paterson facility, a consideration material to the General
Counsel’s claim that Bowie’s suspension and discharge were
discriminatorily motivated. Nor did the arbitration award give
consideration to the evidence of union animus presented to
me, a significant factor too in my weighing overall credibil-
ity.
I heard this case in Newark, New Jersey, on January 28,
1991. On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
The Board has jurisdiction as provided for in Section 1209
of the Postal Reorganization Act.
The Union is a labor organization as defined in Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has about 500 employees, represented by
the Union and who work at the main post office in Paterson,
New Jersey, and at four nearby facilities.
The alleged discriminatee, Dennis Bowie, began his em-
ployment with Respondent in 1977 at the Paterson facility.
In late 1984, he became a steward for the Union. In April
1988, he was elected chief steward and held that post at the
time of his discharge in late 1989.
The Paterson facility operates on a 24-hour-a-day basis.
There are three shifts—called tours. Tour one, starts at 12:30
a.m. and ends at 8 a.m.; tour two runs from 8 a.m. to 4 p.m.;
tour three from 3:30 p.m. to midnight.
Bowie worked on tour two. Of the 8 hours on that shift,
he spent 6 on union business. In addition, he regularly spent
2 hours a day on his own time performing his duties as chief
steward. In performing those duties on his own time, he
made regular visits to the Paterson facility during tours one
and three to process grievances and to use the Union’s of-
fice, located there.
The record before me contains the following evidence of
Bowie’s activities as chief steward. In fiscal year 1989 he
filed approximately 210 grievances and, in 1990, about 255
whereas Laurie Sparaga his immediate predecessor, had filed
but 89 in 1987 and 44 in 1986.
In March 1989, he filed a class action grievance protesting
the replacement of full-size lockers for each of the unit em-
ployees with new half-size lockers. Bowie testified that he
was advised that the smaller lockers had been installed in
order to provide more space for the supervisory staff.
Bowie testified in some detail that, in June 1989, one of
Respondent’s supervisors, Labor Relations Assistant Richard
Anastasi, told him that he ‘‘was becoming a real hardhead
with the grievances like Gary Weightman’’ and that Anastasi
‘‘would hate for [Bowie] to go through what [Weightman]
went through.’’ Weightman,1 who had at one time been chief
steward at the Paterson facility, had been discharged by Re-
spondent and had later been reinstated by order of the Merit
Systems Protection Board, according to Bowie.
Anastasi testified that he could not recall any particular
discussion he had with Bowie and that Bowie was, in his
opinion, a volatile personality.
I credit Bowie’s detailed account of his conversation with
Anastasi in June 1989.
On June 15, 1989 (all dates hereafter are for 1989 unless
stated otherwise) Bowie attended a meeting of the social and
recreation committee. As chief steward of the Union, he was
a member of that committee. Also on it were Al Ulinsky, the
Postmaster’s designee; Phil De Mario, the supervisors’ des-
ignee; and Tony Gonzales, the representative of the United
Association of Letter Carriers. At that meeting, a vote was
held as to whether the committee should buy a refrigerator
for the Postmaster’s office. Bowie argued against doing so,
citing from a manual which set out policies to be followed
by the committee. One of the manual’s provisions barred ex-
penditures which would benefit a single group or an individ-
ual. The members, other than Bowie, however voted in favor
895POSTAL SERVICE
2 The Bowie-Sico incident occurred in the early morning of August
11, hours before Bowie was given a copy of the notice whereby his
access was restricted. The timing suggests a connection but, by
itself, the timing raises only a suspicion. That suspicion is offset by
other factors—Respondent never sought to get Bowie’s version of
the incident before restricting his access; the independent warning it
issued him weeks later citing that incident; and the scope of the re-
striction which even required Bowie to get Respondent’s permission
to use the Union’s office during tours one and three, thus suggesting
that Respondent may have been more concerned with impeding him
in filing grievances. In any event Respondent cannot rely on sus-
picion as it is no substitute for proof.
of that expenditure; Bowie voted against it. Subsequently,
Bowie checked other provisions of the manual and learned
that each craft at the facility could have its own designee on
the committee. As a result, he was able to add two members
to the committee as craft representatives from the unit the
Union represented.
On August 11, 1989, by memo to the Postmaster’s des-
ignee, Bowie advised that two unit employees were also to
be members of the committee and that they are to receive
copies of all minutes of committee meetings. He also re-
quested that a meeting of the committee members be sched-
uled as soon as possible.
B. The Restriction of Access
The complaint as amended alleges that Respondent, on
August 11, unlawfully restricted Bowie’s access to the
Paterson facility. Bowie was summoned to Acting Manager
Robert Andre’s office and was given a copy of Andre’s
memorandum addressed to all tour superintendents, reading
as follows:
Please advise your supervisory staff and 204B person-
nel that effective immediately, APWU Chief Steward
Dennis Bowie is not to be permitted access to the
building or workroom floor at any time other than his
normal workhours (12:30–2100) unless you have writ-
ten authorization from either the Director, City Oper-
ations or myself. This authorization will stipulate the
following:
(1) Purpose of visit
(2) With whom he wishes to speak (Specific names)
(3) Time duration of visit
(4) Area access limitations
Unauthorized visits will not be condoned. If violated,
have Mr. Bowie escorted from this facility.
Bowie had received no warnings from Respondent and
was not told why his access during tours one and three was
restricted. Acting Manager Andre did not testify to explain
the basis for his action.
I find that the General Counsel has established a facie
showing that Bowie was being restricted, as to his access to
the facility, because of his activities as chief steward for the
Union. In that connection, I note the extensive nature of
those activities, the animus exhibited towards him by a su-
pervisor on Respondent’s labor relations staff because of his
activities as chief steward, the absence of any warning, and
the timing of his notification to the Postmaster’s designee
that he added two members to the recreation committee in
relation to the restriction of his access that very same day.
As the General Counsel has made out a prima facie case,
the burden shifted to Respondent to show that, nonetheless,
it would leave restricted his access for nondiscriminatory rea-
sons. Wright Line, 251 NLRB 1083 (1980).
Respondent’s brief states that Bowie was restricted in his
access to the facility ‘‘to forestall any recurrence’’ of an inci-
dent that took place in the early morning of August 11 in-
volving Bowie and a tour one supervisor, Ray Sico. The dif-
ficulty Respondent faces with that assertion is that that inci-
dent, discussed further below, does not appear to be related
to Andre’s memorandum. Tour Supervisor Sico testified that
he turned in his handwritten report of that incident to a sec-
retary on August 12, the day after Andre’s memorandum.
Further, Sico’s memorandum was addressed to the post-
master, William B. Thomas, who testified at the hearing but
not about Sico’s report. Lastly, the memo restricting Bowie’s
access makes no reference to any incident involving Sico.2
I find that Respondent has failed to demonstrate that it
would have, on August 11, restricted Bowie’s access not-
withstanding Bowie’s protected activities. I thus further find
that the restriction on Bowie’s access was unlawfully moti-
vated.
The incident involving Bowie and Sico was cited in a
warning given Bowie by Respondent on August 30. The
General Counsel contends that that warning was also unlaw-
fully motivated. The evidence thereon is discussed, infra.
On August 12, Bowie filed a grievance to protest that
‘‘Tour One Supervisors have for a long time blatantly vio-
lated act 1.5 of the national agreement with the (acquies-
cence) of management’’ and stating that he himself wit-
nessed supervisors ‘‘Mike Cypher, Ray Sico, Bob Bevans,
Walt Eachs’’ doing bargaining unit work. In the grievance,
Bowie also stated that when he protested to them, they
‘‘even get an attitude with [him].’’
On August 30, he was given a document entitled Notice
of Warning, dated August 21. It read:
This official disciplinary Letter of Warning is being
issued to you for the following reasons:
CHARGE: ‘‘CONDUCT UNBECOMING A POSTAL
EMPLOYEE’’
(Disrespect to Management Official)
Specifically, on 8/11/89 at approximately 3:00 AM
you entered this Facility and approached Supervisor
Ray Sico requesting to speak to a clerk. When Super-
visor Sico explained to you that he could not release
her at this time to discuss a possible grievance, you be-
came loud and obnoxious making derogatory state-
ments. You kept referring to Supervisor Sico as
‘‘Boy.’’ and stated ‘‘look Boy, I gave you a directive.’’
In addition, during this hostile outburst you began wav-
ing your hands and a folder almost striking Supervisor
Sico in the face. Your actions as demonstrated cannot
and will not be tolerated.
It is hoped that this official letter of warning will
serve to impress upon you the seriousness of your ac-
tions and that future discipline will not be necessary. If
you are having difficulties which I may not be aware
of or if you need additional assistance in instructions
for improving your performance, please call on me, or
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent’s brief states that Bowie ‘‘claimed he had at least left
a note’’ for the acting manager and then the brief states ‘‘it is an
interesting question as to how the note came back into his posses-
sion to be presented as an exhibit at the hearing.’’ The exhibit fur-
nished me by the reporting service is a photostat. Respondent did
not object to its admission into evidence or seek voir dire thereon.
you may consult with your other supervisors, and we
will assist you where possible. However, I must warn
you that future deficiencies will result in more severe
disciplinary action being taken against you. such action
may include suspension, reduction in grade of pay, or
removal from the Postal Service.
Bowie testified, relative to this notice of warning that, on
August 11, he had asked Tour One Supervisor Sico to re-
lease an employee, on duty then, so that she could provide
him with a statement he needed from her. Bowie related that
Sico ignored him, that Sico was in fact then doing bargaining
unit work, and that, when he (Bowie) repeated his request,
Sico told him that he was not going to release the employee
involved. Bowie testified that, at that point, he exclaimed,
‘‘Boy, I can’t believe this is happening’’ and that his use of
the word ‘‘boy’’ was an exclamation and not a derogatory
reference to Sico.
Sico testified that, on August 11, Bowie kept calling him,
‘‘Boy,’’ that Bowie stated that he was giving Sico ‘‘a direct
order’’ and that he told Bowie that he could not ‘‘spare’’ the
employee in question. Sico testified that he reported the inci-
dent of the tour one superintendent. The superintendent re-
leased the employee from her duties to go with Bowie to the
Union’s office in the building. As noted above, Sico filed a
written report on August 12 with the Postmaster as to this
incident. His report paralleled his testimony; in fact, he read
it on the witness stand just before testifying as to the event
itself. His report concluded with a statement by his that the
Union, through arbitration, sanctions violence, and shields fe-
lonious assaults but that he does not.
I find it hard to accept Sico’s account that Bowie engaged
in egregious name-calling inasmuch as there is no evidence
that the tour one superintendent made any reference to such
conduct but instead he accommodated Bowie’s request that
the employee in question be released. In making that finding,
I note also the parenthetical comment Sico volunteered at the
conclusion of the report he filed on August 12, one which
suggects that he was more than a little annoyed at Bowie’s
readiness to use the arbitral process in furtherance of his ac-
tivities as steward. Further, it is unlikely that Bowie, a mem-
ber of a racial minority himself, would openly denigrate Sico
who is of Phillipino extraction. In addition, Sico’s reading
the report and then restating it did little to enhance the credi-
bility of his account. I credit Bowie’s version.
The credited evidence profferred as to this allegation of
the complaint indicates that Bowie, on August 12, filed a
grievance asserting, inter alia, that he observed Sico regularly
doing unit work, that several weeks later he received a writ-
ten warning which referred to an incident on August 11 as
to which Bowie had never been asked to give his version,
that the warning was premised on an exaggerated account by
Sico which also alluded to Bowie’s proclivity to process
grievances vigorously. Based on these considerations, I find
that the General Counsel has established an unrebutted prima
facie showing that the warning dated August 21 and which
was given Bowie on August 30 was discriminatorily moti-
vated.
C. Bowie’s Suspension and Discharge
Bowie was placed on administrative leave on September
25; later was issued a notice of removal from Respondent’s
employ; and on December 6 was discharged. The complaint
alleges that Respondent took these actions because of Bow-
ie’s union activities and for having filed charges or given tes-
timony under the Act. Respondent contends that they all per-
tained solely to assaults by Bowie upon members of its su-
pervisory staff on September 23.
On September 1, Bowie filed the unfair labor practice
charge in Case 22–CA–16504(R) against the Respondent.
Bowie testified, essentially without contradiction, that, in
mid-September, Respondent’s labor relations assistant,
Anastasi, told him that Respondent was not afraid of the
Labor Board and that Bowie’s filing charges would just
make things harder for him.
On September 23, an incident involving Bowie occurred at
the Paterson facility. The General Counsel contends that Re-
spondent seized upon it as a pretext to suspend and then dis-
charge Bowie. Respondent asserts that Bowie assaulted su-
pervisors and that he was suspended and then discharged
solely because of his misconduct then.
Bowie’s account of the September 23 events is as follows.
On September 22, he left a note at the office for the acting
manager which stated that he would be at the facility during
tour one in order to given the union steward on that tour a
key to the Union’s office, which had a new lock.3 Upon ar-
riving at the facility in the early morning of September 23,
he asked for the tour one superintendent, Joseph Brennan.
When he met Brennan on the work floor, Brennan informed
him, in a ‘‘very arrogant and very nasty’’ manner that he had
to leave. He asked Brennan if the acting manager had left
a note which permitted Bowie to be on the premises. Bren-
nan went to an office and, upon returning, told Bowie to
leave and that, if he did not, the police would be called.
Bowie got ‘‘a little upset’’ and threw his briefcase on the
desk, saying that all he wanted to do was to drop off a key
and that instead the police were being called. Brennan then
moved close to him, bumped him and told him to leave.
Brennan directed Tour Supervisor Michael Cypher to escort
Bowie’s ‘‘butt out’’ now. Bowie left with Cypher bumping
him along as he was walking out. He told Cypher that he
would get even by loading up tour one with grievances. At
the parking lot he got into his car. Cypher was standing there
looking ‘‘macho’’ and Bowie had to maneuver his car
around Cypher who said, ‘‘[Y]ou’re trying to hit me, pal.’’
Bowie then drove to the Paterson police station where he
filed assault charges against Brennan and Cypher. The police
report was filed at 2:37 a.m. and recites that the alleged al-
tercation took place at 1:57 a.m.
Soon after Bowie reported for work on the next workday,
Monday, September 25, he was told to leave and was given
a notice signed by the Postmaster which stated that he was
being placed on administrative leave until further notice. As
noted above Bowie was discharged on December 6. Re-
spondent offered the following accounts to support its con-
tention that these actions were not discriminatorily motivated.
Bowie’s immediate supervisor on his tour, Robert Baker,
testified that on September 25 he learned of the September
897POSTAL SERVICE
23 incident and he then tried to find out what had happened.
He talked to the supervisors and ‘‘all the people directly in-
volved.’’ Witness statements were provided him by appar-
ently most of those individuals. He then decided to issue a
request that Bowie be discharged which he signed on Sep-
tember 29. This request stated that Bowie was apparently in-
toxicated and that he assaulted Brennan and Cypher. In re-
sponding to a question as to whether his decision was based
on any reason other than the September 23 incident, Bokor
stated that there had been a pattern of incident where Bowie
had become hostile, citing in general ‘‘instances with Mr.
Anastasi’’ and Bowie’s general behaviour. Bokor’s answered
in the negative when asked if his decision was based on any-
thing involving Bowie’s union activities. There is no expli-
cation as to what constituted the ‘‘instances with Mr.
Anastasi.’’ Anastasi’s testimony was simply that Bowie was
in his opinion a volatile person; Anastasi, as noted earlier,
did not materially controvert Bowie’s testimony that Anastasi
on two occasions had demonstrated animus towards Bowie
for engaging in activities protected by the Act.
Various written statements by individuals as to the inci-
dent were received in evidence. Bokor acknowledged that he
had not spoken to several of those individuals. He related he
spoke to Brennan and Cypher but not to several others whose
statements are not inconsistent with Bowie’s account.
In any event, the matter was turned over to a postal in-
spector who obtained additional statements. On November 3,
Bokor signed a notice of removal which was addressed to
Bowie and which he had not composed but which was pre-
pared by the labor relations section.
Respondent called six other witnesses who gave testimony
as to the September 23 incident.
A tour one acting supervisor, Elliott Thompson testified as
follows. On September 23, Bowie requested permission of
him to talk with Tour Superintendent Brennan. Thompson
tried to reach Brennan by phone. Bowie, using an expletive,
walked by him. Bowie approached Brennan. Thompson fol-
lowed and was about 8 to 20 feet away. He observed them
arguing and Brennan told him, Thompson, to call the police.
On cross-examination, Thompson stated he did not see
Bowie throw his book bag at Brennan. In a statement he
signed during the Postal Service investigation, Thompson
stated that Bowie on September 23 ‘‘reeked of alcohol.’’ He
did not so mention this item during his testimony before me.
Luida Sacco, a clerk on tour one, was called as a witness
by Respondent and she testified as follows. She saw Bowie
come into the building that night when he was not supposed
to be there and he had a ‘‘confrontation with Joe Brennan.’’
They were arguing, Bowie was a lot louder and was standing
nose to nose with Brennan. Bowie threw ‘‘a book bag like
a leather portfolio twice in Joe’s direction.’’ She did not see
it strike Brennan. She did see Bowie push up against Bren-
nan ‘‘nose to nose’’ or ‘‘chest to chest’’ She did not see
Bowie push Brennan or Cypher. She did see Bowie throw
his bookbag on the desk.
Sally Clark, a clerk on duty during the early morning
hours on September 23, testified for Respondent as follows.
She heard Bowie ‘‘yelling and screaming and cursing’’ at
Cypher.
The other three witnesses called by Respondent were
Brennan, Cypher, and a tour one supervisor, Paul Grubb.
Brennan’s account follows. Bowie said that he was there
to give a key to the union steward. Brennan told Bowie to
leave and that if he did not, he would ‘‘call the cops.’’
Bowie then cursed him, threatened to ‘‘kick his ass,’’ struck
him on the shoulder with his bookbag and poked him in the
chest. Bowie was under the influence of alcohol. Brennan
then had Bowie escorted out of the building as he did not
want to take the chance of someone getting hurt.’’ In the
pretrial statement Brennan signed, he stated that Bowie was
‘‘visibly drunk’’ and that he gave the Paterson police, when
they arrived, the license plate number of Bowie’s car as
Bowie was driving under the influence of alcohol.
Supervisor Mike Cypher’s testimony is as follows. Bowie
was arguing with Brennan and shoved him. Brennan told
Bowie to leave or that he would call the police. Bowie
grabbed Brennan’s arm and started to poke him in the chest.
Brennan then told Elliott Thompson to call the police. Bowie
the grabbed Cypher’s arm and said that he wanted Cypher
to witness that Brennan would not allow him to see his stew-
ard. Cypher told him that he was not allowed in the building.
Bowie then started poking Cypher in the chest and said he
was going to sue his ass. He then started throwing his book-
case around. It hit Brennan, Bowie then threw it on the desk.
He said he would not leave. After a couple of minutes, he
began to leave. Cypher followed him. He told Cyper he was
going to kick his ass. Paul Grubb followed. As Bowie left,
he said he was going to tell Acting Manager Andre what
happened. Bowie got into his car and stepped on the gas as
he came straight out, almost hitting Cypher. He said he was
coming to get Cyper but had trouble putting the car in re-
verse. He backed up in a way that forced Cypher to move
aside. Bowie left, shouting expletives at Cypher.
Paul Grubb testified as follows. He heard Bowie arguing
‘‘quite loud’’ and that Brennan was ‘‘exercising his lungs a
little bit’’ but was ‘‘not nearly as loud.’’ Grubb went with
Cypher to make sure that Bowie left. When Bowie was leav-
ing, he drove close to Cypher so that Cypher had to jump
aside and Bowie almost hit Cypher again when he had to
backup. Bowie and Cypher then ‘‘exchanged words.’’ Grubb
did not see Bowie throw a bookbag at Brennan, or touch Cy-
pher.
I have reservations as to Bowie’s account that he was just
a ‘‘little upset.’’ I find it more likely in the circumstances
that he did shout and curse and wave his briefcase about.
The accounts given by Brennan and Cypher are far more
suspect. First, both indicated that Bowie was drunk that
night. Brennan’s account would ask me to believe that he
had Bowie escorted out because he was anxious to see that
no one would get hurt. If Bowie was drunk, I doubt he
would have Bowie escorted to his car to drive off. If any-
thing violates a stated concern for safety, Brennan’s version
does. More significantly, it strikes me as highly improbable
that Bowie ‘‘reeked of alcohol’’ or was ‘‘visibly drunk’’
when his first stop after leaving the Paterson facility was at
police headquarters to file a complaint against Brennan and
Cypher. In weighing the accounts of Brennan and Cypher, I
note that Bowie had directed a grievance expressly naming
Cypher among others and tour one supervisors in general
with continually violating the collective-bargaining agree-
ment provisions pertaining to supervisors performing unit
work. Brennan’s and Cypher’s accounts could lack objectiv-
ity based on that consideration. Much more of significance
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is the fact that the other three of Respondent’s witnesses did
not corroborate the material aspects of the asserted grounds
for Bowie’s discharge—that he struck Brennan and assaulted
Cypher.
I credit the accounts of Sacco, Clark, and Grubb to the ex-
tent that Bowie was very vocal, that he cursed, that he threw
his briefcase down on a desk in anger, and that he exited the
parking lot in an agitated state. In exiting, I find the evidence
insufficient to establish that he tried to run Cypher down. I
expressly find that the evidence does not support Respond-
ent’s contention that Bowie struck Brennan with his brief-
case, that Bowie was intoxicated, that he poked either Bren-
nan or Cypher or that he assaulted Cypher personally or in
operating his car.
I am not unmindful that an EEOC administrative law
judge accepted the uncontested accounts offered by Brennan
and Cypher in finding that Bowie’s discharge was not a ra-
cially motivated act. There, Bowie did not testify. Instead,
the union endeavored, without success, to establish that Re-
spondent treated white employees differently than it did
Bowie. Incidentally, the judge recounted that Brennan testi-
fied that Bowie threw a bookbag at him. Brennan apparently
did not then testify that Bowie hit him on the shoulder with
his briefcase, as Brennan did so testify before me. As noted
above, Bowie testified that he threw his briefcase down on
the desk and that he did not strike Brennan. More significant
is that, in the EEOC hearing, the judge did not have before
him the evidence of Respondent’s strong union animus to-
wards Bowie or even Bowie’s testimony. The evidence be-
fore me, when weighed in context with that animus and the
other factors discussed above, is quite clear that Bowie did
not assault Brennan, physically, orally or otherwise, and thus
did not engage in the specific conduct cited by Respondent
for suspending and discharging him.
I note also that the arbitrator, in making her award, stated
that she considered only the appropriateness of Bowie’s dis-
charge based upon the events of September 23 and she made
clear that Bowie’s having been deprived of access or related
matters were items she stated she did not consider in issuing
her award.
The evidence before me establishes that on September 23
Bowie was engaged in union business, that he was endeavor-
ing to enter Respondent’s premises from which, as pre-
viously found, he was being unlawfully restricted from enter-
ing, and that he made known to Respondent that he was
there on a simple union chore. Notwithstanding, he was
threatened with arrest and escorted out. He was summarily
suspended from employment by the postmaster without no-
tice. All this occurred in the context of Respondent’s earlier
having made clear that it was greatly disturbed by his aggres-
sive union advocacy and in the context of Respondent’s labor
relations assistant having told him that things would go hard-
er for him for having availed himself of the Board’s proc-
esses. I thus conclude that the General Counsel has made out
a clear prima facie showing that Bowie was suspended and
discharged because he was an aggressive chief steward and
as retaliation for his having filed an unfair labor practice
charge with the Board. Respondent has not demonstrated that
it would have nonetheless still suspended and discharged him
inasmuch as its own investigation in material parts negated
the very basis it asserted as grounds for its actions. The
record is devoid of any basis to support as finding that Re-
spondent lawfully discharged Bowie when he had in fact
been engaged in union business and where, at most, he had
been provoked by unlawful restrictions imposed on him by
Respondent to use obscenities and lose his temper—neither
of which Respondent has asserted as sufficient grounds, by
themselves, to support the suspension it meted out to him or
his discharge.
As the General Counsel’s case-in-chief has not been rebut-
ted, I find that Bowie’s suspension and discharge were
discriminatorily motivated by his union activities and by his
recourse to the Board’s processes.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent by rea-
son of the provisions of the Postal Reorganization Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act by
having:
(a) Restricted Dennis Bowie from access to its Paterson fa-
cility during tours one and three because of his activities as
chief steward of the Union.
(b) Issued a written warning to him dated August 21 in
order to discourage him from performing his duties as the
Union’s chief steward.
(c) Suspended and discharged him in order to prevent him
from continuing to perform his duties as chief steward for
the Union and to discourage its employees from supporting
the Union.
4. Respondent has engaged in unfair labor practices as de-
fined in Section 8(a)(1) and (4) of the Act by having sus-
pended and discharged Dennis Bowie because he filed an un-
fair labor practice charge with the Board.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I recommend that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below, which is designed to effectuate the
policies of the Act.
With respect to the necessary affirmative action, I rec-
ommend that the Respondent be ordered to reinstate Dennis
Bowie to his former job or to a substantially equivalent posi-
tion, if it no longer exists, without prejudice to his seniority
or other rights and privileges previously enjoyed, and make
him whole for any loss of earnings he may have suffered be-
cause of the discrimination practiced against him by payment
to him of a sum of money equal to that which he normally
would have earned from the date of the discrimination to the
date of reinstatement, in accordance with the method set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1978), and that the Respondent remove from
its files any reference to his discharge and notify him in writ-
ing that this has been done and that evidence of his unlawful
discharge will not be used as a basis for future personnel ac-
tion against him.
899POSTAL SERVICE
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, United States Postal Service, Paterson,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Restraining employees from access to its Paterson,
New Jersey facility in order to discourage them from engag-
ing in activities in support of the North Jersey Area Local,
American Postal Workers Union, AFL–CIO (the Union).
(b) Issuing warnings to employees to discourage them
from such activities.
(c) Suspending or discharging employees because they
support the Union or have filed unfair labor practices charges
under the Act.
(d) In any like or related manner interfering with, restrain-
ing or coercing employees with respect to the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Dennis Bowie immediate and full reinstatement
to his job and make him whole for the losses he incurred as
a result of the discrimination against him, in the manner
specified in the remedy section of this decision.
(b) Remove from its files any reference to Dennis Bowie’s
suspension and discharge and to the August 21 warning, and
notify him in writing that this has been done and that evi-
dence of these unlawful acts will not be used as a basis for
future personnel actions against him.
(c) Post at its Paterson, New Jersey facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.