Postal Service

National Labor Relations Board - Board Decisions

Jul 31, 2008

352 N.L.R.B. 923 (N.L.R.B. 2008)

POSTAL SERVICE
352 NLRB No. 115
923
United States Postal Service and Bobby Cline and
American Postal Workers Union, Playground
Area Local 5643. Cases 15–CA–17767, 15–CA–
17818, 15–CA–17819, 15–CA–17884, 15–CA–
17917, and 15–CA–17961
July 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On May 17, 2007, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified and to adopt2 the rec-

1 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1), (3), and (4) of the Act by: (1) issuing employee
Marcus Jackson a warning letter; (2) issuing employee Bobby Cline a
warning letter; (3) placing Cline on emergency suspension; (4) requir-
ing Cline to undergo a fitness-for-duty examination; (5) placing Cline
on administrative leave; (6) unlawfully interrogating Cline on three
separate occasions concerning his union and other protected activities;
and (7) suspending Cline’s pay for 2 weeks. There are also no excep-
tions to his findings that the Respondent violated Sec. 8(a)(5) by failing
and refusing to provide relevant and necessary information to the Union
upon its request.
2 Although not sought by the General Counsel, the judge recom-
mended imposing a broad cease-and-desist order as part of the remedy
on the ground that the Respondent had demonstrated a proclivity to
violate the Act. See Hickmott Foods, 242 NLRB 1357 (1979). In
doing so, the judge relied in part on his finding that the Respondent
unlawfully denied employee Bobby Cline his right to union representa-
tion under NLRB v. J. Weingarten, 420 U.S. 251 (1975). As explained
below, however, we reverse that finding on due process grounds. We
also observe that a narrow order in this case will prohibit any future
violations of Sec. 8(a)(1), (3), (4), and (5) that are like or related to
those found herein. In these circumstances, we decline to impose a
broad order.
The judge also recommended requiring the Respondent’s chief ex-
ecutive officer to sign the notice to employees and placing the Respon-
dent on notice that if it commits further Weingarten violations, it will
be assessed the expenses of the resulting litigation. We do not adopt
these recommendations because we are reversing the judge’s Weingar-
ten finding, and the circumstances of this case do not otherwise warrant
these extraordinary remedies.
We shall modify the judge’s recommended Order in keeping with
the foregoing, to conform to the violations found and to the Board’s
standard remedial language, and in accordance with our decisions in
Indian Hills Care Center, 321 NLRB 144 (1996), Excel Container, 325
NLRB 17 (1997), and Ferguson Electric Co., 335 NLRB 142 (2001).
We shall also substitute a new notice to conform with the Order as
modified and in accordance with Ishikawa Gasket America, Inc., 337
NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
ommended Order as modified and set forth in full be-
low.3
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(1) of the Act by denying employee
Bobby Cline his Weingarten right to union representation
during an investigative interview. The Respondent ex-
cepts, citing due process grounds. We find merit in these
exceptions.
On November 8, 2005, Supervisors Joel Ouellette and
Lease Ginn met with Cline and Union President Bobby
Pruett for an investigative interview. According to Cline,
the following exchange took place. As the interview was
about to start, Pruett asked the supervisors to explain its
purpose. Ouellette told Pruett that although he could be
present during the interview, he could not speak. Pruett
protested, but Ouellette repeated that he would not allow
Pruett to speak. Based on Cline’s testimony, the judge
found that, through Ouellette, the Respondent violated
Section 8(a)(1) by denying Cline his Weingarten right to
union representation. Excepting, the Respondent argues
that the judge erred in so finding, as the General Counsel
neither alleged this theory in the complaint nor moved to
amend the complaint to reflect such a violation.
Due process requires that a respondent have notice of
the allegations against it so that it may present an appro-
priate defense. Typically, such notice is furnished by the
allegations set forth in the complaint. However, “the
Board may find and remedy a violation even in the ab-
sence of a specified allegation in the complaint if the
issue is closely connected to the subject matter of the
complaint and has been fully litigated.” Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). The “determination of whether a
matter has been fully litigated rests in part on whether
. . . the respondent would have altered the conduct of its
case at the hearing, had a specific allegation been made.”
Id. at 335. Further, “[t]he presentation of evidence asso-
ciated with an alleged claim . . . is insufficient to put the
parties on notice that another, unalleged claim (for which
that evidence might also be probative) is being litigated,
especially where the two claims rely on different theories
of liability.” Dilling Mechanical Contractors, 348
NLRB 98, 107 (2006).

3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
Here, the unalleged Weingarten violation was not fully
litigated. What transpired was precisely the scenario the
Board found insufficient as a matter of due process in
Dilling Mechanical Contractors, supra: evidence was
introduced in association with an alleged claim based on
one theory of liability, which the judge then relied on to
find an unalleged claim based on a different theory of
liability. When Cline offered the testimony upon which
the judge relied to find the Weingarten violation, he was
testifying in support of a complaint allegation that the
Respondent, by Supervisors Ouelette and Ginn, had co-
ercively interrogated Cline. The testimony was not
thereafter mentioned or referred to for the duration of the
hearing. Significantly, after Cline testified, the General
Counsel twice amended the complaint. On neither occa-
sion did he seek to add a Weingarten allegation. See
International Baking Co. & Earthgrains, 348 NLRB
1133, 1134 (2006) (finding it significant, in concluding
that an issue had not been fully litigated, that the General
Counsel moved to amend the complaint in one respect,
but failed to amend the complaint to allege the violation
the judge found).
The Respondent also contends that had it been put on
notice of a potential Weingarten violation, it may well
have altered its litigation strategy. Again, Cline was tes-
tifying in support of an allegation of coercive interroga-
tion. In defense of that allegation, the Respondent chose
to call to the stand the manager who drafted the questions
asked of Cline rather than Ouelette and Ginn, who con-
ducted the interview. Had it known that it faced poten-
tial Weingarten liability, the Respondent might have
called Ouellette and Ginn to testify as to their recollec-
tions of what was said. The Respondent also may have
altered its conduct of the case by cross-examining Cline
and Pruett on the Weingarten issue. But the Respondent
had no reason to believe there was any such issue in the
case.4
Accordingly, for the foregoing reasons, we reverse the
judge’s finding that the Respondent violated Section
8(a)(1) by denying Cline his Weingarten right to union
representation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United States Postal Service, Destin, Flor-
ida, its officers, agents, successors, and assigns, shall

4 Had the Respondent been given adequate notice of the Weingarten
issue, Cline’s credited testimony would have established a prima facie
violation. See Barnard College, 340 NLRB 934, 935 (2003) (“The
union representative cannot be made to sit silently like a mere ob-
server.”).
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union or other protected activities.
(b) Placing an employee on emergency suspension be-
cause he engaged in union activities, filed unfair labor
practice charges with the Board, testified in Board pro-
ceedings, and/or engaged in other protected concerted
activities, or to discourage other employees from engag-
ing in such activities.
(c) Requiring an employee to take a fitness-for-duty
examination because he engaged in union activities, filed
unfair labor practice charges with the Board, testified in
Board proceedings, and/or engaged in other protected
concerted activities, or to discourage other employees
from engaging in such activities.
(d) Placing an employee on administrative leave be-
cause he engaged in union activities, filed unfair labor
practice charges with the Board, testified in Board pro-
ceedings, and/or engaged in other protected concerted
activities, or to discourage other employees from engag-
ing in such activities.
(e) Disciplining, suspending, or otherwise discriminat-
ing against employees because they engaged in union
activities, filed unfair labor practice charges with the
Board, testified in Board proceedings, and/or engaged in
other protected concerted activities, or to discourage
other employees from engaging in such activities.
(f) Failing and refusing to bargain in good faith with
the exclusive representative of its employees in a unit
appropriate for collective bargaining by failing and refus-
ing to furnish the Union, in a timely manner, information
requested by the Union that is relevant to the Union’s
representative duties and necessary for that purpose.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the disciplinary warnings issued to Marcus Jackson on
February 22, 2005, and to Bobby Cline on March 4,
2005, and the 14-day suspension issued to Bobby Cline
on about March 13, 2006.
(b) Make Bobby Cline whole, with interest, for all
losses he suffered as a result of his unlawful emergency
suspension on September 2, 2005, and the Respondent’s
failure thereafter to recall him, and of his unlawful 14-
day suspension beginning April 1, 2006.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline of
Marcus Jackson and Bobby Cline and the unlawful sus-
pensions of Bobby Cline, and within 3 days thereafter
POSTAL SERVICE 925
notify them in writing that this has been done and that
the disciplines and suspensions will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Destin, Florida, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent in its Destin, Florida facility at any time
since February 22, 2005.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate employees con-
cerning their union or other protected activities.
WE WILL NOT place any employee on emergency sus-
pension because the employee engaged in activities pro-
tected by the Act, or to discourage employees from en-
gaging in such activities.
WE WILL NOT require any employee to undergo a fit-
ness-for-duty examination because the employee en-
gaged in activities protected by the Act, or to discourage
employees from engaging in such activities.
WE WILL NOT place any employee on administrative
leave because the employee engaged in activities pro-
tected by the Act, or to discourage employees from en-
gaging in such activities.
WE WILL NOT discipline, suspend, or otherwise dis-
criminate against any employee because the employee
engaged in activities protected by the Act, or to discour-
age employees from engaging in such activities
WE WILL NOT fail and refuse to bargain in good faith
with American Postal Workers Union, Playground Area
Local 5643 by failing to provide, in a timely manner,
information the Union requested that is relevant to the
Union’s performance of its representative duties and nec-
essary for that purpose.
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, within 14 days from the date of the Board’s
Order, rescind the disciplinary warnings issued to Mar-
cus Jackson on February 22, 2005, and to Bobby Cline
on March 4, 2005, and the 14-day suspension issued to
Bobby Cline on about March 13, 2006.
WE WILL make Bobby Cline whole, with interest, for
all losses he suffered as a result of our unlawful emer-
gency suspension of him on September 2, 2005, and our
failure thereafter to recall him, and of our unlawful 14-
day suspension of him beginning April 1, 2006.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline of Marcus Jackson and Bobby Cline and
the unlawful suspensions of Bobby Cline, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the disciplines and suspensions
will not be used against them in any way.
UNITED STATES POSTAL SERVICE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
Kevin McClue, Esq., for the General Counsel.
Sandra Walton Bowens, Esq., of Memphis, Tennessee, for the
Respondent.
Mr. Michael A. Hughey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this case,
the General Counsel of the National Labor Relations Board (the
Board) alleges that the United States Postal Service (Respondent)
violated Section 8(a)(1), (3), (4), and (5) of the National Labor
Relations Act (the Act). With certain exceptions, I conclude that
the General Counsel has proven these allegations.
I. PROCEDURAL HISTORY
This case began on July 15, 2005, when the American Postal
Workers Union, Local 5643 filed the initial charge against
Respondent in Case 15–CA–17767(P). On January 30, 2006, the
Union amended this charge.
On September 16, 2005, Bobby Cline filed an unfair labor
practice charge against Respondent in Case 15–CA–17818. Cline
amended this charge on October 25, November 30, and December
12, 2005, and January 27, 2006.
On September 19, 2005, the Union filed an unfair labor practice
charge against Respondent in Case 15–CA–17819. The Union
amended this charge on January 30, 2006.
On December 1, 2005, Cline filed a charge against Respondent
in Case 15–CA–17884(P). Cline amended this charge on January
26, 2006.
On January 27, 2006, Cline filed a charge against Respondent
in Case 15–CA–17917(P). Cline amended this charge on March
2, 2006. On March 14, 2006, Cline filed a charge against
Respondent in Case 15–CA–17961(P).
On February 17, 2006, the Regional Director for Region 15
issued an order consolidating cases, consolidated complaint, and
notice of hearing in Cases 15–CA–17818(P), 15–CA–17819(P),
and 15–CA–17884(P). In doing so, the Regional Director acted
for and on behalf of the General Counsel of the Board, referred to
below as the “General Counsel” or the “Government.” Respon-
dent filed a timely answer.
On March 29, 2006, the Regional Director issued a second
order consolidating cases, second consolidated complaint, and
notice of hearing, which consolidated Case 15–CA–17767(P) with
Cases 15–CA–17818(P), 15–CA–17819(P), and 15–CA–
17884(P). Respondent filed a timely answer.
On April 11, 2006, the Regional Director issued a third order
consolidating cases, third consolidated complaint, and notice of
hearing, which consolidated Case 17–CA–17917 with the other
four. Respondent filed a timely answer.
On May 15, 2006, the Regional Director issued a fourth order
consolidating cases, fourth consolidated complaint, and notice of
hearing. Respondent filed a timely answer.
A hearing opened before me on June 26, 2006, in Destin,
Florida. The parties presented evidence on June 26 through 29,
and on July 19, 2006. Counsel presented oral argument on August
11, 2006.
At the beginning of the hearing, I granted the General
Counsel’s motion to amend the complaint to add the allegations
that Postmaster Paul McGinnis and Supervisor John Culgar were
supervisors within the meaning of Section 2(11) of the Act.
Respondent admitted these allegations.
The General Counsel further amended the complaint on June
29, 2006, by introduction of General Counsel’s Exhibit 54,
“Amended Fourth Order Consolidating Cases, Amended Fourth
Consolidated Complaint and Notice of Hearing.” (For brevity, I
will refer to this document simply as the “complaint” or, where
clarity requires, the “fourth amended complaint.”) This document
memorialized the changes made by the oral amendment described
in the last paragraph. It also added the allegation that Manager
Marty Halverson was Respondent’s supervisor within the
meaning of Section 2(11) of the Act.
General Counsel’s Exhibit 54 also amended complaint
paragraph 20 by changing “a copy of the postal inspector’s notes
regarding the investigation of an alleged threat” to “a copy of the
postal inspector’s notes regarding the alleged threat made by Cline
on September 2, 2005.” I conclude that the amendment did not
change the meaning of complaint paragraph 20.
Respondent’s answer to the fourth amended complaint is in
evidence as General Counsel’s Exhibit 55.
II. DEFERRAL AND COLLATERAL ESTOPPEL ISSUES
A major issue in this case concerns Respondent’s suspending
Cline indefinitely, without pay, by putting him on “emergency
placement leave” on September 2, 2005. Respondent developed
the “emergency placement” procedure to keep potentially violent
employees away from postal facilities. The General Counsel
contends that Respondent abused this procedure to retaliate
against Cline for his union and protected activities, for filing
charges, and for giving testimony in Board proceedings.
Cline filed a grievance concerning the emergency suspension
and Arbitrator Charlotte Gold conducted a hearing on January 31,
2006. On February 10, 2006, she issued an award denying Cline’s
grievance. The arbitrator found that Cline “made a statement that
could be construed as threatening and clearly it was taken as
such.” She wrote that, in the final analysis, “I cannot find that the
Postal Service violated the National Agreement by taking the
action it did.”
Respondent’s answer asserts that the Board should give
“collateral estoppel effect to the fact finding in the prior arbitral
decision upholding the emergency suspension.” Respondent,
thus, requests something slightly different from the outright
deferral contemplated by the Board in Spielberg Mfg. Co., 112
NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).
The Spielberg doctrine concerns when the Board should be
bound by the outcome of an arbitration, that is, by the arbitrator’s
decision for or against the grievant. Here, however, Respondent
only is urging that the Board adopt the arbitrator’s factual
findings.
Well-established Board policies would preclude Spielberg
deferral here. The present case includes an allegation that
Respondent violated Section 8(a)(5) by failing and refusing to
provide, in a timely manner, information requested by the Union
which was relevant and necessary to its functions. The Board
does not defer such cases to arbitration. New Island Hospital, 344
NLRB 198 (2005).
POSTAL SERVICE 927
Additionally, the complaint alleges that Respondent violated
Section 8(a)(4) by discriminating against an employee because he
had filed charges or given testimony under the Act. To protect the
integrity of employees’ statutory rights, the Board does not defer
8(a)(4) allegations to arbitration. Food & Commercial Workers
Local 1776, 325 NLRB 908 (1998), citing Wabeek Country Club,
301 NLRB 694 fn. 1, 699 (1991).
Although the Respondent only urges that the Board adopt the
factual findings of the arbitrator, the same policy reasons which
preclude total deferral to the arbitral award also weigh against the
application of collateral estoppel. Additionally, traditional
estoppel principles also do not favor its application here.
Certainly, the parties here are not the same as in the arbitration,
in which the General Counsel took no part. The issues also differ.
The arbitral award mentions, in passing, that Cline filed eight
“labor charges,” but the award says nothing to suggest that the
arbitrator examined whether hostility to Cline’s protected
activities motivated the decision to place him on emergency leave.
Indeed, the award states that
The Union believes this to be a just cause issue. It argues,
among other things, that Mr. Cline’s due process rights were
violated because he was not given a predisciplinary interview
prior to the Emergency Placement.
Thus, there is no indication that the parties litigated, or that the
arbitrator considered, the statutory issues. From the arbitral
award, it also appears unlikely that the Union advanced, or the
arbitrator considered, the General Counsel’s theory of the case.
Respondent may argue that it does not matter whether the
issues were the same or different because it is only asking the
Board to adopt the arbitrator’s credibility findings. However,
determining the credibility of a witness’s testimony entails, among
other things, comparing that testimony to testimony of other
witnesses.
Obviously, during the 1-day arbitration, the arbitrator did not
have the opportunity to hear all the witnesses who testified in the
5-day unfair labor practice hearing. It does not impugn an
arbitrator’s ability to note that, in general, a more complete record
will result in more accurate findings of fact.
For all these reasons, the doctrine of collateral estoppel should
not be applied here. Similarly, even limited deferral provides
insufficient protection to important statutory rights. Therefore,
Respondent’s argument must be rejected.
III. ADMITTED ALLEGATIONS
Based on the admissions in Respondent’s answer and at
hearing, I find that the Government has proven the allegations
discussed in this section of the decision. More specifically, I find
that the various charges in this proceeding were filed and served
as alleged in complaint paragraphs 1(a) through (n). Respondent
has admitted all of these allegations with the exception of those
raised in complaint paragraph 1(e).
In its answer, Respondent stated that the “allegations of
paragraph 1(e) are admitted, except that Respondent can not admit
or deny that the fourth amended charge was served by regular
mail on Respondent on January 30, 2006, as the cover letter is
dated December 12, 2005.”
The fourth amended charge itself is dated January 27, 2006, but
the cover letter enclosed with the charge bears the date December
12, 2005. In General Counsel’s Exhibit 1(eee), the Government
concedes that this letter should have been dated January 30, 2006,
rather than December 12, 2005. Noting that Respondent does not
deny receipt of the charge, I conclude that the Government has
proven the allegations in complaint paragraph 1(e).
Additionally, based on Respondent’s admissions, I find that the
Government has proven that Respondent provides postal services
for the United States and operates various facilities throughout the
United States, including a facility in Destin, Florida, as alleged in
complaint paragraph 2. Further, I find that the Board has
jurisdiction over Respondent and this matter by virtue of Section
1209 of the Postal Reorganization Act, as alleged in complaint
paragraph 3.
Further, I find that at all material times, Local 5643 of the
American Postal Workers Union, AFL–CIO (the Local Union or
simply the Union) has been a labor organization within the
meaning of Section 2(5) of the Act, as alleged in complaint
paragraph 4(a) and that the American Postal Workers Union,
AFL–CIO (the National Union) also has been a labor organization
within the meaning of Section 2(5) of the Act, as alleged in
complaint paragraph 4(b).
Additionally, I find that the collective-bargaining unit described
in complaint paragraph 17 (the unit) is an appropriate one for
collective-bargaining within the meaning of Section 9(b) of the
Act, and that at all material times since about 1971 the National
Union has been the exclusive representative, within the meaning
of Section 9(a) of the Act, of this unit, and has been recognized as
such by Respondent, as alleged in complaint paragraphs 18(a) and
19(a).
Further, I find that at all material times, Respondent and the
National Union have maintained and enforced a collective-
bargaining agreement covering employees in the unit, as alleged
in complaint paragraph 18. This agreement embodies
Respondent’s recognition of the National Union, as alleged in
complaint paragraph 18(a). Also, I find that at all material times
since about 1971, Local 5643 has been the National Union’s agent
for administering the collective-bargaining agreement at Respon-
dent’s Destin, Florida facility, as alleged in complaint paragraph
19(b), and that Respondent has recognized Local 5643 as such, as
alleged in complaint paragraph 18(b).
Based on Respondent’s admissions, I find that the following
individuals are Respondent’s supervisors within the meaning of
Section 2(11) of the Act and its agents within the meaning of
Section 2(13) of the Act, as alleged in complaint paragraph 5:
Postmasters Leon Malishan, Avis M. Davis, and Paul McGinnis;
Officer-In-Charge Billy Dossantos; Manager Marty Halverson;
Supervisors Pete Torres, Cynthia W. Grossi, Gary Mills, Bobby
Powers, Yolondra Austin, Jerry Maynard, Joel M. Ouellette,
Lease M. Ginn, and John Culgar.
Respondent has denied that Postal Inspectors Jennifer
McDaniel and Gary C. Nelson are supervisors. Respondent’s
answer to the fourth amended complaint further states that
McDaniel and Nelson “are agents only to the extent that each
acted within the performance of the duties of his/her position.”
However, Respondent has not asserted that either McDaniel or
Nelson took any specific action, mentioned in the record, which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
falls outside their official duties. I find that at all material times
McDaniel and Nelson were agents of Respondent within the
meaning of Section 2(13) of the Act.
Complaint paragraph 8 alleges that on or about March 5, 2005,
Respondent issued a letter of warning to its employee Marcus
Jackson. Respondent’s answer admits this allegation, except that
it avers the letter was dated March 4, 2005. I so find.
Further, based on Respondent’s admissions, I find that on or
about March 7, 2005, Respondent issued a letter of warning to its
employee Bobby Cline, that on or about September 2, 2005,
Respondent placed Cline on nonpay and nonduty status, that on or
about October 1, 2005, Respondent required Cline to undergo a
fitness for duty examination, and that on or about October 26,
2005, Respondent placed Cline on administrative leave, as alleged
in complaint paragraphs 9, 10, 11, and 12, respectively.
Also based on Respondent’s admissions, I find that on or about
March 13, 2006, Respondent issued employee Cline a written
notice of disciplinary action involving a proposed April 1 through
14, 2006 suspension, as alleged in complaint paragraph 13(a).
Additionally, Respondent has admitted the allegations in
complaint paragraph 13(b), which states: “On dates to be named
in the future, the exact date being unknown to the General
Counsel but particularly within the knowledge of the Respondent,
Respondent intends to suspend Cline for fourteen (14) days
pursuant to the disciplined [sic] mentioned above in paragraph
13(a).” I find that the Government has proven this allegation.
Respondent has admitted, as alleged in complaint paragraph 20,
that since on or about September 15, 2005, the Local Union, by
hand delivered letter, has requested that Respondent furnish it with
a copy of the postal inspector’s notes regarding the alleged threat
made by Cline on September 2, 2005. I so find. Further, relying
on Respondent’s admission, I conclude that this requested
information is necessary for, and relevant to, the Local Union’s
performance of its duties as the National Union’s agent for
administering the collective-bargaining agreement at Respon-
dent’s facility, as alleged in complaint paragraph 21.
IV. CONTESTED ALLEGATIONS
For clarity, this decision generally will address the contested
allegations in chronological order rather than the order in which
the allegations appear in the complaint.
V. COMPLAINT PARAGRAPH 8
Alleged Discrimination Against Marcus Jackson
1. Facts
Paragraph 8 of the complaint alleges that on about March 5,
2005, Respondent issued a letter of warning to employee Marvin
Jackson. Although denying this allegation, Respondent’s answer
states that “a letter of warning dated February 22, 2005, was
presented to Marcus Jackson on February 24, 2005.” I so find.
The warning letter concerned Jackson’s questioning of a postal
employee who normally worked elsewhere but who appeared at
the Destin facility on January 31, 2005, and began doing
bargaining unit work. Jackson, who was then the union steward,
asked the employee questions about her job status to determine
whether she was in the bargaining unit.
The employee, Stacie Loucks, usually worked at the Chipley,
Florida post office, but Respondent had assigned her to the
Destin facility for 1 to 2 weeks to help reduce the backlog
there. Loucks did not testify at the hearing, but Respondent
offered a February 7, 2005 statement bearing her signature.
The General Counsel raised a hearsay objection. Over this
objection, I received the document into evidence but not for the
truth of the matters it asserted.
When an out-of-court statement has been received without
objection, Board precedent does allow it to be used as proof of
matters asserted in it, and gives the evidence such weight as its
inherent quality justifies. Alvin J. Bart & Co., 236 NLRB 242
(1978), quoted in Grace Fashions, 283 NLRB 842, 845 (1987);
see also P*I*E Nationwide, 297 NLRB 454 (1989). However, as
noted, the General Counsel did object.
Even though the hearsay rule does not allow the use of Loucks’
statement to prove matters asserted in it, the statement has
probative value for other purposes. Management had relied upon
this statement in deciding to discipline Jackson. The hearsay rule
does not preclude considering the contents of Loucks’ statement
to ascertain what management believed had taken place.
According to Loucks’ statement, when Jackson asked about her
job classification, she answered that she was a “PTF” (part-time
flexible). However, she sensed that Jackson didn’t believe her.
Loucks’ statement characterized Jackson as “asking me so many
questions so quick that I was getting nervous.” Her statement also
suggests a reason for this nervousness: Although Loucks had told
Jackson she was a “PTF” her identification badge indicated she
was a “TRC” (temporary rural carrier): “I got the mail and left. I
was afraid that he knew that I was a TRC.”
Loucks’ statement does not explain why she did not want
Jackson to know that she was a rural carrier rather than a “part-
time flexible.” The collective-bargaining agreement makes that
distinction important. Article 7, section 1A of that contract
defines the regular workforce to be comprised of fulltime
employees, who work 40-hour weeks, and part-time employees
scheduled to work regular shifts less than 40 hours per week or
who “shall be available to work flexible hours. . . .”
The bargaining unit includes both these fulltime and part-time
employees. However, article 1, section 2 of the agreement
excludes rural letter carriers. In that light, Loucks’ statement
clearly described the following sequence of events: (1) Union
Steward Jackson observed an unknown person doing bargaining
unit work and tried to find out about her job classification; (2) she
tried to hide her job classification, which placed her outside the
bargaining unit; and (3) the steward, becoming suspicious, asked
more questions.
In addition to describing Jackson’s questions about her work
and job classification, discussed above, Loucks’ statement also
attributed to Jackson a comment about the postmaster of the
Bonifay, Florida post office, Roger Brooks:
[Jackson] asked me where I was from. I told him that I
worked in Chipley, but lived in Bonifay. He asked me why I
didn’t work in Bonifay with Roger Brooks. I told him that
Chipley had an opening. Mr. Jackson continued to say that
the union was going after Mr. Brooks and once they are done
with him he will no longer be there.
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Other than quoting Jackson as saying that “the union was going
after Mr. Brooks,” Loucks’ statement does not impute to
Jackson any other comment about Brooks.
On February 15, 2005, two supervisors conducted an
investigatory interview with Jackson. One of them, Gary Mills,
had worked at the Destin facility from October 2004 to January
2005 before being transferred to the Miramar Beach, Florida post
office. The record suggests that Mills asked most of the questions
and that the other supervisor, Bobby Powers, took notes.
Powers did not testify, but his notes record at least some of the
questions the supervisors asked. These questions do not ask for
Jackson’s version of the facts or otherwise seek information about
what happened. In the following excerpt from Powers’ notes,
“Pruett” refers to Local Union President Bobby Pruett, who also
attended the meeting:
Are you aware of our service standards? Yes.
. . . .
Do you care about these service standards? Very
much so.
A) If so, when we bring someone to help eliminate the
problem why would you harass that employee? I don’t de-
fine it as harassment and cannot recall the incident.
Marcus [Jackson]—Specify the statement. Bobby
Pruett—Do not answer this question. Mills—Are you re-
fusing to answer this question? Pruett responded do not
answer this question.
Are you aware that this conduct is unacceptable? Re-
fused to answer.
Why would you make a threatening statement to a vis-
iting employee about a Postmaster of another office?
Pruett interrupted Mr. Mills and asked Marcus “Did you
make any threatening remarks about a Postmaster Roger
Brooks?” Marcus—I made no threats.
Mills—Did you make the statement Mr. Pruett refer-
enced concerning Roger Brooks?
Marcus—“Made no threats.”
What did you mean by the statement about Mr.
Brooks? Marcus—I made no threatening statement about
Mr. Brooks. I have only met him 1 time which was at an
EEO hearing. A) Where did you get your info?
Are you aware of the consequences of your statement?
[Paragraph numbers omitted.]
The record does not establish that Mills conducted any further
investigation after this February 15, 2005 interview before
preparing the February 22, 2005 warning letter. Likewise, no
evidence indicates that either Mills or any other agent of
Respondent made any inquiry to determine whether Jackson had
been telling the truth when he denied harassing Loucks and when
he denied making any threat.
Mills prepared a warning letter dated February 22, 2005. He
testified that he tried to give Jackson a copy on February 24, 2005.
According to Mills, Jackson refused to accept the letter, but I do
not credit this testimony. Rather, I credit Jackson’s testimony that
Mills only discussed the letter but would not give him a copy.
This credibility determination rests not only upon Jackson’s
impressive demeanor as a witness, but also on differences between
assertions in the warning letter which Mills drafted and other
evidence. The letter, which cited Jackson for “improper conduct,”
stated, in part, as follows:
Specifically, on January 31, 2005, management re-
ceived complaints about you from an employee, Stacie
Loucks, who had been temporary [sic] assigned to the
Destin Post Office to assist with the backlog of heavy mail
volume at our facility. Ms. Loucks complained to man-
agement that on her first day at the facility, you began bar-
raging her with a set of questions concerning her duty
status and her postal position. You specifically wanted to
know what office she worked at. When Ms. Loucks ad-
vised that she worked in Chipley, but lived in Bonifay,
you asked why she didn’t work at Bonifay under Postmas-
ter Roger Brooks. Once Ms. Loucks advised that the
Chipley Post Office had an opening, you made a remark
that the Union was going after Postmaster Brooks and
once they were done with him he would no longer be
there. Ms. Loucks then advised you that her husband
worked for Postmaster Brooks.
. . . .
During a fact-finding interview with you, on February
18, 205, in the presence of Bobby Pruett, you were ques-
tioned concerning your conduct and your comments about
the Postmaster of Chipley. Management wanted to know
why you would harass an employee who was assigned to
help. You stated you did not define it as harassment and
that you could not recall the incident. During the inter-
view, you refused to answer specific questions at times,
and stated you could not recall certain issues. In response
to your comment about the Postmaster, you denied making
any threatening remarks towards Postmaster Brooks, and
commented that you had only met him one time during an
EEO hearing. Your responses during the interview have
been viewed as administratively unacceptable. Your in-
timidating conduct towards Ms. Loucks and your state-
ment made toward Postmaster Brooks has [sic] also been
deemed unacceptable.
Your actions constitute a violation of the USPS Stan-
dards of Conduct as expressed in the Employee and Labor
Relations Manual, Part 666.3; Behavior and Personal
Habits
Employees are expected to conduct themselves during
and outside of working hours in a manner which reflects
favorably upon the Postal Service. Although it is not the
policy of the Postal Service to interfere with the private
lives of employees, it does require that postal personnel be
honest, reliable, trustworthy, courteous, and of good char-
acter and reputation. Employees are expected to maintain
satisfactory personal habits so as not to be obnoxious or
offensive to other persons or to create unpleasant working
conditions.
The letter also warned Jackson that “future deficiencies will
result in more severe disciplinary action being taken against
you. Such action may include suspension, reduction in grade or
pay, or removal from the Postal Service.”
The record discloses some inconsistencies about the dates of
various events. The warning letter, quoted above, refers to a “fact-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
finding interview” on February 18, 2005. However, Powers’
notes of that interview indicate it took place on February 15, 2005.
Additionally, although the warning letter states that Loucks
complained to management on January 31, 2005, her statement
indicates that she telephoned the Chipley postmaster on February
2, 2005.
Although the warning letter states that Jackson’s “actions
constitute a violation of the USPS Standards of Conduct,” it does
not enumerate the precise infractions attributed to Jackson.
However, I find that an employee who received this letter
reasonably would conclude that he was being disciplined for the
following: (1) Asking another employee “questions concerning
her duty status and her postal position.” (2) Making “a remark
that the Union was going after Postmaster Brooks and once they
were done with him, he would no longer be there.” (3) Making
“unacceptable” responses during a “fact-finding” interview.
Similarly, I find that an employee who received this letter
reasonably would believe that he would be disciplined again, and
possibly discharged, if he engaged in any of these actions in the
future.
With respect to the first asserted infraction, it may be noted that
Respondent does not contend that Jackson violated any rule
prohibiting employees from talking with each other while on duty,
and the record suggests that no such rule exists. Accordingly, I
find that Jackson was not disciplined for the act of speaking to
Loucks but rather for what management believed Jackson said to
Loucks.
With respect to the second asserted infraction, neither Loucks’
written statement nor the warning letter itself claims that Jackson
made any other comment about Brooks except the one quoted
above. Moreover, the record does not establish that, in deciding to
discipline Jackson, management relied upon any other information
except that in Loucks’ written statement. Therefore, I find that
when the warning letter claims that Jackson made “threatening
remarks” about Brooks, it referred solely to the “remark that the
Union was going after Postmaster Brooks and once they were
done with him he would no longer be there.”
The third ground for disciplining Jackson concerns his
responses to questions during a “fact-finding” interview. The
warning letter stated:
During the interview, you refused to answer specific
questions at times, and stated you could not recall certain
issues. In response to your comment about the Postmaster,
you denied making any threatening remarks toward
Postmaster Brooks, and commented that you had only met
him one time during an EEO hearing. Your responses during
the interview have been viewed as administratively
unacceptable.
From this passage, it appears that management claimed it was
disciplining Jackson for refusing to answer certain questions,
for stating that he could not recall certain “issues,” and for
denying that he made any threatening remarks about Brooks.
2. Legal framework
Before determining whether the warning letter violated the Act,
I must first decide which legal framework should be used to
analyze the facts. Many allegations of discrimination in violation
of Section 8(a)(3) or (4) should be examined using the procedure
established by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). However, in some cases arising under these sections of
the Act, a Wright Line analysis is not appropriate.
The Wright Line framework provides a means to determine
whether unlawful motivation affected a management decision to
take an adverse action against an employee and, if so, whether
management would have made the same decision had the
unlawful motivation not been present. In some cases, however,
the evidence may indicate that an employer disciplined a worker
solely because of conduct which the Act usually protects. In such
instances, the issue does not concern whether the employer would
have imposed the discipline in the absence of the protected
activity because the discipline was for protected activity. Instead,
the issue involves whether the employee engaged in any conduct
which would take away the Act’s protection. The Board does not
favor use of the Wright Line framework in such cases. Phoenix
Transit System, 337 NLRB 510 (2002).
Instead, the Board has held that where “an employee is
discharged for conduct that is part of the res gestae of protected
activities, the relevant question is whether the conduct is so
egregious as to take it outside the protection of the Act, or of such
character as to render the employee unfit for service.” Ogihara
America Corp., 347 NLRB 110 (2006), citing Guardian
Industries Corp., 319 NLRB 542, 549 (1995), and Consumers
Power Co., 282 NLRB 130, 132 (1986).
The warning letter describes the conduct for which Jackson
received discipline. This conduct pertained to Stacie Loucks who,
as discussed above, was working temporarily at Respondent’s
Destin facility: “Ms. Loucks complained to management that on
her first day at the facility, you began barraging her with a set of
questions concerning her duty status and her postal position.”
Jackson, as discussed above, was the Union’s shop steward. In
questioning S. Loucks about her duty status, Jackson was trying to
determine whether her performance of bargaining unit work
violated the collective-bargaining agreement. He was (to use a
phrase familiar in labor law) trying to “police the contract.” I
conclude that when Jackson questioned Loucks about her duty
status, he was engaged in union activity protected by the Act.
White Electrical Construction Co., 345 NLRB 1095 (2005), citing
NLRB v. City Disposal Systems, 465 U.S. 822, 840 (1984);
Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966), enfd.
388 F.2d 495 (2d Cir. 1967). Accordingly, Respondent’s decision
to discipline Jackson for this conduct should not be analyzed
under the Wright Line framework.
The warning letter also disciplined Jackson for making a
comment about Postmaster Roger Brooks. Specifically, it
attributed to Jackson “a remark that the Union was going after
Postmaster Brooks and once they were done with him he would
no longer be there.” I must determine whether such a statement
would constitute protected activity.
As already noted, Loucks did not testify. Moreover, Jackson’s
testimony does not disclose what, if anything, he said to Loucks
about Postmaster Brooks.
However, the record does include a written statement which
employee Bobby Cline prepared after learning that Jackson might
receive discipline. Cline gave this statement to the manager then
POSTAL SERVICE 931
in charge of the Destin facility, Leon Malishan, but the record
does not establish that Mills read it before deciding to issue the
warning letter to Jackson. Respondent did not object to the
admission of Cline’s statement into evidence. The document
came into evidence without restrictions and may be used as proof
of matters it asserts. Alvin J. Bart, supra.
Moreover, Respondent had ample opportunity to challenge the
accuracy of the statement. Cline was on the witness stand when
the General Counsel offered the statement into evidence. Thus,
Respondent had the opportunity to examine the statement’s author
both through voir dire and on cross-examination.
The statement came into evidence on June 28, 2006. The
hearing continued on June 29, 2006, then adjourned until July 19,
2006, when it resumed for further testimony. Thus, Respondent
had a 3-week period in which to investigate the statement and, if
warranted, to locate witnesses or documents which might refute it.
Respondent’s failure to produce evidence contradicting the
statement leads me to give it considerable weight.
In particular, Respondent has not represented that it no longer
employs Loucks and also has not asserted that she was unavailable
to testify. Presumably, the 3-week adjournment provided
Respondent more than enough time to arrange for this employee
to take the witness stand. Moreover, Respondent did not request
any additional recess.
For several reasons, I credit Cline’s statement. As discussed
above, Respondent clearly had the opportunity to investigate the
representations in this statement and to present any evidence
resulting from that investigation. In particular, it could well have
called Loucks to testify if the statements which Cline attributed to
her were incorrect. Because Respondent did not call Loucks, I
conclude that had she testified, her testimony would have
supported Cline’s statement.
Additionally, my observations of the witnesses lead me to
conclude that Cline’s testimony is reliable. There is no reason to
assume that his prior statement is any less reliable.
Cline stated that on the day in question, he had been talking
with Jackson about Brooks. Loucks also was present. During this
conversation, Cline said that he had turned down an opportunity to
transfer to the Bonifay facility after an employee there told him
“how bad Mr. Brooks was to work for.” According to Cline’s
statement, Jackson then said that Brooks had been accused of
sexually harassing a female employee. At this point, Loucks
interjected that “Mr. Brooks came in every morning to the Post
Office and yelled at the employees and kicked trays of mail in
anger.” Loucks then imputed to Brooks an instance of favoritism
for his personal benefit.
For reasons discussed below, I conclude that Jackson did not
say that the Union was “going after” Brooks or that when the
Union was through, Brooks would no longer “be there.”
However, Jackson did discuss with two other employees how
Postmaster Brook treated the workers under his supervision.
More specifically, Loucks, Cline and Jackson discussed reports
that Brooks had sexually harassed an employee, yelled at
employees, and played favorites. Such a discussion by employees
about working conditions constitutes protected activity. See, e.g.,
Ellison Media Co., 344 NLRB 1112 (2005) (employees’
discussion of a supervisor’s purported sexual harassment
constitutes protected activity).
Even if Jackson had made the comment which Loucks
attributed to him, that comment would itself have constituted
protected activity. Thus, Jackson would have made the comment
in response to other employees’ criticisms of how a supervisor
treated employees. Any explanation he gave concerning the
Union’s intended actions would fall within his duties as union
steward and clearly would enjoy the Act’s protection.
As the Board observed in Yesterday’s Children, Inc., 321
NLRB 766 (1996), employees who are engaged in Section 7
activity in protest of actions by their employer do not lose the
protection of the Act simply because they mention that they
dislike a manager and would like to see the manager discharged.
The statement incorrectly attributed to Jackson, even if it he had
made it, would not have deprived him of the protection of the Act.
Because Respondent disciplined Jackson for putative conduct
which would have been protected activity, had it occurred,
analysis using the Wright Line framework would not be
appropriate. Rather, the relevant question is “whether the conduct
is so egregious as to take it outside the protection of the Act, or of
such character as to render the employee unfit for service.”
Ogihara America Corp., supra.
The warning letter given to Jackson also stated: “During the
interview, you refused to answer specific questions at times, and
stated you could not recall certain issues. . . . Your responses
during the interview have been viewed as administratively
unacceptable.” Although the letter’s use of the word “issues”
instead of “facts” or “events” makes the exact meaning unclear, it
appears that Respondent is disciplining Jackson both for refusing
to answer questions and for saying that he did not remember
certain things.
Based on notes taken by a supervisor during this meeting, and
introduced into evidence by Respondent, I find that Union
President Pruett, who represented Jackson at that meeting,
instructed him not to answer certain questions and that Jackson
did not answer the questions. At this point in the analysis, I am
not considering whether management lawfully could discipline
Jackson for refusing to answer questions, but rather am concerned
with a preliminary, procedural issue: Should I weigh the facts
using the Wright Line framework or should I apply some other
criteria?
Although the Board does not engage in a Wright Line analysis
when an employer states that it has disciplined an employee
specifically for conduct which enjoys the Act’s protection, the
Wright Line framework proves invaluable when an employer
claims that it imposed discipline for some other reason but the
General Counsel alleges that antiunion animus constituted part of
the motivation. In other words. where more than one motive
affects a decision to discipline an employee, Wright Line provides
an effective way to determine whether an unlawful reason resulted
in discipline which would not occur otherwise.
Typically, in the absence of unusual circumstances, an
employee’s refusal to answer his supervisor’s questions does not
constitute protected activity. However, very unusual circum-
stances are present here. For reasons discussed below, I conclude
that the interview in question was not a bona fide predisciplinary
interview but was instead an unlawful attempt to coerce an
employee into ceasing his protected activities as union steward. In
these circumstances, when the union president—also an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD932
employee—advised the union steward not to answer the question,
and the steward complied with this instruction, these two
employees were engaged in protected concerted activities.
In sum, the third reason for disciplining Jackson also falls in the
category of disciplining an employee for engaging in protected
activity. Accordingly, Wright Line is not appropriate.
3. Analysis
As discussed above, in essence, the warning letter informed
Jackson that he had engaged in three types of misconduct, and
cautioned him that similar actions in the future could result in
further discipline, up to and including discharge. First, it faulted
Jackson for “barraging” another employee with “questions
concerning her duty status and her postal position.”
Clearly, Jackson was engaging in protected activity when, as
union steward, he sought to ascertain Loucks’ duty status. He
needed that information to determine whether Loucks’ work at the
Destin facility violated the collective-bargaining agreement. As
the Board stated in Tillford Contractors, 317 NLRB 68 (1995),
“When an employee makes an attempt to enforce a collective-
bargaining agreement, he is acting in the interest of all employees
covered by the contract. It has long been held that such activity is
concerted and protected under the Act. Interboro Contractors, 157
NLRB 1295 (1966).”
The Board also noted in Tillford Contractors, supra, that an
employee does not have to refer specifically to the collective-
bargaining agreement so long as “the nature of the complaint is
reasonably clear to the person to whom it is communicated, and
the complaint does, in fact, refer to a reasonably perceived
violation of the collective-bargaining agreement. . . .” 317 NLRB
at 69. In the present instance, Loucks’ own statement indicates
she understood the reason for the steward’s question; she had
given Jackson incorrect information about her job status and
confided that she was afraid Jackson would discover her true
status as a rural letter carrier.
Additionally, Loucks’ statement relates that at one point—
apparently after Loucks had been working at the Destin facility for
a week—a “Mrs. C.” told Loucks that “I [Loucks] had every right
to be there that my paperwork for dual something was
completed.” Based on that portion of the statement, I infer that
Loucks did not believe she had “every right” to be performing the
bargaining unit work when she began at the Destin facility a week
earlier, and for that reason concealed from the steward her true job
status. There can be little doubt that Jackson’s inquiry pertained
to “a reasonably perceived violation of the collective-bargaining
agreement” because Loucks herself was concerned about being
caught in a violation of that agreement.
In sum, I conclude that Respondent’s discipline focused on
Jackson’s protected activity. Since Respondent disciplined
Jackson for protected activity, the appropriate inquiry concerns
whether Jackson engaged in any conduct which removed him
from the protection of the Act. Beverly Health & Rehabilitation
Services, 346 NLRB 1319 (2006).
Because the General Counsel has proven that Respondent
disciplined an employee for conduct the Act protects, the
Respondent bears the burden of proving that it had an honest
belief that the disciplined employee had engaged in misconduct
during the protected activity. If the Respondent fails to carry this
burden, then the Government has proven the violation. However,
if Respondent carries this burden, no violation will be found
unless the General Counsel further proves that (notwithstanding
the Respondent’s honest belief) the asserted misconduct actually
did not occur. See Pepsi-Cola Co., 330 NLRB 474 (2000).
To carry its burden, Respondent first must identify the asserted
misconduct. It does not suffice for a respondent simply to say “we
honestly believed the employee had engaged in some kind of
misconduct” without a more specific description of the claimed
wrongdoing. Moreover, the “misconduct must be so ‘flagrant,
violent, or extreme’ as to render him unfit for further service.”
Tillford Contractors, above, citing United Cable Television Corp.,
299 NLRB 138 (1990), quoting Dreis & Krump Mfg. Inc., 221
NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir. 1976).
The warning letter informed Jackson that “[y]our intimidating
conduct towards Ms. Loucks and your statement made toward
Postmaster Brooks has [sic] also been deemed unacceptable.”
The warning letter does not further identify the putative
misconduct except to state: “Ms. Loucks complained to
management that on her first day at the facility, you began
barraging her with a set of questions concerning her duty status
and her postal position. You specifically wanted to know what
office she worked at.”
However, Respondent has not claimed that Jackson spoke in a
loud tone of voice, came unacceptably close, displayed menacing
gestures or body language, or otherwise communicated hostility.
Moreover, Respondent could not have made such an assertion
because it based the discipline exclusively on Loucks’ written
statement, which did not indicate that Jackson menaced her, swore
at her, or otherwise manifested a belligerent posture or tone.
Loucks’ written statement did note that Jackson asked her
questions on more than one occasion and indicated that she didn’t
like it. Her statement reported that she told a “Mrs. C” (otherwise
unidentified) “that Mr. Jackson was being an asswhole [sic] and
he was drilling me with all kinds of questions about my position
with the post office and that I didn’t want to go back.”
According to her statement, when Loucks first arrived at the
Destin facility, Jackson asked her about her status and she told
him that she was a “PTF,” which would signify that she was a
bargaining unit employee, rather than a temporary rural letter
carrier. Loucks’ statement indicates that a week later, Jackson
told Loucks that she was not a PTF and began asking her
questions about her job duties. “He asked me so many questions
so quick,” Loucks’ statement reported, “that I was getting
nervous. I got the mail and left. I was afraid that he knew that I
was a TRC.”
Thus, her statement suggests that Loucks’ discomfort did not
result from any ungentlemanly behavior on the part of the steward
but rather from the fact that she had provided him incorrect
information and feared that her true status would be discovered.
Moreover, and quite significantly, Loucks’ statement does not
indicate that she ever asked Jackson to stop asking her questions.
Someone reading Loucks’ statement would have no reason to
believe that Loucks said anything to Jackson to signify that his
questions made her uncomfortable or that he should stop asking
them.
The conclusion of Loucks’ statement makes evident that when
someone else told Jackson that his questions weren’t welcome, he
POSTAL SERVICE 933
stopped asking them. More specifically, Loucks’ statement
reports that someone named “Lonnie,” otherwise unidentified,
told Loucks that she was going to speak to Jackson. The
statement continues:
From that time I did not have anymore [sic] questions asked.
Later that evening I was doing paper dolls near the break
room and Mr. Jackson was walking and talking on his cell
phone saying that someone has complained about him
harassing them and that wasn’t that some mess. I got up and
went to the supervisors desk and worked on my etravel. Mr.
Jackson did not say anything else to me.
A supervisor reading Loucks’ statement reasonably would
understand that Loucks sought to conceal her true job status from
the union steward and that the steward continued to ask questions
to ascertain that status. Thus, the statement reasonably would
place a supervisor on notice that Jackson was engaged in protected
activity.
However, the statement does not provide a basis for an honest
belief that Jackson engaged in any intimidating conduct. For one
thing, the statement covers a period of at least a week, and does
not indicate how many times during that period Jackson asked
Loucks about her job status. As already noted, it said nothing to
indicate that Jackson had an unfriendly demeanor or tone of voice,
and it did not indicate that Loucks asked Jackson to quit asking
questions.
Another factor weighs against a finding that Respondent
honestly believed that Jackson had engaged in some kind of
wrongdoing during his protected activity. As will be discussed
further below, Respondent had established a standard practice of
conducting a thorough, objective investigation before imposing
discipline. In this instance, however, Supervisor Mills did not
meet with Loucks at any time, even after Jackson had denied the
accusations. Indeed, the record does not establish that Mills took
any other steps to ascertain the facts.
Respondent’s failure to follow its own established standards
undercuts any claim that it honestly believed that Jackson had
engaged in misconduct. Accordingly, I conclude that Respondent
has not carried its burden of proving that it had such an honest
belief.
Moreover, even assuming for the sake of analysis that
Respondent had demonstrated that it held an honest belief that
Jackson had engaged in misconduct, the General Counsel has
proven that such claimed misconduct did not, in fact, occur.
Because Loucks’ written statement constitutes hearsay, it may
not be used to prove the truth of the matters it asserts. No other
evidence supports a claim that Jackson engaged in misconduct or
made a threatening remark.
Even were I to consider Loucks’ affidavit for the truth of the
assertions in it, I would resolve any credibility issue in favor of
Jackson, whose demeanor I observed while he testified. Jackson
clearly and emphatically denied harassing Loucks. He testified
that Loucks never asked him to stop talking with her or asking her
questions. Based on Jackson’s testimony, which I credit, I find
that Jackson did not harass Loucks and that she did not ask him to
stop speaking with her.
Because Jackson did not engage in any misconduct, it is not
necessary to weigh the factors discussed in Atlantic Steel Co., 245
NLRB 814, 816 (1979). Those factors define when an employee’s
misconduct becomes so egregious that the employee loses the
protection of the Act. In the absence of misconduct, such factors
are not relevant.
In sum, I conclude that Respondent’s disciplining of Jackson
because he asked Loucks questions relating to her position
violated Section 8(a)(1) of the Act. It also constituted unlawful
discrimination against him in violation of Section 8(a)(3) of the
Act.
The February 22, 2005 warning letter also disciplined Jackson
for making “a remark that the Union was going after Postmaster
Brooks and once they were done with him, he would no longer be
there.” For reasons discussed above, I conclude that the evidence
falls short of establishing that Jackson actually made such a
comment. However, I further conclude that the manager who
decided to discipline Jackson believed that Jackson had said the
words attributed to him.
If Jackson had made the remark, it would have been during a
conversation with other employees about reports that a supervisor
had sexually harassed employees. In this context, the shop
steward’s assurance that the Union would take action against the
supervisor clearly enjoys the Act’s protection. Ellison Media Co.,
supra.
Respondent’s warning letter makes clear that if Jackson
engaged in similar conduct in the future, he would be subject to
discipline. Thus, it palpably interferes with, restrains and coerces
the employee in the exercise of Section 7 rights, in violation of
Section 8(a)(1) of the Act. Indeed, the warning focuses on a union
steward’s communication with employees concerning terms and
conditions of employment, which goes to the essence of union
representation.
Moreover, the written warning constitutes discrimination in
violation of Section 8(a)(3), unless Jackson engaged in some kind
of misconduct which removed him from the Act’s protection.
However, the record establishes no such misconduct. Therefore, I
conclude that Respondent also violated Section 8(a)(3).
The warning letter also disciplined Jackson for failure to
answer questions during the investigative interview. As noted
above, an employee ordinarily has a duty to answer questions
during an interview which management conducts to determine
whether to impose discipline. However, for the following reasons,
I conclude that Respondent was not conducting a bona fide
disciplinary interview but instead was using that process as a
pretext to conceal unlawful activity: Interrogating the union
steward about his protected activities and warning him that
harsher discipline would follow if he engaged in similar activities
in the future.
First, it should be noted Respondent required Jackson to attend
this meeting because of Jackson’s protected activities as union
steward, investigating an apparent violation of the collective-
bargaining agreement. Moreover, the evidence suggests that
management was aware that it had violated its contract with the
Union. Thus, Loucks, who did not testify, indicated in her written
statement to management that she had been afraid that Jackson,
the union steward, would find out her true classification. She
would not have been likely to make this revelation if both she and
management had been unaware of the possible contract violation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD934
Second, the “predisciplinary interview” focused solely on
Jackson’s union activity, namely, his questioning Loucks about
her job status and the comment attributed to him by Loucks, that
“the union was going after Mr. Brooks and once they are done
with him he will no longer be there.” (As noted above, although
Jackson credibly testified that he did not make this statement,
Respondent believed that he had.)
Although an employee has a duty to answer his supervisor’s
legitimate questions about his work, that duty does not extend to
unlawful interrogations about employees’ union activities. For
example, if a supervisor asked an employee for the names of
workers who had signed union authorization cards, or who had
attended a union meeting, the Act protects the employee’s refusal
to answer. The interrogation itself is unlawful. Similarly, an
employee has no duty to agree that engaging in legally protected
activity is improver, and no duty to promise not to do so in the
future.
As discussed below, Mills’ questioning of Jackson not only
focused on the union steward’s protected activities but also
assumed that such activity was unacceptable. In concluding that it
constituted unlawful interrogation rather a bona fide predis-
ciplinary interview, I will not apply an abstract or subjective
standard concerning how a disciplinary interview should be
conducted, but rather will look to Respondent’s own established
standards. The fact that the interview departed from Respondent’s
own customary practice, as well as the interview’s exclusive focus
on protected union activities, leads me to conclude that
Respondent used the interview as a sham to disguise an unlawful
purpose.
The Respondent and the National Union have agreed upon a
“Joint Contract Interpretation Manual,” dated June 10, 2004,
which provides a “mutually agreed to explanation of how to apply
the contract to the issues addressed.” This labor-management
agreement sets the standards which Respondent follows in dealing
with bargaining unit employees. With respect to discipline, it
states, in part, as follows:
Before administering the discipline, management
should conduct an investigation to determine whether the
employee committed the offense. The investigation
should be thorough and objective.
The investigation should include the employee’s “day
in court privilege.” The employee should know with rea-
sonable detail what the charges are and should be given a
reasonable opportunity to defend themselves before the
discipline is initiated.
It may be presumed that Respondent follows the procedures to
which it agreed. Indeed, it would hardly be fair to assume that
Respondent agreed to certain standards and then customarily
ignored them, and Respondent has not made such a claim.
Accordingly, and in the absence of evidence indicating that
Respondent usually did not follow its own procedures, I will
assume that it typically does.
Therefore, I conclude that before deciding to discipline an
employee, Respondent customarily does inform the employee in
“reasonable detail what the charges are” and that Respondent does
so at or before the predisciplinary interview, which gives the
employee the “day in court privilege.” The notes of the February
15, 2005 predisciplinary interview, which Respondent introduced
into evidence, indicate a significant departure from the “day in
court” standard.
The General Counsel had objected to the introduction of these
notes, and I received them for a limited purpose. However, one of
Respondent’s supervisors took these notes and, to the extent they
document what questions Respondent’s supervisors asked, the
notes constitute admissions which are not hearsay under Rule
801(d)(2) of the Federal Rules of Evidence. Accordingly, I will
rely on them in determining what the supervisors asked Jackson.
Supervisor Mills asked Jackson why he would “harass” an
employee brought in to “help eliminate the problem.” The
question assumes that Jackson’s protected activity—finding out if
the contract were being violated—constitutes improper “harass-
ment.” Jackson denied that he had harassed an employee but also
asked Mills to “specify the statement.”
Supervisor Powers’ notes do not establish that Mills clarified
what he meant by harassment. Instead, they indicate that Union
President Pruett instructed Jackson not to answer the question and
that Mills then asked Jackson if he were refusing to answer.
The supervisor’s notes show that Jackson already had answered
the question by denying that he had harassed an employee.
Insisting upon some other answer demanded that Jackson
acquiesce in Mills’ premise, namely, that Jackson’s protected
activity constituted “harassment.” By disciplining Jackson for not
answering this loaded question, Respondent was in effect
imposing discipline for refusing to agree that protected activity
was improper. Such conduct departs markedly from
Respondent’s usual practice of giving employees “a reasonable
opportunity to defend themselves.”
Supervisor Powers’ notes do not indicate that Mills explained
what he meant by “harass” even after Jackson asked him to
explain. Instead, Mills asked “Are you aware that this conduct is
unacceptable?” Absent some clarification, this question
communicated that Respondent viewed the union’s steward’s
protected activity as “unacceptable” and asked Jackson to agree
with that viewpoint. Needless to say, Respondent cannot require
an employee to agree that protected activity is unacceptable.
Disciplining Jackson for refusing to acquiesce in this assumption
unlawfully interferes with the exercise of Section 7 rights.
The disciplinary letter which Respondent issued to Jackson
bolsters the conclusion that, during the predisciplinary interview,
Respondent was insisting that Jackson agree with the premise that
his protected activities were unacceptable. Thus, the warning
letter informed Jackson that
you denied making any threatening remarks towards
Postmaster Brooks, and commented that you had only met
him one time during an EEO hearing. Your responses during
the interview have been viewed as administratively
unacceptable.
Exactly what was “administratively unacceptable”? Could it
have been Jackson’s denial that he had only met Brooks one time?
During the present case, Respondent has not claimed that this
statement was untrue. Moreover, how many times Jackson may
have met Brooks appears irrelevant.
Rather, I conclude that Respondent deemed “administratively
unacceptable” the specific statement the warning letter had
POSTAL SERVICE 935
attributed to Jackson, “a remark that the Union was going after
Postmaster Brooks and once they were done with him he would
no longer be there.” Moreover, I conclude that Respondent
considered Jackson’s denial “administratively unacceptable.” In
other words, the warning letter was punishing Jackson, in part, for
denying that what he had said was a “threatening remark.”
Respondent has not, at any time, claimed that Jackson said
anything about Brooks apart from the warning letter’s accusation
that “you made a remark that the Union was going after
Postmaster Brooks and once they were done with him he would
no longer be there.” Applying an objective standard, I conclude
that an employee reasonably would understand this letter to
communicate that Respondent was disciplining Jackson in part
because he made the “unacceptable” statement that the Union was
“going after” a particular supervisor.
As discussed above, I have found that Respondent customarily
conducts a “thorough and objective” investigation which affords
an accused employee with his “day in court privilege.” These
principles of fairness create the expectation that, when Jackson
denied making any threat, the supervisor at least would consider
what Jackson had to say. It isn’t necessary here to state exactly
what Mills should have done to satisfy Respondent’s own
standards—that would improperly substitute my own judgment
for Respondent’s concerning the way a disciplinary investigation
should be conducted—but clearly, if Mills had tried to conduct the
usual “thorough and objective” investigation referred to in its June
10, 2004 agreement, Mills would have done something.
For example, Mills could have arranged to meet with Loucks,
whom he had not interviewed. Or, he could have asked Loucks
questions by telephone. Or, he could have tried to find out if any
other employee had witnessed the conversation in question. Or he
could have taken some other step in a search for an objective
reason to believe or disbelieve Jackson’s denials.
Mills did none of these things. Indeed, he admitted that he had
never spoken to Loucks personally and had not asked questions to
find out if other clerks had heard the conversation.
Respondent’s failure to conduct any investigation—even after
Jackson specifically denied harassing an employee or making a
threat—departs dramatically from its usual practice of conducting
a “thorough and objective” investigation before imposing dis-
cipline. Respondent, of course, would have no reason to follow its
usual procedure if the true purpose of the interview was not to
gather information needed for a disciplinary decision, but rather to
discourage the union steward from engaging in further union
activities.
The fact that Respondent did not investigate even after hearing
Jackson’s denial makes no sense if Respondent intended to use the
“predisciplinary” interview for its contemplated and customary
purpose—ascertaining the facts—but this behavior is consistent
with the ulterior motive of punishing a union steward for
exercising his Section 7 rights and coercing the steward into
foreswearing future union activity. Jackson had no duty to agree
that his union activities were “unacceptable,” and disciplining him
for failing to agree is unlawful.
Considering that the disciplinary interview concerned only the
union steward’s protected activities, and further considering that
Respondent had no reason to believe that Jackson had engaged in
misconduct which would forfeit the protection of the Act, I
conclude that antiunion animus motivated Respondent’s actions.
For all the reasons stated above, I conclude that the warning letter
dated February 22, 2005, violated Section 8(a)(1) and (3) of the
Act.
VI. COMPLAINT PARAGRAPH 9
March 7, 2005 Warning Letter to Cline
Paragraph 9 of the complaint alleges that on about March 7,
2005, Respondent issued a warning letter to employee Bobby
Cline. Respondent admits that it issued Cline such a letter. (The
record establishes that the letter itself bears the date March 4,
2005, a Friday, but that Cline did not receive the letter until the
following Monday.)
Complaint paragraphs 14 and 15 allege that Respondent issued
the warning letter for unlawful reasons and complaint paragraphs
24 and 25 allege that Respondent thereby violated Section 8(a)(1),
(3), and (4) of the Act. Respondent denies these allegations.
Accordingly, the issue to be decided concerns Respondent’s
motivation for the decision to discipline Cline.
1. The facts
Bobby Cline, one of the charging parties in the present
proceeding, began working for Respondent in about 1974. Since
about 2000, Cline has been assigned to the Destin, Florida facility,
where he works as a window/distribution clerk, a position within
the bargaining unit. In September 2004, he filed an unfair labor
practice charge against Respondent, which the Board docketed as
Case 15–CA–17506(P).
Based on this charge, the Regional Director for the Board’s
New Orleans office issued a complaint and notice of hearing on
January 26, 2005. Cline posted the notice of hearing on the
employees’ bulletin board.
On January 19, 2005, Cline sent a letter to the office of his
representative in Congress. The letter, addressed to a member of
the Congressman’s staff, reported that postal customers in the
Destin area were not receiving good service. It also stated, in part,
as follows:
The employees of the Destin Post Office are working
under very difficult conditions to try and provide service
to our customers. As an employee myself I can state that
we are working in a very hostile work environment.
. . . .
The contract is violated everyday [sic] and our union
officials are abused and harassed because they speak out
about the problems.
On February 3, 2005, Cline sent another letter to the same
representative on the Congressman’s staff. This letter, asserting
that Respondent’s management was harassing a union steward,
alluded to management’s treatment of Union Steward Marcus
Jackson. The letter continued as follows:
I feel strongly that this is an attempt to not only intimi-
date but ultimately find grounds to remove this valued
employee from being able to perform his duties as union
steward which violates Federal Law. I have always felt
that if they would do this to our union steward, they would
not hesitate to do it to me.
I will also forward this to the Labor Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD936
Cline also circulated a petition, which 17 employees signed.
On February 8, 2005, Cline presented it to Postmaster Leon
Malishan. The petition requested that a “formal investigation be
launched into the operations/management” of the Destin facility.
It further stated that
The employees are subjected to poor labor relations, a
hostile work environment, an autocratic and oppressive
management style resulting in attempts to intimidate, har-
ass, and overall threatening behaviors.
. . . .
Due to the pressure to do more with less, we are se-
verely understaffed and required to perform our duties in
unsafe working conditions. . . .
Cline credibly testified that on Friday, March 4, 2005, union
officials picketed the Destin post office. During his lunchbreak,
Cline joined them, carrying a sign asking, “Tired of Long Lines?”
A sign carried by another picket stated “Long Lines Are Not OUR
Fault!”
On Monday, March 7, 2005, two supervisors called Cline into
an office and gave him the warning letter which is the subject of
complaint paragraph 9. This letter states, in pertinent part, as
follows:
Charge 1. Leaving Work Area Without Permission
On 02/08/2005 from 3:35 p.m.—4:05 p.m. you were
observed by postal management talking with another em-
ployee in the break room. During this time period you
were on the clock and should have been performing the
duties of your position.
Your actions are contrary to your duties as a postal
employee, a violation of section 661.21 of the Employee
& Labor Relations Manual and are a serious breach of
your employment responsibilities.
This official letter of warning should serve to impress
upon you the seriousness of your actions. It is hoped that
future disciplinary action will not be necessary. If it is
necessary to request assistance for improving your per-
formance, you may consult with me and I will assist you
where possible. However, I must warn you that future de-
ficiencies such as outlined above will resulting [sic] more
severe disciplinary action being taken against you, includ-
ing suspension and/or removal from the Postal Service.
Although this letter states that Cline “was observed” talking
with another employee in the breakroom, it does not identify the
observer. Other evidence establishes that the observer was Avis
Davis, a postmaster at another Florida facility.
On February 8, 2005, Davis and another management official
had visited the Destin facility. According to Davis, they came to
look at “the flow of the mail and basic concept of the Post Office,
as far as the way the floor plans are set up, the mail flow, the
staffing.” (The other visiting official, Dwight Wells, did not
testify.)
Davis stated that she observed Cline and another employee
talking in the breakroom from 3:35 to 4:05 p.m., and reported it
that day during a meeting with local managers. About a week
later, Davis wrote a note, “To whom it may concern,” stating, in
part:
03:35—04:05 I observed Mr. Cline in the break room with
Mr. Bill Wade
However, Cline testified that he was not in the breakroom
during this entire period. According to Cline, he went on break at
3:55 p.m. and entered the breakroom at that time. He did speak
with Wade in the breakroom but, Cline testified, at 4:05 p.m. he
went off break. For the following reasons, I credit Cline’s
testimony.
Bargaining unit employees record their activities by “swiping”
a card across a card reader when they begin or change tasks. A
computer saves this information in a log of “clock rings.”
The clock ring log contradicts part of Davis’ “to whom it may
concern” note. Although this note indicates that Davis had a
conversation with Cline during an earlier portion of that same
afternoon, the clock ring printout shows that Cline wasn’t at the
facility when this conversation supposedly had taken place.
Instead, the clock ring log supports Cline’s testimony that he was
out delivering Express Mail. Thus, the log, considered with
Cline’s testimony, casts some doubt on the accuracy of Davis’
note.
Moreover, Davis did not write the “to whom it may concern”
note until about a week after her February 8, 2005 visit to the
Destin facility. She did so at the request of the “station manager”
at the facility, but she could not recall that person’s name.
Considering that the “to whom it may concern” note was not
contemporaneous with her observations, and also considering
Davis’ inability to name the person who asked her to draft it, I
have concerns about its reliability.
Davis had made some other notes during her February 8, 2005
visit to the facility. She testified that these notes had been
destroyed, but she did not explain why they had been destroyed.
Presumably, the notes Davis took at the time she visited would be
more accurate than a note she prepared a week later. The
unexplained destruction of the contemporaneous notes prevents a
comparison to determine the accuracy of the later note.
Additionally, the note which remained in existence had a
different raison d’etre from that of the notes which were
destroyed. After observing the work at the Destin facility on
February 8, Davis and the other visiting manager conducted a
meeting with local management on February 9. Davis presumably
took the contemporaneous notes to assist her memory when she
explained her observations to the managers at this meeting. Thus,
the function of these notes might be described as reportorial.
A week later, a different purpose caused Davis to write the “to
whom it may concern” note. A manager she cannot name had
requested her to write such a memo for some use her testimony
did not disclose. There is less reason to trust the candor of this
after-the-fact document than the accuracy of the spontaneous
notes which had been destroyed.
For all of these reasons, I resolve any conflicts in the evidence
by crediting Cline rather than Davis. Accordingly, I find that
Cline was not in the break room from 3:35 to 4:05 p.m. on
February 8, 2005.
2. Legal framework
The issues to be resolved concern Respondent’s motivation:
Did Respondent discipline Cline solely because management
POSTAL SERVICE 937
believed he was talking in the breakroom during working time, or
did unlawful animus taint this decision? If such animus did enter
into the decisionmaking process, would Respondent have
disciplined Cline anyway even if he had not engaged in protected
activities? The Board’s Wright Line decision provides the
appropriate framework for deciding these questions.
3. Analysis
The General Counsel first must prove that Cline engaged in
protected activity. Cline’s filing an unfair labor practice charge
against Respondent in September 2004 clearly enjoys the Act’s
protection. Indeed, Section 8(a)(4) specifically makes it unlawful
to discharge or discriminate against an employee because he filed
charges with the Board.
Cline’s posting of the notice of hearing on the employees’
bulletin board also constituted protected activity. Such a
communication about a work-related matter—the alleged unfair
labor practices—implicitly sought to enlist the support of other
employees for their mutual aid and protection.
Cline’s correspondence with his representative in Congress also
concerned work-related matters. Specifically, Cline complained
that employees at the Destin Post Office were “working in a very
hostile work environment.” In the same letter, Cline stated that
the union contract was being violated and that union officials were
being harassed. These words clearly demonstrate that Cline was
writing on behalf of other employees as well as himself.
Similarly, on February 8, 2005, when Cline presented to
management a petition signed by 17 employees, he and the other
signers were engaged in concerted activity for their mutual aid and
protection. The complaint focused on matters relating to working
conditions. Clearly, Cline was engaged in protected activity when
he circulated this petition and presented it to management.
On March 4, 2005, during off-duty time, Cline and some union
officials picketed the Destin Post Office. This picketing clearly
constituted concerted activity.
A more difficult question concerns whether the Act protected
the picketing. Cline testified that the picket signs bore legends
such as the following: “You deserve better than this.” “Are you
tired of long lines?” “Are you tired of delayed mail?” “Long
lines are not our fault.” Cline carried a sign asking, “Are you tired
of waiting in long lines?”
From these legends on the signs, it appears that the picket signs
mainly communicated to the public a message concerning the
quality of the product—postal service to customers—rather than
about wages, hours and working conditions. On the other hand,
the Union’s motive obviously did relate to a working condition,
the number of employees assigned to the Destin facility. Cline
and, presumably, some other employees believed that under-
staffing had resulted in employees being pressed to do more work
than possible in a given amount of time.
The perceived understaffing not only would make working
conditions less pleasant but also would lessen the quality of
customer service by causing delays. It would be quite reasonable
for union officials to believe that members of the public would be
more interested in fast mail service than in employees’ working
conditions. Such a belief would lead to the conclusion that the
best way to garner public support for more staffing would be to
appeal to the customers’ interest in faster mail service. The
solution to the slow service problem—assigning more clerks to
the Destin facility—would also address the employees’
complaints about being overworked and understaffed.
Therefore, were I to focus on the intent of the picketing, I
would conclude that it constituted protected activity. However,
the Board has stated that “we determine whether certain
communications are protected by examining the communications
themselves.” Five Star Transportation, Inc., 349 NLRB 42
(2007). Following this principle, I will look to the messages on
the picket signs rather than the motivation for the picketing.
In Waters of Orchard Park, 341 NLRB 642 (2004), the Board
held that merely raising safety or quality-of-care concerns on
behalf of nonemployee third parties is not protected conduct under
the Act. With one possible exception, the legends on the picket
signs concerned the quality of service to the customer, rather than
the working conditions of employees. The exception, a sign
telling the public “don’t blame us” for slow service, arguably
might say something, or at least imply something, about working
conditions. However, even this sign does not explicitly present a
complaint that certain working conditions should be changed.
In Five Star Transportation, Inc., supra, the Board did caution
that a written communication must be considered “in its entirety
and in context” when determining whether there is a nexus to
terms and conditions of employment. See also Endicott
Interconnect, 345 NLRB 448 (2005), enfd. denied 453 F.3d 532
(D.C. Cir. 2006). The context—picketing by a union which
represents employees of the picketed employer—certainly weighs
in favor of finding the picketing protected.
Unions ordinarily use picketing to call public attention to
wages, hours, and working conditions, so onlookers might
reasonably begin by assuming that this union-related picketing
had something to do with those matters. However, if the message
on the picket signs proved to have little connection with such
issues, onlookers would abandon this initial assumption after
reading the signs. Applying an objective standard, I cannot
conclude that the signs conveyed any substantial message about
employees’ working conditions. Guided by the Board’s recent
decision in Five Star Transportation, Inc., I conclude that the Act
did not protect the picketing on March 5, 2005.
It should be noted that I am not reasoning that the picketing
initially enjoyed the Act’s protection and then lost that protection
because the signs disparaged Respondent. Although a reference to
long lines is critical of Respondent, it does not constitute the sort
of disparagement contemplated by NLRB v. Electrical Workers
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). Unlike the
disparagement in that case and in Five Star Transportation (the
latter concerning, among other things, a claim that the employer
had hired a sex offender to drive a schoolbus), a statement about
long waiting times at the post office isn’t inherently inflammatory.
Moreover, comments about long customer lines do not pack the
wallop of purported revelations, by insiders, of hidden product
defects unknown to customers. Anyone who has been to a
particular post office will have some knowledge about the length
of the line and the duration of the wait. In other words, the picket
signs reasonably would have little impact on a customer’s
decision to use Respondent rather than some other carrier. In sum,
I conclude that this picketing was unprotected not because of any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD938
disparagement but because the picket signs did not communicate a
message about working conditions.
Although I conclude that the Act did not protect the March 4,
2005 picketing, because the picket language did not pertain to
working conditions, Cline’s other activities described above do
fall within the Act’s protection. Accordingly, I conclude that the
General Counsel has established the first Wright Line element.
Next, the government must prove that Respondent knew about
the protected activities. There can be no doubt that Respondent
knew about the charge Cline had filed in September 2004, because
a complaint had issued. Respondent doesn’t claim it had not been
served with the January 26, 2005 complaint or otherwise was
unaware of it during the relevant time period. I conclude that it
had knowledge of both the charge and the resulting complaint.
The record does not establish that, as of March 7, 2005,
Respondent already knew about Cline’s letters to his
Congressman. However, there can be no doubt that Respondent
was aware Cline had circulated a petition concerning working
conditions. Cline presented the petition to Postmaster Malishan
on February 8.
In case the Board should disagree with my conclusion, above,
that Cline’s March 4, 2005 picketing was not protected activity, I
will address Respondent’s knowledge of that activity. I find that
Respondent knew that Cline participated. Cline credibly testified
that he saw Postmaster Malishan watching.
In sum, I conclude that the General Counsel has proven the
second Wright Line element.
Next, the government must establish that an employee suffered
an adverse employment action. The warning letter could be cited
as a predicate for more severe discipline in the future. Respondent
did exactly that. In March 2006, Respondent issued a disciplinary
notice informing Cline that he was being suspended for 14 days.
As discussed more fully below, this notice gave three reasons for
the suspension. One of those reasons was the earlier warning
letter. Because the March 7, 2005 warning served as a
justification for the later, harsher discipline, it certainly affected
Cline’s employment status adversely. I conclude that the
government has proven that the warning letter constituted an
adverse employment action.
Finally, the General Counsel must prove a link or nexus
between the protected activity and the adverse employment action.
For the following reasons, I conclude that the record establishes
such a link.
Initially, I note that Cline did not engage in the conduct for
which he was disciplined. Crediting Cline rather than Davis, I
have found that, on February 8, 2005, he did not talk to another
employee in the breakroom from 3:35 to 4:05 p.m. However, the
mere fact that Cline did not engage in the misconduct attributed to
him does not establish a connection between his protected
activities and the discipline.
It is true, of course, that a respondent’s assertion of a pretextual
reason for disciplining an employee may warrant an inference of
unlawful motivation. However, evidence that an employee did
not commit the infraction for which he received discipline does
not, by itself, establish the existence of a pretext. An employer
might, for example, simply be mistaken.
Could Davis’ report that she saw Cline in the breakroom during
this time period be an innocent mistake? Although Davis was
simply visiting the Destin facility, and did not work there, it is
somewhat difficult to believe this was a case of mistaken
identification. Earlier in the afternoon, Cline initiated a
conversation with Davis which may have annoyed her. At least,
her testimony suggests she considered it inappropriate for Cline to
raise some matters with her rather than with his regular supervisor.
Whether or not Davis became annoyed, she certainly recalled
having the conversation with Cline, and reported in her note
(albeit incorrectly) that it took place between 2:49 and 3 p.m. It is
difficult to believe that not long thereafter, she had forgotten who
Cline was and mistook another worker for him. Therefore, I must
reject the possibility that Cline received the warning because of a
problem with mistaken identity.
According to Davis, she told local management on February 9
that she had seen Cline spend 30 minutes in the breakroom when
he should have been working. The record does not explain why
management waited almost a month before issuing the warning
letter.
In some instances, the seriousness of an alleged infraction will
cause management to conduct an investigation, which will delay
the imposition of discipline. However, the record does not
indicate that management conducted any investigation.
Moreover, the asserted misconduct—taking a break during
worktime—is not the sort of infraction which would require a
lengthy investigation. Management could ascertain very quickly
whether it did or did not occur.
Instead, management took no action until March 4, 2005, when
Postmaster Malashin saw Cline, and some union officials,
picketing the facility. Although Cline did not receive the warning
letter until March 7, it bears a March 4 date. Because of this date,
it appears very likely that management drafted it on the same day
Cline picketed.
The picketing itself is significant even though I have concluded
it did not enjoy the Act’s protection. The picketing provided a
vivid reminder that Cline had engaged in numerous protected
activities in the past.
If, for some reason, the postmaster had forgotten that Cline had
filed an unfair labor practice charge which resulted in a complaint
against Respondent, and also had forgotten that less than a month
earlier, Cline had circulated and submitted a petition protesting
working conditions, the sight of Cline on the picket line definitely
would refresh his recollection. Moreover, it linked Cline with the
Union, for which Respondent already had demonstrated animus.
Cline’s filing of the unfair labor practice charge and circulation
of the petition, although protected, were not union activities as
such. However, Cline’s presence on the picket line clearly
associated him with the Union. It would appear that Cline was
missing no opportunity to challenge management’s treatment of
the employees.
Respondent’s earlier treatment of Union Steward Jackson,
discussed above, revealed that Respondent harbored animus
against the Union. Indeed, the February 22, 2005 warning letter
which Respondent issued to Jackson directly concerned Jackson’s
efforts as union steward. Respondent issued this warning to the
union steward less than 2 weeks before it issued the warning letter
to Cline. It is difficult to believe that Respondent’s antiunion
animus dissipated during this short period. To the contrary,
Respondent’s later actions, such as silencing the union president
POSTAL SERVICE 939
during a November 8, 2005 predisciplinary interview, discussed
below, refute any argument that Respondent’s animus was on the
wane.
I conclude that this antiunion animus entered into Respondent’s
decision to discipline Cline. Additionally, I conclude that the
General Counsel has established the fourth Wright Line element,
shifting the burden to Respondent to prove that it would have
issued the warning letter in any event, even if Cline had not
engaged in protected activities.
To determine whether an employer would have imposed
similar discipline even in the absence of protected activity, the
Board examines the record for documentation of how the
employer treated other employees in similar circumstances. In the
present case, a preponderance of the evidence does not establish
that Respondent would have issued the warning letter to Cline if
he had not engaged in protected activities. Moreover, Cline did
not commit the infraction attributed to him. I conclude that
Respondent has not carried its rebuttal burden.
In sum, I conclude that by issuing Cline the letter dated March
4, 2005, Respondent violated Section 8(a)(1), (3), and (4) of the
Act.
VII. COMPLAINT PARAGRAPH 10
September 2, 2005 Suspension
Complaint paragraph 10 alleges that on about September 2,
2005, Respondent placed employee Bobby Cline “on nonpay and
nonduty status.” Complaint paragraph 24 alleges that this
suspension violated Section 8(a)(1) and (3) of the Act. Complaint
paragraph 25 alleges that the suspension violated Section 8(a)(1)
and (4) of the Act.
Respondent admits that it placed Cline on nonpay and nonduty
status on September 2, 2005. However, it denies any unlawful
motivation and also denies that this action violated the Act.
1. Facts
a. Cline’s additional protected activities
Some of Cline’s protected and concerted activities—those on or
before March 4, 2005—already have been described above in
connection with complaint paragraph 9. Here, I begin with
Cline’s activities after that date.
On April 6, 2005, Cline sent a letter to Respondent’s chief
executive officer, the postmaster general, complaining about “the
hostile work environment I and my coworkers are subjected to
over the past two years. It has gotten worse over the past eight
months.” The record doesn’t establish to what extent other
employees knew about Cline’s letter before he sent it. However,
considering the letter’s reference to coworkers being subjected to
a hostile work environment, I conclude that Cline intended to
speak not only for himself but also for his fellow employees.
Moreover, management would have reason to believe that
Cline was articulating the concerns of other employees because
previously, on February 8, 2005, he submitted a petition signed by
about 17 other workers. This petition, like Cline’s April 6, 2005
letter to the postmaster general, complained of a “hostile work
environment.” Management reasonably would view the April 6,
2005 letter as a followup to the petition. Accordingly, I conclude
that the letter to the postmaster general constituted protected
activity.
In April 2005, Cline filed a charge against Respondent. Cline’s
signature on this charge bears the date “4/7/5” but the Board
docketed the charge, as Case 15–CA–17687(P), on April 18,
2005. The Regional Director for Region 15 deferred this charge
to arbitration, pursuant to Collyer Insulated Wire, 192 NLRB 837
(1971), by letter dated June 27, 2005. Clearly, filing an unfair
labor practice charge constitutes protected activity.
On April 24, 2005, Cline sent a letter to District Manager
Harold Swinton, a Postal Service official in Jacksonville, Florida.
The letter complained that local management in Destin was
discriminating in the assignment of overtime against union
members. Specifically, Cline named three employees on the
“overtime desired list,” one of the three being a union steward.
Another, Cline himself, belonged to the Union but the third did
not. Cline asserted that local management granted more overtime
to the employee who was not a union member.
The letter asked: “Is this behavior in accordance 'with the
guidelines of our contracts’?” (Italics in original.) The letter does
not identify the specific “guidelines” and, arguably, the quoted
question might not be strictly rhetorical. In other words, it might
signify actual uncertainty on Cline’s part as to whether the
collective-bargaining agreement covered the situation. Consider-
ing the question in context, however, I conclude that Cline
intended to invoke rights arising under the agreement. There can
be no doubt that assertion of a right under the collective-
bargaining agreement constitutes protected activity. NLRB v. City
Disposal Systems, 465 U.S. 822, 840 (1984); Interboro
Contractors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d
495 (2d Cir. 1967).
Moreover, when Cline complained about discrimination based
on union membership, he was doing more than asserting a
contract right. He was protesting a perceived violation of the Act,
one which affected another employee as well as himself.
Certainly, this portion of the letter constituted protected activity.
(Cline later filed an unfair labor practice charge against
Respondent raising this same allegation. That charge will be
discussed below.)
The letter went on to protest that local management was failing
to comply with the collective-bargaining agreement’s requirement
that weekly schedules be posted. Under the Interboro principle,
this assertion of a right afforded by the collective-bargaining
agreement constitutes protected activity.
The April 24 letter further stated that “Carrier Stewards” had
been given “official discussions by the Postmaster,” apparently for
being 6 and 9 minutes late, respectively, in returning to the
facility. “If you will check with the local Chamber of Commerce,
City Hall, and/or Department of Transportation,” Cline wrote,
“you will find traffic to be a huge problem in this city. . . .”
Presumably, “Carrier Stewards” referred to shop stewards in
the letter carriers’ bargaining unit. Although Cline is a member of
a different bargaining unit, that fact does not remove Cline’s letter
from the Act’s protection. To the contrary, it supports a
conclusion that Cline was not writing simply on his own behalf
but instead was expressing the concerns of other employees, even
those represented by a different union.
The protected nature of the April 24 letter becomes even more
apparent at its conclusion:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD940
With all due respect, I find these flagrant violations of
the contract both to be hostile actions and also an attempt
at Union busting. Mr. Swinton per your last correspon-
dence you state “we may never agree on every issue. . . .”
I am inclined to agree that this is true, however, I too am
“counting on your cooperation” in resolving the many
problems in the Destin Post Office.
I welcome you to contact me at your earliest conven-
ience.
Thus, the letter in its entirely referred to claimed violations of
the collective-bargaining agreement and asserted discrimination
because of union membership or participation. Respondent has
not contended that any part of this letter constituted misconduct
which would deprive it of the Act’s protection. I conclude that
writing and sending it constituted protected activity.
On May 11, 2005, Cline filed an unfair labor practice charge
against Respondent in Case 15–CA–17711(P). This charge
alleged that since on or about April 1, 2005, and continuing
thereafter, Respondent had failed to grant Bobby Cline and
Marcus Jackson overtime work in retaliation for their activities on
behalf of the American Postal Workers Union. (Cline had raised
this same allegation in his April 24 letter to District Manager
Swinton.)
Later, the Board’s General Counsel transferred this case from
the New Orleans Regional Office to the Hartford, Connecticut
Regional Office, where it received a new docket number: Case
34–CA–11178(P). On August 12, 2005, the Regional Director for
Hartford deferred the case to the arbitral process in accordance
with Collyer Insulated Wire, above.
On May 19, 2005, Cline sent another letter to District Manager
Swinton. The first paragraph states:
Per our conversation May 12, 2005, I am sending you the
specific problems in the Destin office that you requested and
assured me you would take into consideration. I feel it
necessary to speak up about wrong done to my coworkers
also. I believe that an injustice done to one of us is an
injustice done to all of us. [Italics added.]
This letter describes instances in which, Cline asserted, local
management treated other workers unfairly. It complained, for
example, that one supervisor discriminated in the assignment of
work on the basis of race and sex. Cline further stated that after
one employee said she was going to talk to the supervisor
“about the disparity of work hours,” the supervisor fired that
employee.
The May 19 letter also contended that the local postmaster
assigned work in a manner that violated both the collective-
bargaining agreement and a 2001 arbitral award. Additionally,
Cline stated that on a daily basis, three supervisors delivered
express mail, in violation of the collective-bargaining agreement
and another arbitral award.
Further, Cline stated that the “Postmaster and supervisors in the
Destin office constantly violate the contract by denying the Union
Steward[’s] request for records and documents. This is an on
going [sic] problem and is a thinly veiled attempt to delay
[Steward] Marcus Jackson from processing grievances in a timely
manner.”
In the May 19 letter, Cline both asserts rights arising out of the
collective-bargaining agreement and protests what he perceives to
be an antiunion bias by management. Respondent has not
contended that anything in this letter removes it from the
protection of the Act, and I conclude that it does constitute
protected activity.
On June 20, 2005, Cline testified before the Hon. Michael A.
Marcionese, administrative law judge, in Case 15–CA–17506(P),
which Cline had filed against Respondent the previous September.
Judge Marcionese issued a bench decision finding that
Respondent had violated Section 8(a)(1) of the Act. Cline’s
testimony in a Board proceeding, as well as his filing the charge
which led to that proceeding, constituted protected activity.
In accordance with the Board’s Rules, Judge Marcionese
certified his bench decision, which the Board published on July
13, 2005. This decision included a recommended order requiring
Respondent to cease and desist from threatening employees with a
lawsuit or other reprisals for filing an unfair labor practice charge
and to post a notice to employees at its Destin facility and at the
Miramar Beach station. The notice informed employees that
Respondent would not threaten them with a lawsuit or other
reprisals for filing unfair labor practice charges with the Board.
On August 18, 2005, Cline sent an e-mail to District Manager
Swinton, asking him “to check the delayed mail report from
Destin for today. As of 1300 cst the box mail had one clerk
working it with 12 feet of letters and 10 feet of flats left to be
boxed. This is all first class mail. The third class mail is over a
week old. The box parcels (priority and pp) have not been
touched. . . .”
Here, I need not decide whether this email, if considered by
itself, would constitute concerted activity. The Board has held
that a communication must be considered “in its entirety and in
context” to determine whether there is a sufficient nexus to terms
and conditions of employment. Five Star Transportation, Inc.,
above.
Other protected activities by Cline, before August 18, also
communicated that Cline viewed the mail handling delays, the
asserted understaffing, and the contractual provisions concerning
assignment of work as linked. Thus, even if Cline’s August 18 e-
mail to District Manager Swinton only referred to the mail
backlog, rather than to the collective-bargaining agreement’s
requirements, the context made clear that Cline sought for
management to follow the contract.
Also on August 18, 2005, when Cline saw Supervisor Peter
Torres boxing mail, he asked Torres, “How come you all are
boxing mail, you know it’s against the contract.” As already
noted, the invocation of a provision of the collective-bargaining
agreement constitutes protected activity. NLRB v. City Disposal
Systems, above; Interboro Contractors, Inc., above; White
Electrical Construction Co., 345 NLRB 1095 (2005).
This particular protected activity hit a particularly sensitive
nerve. On the one hand, Cline had asserted, many times and to
many people, that the Destin facility was understaffed. These
complaints certainly focused attention on the management of that
facility. On the other hand, when management sought to eliminate
the backlog problem, Cline protested that bargaining unit
employees had to do the work.
POSTAL SERVICE 941
Local supervisors could view Cline as putting them on the spot
by pressing higher management to do something about the mail
problem, and then keeping them on the spot by preventing them
from taking the action they considered expedient. The February
2005 discipline of employee and Shop Steward Marcus Jackson
suggests that management did have this attitude.
The facts discussed above in connection with complaint
paragraph 8 provide another example of local management’s
reaction to a demand that the collective-bargaining agreement be
followed. When a new person, Loucks, showed up one day and
began doing bargaining unit work, Union Steward Jackson started
asking her questions about her job status, questions necessary to
determine whether the collective-bargaining agreement permitted
Loucks to do the work. Later, when a supervisor questioned
Jackson, the supervisor first asked if Jackson was aware of and
cared about Respondent’s service standards. Jackson answered
that he cared very much. The supervisor then asked, “If so, when
we bring someone to help eliminate the problem why would you
harass that employee?”
The warning letter which Respondent issued to Jackson
demonstrated management’s displeasure with an employee’s
insistence that the collective-bargaining agreement be followed.
Cline’s protected activities had gone further than Jackson’s. First,
he had attracted the attention of higher management to the mail-
handling problem, and then, like Jackson, he had tried to enforce
the collective-bargaining agreement.
In this context, Cline’s complaints about mail-handling delays
clearly become associated with his insistence—and the Union’s
insistence—that management solve the problem by assigning
bargaining unit employees to do the work. Accordingly, I
conclude that Cline’s August 18, 2005 e-mail constitutes protected
activity.
The discussion above has provided an overview of what
happened at the Destin facility on August 18, 2005. Because
these events reveal something of the dynamics of the interactions
between Cline and his supervisors, and because they offer some
insight into the nature of Respondent’s animus and what triggered
it, they have considerable relevance to subsequent actions which
the complaint alleges as unfair labor practices. Therefore, these
actions merit further examination.
Cline sent the email to higher management during his
lunchbreak on August 18. Cline’s testimony, which I credit,
establishes that some time after the lunchbreak, a customer
provided him with a mail delivery confirmation number and that,
to check on the status of the package, he used one of Respondent’s
computers to access a postal service website. Even though
Respondent had provided employees with access codes and
allowed them to use the computer for this work-related purpose,
Supervisor Torres yelled at him and accused him of surfing the
web.
Cline testified that Torres said that he had just gotten off the
telephone, that he had gotten his “ass chewed out” and was
“pissed.” Torres confirmed telling Cline that he had just gotten
his “ass chewed.” In his testimony, Torres explained that he had
received a call from Linda Copeland, a higher-level manager, who
had asked what was going on in the office. Responding to
Copeland’s inquiry, Torres “surveyed the situation.” He
discovered understaffing which apparently had occurred because
no supervisor had asked a particular clerk to work overtime at the
end of his shift. Torres reported the problem to Copeland, who
instructed that he should get a supervisor from a branch facility to
come in and help. Following those instructions, Torres called in
Supervisor Jerry Maynard.
Cline then saw Torres and Maynard boxing mail, which Cline
described as a “flagrant violation of the contract. Managers can’t
do clerk work.” Cline testified that he
asked Mr. Torres about it. I said, you know, How come you
all are boxing mail, you know; it’s against the contract. And
he tells me in an angry voice, Do what I say; mind your own
business, or you’re going to get in more trouble.
Neither Torres nor Maynard described this incident during their
testimony. I credit Cline’s uncontradicted testimony that
Torres told him to “mind your own business or you’re going to
get in more trouble.”
Torres’ angry threat takes on additional significance in light of
the unlawful warning letter which Respondent had issued to
Union Steward Jackson after Jackson attempted to enforce the
collective-bargaining agreement. Although the complaint does
not allege that Torres’ statement violated Section 8(a)(1), it
provides additional evidence of animus.
Union Steward Jackson drafted an unfair labor practice charge
on behalf of the local union. It alleged that on about August 18,
2005, Respondent “harassed employee Bobby Cline by
threatening to issue discipline to him for using the computer
because of his membership and activities in behalf of the
American Postal Workers Union, Playground Local No. 5643.”
On August 26, 2005, Cline accompanied Union Steward
Jackson, who gave Supervisor Torres a copy of this charge as well
as a grievance. Cline stood nearby as Torres read the charge.
According to Cline:
Mr. Torres looked at it, and he said, This didn’t happen. And
he looked at me and said, You’re a liar. And I said, No. I
said, I keep notes about these things so that I will be
completely accurate. And Mr. Torres . . . said, kind of
sarcastically, Well, you better go check your notes again,
because this is a lie.
Torres’ version generally agrees with Cline’s, except that
Torres recalled being handed a number of unfair labor practice
charges rather than just one. (Possibly, Torres had in mind the
grievance which Jackson had handed him along with the charge.)
Torres testified that “there was one that accused me of
threatening Bobby [Cline], and I told him he needed to rethink this
one.” Torres admitted telling Cline that he, Cline, was lying.
The charge alleged that Respondent had “harassed employee
Bobby Cline by threatening to issue discipline.” Torres’
testimony leaves little doubt that the word “threatening” prompted
him to call Cline a liar: “[A]ll I did was give the man a simple
instruction, job instruction. He calls that a threat because it’s
something he doesn’t want to do[.]”
Although the Union filed the unfair labor practice charge, it
named Cline as the subject of harassment, and Cline was present
as a witness when management received it. Cline’s participation
in the filing and service of the charge unquestionably constitutes
protected activity. Moreover, Respondent reasonably would view
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD942
Cline as the source of this charge. Indeed, Torres’ words—“He
calls that a threat . . .” —impute the charge language to Cline.
b. Other events before the September 2, 2005 suspension
After Torres read the unfair labor practice charge and called
Cline a liar, Cline replied that he kept notes. Cline quoted Torres
as responding, “[Y]ou better go check your notes again, because
this is a lie.”
Cline made these notes in a book which he kept in his locker at
work. As Hurricane Katrina neared, it appeared that the post
office would be closed. On Sunday, August 28, Cline went to the
facility, intending, among other things, to retrieve the notebook
from his locker. He discovered that the notebook wasn’t in his
locker.
Cline contacted the Postal Inspection Service to report the
notebook missing. During the investigation, he told the postal
inspectors that he suspected that Supervisor Torres had taken the
notebook, which included “notes about the upcoming labor case.”
Cline described to the inspectors the exchange he had had with
Torres the preceding Friday. Notwithstanding Cline’s suspicion,
the investigation did not indicate that Torres had taken Cline’s
notebook.
The Act does not protect Cline’s reporting the notebook
missing and telling the inspectors that he suspected Torres had
taken it. Although Respondent does not claim that it suspended
Cline on September 2, 2005, because Cline had accused Torres of
theft, Respondent did cite Cline’s accusation as one of the reasons
for a 14-day suspension it imposed on Cline in March 2006. That
matter will be discussed later in this decision.
On September 2, 2005, three statutory supervisors were having
a conversation with an employee. The supervisors were the
Destin facility’s postmaster, Leon Malishan, Supervisor Peter
Torres, and Acting Supervisor Cynthia Grossi. According to
Cline, he approached the four as the discussion was becoming
heated.
Cline testified that Grossi was telling the employee, Marcus
Jackson, that he should be at the window (for transactions with
customers) at 8:30 a.m., but Torres told the employee to check
with him, Torres, before going to the window. Cline performed
the same job duties as Jackson, and wanted a clarification
concerning whether he should go to the window at the beginning
of his shift or check with Torres first.
After Jackson left, Cline told the three supervisors he had a
question. “We’re getting two different messages. Mr. Torres is
telling us one thing and Ms. Grossi’s telling us something
else. . . .” Cline testified that he further told the supervisors that
“[w]e’re just trying to do the right thing We just want to know
exactly what it is.”
According to Cline, Postmaster Malishan came to within 8
inches of his face and shouted, “[Y]ou’re just a troublemaker here.
You don’t want to do what you’re told. You just don’t want to
listen to anybody.”
During his testimony, Postmaster Malishan denied coming to
within 8 inches of Cline’s face. However, he did not deny
shouting at Cline and did not deny calling Cline a “troublemaker.”
During Supervisor Grossi’s testimony, counsel did not ask her
about Malishan’s tone of voice. She neither stated nor denied that
Malishan shouted at Cline and called him a troublemaker.
Likewise, she did not corroborate or contradict Cline’s testimony
that Malishan called Cline a troublemaker.
Torres’ testimony also does not address whether or not
Malishan shouted at Cline and called him a troublemaker. Torres,
however, was not present during the entire conversation. Instead,
he returned to his office for a telephone call.
Malishan, Grossi and Torres all took the witness stand after
Cline testified that Malishan shouted at him and called him a
troublemaker. Thus, they had the opportunity to contradict Cline
about these matters, but they did not.
Some other testimony indirectly sheds light on whether
Malishan became loud with Cline. This testimony, by Billy
Dossantos, does not pertain to the September 2, 2005 discussion
but does suggest that Malishan could become uncomfortable in
Cline’s presence.
Dossantos took over management of the Destin post office after
Malishan received another assignment. He described a labor-
management meeting which took place in mid-October 2005, a
day after Dossantos became officer-in-charge of the Destin
facility. This meeting took place during the transition period
when both Dossantos and Malishan had some connection with the
Destin facility, and both of them attended the meeting. Dossantos
testified as follows:
Q. Okay. What do you recall?
A. I mean, there was—it was heated. I mean, I was
just sitting there, you know, watching. Leon got up and
left and said, You know what; I’m done. You know, I
can’t help anymore. This is his office, and I’m leaving.
Q. Okay. And at that point––
A. And we all said, Good, whatever. He left.
Considering that no witness to the September 2, 2005
discussion denied that Malishan loudly called Cline a
troublemaker, and also considering that Malishan did not enjoy
the presence of Cline’s company, I find that Malishan did shout
at Cline, and did call him a troublemaker during the September
2, 2005 discussion.
More generally, for the following reasons, I conclude that
Cline’s testimony provides the most reliable account of this
conversation, and I credit it. By comparison, Grossi’s testimony
does not offer as complete and coherent a picture.
Credible evidence establishes, and I find, that Cline did not
participate in the conversation which the supervisors had with
Marcus Jackson. He witnessed that conversation and, at some
point, raised his hand, but no one recognized this nonverbal
request to speak.
Logically, after Jackson left and Cline finally did get to say
something, the three supervisors would want to know what Cline
wanted and therefore would pay attention. The supervisors would
be likely to note and remember Cline’s initial words, because they
would explain the purpose of the meeting and provide them a
reason why Cline was imposing on their time.
Beyond curiosity as to why Cline was bothering them, the
supervisors reasonably would be interested in clearing up any
confusion or misunderstanding concerning their instructions.
Indeed, Grossi testified that she said, “Yes, we do need to talk
about it, because Pete and I are both new here, and we’re trying to
POSTAL SERVICE 943
get this done. I thought it needed to be talked about.” (Emphasis
added.)
However, in their testimony, none of the three supervisors
recounted what Cline had said to begin the discussion. Torres
already had left to answer his telephone, so the absence of this
information from his testimony does not affect his credibility. On
the other hand, both Malishan and Grossi did hear what Cline
said, yet neither of them quoted him during their testimony.
Malishan testified that “once he had said what he wanted to say
concerning what he felt that we should do and that the instructions
was [sic] misleading or whatever, then I began to talk. . . .” This
testimony does not suggest that Malishan had a very clear
recollection of what Cline said. Malishan’s use of the qualifier “or
whatever” raises some doubt about how much he really
remembered.
Moreover, Malishan’s inability to be more specific is consistent
with Cline’s testimony that Malishan interrupted and cut Cline off
before he had completed his question. Indeed, if Cline did not
have the opportunity to finish speaking, Malishan’s difficulty
recalling the gist of what Cline said isn’t surprising.
Grossi testified that Cline “made a statement” but did not
describe it. Thus, she conveyed even less information than
Malishan concerning what Cline said. That, too, would be
consistent with the conclusion that Malishan interrupted Cline
before he could complete his thought. Grossi and Malishan
obviously would be at a loss describing what Cline had said if
Malishan prevented him from saying it.
Both Grossi and Malishan testified that after Cline spoke,
Malishan began to respond but that Cline interrupted, insisting
that he, Cline, had not finished. At this point, the discussion took
a rather curious turn. Instead of focusing on the question Cline
was trying to ask, the participants began arguing about whether
Cline had, or had not, finished speaking and about what
constituted a “conversation.”
The record suggests that Grossi considered the key issue to be
whether Cline had finished a sentence. Apparently, she reasoned
that if Cline had finished a sentence, then it was Malishan’s turn to
respond and that exchange would constitute a “conversation.”
Thus, according to Grossi, when Cline interjected that he hadn’t
finished asking his question, Grossi replied that, in fact, Cline had
“finished his sentence.” Grossi’s testimony continued:
Q. Do you remember what he said?
A. I do not remember the exact sentence. No, I do
not. But I do have a degree from Florida State in English,
and I knew it was a sentence, so he said the sentence. . . .
Even though Grossi may have a degree in English, her
testimony that Grossi had “said the sentence” doesn’t sound
very convincing in light of her inability to remember the
sentence. Moreover, her focus on whether Cline had spoken “a
sentence,” rather than on whether Cline had finished expressing
a thought, seems to miss the point. Additionally, whether or
not Grossi is correct in defining a “conversation” to be one
person completing a sentence and then another person
responding, her concern about this procedural matter appears to
have exceeded her interest in the substance of Cline’s question.
Indeed, the testimony of Grossi and Malishan leaves the
definite impression that on this occasion, they didn’t really care
what Cline was trying to ask. If they had cared, they would have
afforded Cline an opportunity to complete or clarify his question
rather than arguing with him about whether he had finished asking
it. This manifest lack of interest in what Cline was trying to say
also makes it more likely that Malishan interrupted Cline, as Cline
testified.
Accordingly, and because Cline’s recollection of the
conversation was more complete than either Grossi’s or
Malishan’s, I credit Cline’s testimony. To the extent Cline’s
testimony conflicts with that of the other witnesses, I credit Cline.
Specifically, I credit Cline’s testimony that when he insisted
that he hadn’t gotten to ask his question, “Mr. Malishan started in
again about, you know, You’re just a troublemaker; just do what
you’re told; don’t be asking any questions, you know, this kind of
stuff.”
Although Cline’s testimony, quoted above, depicts Malishan as
getting loud, Malishan testified that it was Cline who “got upset.”
Malishan’s testimony continued:
Q. When you say he got upset, physically looking at
him, is there anything that you can remark on as to him be-
ing upset?
A. Well, once he said that, of course, I didn’t say any-
thing else. I left to go back to the window. He followed
me back to the office—
Thus, Malishan did not answer the question, and did not offer
any reason for his conclusion that Cline had become upset.
Malishan’s failure to give any reason for believing that Cline
was upset affects the weight to be given that testimony.
Moreover, Malishan’s further testimony, that he left and Cline
followed him, does not agree with Grossi’s, which indicates that
Cline left before Malishan, rather than the opposite. In
considering how much to believe Malishan’s assertion that he left
before Cline, it is helpful to revisit Grossi’s testimony and
examine it in greater detail.
Grossi testified that after Cline spoke, Malishan started to reply
but Cline interrupted, saying, “That’s not how you have a
conversation. You let somebody make a statement. Then you
respond.” Grossi then interjected, “Excuse me, but that’s what
just happened. You made a statement, and Leon [Malishan] was
responding. That’s a conversation.” When asked how Cline
reacted, Grossi testified:
Well, it was at that point, I believe, that he said, Well, you
know, I can’t work with you all; you all are crowding me, or
something to the effect. I honestly can’t remember the exact
words, but he left.
Although Grossi’s testimony differs from Cline’s in some other
details, both she and Cline indicate that Cline left the meeting
first. Thus, Malishan’s claim to the contrary lacks
corroboration.
Moreover, Grossi’s testimony on this point is highly plausible.
Cline had approached the supervisors with a very simple question:
Should he and the other clerks be at the window at 8:30 a.m., as
Grossi had instructed, or should they see Torres first, as Torres
had instructed? That question needed only a very short answer,
but it was not forthcoming.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD944
The words which Grossi attributed to Cline—“I can’t work
with you all . . .”—indeed sound like something Cline would say
in frustration, and the record shows why Cline might be frustrated.
When Cline tried to ask the simple question, Malishan interrupted
and called him a “troublemaker.” No evidence suggests that
Grossi also yelled, but there also is no evidence that Grossi ever
addressed the substance of Cline’s question.
Grossi’s testimony does not suggest any discussion about
whether employees should follow her instruction or Torres’ when
they reported for work. Instead, she described how she took issue
with Cline’s protest that Malishan had cut him off before he had
finished speaking. Grossi’s testimony includes one remark which
is both puzzling and revealing at the same time. To place this
comment in context requires a brief repetition of facts already
discussed above.
During the September 2, 2005 discussion, when Cline
complained that this wasn’t the way to have a conversation,
Grossi focused on that word, insisting that Cline and Malishan
indeed were having a conversation. On the witness stand, Grossi
observed that “It was pretty cut and dried grammatically.”
Grossi volunteered that comment. Neither attorney had
solicited her opinion on this subject. It is rather puzzling why
Grossi would focus on a point of grammar either during her
testimony or during the September 2, 2005 conversation itself.
At the same time, Grossi’s comment reveals why Cline had
found this encounter frustrating. To Grossi, who testified she had
a degree in English, an exegesis on the meaning of “conversation”
might have been important, but it didn’t tell Cline what he sought
to find out, namely, which supervisor’s instruction the clerks
should follow.
In sum, both Cline and Grossi indicate that Cline, rather than
Malishan, left first. Moreover, the record suggests at least two
reasons why Cline would leave. When he asked the question,
Malishan called him a “troublemaker” and Grossi changed the
subject. Neither of these responses answered Cline’s question.
Because the testimony of both Cline and Grossi contradict
Malishan on the issue of who left the discussion first, I do not
credit Malishan. Instead, I find that Cline left first, with Malishan
following. Moreover, for reasons discussed above, I conclude that
Cline’s testimony is more reliable than that of either Grossi or
Malishan. Accordingly, crediting Cline, I further find that during
the discussion, Malishan did get close to Cline and called him a
“troublemaker” in a loud voice.
As Cline walked back to his work area, with Malishan
following, Cline said out loud, “I bet the OIG will let me ask a
question.” (“OIG” refers to the Postal Service’s Office of
Inspector General.) Crediting Cline, I find that Malishan stopped
Cline and told him to go ahead and call the inspector general,
adding that he, Malishan, was not afraid. Malishan then walked
off.
Cline decided to take leave to visit his EAP (“employee
assistance program”) counselor. He obtained and completed a
leave request form, writing in the “remarks” section “Threatened
by PM.” (“PM” stands for “postmaster.”) On the back of the
leave request form, Cline checked the box marked “job-related.”
(Although Cline’s notation on the leave slip did not elaborate, I
infer that Cline wrote “threatened” because Malishan shouted at
him and called him a “troublemaker.”)
Cline located Grossi and gave her the leave request form. He
told her “All this has upset me, and I’m going to my doctor, and
I’m going to go see my EAP counselor.” Grossi took the leave
slip without saying anything.
Cline testified that he was walking towards the timeclock when
he heard Supervisor Torres yelling at him, “You better bring
documentation back.” Torres’ testimony essentially corroborates
Cline’s on what he said and did, but the tone differs markedly.
Cline’s testimony portrays Torres as being angry and yelling. The
impression created by Torres’ testimony is that he raised his voice
somewhat to get Cline’s attention, because Cline was some
distance away.
Cline said, “okay” but it does not appear that Torres heard that
response. As Cline continued to walk to the timeclock, Torres got
up, walked to Cline, and told him to bring back documentation.
Cline clocked out but then remembered he had not put away his
cash drawer, so he returned to his work station, put away the
drawer, and then left the building.
According to Grossi, before Cline left the building he came by
her office and told her, “I’ll be back but it won’t be pretty.”
Grossi did not testify that Cline’s voice sounded menacing or that
he otherwise displayed any signs of agitation. Instead, Grossi
testified that Cline told her “he was going to his ‘EAP counselor,
you know, which means he probably was upset.’” Thus, the only
reason Grossi offered for inferring that Cline “probably was
upset” was his destination, not his appearance.
No other witness heard Cline make the “won’t be pretty”
statement attributed to him by Grossi, and Cline denied making it.
Thus, determining whether Cline made the “won’t be pretty”
statement requires a choice between the testimony of Cline and
Grossi, based on an assessment of the witnesses’ credibility.
Before examining the credibility of Grossi and Cline, one other
piece of evidence may warrant mention, even though this
document raises rather than answers questions. Although Grossi’s
testimony attributes to Cline the words “it won’t be pretty,” a log
kept by the Okaloosa County Sheriff’s Department casts some
doubt on that quotation. This “Call History Record” indicates that
someone telephoned on September 2, 2005, and reported that an
employee had threatened Grossi. According to this log, the
threatening words were “when I return, it will be nothing nice”
(italics added) rather than “won’t be pretty.”
The sheriff’s log does not identify who made the telephone
calls and also does not include the caller’s telephone number.
According to Union President Pruett, Postmaster Malishan had
mentioned that he had contacted the sheriff’s department, but
Malishan’s testimony itself says nothing about such a call.
Neither does the testimony of Torres or Grossi, and no
representative of the sheriff’s department testified.
Therefore, the present record does not reveal whether the
difference between the words “won’t be pretty” and “nothing
nice” might be a useful clue in determining credibility. Later in
this decision, this possible clue will receive some more attention
in connection with the 8(a)(5) allegations, but it does not figure in
the credibility analysis immediately below.
Much turns on whether Cline did or did not make the “it won’t
be pretty” statement to Grossi, as she testified. For reasons
discussed above, I did not find Grossi’s testimony about Cline’s
attempt to ask a question as reliable as Cline’s. However, the
POSTAL SERVICE 945
importance of determining whether Cline did or did not make the
“won’t be pretty” comment makes it advisable to consider the
credibility issues further and in greater depth.
Some factors militate in favor of crediting Grossi. She was new
to the Destin facility and presumably did not have the same
history of conflict with Cline as did Malishan and Torres.
Because prior conflicts could leave hard feelings affecting a
witness’s perception and recollection, the absence of such
conflicts might make Grossi a more objective witness.
It is true that Grossi had known Cline before she came to the
Destin facility and, in fact, Grossi had attended Cline’s wedding.
However, the record does not establish that Grossi’s prior
acquaintance with Cline biased her either way.
Moreover, the words Grossi attributed to Cline—that “it won’t
be pretty”—can be interpreted in different ways. Logically, if
Grossi had wanted to “frame” Cline by making up something, she
would have come up with a quotation which was less ambiguous
and more overtly threatening.
Further, uncontradicted testimony suggests that Grossi was
upset when she reported the quotation to Torres and Malishan.
That state, if genuine, would seem unlikely had Grossi simply
made up the “won’t be pretty” remark.
All of these reasons militate in favor of crediting Grossi’s
testimony concerning the “won’t be pretty” remark. However,
other factors raise some concern about the reliability of Grossi’s
testimony.
During oral argument, the General Counsel noted that Grossi
did not know how much she was earning in her current job as a
postmaster. The General Counsel argued that Grossi is “the only
government employee in these United States who does not know
how much she earns.”
Contrary to the General Counsel, I would not simply assume
that government employees always know their wage rates.
Indeed, it would neither surprise me nor affect my assessment of
credibility if, for example, a brilliant NASA rocket scientist,
capable of calculating a trajectory to Pluto, failed to notice her
wage rate. She would be interested in, and focused upon, numbers
dealing with kilometers per second rather than dollars and cents.
However, Grossi has a background in finance, and, in fact, both
designed and taught finance courses in a program for associate
postmasters. She testified that when she worked at the Fort
Walton Beach post office as a clerk, she did the bookkeeping and
kept a double-entry cash book. Grossi further testified that higher
management had assigned her to work at the Destin facility
“because they needed somebody to take care of the financial
operations.” It does seem unusual that a person with this kind of
aptitude for financial numbers would be unaware of her own wage
rate.
Additionally, when asked whether retirement benefits for a
postmaster were different from those of a “regular clerk,” Grossi
testified that she did not know. That also is surprising for
someone whose specialty concerns finance.
Grossi’s testimony about her September 2, 2005 discussion
with Cline and Malishan also raises some questions about
credibility. As described above, the supervisors’ inability to recall
what Cline had said to begin the discussion reflects on the
reliability of their testimony. More than that, there seems to be
some difference between Grossi’s assertion that she wanted to
have a discussion (“I thought it needed to be talked about”) and
her actions during the discussion, when she supported Malishan’s
interrupting of Cline before he had finished asking his question.
Some other matters also cast doubt on Grossi’s testimony.
When asked on cross-examination if she had ever stated “kiss my
ass” to one of the employees at work, Grossi denied it. However,
another witness credibly testified that on one occasion, Grossi did
say, “[Y]ou can kiss my ass.”
Moreover, Grossi testified that on September 2, 2005, when
she, Torres and Malishan were in the postmaster’s office, she
filled out the threat assessment form which is in evidence as
Respondent’s Exhibit 14. Specifically, Grossi testified:
Q. Your handwriting is on this form?
A. Yes ma’am.
Q. Okay. And what part of the form is your handwrit-
ing on?
A. All of it.
However, Torres testified that he filled out this form.
Specifically, he testified
Q. BY MS. BOWENS: And you’re the one who com-
pleted the form. Is that correct?
A. I did, with Mr. Malishan.
Additionally, an e-mail which Grossi sent to higher
management on September 2, 2005, also causes concern about her
credibility. That e-mail will be discussed further below.
The factors militating in favor of Grossi’s testimony mainly
proceed from assumptions that may be open to question. For
example, the reasoning that Grossi was less likely to be biased
against Cline because she did not have a long history of conflict
with him assumes that antipathy to Cline would be the only reason
why Grossi might give unreliable testimony. That assumption
might be incorrect. Similarly, the reasoning that if Grossi had
wanted to “frame” Cline she would have imputed to him a less
ambiguous “threat” rests on an assumption about Grossi’s
thinking.
On the other hand, factors militating against Grossi’s testimony
include instances in which she could not recall certain facts (such
as what Cline said at the September 2 meeting with supervisors)
as well as instances where her testimony conflicted with that of
other witnesses. These factors are grounded in the record itself
rather than on assumptions which may be questionable.
Accordingly, I conclude that Grossi’s testimony is not as reliable
as Cline’s, and resolve conflicts by crediting Cline’s.
Therefore, crediting Cline’s denial, I find that he did not say
that he would be back but that “it won’t be pretty.”
Grossi’s testimony depicts her initial reaction as incredulity.
However, Grossi said that as she continued to think about it, she
became worried and decided to tell Torres. He and Grossi then
went to the office of Postmaster Malishan, who called the Postal
Inspection Service.
Respondent has established a procedure for dealing with
perceived threats which could result in violence at a postal facility.
The procedure ostensibly works as follows: Upon report of a
possible threat, a “threat assessment team” evaluates it to
determine what action, if any, should be taken to protect the
employees, customers and property at a postal facility. After
Postmaster Malishan called the Postal Inspection Service, he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD946
contacted Respondent’s higher management in Jacksonville,
Florida. At some point, Malishan spoke with a labor relations
manager and this contact resulted in the involvement of the threat
assessment team.
On this same date, Grossi sent two e-mails to the manager of
post office operations, Linda Copeland. The body of Grossi’s first
email states, in its entirety, as follows:
As Mr. Cline left needing to see his EAP counselor, he told
me, “I’ll be back and it won’t be pretty.” I fear for myself and
the other employees in this building.
Grossi testified that she received an instruction to send a second
email. The text of that email reads, in its entirety, as follows:
On the morning of Sept. 2, 2005, I was threatened by Bobby
Cline. After instructing Marcus Jackson to be on the window
in uniform, Mr. Cline said he wanted to see the 3 supervisors
(Malishan, Torres, and me) at one time. As we gathered, Pete
Torres went to answer the phone. Mr. Cline said that he
would wait for Pete but began anyway. He made one
statement and as Leon tried to respond, Mr. Cline said, [“]No,
let me finish my sentence. That’s a conversation.” I said,
“Actually, Bobby, you did finish a sentence and Leon was
responding to it.” Mr. Cline stated he couldn’t work here with
three of us jumping on him. A few minutes later he handed
me a leave slip and said he was going to his EAP counselor. I
passed the 3971 on to Pete to handle. As Mr. Cline passed
my office going out the door he said, “I’ll be back, but it
won’t be pretty.” This made me fearful for myself and the
other employees.
Although both e-mails assert that Grossi feared “for myself and
the other employees,” neither one states that Cline made any
menacing gesture, got uncomfortably close to Grossi, or spoke
in a loud tone of voice. Similarly, neither of these e-mails
indicates that at any time in the past, Cline engaged in any
behavior which made Grossi fearful or uncomfortable.
Neither of Grossi’s emails mentions the reason why Cline
wrote on the leave request that he had been threatened by the
postmaster, namely, that Malishan had gotten close to him and
loudly called him a troublemaker. That omission, particularly
from Grossi’s second email, is difficult to understand, considering
the amount of other detail it included.
Grossi’s selection of details to include and omit introduces a
significant distortion. Her email describes Cline protesting that he
had been interrupted and asking to be allowed to finish his
sentence. The email also describes Grossi’s response, asserting in
fact that Cline had not been interrupted. However, the
information which Grossi omitted changed the context
considerably.
Specifically, Grossi’s email reported to higher management that
“Mr. Cline stated he couldn’t work here with three of us jumping
on him.” If the email had described Malishan’ shouting in Cline’s
face that he was a troublemaker, Cline’s comment would have
appeared quite appropriate. The e-mail also failed to describe
Cline’s reaction to Malishan’s outburst. He simply walked away.
Presumably Grossi, having a degree in English, would
appreciate that neglecting to include key facts would change the
message communicated. In particular, Grossi reasonably would
understand the relevance of Malishan’s outburst to the words
Cline wrote on the leave slip, “threatened by PM.” Therefore, it is
appropriate to take her email into account as one of the factors
affecting her credibility.
Even in her e-mails, Grossi does not indicate that Cline raised
his voice, either during the discussion with Malishan or later when
he handed her the leave slip. Grossi’s testimony also does not
suggest that Cline spoke loudly, approached too closely, or
otherwise acted in a manner which would cause concern either for
her well-being or the safety of others. I find that he did not.
Moreover, Grossi’s testimony does not describe any previous
instance in which Cline did anything that would make her uneasy
or afraid. I find that he did not.
Considering the action taken by Respondent, described below,
it is also quite relevant to determine whether Cline had ever,
before September 2, 2005, said or done anything which could be
considered violent, threatening or intimidating. The record
discloses no such instance and I find that he did not engage in any
such behavior.
In addition to Grossi’s September 2, 2005 e-mails to higher
management, Postmaster Malishan sent an e-mail recounting the
events of that morning. That e-mail states, in pertinent part, as
follows:
I was sitting in the office interviewing an applicant for
Casual Carrier position . . . when I heard the loud voice of
Marcus Jackson at the Retail Window. At this time I
walked to the window to listen to what was transpiring be-
tween Marcus Jackson, Cindy Grossi, Peter Torres, and
Bobby Cline was listening. The conversation was con-
cerning Marcus Jackson being dressed and ready for the
Window Service. Cindy Grossi has instructed Marcus
Jackson to wear his uniform to work and use his apron
when he has to throw parcels or other duties that is dirty
work. The final decision was that Marcus would follow
instructions. Marcus left to get dressed.
Bobby Cline insisted that he wanted to talk to Cindy
Grossi, Peter Torres and Leon Malishan. He began to talk
about the situation of Marcus Jackson being ready for the
window. I tried to talk and Bobby Cline said that I was
not listening to him. I said ok Bobby tell us what you
want to. At this moment he got angry and told me the
OIG was at the office yesterday and that He was going to
call him. At this time I walk[ed] backed [sic] to the office
where Mr. Bobby Cline followed me. He came to the door
where [applicant] Karen S. Moran was waiting on me to
return. I told Bobby that he could call who he wanted to
and that I had an individual that I was attended [sic] to.
He left the office and return[ed] to the window.
Maybe two minutes later Peter Torres gave me a PS
3871 sick [leave] slip that Bobby Cline have [sic] filled
out requesting sick leave of 7 hours for the remaining of
the day. In the remarks section he has “THREATENED
by PM.”
Five minutes later Cindy Grossi came into the office
and informed me as Bobby Cline left the office He in-
formed here “I’LL BE BACK, BUT IT WON’T BE
PRETTY.” She was visibly upset.
POSTAL SERVICE 947
I call[ed] Inspector Guy C. Nelson, MPOO Linda
Copeland.
(Capitalization in original.) For the reasons discussed above, I
have not credited Malishan’s testimony that he walked back to
his office with Cline following. Therefore, I conclude that
Malishan’s representation to this effect in the e-mail is
incorrect.
As noted above, Postmaster Malishan’s testimony includes no
denial that he shouted at Cline and called him a troublemaker.
However, Malishan’s September 2, 2005 e-mail fails to include
this information.
The email raises other questions. It quotes Cline as saying,
during the discussion with Grossi and Malishan, that the “OIG”
(meaning a representative of the Office of Inspector General) had
been at the facility the previous day, and that Cline was going to
call him. This statement finds no support in the testimony. No
witness testified that, during this discussion with the supervisors,
Cline spoke of the inspector general. Moreover, when Malishan
testified, he didn’t once mention the office of inspector general.
Cline did testify that he said something about calling the
inspector general on his way back to his workstation, after the
discussion. Crediting Cline, I find this to be the case.
Additionally, crediting Cline, I find that in response to this
comment, Malishan stopped Cline and told him to go ahead and
call the inspector general.
It is significant that in his email, Malishan placed in all capital
letters the words Grossi attributed to Cline: “I’LL BE BACK,
BUT IT WON’T BE PRETTY.” (By comparison, Grossi’s two e-
mails had only capitalized the first letter of the sentence.)
Although the text of Malishan’s e-mail exceeds four paragraphs,
he does not write any other sentence in all capitals.
Malishan’s testimony does not explain his capitalization of the
quotation attributed to Cline. Possibly, Malishan did so to suggest
that Cline spoke the words in a loud or menacing way. However,
Malishan himself was not present when, according to Grossi,
Cline made the quoted statement.
Moreover, the record does not establish that Grossi told
Malishan that Cline had spoken in a loud, harsh or threatening
tone and Grossi’s own testimony did not indicate such a tone.
Grossi gave only one reason for her conclusion that Cline was
“probably upset,” and that reason had nothing to do with his tone
of voice or demeanor. Instead, Grossi inferred that Cline was
“probably upset” because he had mentioned he was going to go to
his EAP counselor.
Malishan might also have capitalized the quotation to call
attention to its seriousness, rather than to suggest Cline’s tone of
voice. If so, Malishan wasn’t merely reporting information to
higher management but instead was commenting on it. Although
the words attributed to Cline—“it won’t be pretty”—might be
interpreted in more than one way, total capitalization urges that
the words are important rather than incidental, and threatening
rather than benign.
For reasons discussed above, I have found that Cline did not
say the words—“It won’t be pretty”—which Grossi attributed to
him. Therefore, it is clear both that Grossi’s report to Malishan
was not correct, and that the emails Grossi and Malishan sent to
higher management likewise were inaccurate.
As noted above, Respondent has established “threat assessment
teams” at various places throughout its operations, including a
team at Jacksonville, Florida. This team convenes when a threat
has been reported for the ostensible purpose of evaluating the
threat and deciding upon the response.
When asked whether he had any contact with Respondent’s
threat assessment team on September 2, 2005, Malishan replied
that he wasn’t sure. He spoke only with Respondent’s labor
relations representative in Jacksonville, and Malishan did not
know whether this person was a member of the threat assessment
team.
Malishan’s testimony at one point suggests that he may have
called Respondent’s labor relations representative only to get
approval for an action he already intended, using the emergency
suspension procedure to place Cline on leave without pay. Thus,
Malishan testified that he called the labor relations representative
“to find out exactly if I were in—if I was not in error if I were to
place Mr. Cline on emergency placement leave, and I wanted to
get input from labor.”
In any event, the Jacksonville threat assessment team (TAT)
did become involved. It met at about 1:25 p.m. on September 2,
2005. The record leaves some uncertainty as to what information
the team considered but it appears to have been limited to the e-
mails submitted by Malishan and Grossi and a form completed by
either Grossi or Torres (depending on whose testimony is
credited) when they met with Malishan that morning.
Although the minutes of the TAT’s September 2, 2005 meeting
are in evidence, they do not reflect that the team had any
discussion about whether or not to put Cline on emergency leave.
Rather, Respondent’s manager of labor relations, Thomas Hopper,
already had taken that action.
The threat assessment team’s minutes indicate that the meeting
lasted only 7 minutes. The minutes read, in their entirety, as
follows:
TAT Meeting
Minutes
9/2/05
A meeting was convened at 1325 PM in the Manager,
Human Resources’ office in response to a Priority 2 threat
received from the Destin Post Office regarding Bobby
Cline/Cynthia Grossi. Present were: Carolyn Ballou,
Robert Mahar (through teleconferencing), Tom Hopper,
Dr. Dobbins and Sydney Dobrow.
In response to the Priority 2 threat, Mr. Hopper ad-
vised the Committee that he had contacted Linda Cope-
land, the MPOO, about the situation. He stated that he ad-
vised her to call the Inspectors and the local police and to
place Mr. Cline on emergency suspension.
The Committee discussed that for the safety of all em-
ployees involved, it will be necessary to retrieve Mr.
Cline’s set of building keys, registry room keys, as well as
his identification badge. In order to determine how entry
is made to the facility, whether through a keypad or badge
swipe, Ms. Copeland was added to the teleconferencing.
She advised that the facility is accessed through a keypad
and agreed to have the building code changed. Ms. Ballou
reiterated the Committee’s recommendations concerning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD948
retrieving Mr. Cline’s keys and badge and Ms. Copeland
stated that she has requested the Inspectors to go to Mr.
Cline’s home and pick up his keys and badge.
Ms. Copeland was further advised that if Mr. Cline’s
keys cannot be retrieved today, that a locksmith should be
brought in and that the building/registry room locks should
be changed before the end of the day. Ms. Copeland
agreed.
Following the teleconference, the meeting was adjourned at
1332 p.m.
The testimony of Labor Relations Manager Hopper supports
the conclusion that the threat assessment team did not make the
decision to put Cline on emergency leave. When asked what was
the main discussion during the team’s meeting, Hopper answered,
“What we were going to do to protect the employees.”
Additionally, Hopper testified that before the threat assessment
team’s meeting, either he or one of his staff members had advised
the Destin management to take Cline “off the clock.” It was, he
said, “just normal protocol.” However, he was not sure who gave
that instruction regarding Cline on September 2, 2005.
Because Hopper could not recall who actually gave the
instruction to suspend Cline, because Hopper described this
instruction as “just normal protocol,” and because the threat
assessment team itself did not determine whether or not Cline
should be suspended, I conclude that Postmaster Malishan
actually made the decision, which the labor relations office then
“rubber stamped.”
The conclusion that Malishan made the actual decision to
suspend Cline draws support from Malishan’s testimony, quoted
above, that he called labor relations to find out “if I was not in
error if I were to place Mr. Cline on emergency placement leave,
and I wanted to get input from labor.” (Emphasis added.)
Malishan’s testimony thus suggests that although he sought
advice, he bore responsibility for the decision.
Therefore, I find that Postmaster Malishan made the decision to
suspend Cline. Further, I conclude Malishan did not write the
email to provide information to some other decisionmaker but
rather to document his own decision in a favorable light.
A supervisor who reported to Malishan signed the certified
letter notifying Cline of this action. That letter, dated September 6,
2005, stated as follows:
You are hereby notified that you were placed in an off
duty (without pay) status effective approximately 0882 on
September 2, 2005, and continue in this status until you
are advised otherwise.
This action is based on the following reason:
You made threatening remarks to 205B Supervisor
Cynthia Grossi. On the morning of September 2, 2005,
Ms. Grossi instructed Marcus Jackson to be dressed in his
uniform and ready for the window when he reports to
work. She said he could wear an apron over his uniform
when he is doing dirty work. You interjected that you
wanted to see the Postmaster, Ms. Grossi and me at the
same time about that issue. You began the conversation
while I was away answering the telephone. You made a
statement and Mr. Malishan attempted to respond to your
statement. You told Mr. Malishan to let you finish your
sentence and said, “That’s a conversation.” Mr. [sic]
Grossi responded that you did finish your sentence and
that Mr. Malishan was attempting to respond. You said
you couldn’t work here with three of us jumping on you.
You said the OIG was at the office yesterday and you were
going to call him. A few minutes later you gave Ms.
Grossi a leave slip and said you were going to your EAP
counselor. Ms. Grossi passed the leave slip on to me to
handle. As you passed Ms. Grossi’s office you said, “I’ll
be back, but it won’t be pretty.” Ms. Grossi was fearful
for herself and the other employees.
You have the right to appeal this action under the
grievance-arbitration procedure set forth in Article 15,
Section 2, of the National Agreement within fourteen (14)
days of your receipt of this notice.
Please turn in all government property issued to you
immediately.
A copy of this letter is being sent to your home address
by ordinary mail.
Cline surrendered his identification and keys to a postal
inspector. Respondent required Cline to take a psychological
fitness for duty examination. After Cline passed this examination,
Respondent did not reinstate him immediately. Although
Respondent appears to have placed Cline on administrative leave
shortly after the psychologist’s favorable report, it left him in
nonpay status for about a month. Cline’s administrative leave
continued until March 13, 2006, when Cline returned to work.
The complaint alleges that requiring Cline to submit to a
fitness-for-duty examination and then placing him on admini-
strative leave rather than reinstating him to duty status
discriminated against him because of his protected activities, in
violation of Section 8(a)(4), (3), and (1) of the Act. Discussion of
these allegations will be deferred until later in this decision.
2. Analysis
At the outset, I must determine whether to analyze the facts
using the Wright Line framework or to follow the procedures used
when an employee is disciplined for conduct which itself is
protected. Respondent’s stated reasons for suspending Cline
arguably include protected activities. On September 2, 2005,
when Cline requested to meet with Grossi, Torres, and Malishan,
he intended to ask a question of concern to all the window clerks
and not merely himself. This question, about the proper reporting
procedure the window clerks should follow, arose because
Supervisors Grossi and Torres had given another employee,
Jackson, conflicting instructions. Cline sought to ask this
question after he heard Grossi and clerk Marcus Jackson engage in
a loud discussion about where Jackson should report.
Moreover, when Cline began to ask the supervisors his
question, he spoke in the plural: “I said, you know, we’re getting
double messages here, you know. We’re just trying to do the right
thing. We just want to know exactly what it is.” Considering
Cline’s repeated use of “we,” the supervisors reasonably would
understand him to be inquiring not only for himself but in the
interest of the other window clerks as well.
The September 6, 2005 letter notifying Cline of the
“Emergency Placement in Off-Duty Status,” quoted above in its
entirety, referred to the colloquy between Grossi and Jackson, then
POSTAL SERVICE 949
informed Cline that he had “interjected” that he had wanted to see
the Postmaster and the two supervisors “at the same time about
that issue.” In this context, Cline’s use of “we” might well be an
indication of concerted activity.
Nevertheless, the Board’s Wright Line framework appears to be
much better suited to resolving the issues presented. Although
one reason given in the September 6 letter pertains to arguably
protected activity, the other reason—Cline’s “threat” to Grossi
does not. Accordingly, I will follow the Wright Line framework.
The General Counsel clearly has established the first Wright
Line element, protected activity. As described above, Cline
engaged in many protected activities, some of which took place
not long before his suspension.
The testimony Cline gave before the Board in June 2005 had
resulted in a decision, certified by the judge on July 13, 2005,
finding that Respondent had committed an unfair labor practice.
This decision ordered Respondent to cease and desist and to post a
notice. Moreover, on August 26, 2005, just 1 week before the
suspension, Cline had acted as a witness while Union Steward
Jackson served another unfair labor practice charge on Supervisor
Torres.
The General Counsel also has proven the second Wright Line
element, employer knowledge. Without doubt, Respondent knew
that Cline had testified in the June 2005 Board proceeding because
it had participated in that proceeding.
Likewise, Respondent knew about Cline’s role in serving the
unfair labor practice charge on August 26, 2005. The supervisor
who received the charge, Torres, not only saw Cline but, after
examining the charge, called Cline a liar. This emphatic reaction
leaves no doubt that Respondent associated Cline with the unfair
labor practice charge.
The third Wright Line element requires the General Counsel to
prove that Respondent has taken an adverse employment action
against an employee. Certainly, a suspension without pay
constitutes an adverse employment action. The General Counsel
has satisfied this third Wright Line criterion.
Finally, under Wright Line, the General Counsel must show
some link between the protected activity and the adverse
employment action. The search for such a link may well begin
with Judge Marcionese’s findings in the July 13, 2005 decision.
That decision concluded that Respondent violated Section 8(a)(1)
of the Act by threatening an employee, Cline with a lawsuit and
unspecified reprisals because the employee had filed charges with
the Board.
Cline had filed the charge against Respondent that began that
previous case. That charge, his testimony, and the resulting
decision all potentially embarrassed Respondent’s local
management. Certainly, the judge’s finding that Respondent had
threatened an employee would not make them happy.
Less than 2 months after this decision, the same employee
participated in the service of another unfair labor practice charge
which raised another threat allegation. As Torres put it, “there
was one that accused me of threatening Bobby [Cline], and I told
him he needed to rethink this one.” Torres admitted that after
reading this charge, he called Cline a liar.
Thus, twice in the recent past, Cline had gone to the Labor
Board with accusations that management had threatened him.
Cline’s use of the word “threatened” had become associated with
filing charges, particularly after Judge Marcionese had indeed
found a threat.
Then, on the morning of his suspension, he had written on his
leave request “threatened by PM.” Standing alone, making this
notation on the leave slip would not constitute protected activity.
However, the word “threatened” reasonably would bring to mind
Cline’s previous activities before the Board.
Significantly, immediately before Cline approached Grossi,
Malishan and Torres on September 2, 2005, they had been having
a loud discussion with Union Steward Jackson concerning the
proper reporting procedure, which was also the subject of Cline’s
question. Although Jackson was no longer present when Cline
asked his question, the record establishes that Cline sought the
information not only for himself but for other employees. Cline
told the supervisors, “[W]e’re getting double messages here, you
know. We’re just trying to do the right thing. We just want to
know exactly what it is.”
Thus, Cline’s question itself constitutes protected, concerted
activity. Moreover, it associated Cline once more with the union
steward. Earlier in the year, Cline had sent a letter to his
Congressman’s office protesting “our union officials are abused
and harassed because they speak out about the problems,”
followed by another letter referring to management’s treatment of
Jackson. Only 2 weeks previously, Cline had accompanied
Steward Jackson to serve the unfair labor practice charge on
Torres.
Cline’s association with the union steward explains why
Malishan would react so antagonistically when the soft spoken
Cline politely asked a legitimate, work-related question. Malishan
had just been discussing the same issue with the union steward,
and the conversation had become loud. Cline’s continuation of
Jackson’s inquiry represented still another instance when,
apparently, Jackson and Cline had teamed up.
In this context, a threat Supervisor Torres made 2 weeks earlier
takes on special significance. On August 18, 2005, Cline had
protested that Torres and another supervisor were violating the
collective-bargaining agreement. Torres warned Cline to “mind
your own business or you’re going to get in more trouble.”
Clearly, Torres believed that Cline had not “minded his own
business” on September 2, 2005. Torres wrote the letter notifying
Cline that he had been placed on emergency leave. In this letter,
Torres stated:
On the morning of September 2, 2005, Ms. Grossi instructed
Marcus Jackson to be dressed in his uniform and ready for the
window when he reports to work. . . . You interjected that you
wanted to see the Postmaster, Ms. Grossi and me at the same
time about that issue. [Emphasis added.]
Not only did Torres write this letter, he also participated in the
decision to place Cline on emergency suspension. His perception
that Cline had “interjected” himself into the management’s
discussion with the union steward, coupled with his “mind your
own business” warning, provides strong evidence of a link
between Cline’s protected activities and his placement on
emergency suspension.
Torres also had displayed hostility when Cline and Jackson
served him with an unfair labor practice charge. He admitted
having called Cline a “liar” on that occasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD950
However, Torres wasn’t the only supervisor to become
concerned about Cline and the union steward acting in concert. A
higher-ranking official, Postmaster Paul McGinnis wanted to
know why it had required two people—Cline and Jackson—to
serve the unfair labor practice charge on Torres. Respondent’s
unlawful interrogations of Cline about this protected activity,
using questions drafted by McGinnis, will be discussed below.
Both the number of these interrogations and the number of
supervisors involved in the effort reflect the extent of
management’s hostility to employees acting in concert for their
mutual aid and protection.
Postmaster Malishan’s loudly calling Cline a “troublemaker”
provides additional evidence of animus. The Board has held that
this epithet itself may constitute evidence of unlawful animus.
United Parcel Service, 340 NLRB 776, 777 fn. 9 (2003), citing
James Julian, Inc. of Delaware, 325 NLRB 1109, 1111 (1998),
Knoxville Distribution Co., 298 NLRB 688 (1990).
Another matter may be noted, although I do not rely upon it in
reaching the conclusion that a connection exists between Cline’s
protected activity and his September 2, 2005 suspension. As
discussed above, the words “threat” and threatened” had taken on
special significance because of Cline’s previous unfair labor
practice charges and Judge Marcionese’s decision. Accusing
Cline of making a “threat” and suspending him for it could offer
the attractive irony of giving Cline, in effect, a “dose of his own
medicine.” However, I need not, and will not, speculate about
whether this irony occurred to Malishan and Torres or appealed to
them. The evidence discussed in preceding paragraphs is more
than sufficient to establish a nexus between Cline’s protected
activities and his suspension on September 2, 2005.
Moreover, Respondent’s conduct during Cline’s suspension
provides further evidence of unlawful motivation. As mentioned
above, while Cline was on emergency suspension, Respondent
subjected him to three interrogations, which will be discussed
below in connection with complaint subparagraphs 7(b), (c), (d),
and (e).
Additionally, Respondent’s defense against these allegations
reveals evidence of animus. For clarity, I will defer the discussion
of this evidence until after the examination of complaint
subparagraphs 7(d) and (e), which will provide necessary
background. The discussion of this evidence of animus appears
below in the section dealing with complaint subparagraphs 7(d)
and (e), under the heading “Continuing Wright Line Analysis.”
Further, some of Respondent’s other violations, those alleged in
complaint paragraphs 8 and 9, demonstrate a pattern which
Respondent appears to repeat here. Specifically, for the reasons
discussed above with respect to complaint paragraph 8, I have
concluded that Respondent falsely accused Union Steward
Jackson of engaging in improper conduct and then disciplined him
in retaliation for his union activities. Also, as discussed above
with respect to complaint paragraph 9, I have concluded that
Respondent falsely accused employee Cline of engaging in
improper conduct and then disciplined him to retaliate against him
for his protected activities.
These two instances may not establish that Respondent had a
modus operandi of retaliating against union adherents by falsely
accusing them of misdeeds, but they do demonstrate that local
management did not have qualms sufficient to preclude such
conduct. Accordingly, Respondent’s previous false accusations
do have some relevance to the issue of animus.
Another factor also relates to the issue of animus. In
approximately 2 dozen prior cases, cited below in the “remedy”
section, the Board has found this same Respondent guilty of
violating the Act. These repeated violations have taken two
forms: (1) Failing and refusing to provide, in a timely manner,
relevant information a union needs to perform its duties and (2)
denying an employee’s request for union representation or
restricting the union representative’s ability to represent an
employee during a predisciplinary interview, contrary to the
employee’s rights under NLRB v. J. Weingarten, Inc., 420 U.S.
251 (1975).
As discussed below, the present record establishes that
Respondent engaged in both types of conduct in the present case.
Obviously, Respondent’s repetition of unlawful conduct, despite
many prior cease-and-desist orders, says something about the
likelihood that hostility to protected activities was a substantial or
motivating factor in management’s decision to take an adverse
employment action.
The record establishes that, notwithstanding prior cease-and-
desist orders focused on precisely this type of conduct,
Respondent denied Cline the right to union representation during a
predisciplinary interview on November 8, 2005, by instructing the
union representative that he could not speak during this meeting.
The supervisor gave this instruction at the beginning of the
meeting, and not in response to anything the union president had
said or done.
This action definitely constitutes evidence of antiunion animus.
Moreover, although this conduct occurred after Respondent
suspended Cline on September 2, 2005, I conclude that this
evidence is relevant to whether unlawful animus tainted that
decision. For the following reasons, I give this evidence
considerable weight: (1) Respondent ordered the union president
not to speak at a predisciplinary interview involving Cline, who
was also the subject of the September 2, 2005 suspension; (2)
Cline remained on suspension notwithstanding that he had
successfully undergone a fitness-for-duty examination, thus,
indicating that Respondent continued to have some reason other
than his fitness for keeping him away from work; (3) the union
representative had done nothing which would interfere with the
conduct of the interview; and (4) the instruction focused on, and
interfered with, the Union’s essential role as exclusive
representative of the bargaining unit.
Additionally, I have considered this fifth reason: Respondent
previously had been ordered to cease and desist from precisely
this conduct. This is not an instance in which compliance with an
order imposed any significant burden. Respondent simply had to
stop doing something which served no legitimate purpose
anyway. It is difficult to understand why a supervisor, instructed
to refrain from this conduct, would fail to do so.
Thus, a new instance of this unlawful conduct must signify
either that Respondent had created an environment in which
further violations would be condoned, or else that Respondent had
made clear that it would not condone any more violations, but the
level of animus at Destin was so high that the supervisor went
ahead and committed the unfair labor practice anyway. In the
absence of evidence, I will not assume that Respondent went
POSTAL SERVICE 951
through the motions of telling its supervisors to respect
employees’ Weingarten rights but then gave the supervisors a
wink and a nod. To the contrary, the record suggests that the level
of animus at Destin was exceedingly high, particularly when the
union adherent was Cline.
The fact that Respondent resorted to a pretext supports this
conclusion. When the asserted reason for an action is false, the
Board may infer not only that another reason exists, but also that
the concealed motive is an unlawful one. Tidewater Construction
Corp., 341 NLRB 456 (2004), citing Shattuck Denn Mining Corp.
v. NLRB, 362 F.2d 466 (1966). Additionally, the type of pretext
present here has significance.
The term “pretext” can refer to two distinct situations. In the
first type, an employer falsely claims that it disciplined an
employee for doing something that the employee actually did.
The falsehood does not concern the employee’s actions but rather
the employer’s reasons for imposing discipline.
The second type of pretext involves an employer falsely
claiming that an employee engaged in misconduct, and then
disciplining the employee for it. Presumably, an employer would
be more reluctant to lie about an employee’s actual conduct than
about its reasons for the disciplinary action. A decision to “frame”
an employee by falsely accusing him of misconduct suggests a
considerable amount of animus. In the present case, I conclude
that Respondent did concoct a reason to suspend Cline.
Events after Cline’s suspension further persuade me that
Respondent contrived a pretext. One of those events, the denial of
Cline’s Weingarten rights, has been discussed above.
Additionally, as already noted, even after Cline passed the
fitness-for-duty examination, Respondent did not recall him to
work. Respondent did not explain why, in view of the staffing
shortage at the Destin facility, it did not take this typical step.
Respondent customarily restored an employee to work status
after the employee passed a fitness-for-duty examination or, if not,
according to Postmaster Malishan, at least placed the employee on
paid administrative leave. However, Respondent did not even
place Cline on paid leave status for 3 more weeks after he was
approved to return to duty, and that happened after Postmaster
Malishan left the Destin facility and another manager took his
place. That failure is consistent with other evidence of Malishan’s
hostility to Cline, a hostility grounded in Cline’s protected
activities.
In sum, the record provides ample evidence of animus. The
General Counsel has proven the forth Wright Line element. Thus,
the government has satisfied its initial burden. At this point, under
the Wright Line framework, Respondent must prove that it would
have taken the same action in any event, even if Cline had not
engaged in protected activities.
However, as the Board observed in Rood Trucking Co., 342
NLRB 895 (2004), a finding of pretext defeats any attempt by a
respondent to show that it would have discharged a discriminatee
even absent protected activities. Accordingly, it is not necessary
to examine the sufficiency of Respondent’s rebuttal evidence.
However, in case the Board disagrees with my conclusion
regarding the pretextual nature of the suspension, I am including
the following analysis.
As discussed above, the record does not support a conclusion
that the “threat assessment team” actually assessed the “threat” or
made the decision to suspend Cline. To the contrary, I have
concluded that Postmaster Malishan made the decision, which the
labor relations manager approved pro forma.
Because only Destin management made the decision to suspend
Cline, it is appropriate to consider whether this local management
would have made the same decision even if Cline had not been
involved in protected activities. The record does not reflect a prior
instance of an employee at the Destin post office being placed on
emergency suspension under similar circumstances.
Respondent presented documents concerning emergency
placement suspensions at other post offices in the North Florida
District. This evidence also fails to carry Respondent’s rebuttal
burden because the situations were different.
For example, on January 16, 2001, Respondent suspended two
employees who had been involved in a marital dispute. One of
those employees had obtained a restraining order against the other
from a Florida court. The order ostensibly resulted from episodes
of violence. Although both employees worked on the same shift
at the same place, the order prohibited one of them being near the
other. Moreover, one of the employees alleged that the other
possessed handguns.
The circumstances in that instance provided much greater
reason to fear violence than the single ambiguous remark
attributed to Cline. Therefore, it does not establish what
Respondent would have done in Cline’s case, in the absence of
protected activity.
Other instances of emergency suspensions involved physical
contact or “heated verbal threats” in a confrontational situation.
Cline was not involved in a confrontation with Grossi and was not
“heated.” Grossi offered no reason for believing that he was upset
except he said he was going to see his EAP counselor. The fact
that Respondent has suspended employees who had been yelling
at each other does not establish that it would have suspended Cline
if he had not engaged in protected activities.
The record does establish that one person had been “heated”
that morning at the Destin facility. That person was Postmaster
Malishan, who loudly called Cline a troublemaker, then followed
Cline as he walked away and confronted him. Malishan’s action
was more bellicose than anything attributed to Cline, yet the
postmaster was not suspended.
Perhaps the mildest situation which resulted in an emergency
suspension began when one employee asked another, “What’s up,
King Jackass?” The other employee put his finger in the
questioner’s face and told him not to let it happen again.
Respondent suspended both of them. However, in this instance,
the April 12, 2002 notices of suspension also stated that the two
employees were disrupting operations. During the hearing, the
General Counsel questioned Labor Relations Manager Hopper
about this suspension:
Q. And does it appear to you that he was placed on
emergency placement because of that alleged statement he
made?
A. I would say, and further on down, it says, “Addi-
tionally, you too were disrupting operations.”
Respondent does not claim that Cline was disrupting operations
at the time he spoke to Grossi. Accordingly, the April 12, 2002
situation was not similar to the one presented here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD952
On the morning of September 2, 2005, when Postmaster
Malishan came close to Cline and loudly called him a
“troublemaker,” Cline did not react with anger, hostility, or
aggression. Instead, he walked away. Malishan followed him and
confronted him, but again, the record does not indicate that Cline
even raised his voice in response.
As a witness, Cline spoke softly, and no evidence suggests that
he behaved loudly on September 2, 2005. To the contrary, his
credited testimony indicates, and I find, that he approached
Malishan and the supervisors politely, with a sincere interest in
finding out the answer to a work-related question.
Cline’s credible testimony also indicates that Torres spoke
loudly to him as he was leaving the building. However, the record
does not indicate that Cline reacted with raised voice, and I
conclude that he did not. In sum, although both Postmaster
Malishan and Supervisor Torres yelled at Cline, he did not react in
any manner which would make him appear to be a threat.
Moreover, notwithstanding that both Malishan and Torres
became loud and confrontational without apparent reason, neither
was placed on emergency suspension nor required to take a
psychological fitness-for-duty examination. Cline was.
On October 22, 2005, the examining psychologist issued a
report favorable to Cline’s return to duty. As noted above, the
record establishes that after an employee passes a fitness-for-duty
examination, Respondent normally or customarily restores the
employee to duty or, if not, at least places the employee on
administrative leave.
The record suggests that a few days after Cline passed the
examination, Respondent changed his status from “emergency
placement” to administrative leave. However, although an
employee on administrative leave ordinarily receives regular pay,
Respondent did not change Cline’s pay status for about a month.
During this period, therefore, Cline’s “administrative leave” status
was in name only.
In this case, Respondent’s failure to take any of its customary
actions constitutes additional evidence that it did not apply its
usual procedure in Cline’s case. That departure also calls into
question any claim that Respondent treated Cline as it would any
other employee.
In sum, for all the reasons discussed above, I have concluded
that Respondent’s asserted reason for suspending Cline was
pretextual and, accordingly, it is not necessary to examine
Respondent’s rebuttal evidence. However, were I to consider this
evidence, I would conclude that it was insufficient to carry
Respondent’s rebuttal burden.
Therefore, I find that Respondent violated Section 8(a)(4), (3),
and (1) of the Act by placing Cline on emergency suspension on
September 2, 2005.
VIII. CLINE’S LAWSUIT AGAINST RESPONDENT
Before leaving the issues raised by Respondent’s suspension of
Cline on September 2, 2005, one other matter should be
addressed. On June 21, 2006, Charging Party Cline filed a lawsuit
against Respondent in the United States District Court for the
Northern District of Florida. In this lawsuit, Cline alleged that the
Respondent had harassed him and, on about September 2, 2005,
placed him on emergency placement leave, a nonpay, nonduty
status. The lawsuit further alleged that Respondent thereby had
discriminated against Cline because of his age, sex, and race.
Although such alleged discrimination would violate other
federal statutes, it would not constitute a violation of the Act,
which defines and protects an employee’s right to engage in
certain concerted activities with other employees, to form, join, or
assist a labor organization, and to file charges with and give
testimony before the Board.
Thus, it may appear inconsistent for Cline to argue in another
forum that Respondent discriminated against him for one set of
unlawful reasons while claiming here that Respondent took the
same action against him for other reasons. However, I conclude
that Cline’s filing of the lawsuit against Respondent does not
estop him from asserting here that antiunion animus entered into
Respondent’s decision to take action against him. Similarly,
Cline’s claim in District Court, that Respondent discriminated
against him because of his race, sex, and/or age, does not preclude
Cline from also asserting that Respondent sought to retaliate
against him for filing unfair labor practice charges and giving
testimony before the Board.
The present situation should be distinguished from that in
which a plaintiff in District Court alleges unlawful employment
discrimination and seeks reinstatement, while at the same time
alleging before the Social Security Administration that he is
disabled and cannot work. Such a plaintiff presumably would
know whether or not his own medical problems prevented him
from working. However, an employee does not have such
intimate knowledge of the reasons why management might decide
to take some employment action. That is particularly true when
the employer asserts a pretextual reason and tries to keep the real
motivation secret.
Moreover, the employer may well have more than one
motivation. Under Wright Line, above, the General Counsel need
only show that activities protected by the Act were a substantial or
motivating factor. Upon such a showing, the burden shifts to the
respondent to prove it would have taken the same action even in
the absence of such protected activities.
Because more than one motivation can affect an employment
decision, the presence of one such motivation does not exclude the
existence of another. Accordingly, Cline’s filing of the lawsuit
does not affect the viability of the unfair labor practice allegations.
IX. COMPLAINT PARAGRAPH 11
Paragraph 11 of the complaint alleges that on or about October
1, 2005, Respondent required Cline to undergo a fitness-for-duty
examination. Complaint paragraph 24 alleges that this conduct
violated Section 8(a)(3) and (1) of the Act, and complaint
paragraph 25 alleges that the conduct violates Section 8(a)(4) and
(1) of the Act.
Respondent has admitted that it required Cline to undergo the
fitness-for-duty examination, as alleged in complaint paragraph
11. However, Respondent denies that it thereby violated the Act
as alleged in complaint paragraphs 24 and 25. Resolution of these
issues depends upon Respondent’s motivation.
1. Facts
The record establishes that while Cline remained in the nonpaid
“emergency placement” leave, Supervisor Torres requested that
Cline be required to take a fitness-for-duty examination before
POSTAL SERVICE 953
being allowed to return to work. Postmaster Malishan concurred
in Torres’ recommendation.
Torres’ request for this fitness-for-duty examination is in
evidence but does not bear a date. On the witness stand, Torres
could not recall when he sent it, or even whether he made the
request in September or October 2005. Labor Relations Manager
Hopper testified that it was submitted probably “sometime by the
end of September, I would imagine.”
Although local management can request a fitness-for-duty
examination, higher management, in the district office, must
approve it. Respondent’s manager of injury compensation,
Carolyn Ballou, who was a member of the threat assessment team
which met on September 2, 2005, testified that in deciding to
require Cline to take a fitness-for-duty examination, “employee
unrest” was taken into account.
During her testimony, it first appeared that Ballou associated
the matter of “employee unrest” with the decision to suspend
Cline in an emergency nonpay status. However, later in her
testimony, Ballou clarified that the matter of “employee unrest”
figured in the decision to require a fitness-for-duty examination
rather than the decision to suspend Cline. This clarification makes
sense because, as noted above, on September 2, 2005, the decision
to suspend Cline had been made before the threat assessment team
met.
When asked to be more specific about “employee unrest,”
Ballou testified that the Destin “office had been in the newspaper.
There were some issues going on with the postmasters and stuff.”
She explained that the newspaper article “had to do with mail,
delays of mail, the employees not happy with the way, I guess, the
postmaster was managing things.”
On October 22, 2005, the examining psychologist issued a
report favorable to Cline’s return to duty. Although Respondent
did not reinstate Cline at that point, management ostensibly placed
him on “administrative leave,” which should have resulted in
Cline receiving a paycheck. However, it did not.
On November 16, 2005, Cline learned that he should be
receiving a paycheck and contacted the new officer in charge of
the Destin post office. That manager arranged for Cline’s name to
be placed again on the payroll. However, because Cline was not
working, he was not eligible for overtime. Respondent finally
reinstated Cline on about March 13, 2006.
2. Analysis
Cline’s protected activities, and Respondent’s knowledge of
them, have been discussed above. Requiring Cline to pass a
fitness-for-duty examination certainly is a condition of
employment because, unless he satisfied it, he could not return to
work. Moreover, it was an unusual and potentially stigmatizing
condition which, I conclude, constitutes an “adverse employment
action.” Accordingly, I further conclude that the record
establishes the first three Wright Line elements.
Credible evidence also proves the fourth element, a connection
between Cline’s protected activities and the adverse employment
action. It may be noted that two of the same supervisors
responsible for suspending Cline—Torres and Malishan—signed
the request that Cline be required to undergo the fitness-for-duty
exam. Thus, the record here does not present an instance of a
higher management official, unaware of the trumped up nature of
the suspension, deciding on her own initiative to subject Cline to
the fitness-for-duty examination.
Rather, the record establishes not only that the same supervisors
responsible for the pretextual suspension also initiated the fitness-
for-duty examination process, but also that these two supervisors
harbored personal hostility to Cline because of his protected
activities.
Although the record does not pinpoint the exact date when
Torres and Malishan decided to subject Cline to the fitness-for-
duty examination, they probably did so during the same month he
was placed on emergency suspension. More importantly, the two
events were related.
Without repeating the discussion, above, concerning the animus
displayed by Torres and Malishan, it may be noted that their
hostility took open and unmistakable forms, such as Torres calling
Cline a liar after reading the unfair labor practice charge and
Malishan loudly calling Cline a troublemaker. In particular,
Torres’ warning that Cline would get in trouble if he didn’t mind
his own business—a warning occasioned by Cline’s assertion of a
right under the collective-bargaining agreement—connects Cline’s
protected activities and the adverse employment action.
Even if higher management merely had rubber stamped this
request, I would still conclude that animus motivated it, both
because Malishan and Torres are Respondent’s agents and
because the asserted reason for the examination—that Cline had
made a threat—was a pretext to conceal unlawful discrimination.
However, evidence indicates that unlawful considerations also
tainted higher management’s review.
As described above, Carolyn Ballou, a manager involved in the
review process, testified that in deciding to require Cline to
undergo a fitness-for-duty examination, the reviewers considered
the employees’ dissatisfaction with the local management at the
Destin post office. She referred to this dissatisfaction as employee
“unrest.”
Besides participating in this “unrest,” for example, by
circulating a petition and presenting it to management, Cline had
worked energetically to inform both higher management and even
Congress that employees were unhappy about the working
conditions in the Destin facility. Respondent has not explained
how either the employees’ dissatisfaction or Cline’s expressions
of concerns on their behalf could make Cline unfit for duty.
Engaging in protected activity is a right, not a disability.
Respondent’s failure to reinstate Cline after the favorable
fitness-for-duty report on October 22, 2005, also suggests that an
ulterior purpose, not concern about Cline’s medical condition,
motivated management. Respondent’s labor relations manager
testified that it was customary for an employee to return to work in
such circumstances. Likewise, Post Malishan testified that when
an employee passes a fitness-for-duty examination “was supposed
to either return to work, [or] remain in a pay status until it was
determined whether or not discipline was going to be taken for the
incident.” (Italics added.)
However, as discussed above, Respondent neither reinstated
Cline nor immediately made the necessary computer entry to
return him to pay status. Although it appears that Respondent
technically changed Cline’s status from “emergency placement”
to “administrative leave” a few days after the favorable fitness-
for-duty report, this change must be considered essentially illusory
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD954
because it did not result in Cline receiving a paycheck.
Respondent’s treatment of Cline thus departed from its usual
practice, as described by Malishan.
In sum, the evidence amply establishes a link between Cline’s
protected activities and Respondent’s requiring him to undergo a
fitness-for-duty examination. Accordingly, I conclude that the
government has proven the fourth Wright Line element.
The burden therefore shifts to the Respondent to rebut the
General Counsel’s case. However, I conclude that Respondent
based its fitness-for-duty examination requirement on the same
pretext it had used to place Cline on emergency suspension. This
pretext was the false accusation that Cline had made a threat.
Because of this pretext, Respondent’s evidence cannot rebut the
General Counsel’s case. Rood Trucking Co., above. However,
even were I to consider this evidence, I would conclude that it was
insufficient to establish that Respondent would have taken the
same action even if Cline had not engaged in protected activities.
In sum, I conclude that by requiring Cline to undergo a fitness-
for-duty examination, Respondent violated Section 8(a)(4), (3),
and (1) of the Act, as alleged.
X. COMPLAINT PARAGRAPH 12
Complaint paragraph 12 alleges that on or about October 26,
2005, Respondent placed Cline on administrative leave.
Respondent has admitted this allegation.
Complaint paragraphs 24 and 25 allege that the conduct
described in complaint paragraph 12 violated Section 8(a)(3), (4),
and (1) of the Act. Respondent has denied these allegations.
1. Facts
The discussion above summarizes most of the facts.
Additionally, the record establishes the following.
When Cline received the psychologist’s October 22, 2005
report, he did not realize that he should have been placed in pay
status at that point. Cline credibly testified that he did not learn
that his pay status should have changed until November 16, 2005,
when he attended a predisciplinary interview conducted by
Supervisor Jerry Maynard.
By this time, Malishan had been transferred to another facility
and Billy Dossantos had taken charge of the Destin post office.
On November 17, 2005, Cline contacted Dossantos, who
confirmed that the favorable fitness-for-duty report should have
resulted in Cline’s being placed in pay status.
Dossantos told Cline that Supervisor Torres should have taken
care of this matter but it had not been done. Dossantos then
arranged for Cline to receive a regular paycheck.
2. Analysis
For reasons discussed above, I find that the Government has
satisfied the first two Wright Line requirements by proving that
Cline engaged in protected activity and that Respondent knew
about such activity.
To meet the third Wright Line criterion, the General Counsel
must establish that Cline suffered an adverse employment action.
Although being on administrative leave, and therefore getting
paid, is better than being on nonpay status, it still denied Cline the
opportunity to earn overtime, and thereby reduced his income.
Cline credibly testified that he had worked overtime in the past.
Moreover, Cline remained on administrative leave during the
Christmas holiday season, which afforded opportunity to work
overtime because of the great increase in mail.
Although determining precisely how much overtime Cline
would have worked must be deferred to the compliance stage, I
conclude that being on administrative leave, rather than working
and therefore being eligible to work overtime, adversely affected
Cline. Accordingly, I conclude that the Government has satisfied
the third Wright Line requirement by proving that Cline suffered
an adverse employment action.
Fourth, the Government must show a connection between
Cline’s protected activities and the adverse employment action.
As discussed above, the record provides ample evidence of
unlawful animus, which establishes the necessary link.
Malishan’s statement that Cline was a “troublemaker” affords
particular insight into his motivation for placing Cline on
administrative leave rather than recalling him to work. This action
kept him away from other employees, thereby reducing his ability
to cause “trouble” by engaging in protected concerted activities.
For example, segregating Cline in this way prevented him from
observing instances which he might consider violations of the
collective-bargaining agreement. Likewise, it precluded Cline
from insisting that the collective-bargaining agreement be
followed, as he had done in the past.
Moreover, some additional, contemporaneous evidence of
animus bolsters the conclusion that Respondent did not recall
Cline to work because of management hostility to Cline’s
protected activities. As discussed below under the heading
“Complaint Paragraph 6,” on November 8, 2005, during an
investigative interview preliminary to imposing discipline, two
supervisors referred to Cline’s participation in the service of an
unfair labor practice charge on Supervisor Torres. They asked
Cline why he had given Torres a copy of the unfair labor practice
charge, adding “there is no reason to do this.” They also asked
Cline if he had been “trying to instigate a reaction or intimidate”
Torres.
After the words “there is no reason to do this,” the supervisors
added “The Labor Board notifies management.” Respondent’s
question, and this comment following it, suggest that Respondent
did not welcome unfair labor practice charges in the workplace.
Respondent’s second question reinforces this message. By asking
Cline if he was trying to intimidate the supervisor—by giving him
an unfair labor practice charge—Respondent conveys the message
that Cline did something improper and provocative.
The questions imply that Respondent considered it some kind
of breach of protocol or propriety for an employee to deliver a
charge to a supervisor rather than relying on the Board to mail a
copy to higher management. In other words, allegations of unfair
labor practices should be kept in the stratosphere of higher
management and not be allowed to disturb the relations of rank-
and-file employees and first-line supervisors.
This attitude explains why management would bear the
expense of placing Cline on administrative leave rather than
recalling him to work. Cline had committed the “offense” of
bringing an unfair labor practice charge into the workplace and
serving it on a first-line supervisor. To prevent this from
happening again, it was better to pay him simply to stay home.
Other evidence supports this conclusion. Respondent directed
Cline to report to the Fort Walton Beach, Florida post office for
POSTAL SERVICE 955
the investigative interview. One of the two supervisors
conducting the interview, Jerry Maynard, was then working at the
Destin facility and therefore had to travel to Fort Walton Beach.
Respondent has not explained why it scheduled the interview at
the Fort Walton Beach facility rather than at Destin, Cline’s
permanent duty station and the location where Maynard then was
working. If there were some reason for doing so, apart from
keeping Cline away from the Destin post office, it is not obvious
from the record.
Moreover, the record discloses no plausible reason for keeping
Cline on administrative leave other than the unlawful one
described above. Certainly, any argument that Cline had to be
kept on administrative leave while Respondent decided whether to
impose discipline must fail. The record does not establish that
Respondent had a practice of placing employees on administrative
leave while deciding whether to impose discipline.
The General Counsel has proven the fourth Wright Line
element, shifting the burden of proceeding to the Respondent. For
reasons discussed above, I have concluded that Respondent’s
September 2, 2005 suspension of Cline and its later decision to
require a fitness-for-duty examination were pretextual. Placing
Cline on administrative leave was a continuation of this same
conduct, extending the period during which Cline would be away
from the Destin facility. Accordingly, I conclude that Respondent
based this action on the same pretext.
In view of this pretext, Respondent cannot rebut the
government’s case. Moreover, the record fails to reflect any
instance in which Respondent treated another similar employee
who had not engaged in protected activities the same way it
treated Cline. Therefore, I conclude that Respondent violated
Section 8(a)(4), (3), and (1) by placing Cline on administrative
leave.
XI. COMPLAINT PARAGRAPH 6
Complaint paragraph 6 alleges that on about November 7,
2005, Respondent, by Supervisors Ouellette and Ginn,
interrogated Cline about pending unfair labor practice charges.
Respondent’s answer denies this allegation, further stating
“Respondent avers that employees Ouellette and Ginn conducted
an investigative interview with Mr. Cline on about November 7,
2005.” Respondent also denies that the questions violated Section
8(a)(1) of the Act, as alleged in complaint paragraph 23.
1. Facts
The record establishes that this interview actually took place on
November 8, 2005, when Joel Ouellette and Lease Ginn met with
Cline in the postmaster’s office at the Destin facility. Respondent
has admitted that both Ouellette and Ginn are its supervisors
within the meaning of Section 2(11) and its agents within the
meaning of Section 2(13) of the Act. Although Cline remained on
leave status, he had received a letter notifying him of this
interview.
Union President Bobby Pruett attended the meeting to represent
Cline. According to Cline’s uncontradicted testimony, which I
credit, Pruett asked Ouellette and Ginn to explain the purpose of
the meeting. Supervisor Ouellette told Pruett that although Pruett
was allowed to sit and watch, he was not allowed to speak or ask
any questions. Cline credibly testified that “we brought up the
fact that in an investigation interview, that your representative has
the right to participate, not just be present. And Mr. Ouellette said
that he wasn’t going to allow it, that they were going to ask
questions and I was going to answer them, and that’s the way it
went.”
Neither Ouellette nor Ginn testified. Crediting Cline’s
uncontradicted testimony, I find that Ouellette did tell the Union
president he could not speak or ask questions. Further, I find that
the supervisors did not explain the purpose of the interview even
though Pruett asked them to do so.
The supervisors read from a list of questions, which is in
evidence. Two of the questions stated as follows:
Why did you give Mr. Torres a copy of the labor
charges there is no reason to do this? The Labor Board
notifies management.
Were you trying to instigate a reaction or intimidate
Mr. Torres?
Based on this exhibit and Cline’s testimony, which I credit, I
find that the supervisors did ask Cline these questions.
2. Analysis
During the hearing, Respondent elicited testimony from
Postmaster Paul McGinnis, who drafted the questions, concerning
their purpose. From McGinnis’ testimony and other evidence, I
conclude that Respondent was using the predisciplinary interview
not only to gather information relevant to whether discipline
should be imposed, but also as a kind of discovery device to
obtain information useful in defending against an expected
grievance.
At the outset, it may be noted that Respondent has not invoked,
and cannot invoke the “safe harbor” afforded to employers under
Johnnie’s Poultry Co., 146 NLRB 770 (1964), enfd. denied 344
F.2d 617 (8th Cir. 1965). The record does not establish that the
supervisors informed Cline that answering these questions was
voluntary and that no reprisals would be taken against him
depending on his answers.
Regardless of McGinnis purpose in drafting particular
questions, the Government does not have to establish an unlawful
intent to prove a violation of Section 8(a)(1). An employer’s
intent doesn’t matter. Whether or not a particular statement
violates Section 8(a)(1) turns not on motivation but on the effect
the words reasonably would have on the willingness of employees
to exercise their Section 7 rights. Waco, Inc., 273 NLRB 746, 748
(1984) (“[T]he illegality of an employer’s conduct is determined
by whether the conduct may reasonably be said to have a tendency
to interfere with the free exercise of employee rights under the
Act.”).
In determining whether Respondent’s questions reasonably
would interfere with an employee’s exercise of protected rights, I
will consider the factors which the Board applied in Rossmore
House, 269 NLRB 1176 (1984). In that case, the Board held that
the lawfulness of questioning by employer agents about union
sympathies and activities turned on the question of whether
“under all circumstances, the interrogation reasonably tends to
restrain or interfere with the employees in the exercise of rights
guaranteed by the Act.” Citing Bourne Co. v. NLRB, 332 F.2d 47
(2d Cir. 1964), the Board considered the following factors:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD956
1. The background, i.e. is there a history of employer
hostility and discrimination?
2. The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
3. The identity of the questioner, i.e. how high was he
in the Company hierarchy?
4. Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there an
atmosphere of ``unnatural formality’’?
5. Truthfulness of the reply.
With respect to the first factor, the record establishes such a
history of hostility and discrimination, both in the present case and
in the previous Case 15–CA–17506(P). In particular, Respondent
had taken several unlawful actions against Cline in the recent past.
It had suspended him, required him to take a fitness-for-duty
examination, and placed him on administrative leave rather than
restoring him to duty because he had filed unfair labor practice
charges, given testimony under the Act, and engaged in other
protected activities.
Respondent’s history of hostility and discrimination includes
two events particularly relevant to the questions which Ouellette
and Ginn asked Cline on November 8, 2005. Those questions
assumed that Cline had served an unfair labor practice charge on
Supervisor Torres when actually, Cline was only present as a
witness while Union Steward Jackson served the charge.
However, Torres clearly believed Cline responsible for some of
the wording of the charge because, when he read it, he called
Cline a “liar.”
This action, calling Cline a “liar” based on the content of an
unfair labor practice charge, not only demonstrates that
Respondent had a history of hostility to Cline, but also that this
hostility arose because of Cline’s protected activities. A week
later, Postmaster Malishan loudly called Cline a “troublemaker.”
That epithet not only manifests hostility towards Cline but also,
for the reasons discussed above, associates this hostility with
unlawful animus.
With respect to the second factor, the questioning took place
during an “investigative interview” of the sort which preceded the
imposition of discipline. Moreover, the questions pertained to
matters that Respondent later identified as the reason for
disciplinary action against Cline.
The third factor concerns the position of the questioners in the
management hierarchy. As stated above, Respondent has
admitted that both Ouellette and Ginn were its supervisors and
agents. However, they appear to have been first-line supervisors
rather than higher level managers.
The fourth factor concerns the place and method of
interrogation. The interview took place in the postmaster’s office,
which is a locus of authority. Cline had been notified by letter to
attend this interview.
The method of interrogation particularly establishes the
coercive nature of the interview. Although Union President Pruett
attended to represent Cline, the supervisors did not allow him to
speak or ask questions. Even after being informed that the union
representative had the right to participate, Respondent still would
not allow it.
It should be noted that the complaint does not allege that, on
this occasion. Respondent violated Section 8(a)(1) by interfering
with Cline’s Weingarten right to union representation. See NLRB
v. J. Weingarten, 420 U.S. 251 (1975). Whether or not I may find
a separate Weingarten violation, not alleged in the complaint,
depends on whether the issue has been fully and fairly litigated, a
question which will be discussed further later in this decision. At
this point, however, it is appropriate to consider the supervisors’
conduct in relation to the fourth Rossmore factor, the method of
interrogation. Obviously, if the method of interrogation itself
violates Section 8(a)(1), it affects the coercive impact of the
questions asked.
During an interview which reasonably may result in discipline,
telling the union representative that he cannot speak or ask
questions interferes with, restrains, or coerces employees in the
exercise of rights guaranteed in Section 7 of the Act, and therefore
violates Section 8(a)(1). See Barnard College, 340 NLRB 934
(2003) (“The union representative cannot be made to sit silently
like a mere observer”), citing Talsol Corp., 317 NLRB 290, 331–
332 (1995), enfd. 155 F.3d 785 (6th Cir. 1998).
In a recent case involving this same Respondent, the Board held
that the restrictions which Respondent placed upon the union
representative limited the union representative’s role to that of an
observer, and “[s]uch a limitation is inconsistent with the Supreme
Court’s recognition that a union representative is present to assist
the employee being interviewed.” Postal Service, 347 NLRB 885
fn. 1 (2006).
The supervisors’ conduct interfered with the Union’s
representation of Pruett in another way. The supervisor’s
instruction that Union President Pruett could listen but not speak
came as a response to Pruett’s inquiry about the purpose of the
meeting. In view of Pruett’s request, Respondent’s failure to
explain the investigation’s purpose denied Cline an important
Weingarten right.
Respondent should well understand that its supervisors have a
duty to inform the employee’s union representative and the
employee of the charges to be discussed because the Board
recently found Respondent guilty of breaching this very duty.
Postal Service, 345 NLRB 426 fn. 2 (2005). The Board issued its
decision in this case less than 3 months before the interrogation at
issue here.
Respondent’s method of interrogation rendered the interview
coercive in two ways: (1) By restricting the union president’s role
to that of observer, and (2) by failing to inform Cline and his
representative of the allegations after they requested such
information.
The present record does not establish what Cline said in
response to the many questions the supervisors asked him.
Therefore, the fifth Rossmore House factor, the truthfulness of the
employee’s replies, cannot readily be assessed. However, the
other factors leave little doubt about the coercive nature of this
interrogation.
In particular, Respondent’s failure to accord Cline his
Weingarten rights during the interview weighs heavily against a
conclusion that the questions had no adverse impact on the
exercise of rights guaranteed by the Act. To the contrary, the
Rossmore House criteria indicate that the questioning was highly
POSTAL SERVICE 957
coercive. Accordingly, I conclude that the interview, focused on
Cline’s protected activity, constituted unlawful interrogation.
The interview interfered with, restrained, and coerced Cline not
only because it constituted unlawful interrogation but also because
it conveyed a veiled threat. When the interrogators asked Cline
whether he was “trying to instigate a reaction or intimidate”
Supervisor Torres by serving an unfair labor practice charge on
him, the question itself conveyed Respondent’s disapproval of this
protected activity. The milieu, a predisciplinary interview, made
the implied threat even more ominous.
In such a predisciplinary interview, an employee reasonably
believes that the employer is considering issuing discipline
because of the conduct under discussion. Here, the conduct being
scrutinized enjoyed the Act’s protection. An employee reasonably
would infer that a repetition of such protected activities would
result in discipline.
In sum, I find that Respondent engaged in the conduct alleged
in complaint paragraph 6, and that the questions quoted above,
which Respondent’s supervisors asked Cline, interfered with,
restrained, and coerced employees in the exercise of protected
rights. Accordingly, I conclude that this interrogation violated
Section 8(a)(1) of the Act.
As discussed more fully in the “remedy” section below,
Respondent has a history of violating employees’ Weingarten
rights and did so again in this instance. However, the complaint
does not allege that the supervisors’ silencing of the union
representative on November 8, 2005, violated the Act.
Because of Respondent’s persistence in committing
Weingarten violations, notwithstanding prior cease-and-desist
orders, a specific remedy focused on this conduct would be
helpful. However, before finding a violation not alleged in the
complaint, two separate issues must be considered.
The first issue arises from a fundamental principle of due
process, the requirement that a respondent be placed on notice of
the allegation and given a right to be heard. Thus, the Board will
find and order remedied an unalleged violation only if the issue is
clearly connected to the subject matter of the complaint and has
been fully litigated. Garage Management Corp., 334 NLRB 940
(2001); Letter Carriers Local 3825 (Postal Service), 333 NLRB
343 (2001).
In International Baking Co., 348 NLRB 1133 (2006), the
Board held that a judge should not have found, sua sponte, a
violation not alleged in the complaint, because the respondent had
not been placed on notice it needed to present a defense. The
judge had found that a particular manager had committed a
violation, but the complaint had not alleged that this manager had
engaged in any unlawful conduct. Thus, the respondent had
insufficient reason to believe that it needed to present a defense to
this allegation.
In the present case, the complaint did allege that Respondent
violated Section 8(a)(1) of the Act at this particular predisciplinary
interview on November 8, 2005. Thus, unlike in International
Baking Co., the Respondent here knew that the supervisor’s
actions during this meeting were at issue.
On the other hand, the complaint alleges that the supervisor
unlawfully interrogated an employee about his protected activities,
not that the supervisor denied the employee’s right to have his
union representative participate. As discussed above, the denial of
this Weingarten right did contribute to the coercive nature of the
interrogation. Respondent reasonably would recognize that it had
to address the alleged conduct in its defense against the allegation
of unlawful interrogation.
In view of recent cease-and-desist orders, Respondent cannot
plausibly assert that it was unaware that restricting a union
representative’s participation in a predisciplinary interview was
unlawful. See, e.g., Postal Service, supra, and Postal Service,
JD(ATL)–38–06 (Oct. 20, 2006), the latter referring to a
Weingarten rights training program which Respondent instituted
nationwide pursuant to a settlement agreement approved by the
United States Court of Appeals for the District of Columbia
Circuit.
Respondent also had adequate opportunity to address this
matter. Employee Cline testified concerning the November 8,
2005 disciplinary interview on the first day of the hearing. The
parties presented evidence on that day and 3 subsequent days.
The hearing then recessed for 20 days. When it resumed, both the
Respondent and the General Counsel called witnesses. However,
neither of the two supervisors who interviewed Cline on
November 8, 2005 took the stand.
In sum, Respondent had ample reason to know that the
supervisor acted unlawfully when he prohibited the union
representative from speaking. Respondent also had a reason to
address this conduct when it defended against the allegation of
unlawful interrogation, because the denial of Weingarten rights
weighed against finding the interrogation harmless under the
Rossmore House criteria. Moreover, Respondent had adequate
time to prepare and present a defense.
These facts distinguish the present case from International
Baking Co. I conclude that the Weingarten issue was fully
litigated.
The second issue concerns the 6-month statute of limitations in
Section 10(b) of the Act, which states, in part, that “no complaint
shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom
such charge is made. . . .” 29 U.S.C. § 160(b).
The 6-month limitation would preclude finding the unalleged
violation unless it is “closely related” to a violation alleged and
litigated. In Redd-I, Inc., 290 NLRB 1115, 1118 (1988), the
Board held that the following conditions must be satisfied to
establish that an unalleged violation is “closely related” to an
alleged violation: (1) the unalleged violation must involve the
same legal theory as the allegations in the timely charge; (2) the
unalleged violation must arise from the same factual situation or
sequence of events as the allegations in the timely charge; and (3)
the respondent would raise the same or similar defenses to both
the unalleged violation and the violation alleged in the timely
charge.
In Trim Corp. of America, 349 NLRB 608 (2007), the Board
found a violation which had not been alleged in the complaint but
raised for the first time in the General Counsel’s posthearing brief.
The complaint had alleged that the respondent had unlawfully
withdrawn recognition from a union. The evidence established
that the respondent had made a threat which caused employees to
renounce their support for the union. The complaint, however,
had not separately alleged the threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD958
The Board panel majority concluded that the unalleged
violation—the threat—involved the same legal theory as the
allegations in the timely charge because the threat had resulted in
the dissipation of the union’s majority. Similar reasoning may be
applied here. Although the complaint did not separately allege a
Weingarten violation, it did allege an unlawful interrogation, and
the denial of Weingarten rights played a role in making the
interrogation unlawful. Accordingly, I conclude that the first
Redd-I criterion has been satisfied.
Clearly, the facts meet the second Redd-I criterion. The
unalleged Weingarten violation occurred as part of the alleged
unlawful interrogation.
The third Redd-I criterion concerns whether the Respondent
would raise the same defenses to the unalleged violation as to the
alleged violation. In this case, both the alleged and unalleged
conduct violate Section 8(a)(1) of the Act. Neither requires proof
of unlawful intent or bad faith. Had the complaint separately
alleged that Respondent committed a Weingarten violation during
this same interview, Respondent’s only defense would have been
a factual one, that its supervisor did not engage in the alleged
conduct. If Respondent had evidence to contradict the General
Counsel’s witnesses on this matter, it would have presented such
evidence as part of its defense against the alleged unlawful
interrogation.
Accordingly, I conclude that all three Redd-I criteria have been
satisfied. Therefore, I further conclude that the Weingarten
allegation is closely related to those raised in the charges and
alleged in the complaint and that it is appropriate to include a
separate remedy for this violation.
In sum, I conclude that on November 8, 2005, Respondent
interrogated Cline about his protected activities in violation of
Section 8(a)(1) of the Act. Further, I conclude that during this
interview, Respondent also violated Section 8(a)(1) of the Act by
instructing his union representative that he could not speak or ask
questions.
XII. COMPLAINT PARAGRAPH 7(a)
Complaint paragraph 7(a) alleges that on or about November
14, 2005, Respondent harassed employee Cline by attempting to
conduct an investigatory interview with Cline. In its answer,
Respondent stated that the “allegations of paragraph 7(a) are
denied, except that the Agency admits that Supervisors Maynard
and Ginn scheduled Mr. Cline for a November 14, 2005, fact-
finding interview that was subsequently rescheduled.
Complaint paragraph 14 alleges that Respondent engaged in the
conduct described in complaint paragraph 7(a) because Cline
assisted the local union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
Complaint paragraph 15 alleges that Respondent engaged in this
conduct because Cline gave testimony to the Board at a hearing in
Case 15–CA–17506, filed charges with the Board, and notified
Respondent that he was filing additional charges against
Respondent. In its answer, Respondent denied these allegations.
Respondent also denied that this conduct violated Section 8(a)(1),
(3), and (4), as alleged in complaint paragraphs 24 and 25.
1. Facts
Cline received an instruction to report to the Fort Walton
Beach, Florida post office on November 14, 2005, for another
investigative interview, which he did. There, he met with Jerry
Maynard and Lease Ginn. Respondent has admitted, and I have
found, that Maynard and Ginn are Respondent’s supervisors and
agents, within the meaning of Section 2(11) and (13) of the Act.
At the time of this interview, Maynard was working as the
customer service supervisor at the Destin post office. Thus, he
had to make a trip to the Fort Walton Beach post office to conduct
the interview. During his testimony, Maynard did not explain
why he did not simply interview Cline at the Destin facility.
Local Union President Pruett was not present, so Cline called
him. According to Cline, Pruett said that he had not been notified
of the meeting and instructed Cline not to answer questions in his
absence. Cline further testified:
And so I hung up the phone, and I told Mr. Maynard that, you
know, Bobby Pruett hadn’t been notified and that he wasn’t
going to be able to make it, and that we need to cancel this
meeting, because I couldn’t answer any questions without him
being here. And then Mr. Maynard told me, you know, Well,
we’re just going to ask the same ones over again; you know,
we’re just going to go over them, so it will be okay. And I
said, No, I’m not going to waive my Weingarten rights. And
then he said, Well, we’ll––just go ahead and start answering
questions, and we’ll call around to some of these other offices
and see if we can’t find somebody. And I said, No, sir; I’m
going to have to decline, because, you know, none of these
other people know my case. And I said, I’m going to
terminate the meeting, which I did and didn’t answer
questions at that point.
Supervisor Maynard also testified. He said that the manager of
post office operations, Linda Copeland, had assigned him to “take
over the case,” presumably meaning the predisciplinary
investigation of Cline, but he did not explain the reason for the
reassignment.
However, Maynard did offer an explanation for having Cline
come to a second investigative interview. Referring to the notes
taken during the earlier interview, Maynard testified, “I don’t want
to call it chicken scratch, if you will, the notes that were taken on
that. I couldn’t decipher that well, so I wanted to re-ask all the
questions that were asked from the first disciplinary investi-
gation.”
Maynard did not describe his conversation with Cline
concerning the presence of a union representative. However,
Maynard’s testimony—that he wanted to “re-ask” the questions
posed to Cline at the first disciplinary interview—is consistent
with the words Cline attributed to him, that “we’re just going to
ask the same ones over again. . . .” But Maynard’s asserted
justification for repeating the interview and the questions
previously asked—isn’t entirely convincing.
Another supervisor, Lease Ginn (who did not testify),
participated in the November 7 interview and took at least some of
the notes. She also was present on November 14 when Maynard
met with Cline. Maynard does not explain why Ginn could not
simply have “deciphered” any parts of her notes which were
illegible. On the other hand, the other supervisor who conducted
the November 7 interview, Joel Ouellette, was not present on
November 14, and it is possible that Ouellette’s handwriting also
posed legibility problems.
POSTAL SERVICE 959
In any event, Maynard and Ginn did not conduct an
investigative interview of Cline on November 14, 2005.
2. Analysis
The complaint alleges that, through the conduct of Supervisors
Maynard and Ginn on November 14, 2005, Respondent violated
Sections 9(a)(1) and 8(a)(3) and (4) of the Act. The complaint,
however, does not allege that any particular statement interfered
with, restrained or coerced employees. Instead, the complaint
alleges that Respondent “harassed its employee Cline by
attempting to conduct an investigatory interview with Cline.” In
other words, the General Counsel considers that the interview
attempt constituted unlawful harassment.
This allegation should be distinguished from those raised in
complaint subparagraphs 7(b) and (d), which allege that the
interviews constituted “harassment.” Here, the General Counsel
alleges that the mere attempt to have an interview constituted
“harassment.”
It is true that Cline received a notice to report for an
investigatory interview on November 14, 2005, and that he did so.
As discussed above, when Union President Pruett did not appear,
Cline contacted Pruett by telephone. According to Cline, Pruett
said that he had not been notified of the interview. Cline insisted
that he would not proceed without Pruett, and the interview was
rescheduled to November 16, 2005.
Although Pruett took the witness stand, he did not testify about
any investigatory interview in November 2005. The words Cline
attributed to Pruett, that he was not notified, are hearsay and I do
not rely upon them for the truth of the matter asserted.
The record does not establish that Respondent acted in any way
that would interfere with, restrain, or coerce employees in the
exercise of statutory rights. Similarly, the evidence does not show
that Respondent had a duty to do something but failed to do it. In
the absence of evidence showing some action or culpable inaction,
I cannot conclude that Respondent did anything which interfered
with, restrained or coerced employees in the exercise of protected
rights. Thus, I do not find any violation of Section 8(a)(1) of the
Act.
Similarly, if the evidence fails to establish that Respondent
acted in any manner—or neglected to fulfill a duty to act—then it
is difficult to find the “adverse employment action” required at the
third step of the Wright Line procedure. Cline did experience
some inconvenience, but nothing which affected his employment
status. Therefore, I do not find any violation of either Section
8(a)(3) or (4) of the Act.
In sum, I recommend that the Board dismiss the allegations
associated with complaint subparagraph 7(a).
XIII. COMPLAINT SUBPARAGRAPHS 7(b) AND (c)
Complaint paragraph 7(b) alleges that on or about November
16, 2005, Respondent, by its Supervisors Maynard and Ginn,
harassed employee Cline by conducting an investigative interview
with him. Complaint paragraph 14 alleges that Respondent
engaged in this conduct because Cline assisted the local union,
engaged in concerted activities, and to discourage employees from
engaging in these activities. Complaint paragraph 15 alleges that
Respondent engaged in this conduct because Cline gave testimony
to the Board at a hearing in Case 15–CA–17506, filed charges
with the Board, and notified Respondent that he was filing
additional charges against Respondent.
Respondent’s answer denied the allegations raised by complaint
paragraph 7(b) “except that the Agency admits that it conducted
an incomplete investigatory interview with Mr. Cline on
November 16, 2005.” Respondent denied the motivations alleged
in complaint paragraphs 14 and 15 and also denied that the
conduct violated the Act, as alleged in complaint paragraphs 24
and 25.
Complaint paragraph 7(c) alleges that on about November 16,
2005, Respondent, by Supervisors Maynard and Ginn,
interrogated employee Cline about pending unfair labor practice
charges. Respondent’s Answer denies this allegation.
Respondent also has denied that it engaged in the alleged conduct
because Cline assisted the local uinion, engaged in concerted
activities, and to discourage employees from engaging in these
activities, as alleged in complaint paragraph 14. It further has
denied that it engaged in the alleged conduct because Cline gave
testimony to the Board at a hearing in Case 15–CA–17506, filed
charges with the Board, and notified Respondent that he was filing
additional charges against Respondent, as alleged in complaint
paragraph 15. Respondent also denies that the alleged conduct
violated the Act, as alleged in complaint paragraphs 24 and 25.
1. Facts
On November 16, 2005, Supervisors Maynard and Ginn
interviewed Cline. This time, the meeting took place at the
Niceville, Florida post office, where Union President Pruett
worked. Pruett attended the meeting to provide Cline union
representation.
Cline credibly testified that the supervisors asked him the same
questions “all over again.” These questions included asking Cline
why he gave Supervisor Torres a copy of the unfair labor practice
charge and whether he was trying to provoke or intimidate Torres.
Although Maynard took the witness stand after Cline gave this
testimony, he did not contradict it. As mentioned above, Ginn did
not testify.
2. Analysis
The allegations raised by complaint paragraph 7(c) will be
examined first. The record, including Cline’s testimony, which I
credit, establishes that on November 16, 2005, Respondent
conducted a second investigatory interview, during which
Respondent asked Cline the same questions it had asked him
during the November 8, 2005 interview. More specifically, I find
that Respondent again asked Cline, on this second occasion, why
he had given Supervisor Torres a copy of the unfair labor practice
charges, and if he did so to “instigate a reaction” or “intimidate”
Torres.
For the reasons discussed above under “complaint paragraph
6,” I conclude that Respondent violated Section 8(a)(1) of the Act
when it asked Cline these questions. Also, for the reasons
discussed above, because asking the questions did not result in an
“adverse employment action,” I further conclude that the conduct
did not also violate either Section 8(a)(3) or (4).
Complaint subparagraph 7(b) does not focus on any particular
question asked during the November 16, 2005 interview, but
rather alleges that Respondent “harassed” Cline by conducting the
interview. Thus, this subparagraph doesn’t allege strictly an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD960
allegation of fact but instead alleges a conclusion, namely, that
conducting the interview constituted “harassment.”
Rather than focusing on what may or may not constitute
“harassment,” I will examine here whether Respondent’s conduct
violated Section 8(a)(1) of the Act by interfering with, restraining,
and coercing employees in the exercise of their Section 7 rights,
and whether it constituted unlawful discrimination under either
Section 8(a)(3) or (4) of the Act. The General Counsel argues that
Respondent was trying to intimidate Cline rather than simply
obtain information to consider in deciding whether to discipline
him.
The General Counsel points to one of the questions, which
asked Cline if he knew the definition of slander. The General
Counsel argues, in effect, that this question does not seek
information relevant to the discipline decision but instead
intimidates. Postmaster McGinnis, who drafted the questions,
offered this explanation for including the question:
With that one, basically Mr. Cline had accused Mr. Torres of
stealing some notebook, and he had written a lot about it, but
there was no fax, nothing to back it up, and basically, in, my
opinion, I thought it may be slander, and we wanted to know
if he knew what the definition was, because he was uttering
these false charges. We thought they were false charges.
There was no proof to back it up.
Notwithstanding McGinnis’ explanation, it remains unclear
exactly how Cline’s answer to the question might have affected
the decision to discipline him. If Cline answered that he did not
know the definition of slander, would that result in greater or
lesser discipline than the opposite answer? But although the
purpose of the question may be puzzling, the issues I must decide
are (1) whether this question, in its entire context, interferes with,
restrains, or coerces employees in the exercise of statutory rights,
and (2) whether the question, even if not violative in itself,
provides evidence of motivation relevant to the 8(a)(3) and (4)
allegations.
Applying an objective standard, I cannot conclude that the
question, on its face, interfered with, restrained, or coerced
employees in the exercise of statutory rights. Therefore, were I to
consider this question in isolation, I would conclude that this
question did not itself violate Section 8(a)(1). Similarly, the
question by itself does not manifest any unlawful motivation.
However, to determine whether the question violates Section
8(a)(1) of the Act, it should be considered in its full context, rather
than in isolation. Before Cline’s disciplinary interviews,
McGinnis prepared the list of questions to be asked. The first two
pertained to Cline’s accusation, to the postal inspectors, that
Torres had stolen Cline’s notebook. Specifically, the questions
asked Cline why he had accused Torres of stealing his notebook
and how he knew Torres had taken it. From these questions, Cline
reasonably would understand that Respondent might discipline
him for making this accusation.
These first two questions set the stage for the third question, the
one under consideration here. As noted above, this question asked
if Cline knew “what the definition of slander is? (The utterance of
false charges or misrepresentations which defame and damage
another’s reputation.)”
Also as noted above, this question does not suggest that
Respondent is inquiring into an improper subject. Even if
considered with the two preceding questions, it does not appear to
be coercive. If management contemplated disciplining Cline for
falsely accusing Torres of taking his notebook, the “definition of
slander” question would appear to have some relevance. Whether
or not Cline understood the consequences of his accusation might
well affect the severity of the discipline imposed.
However, the two questions which follow the “definition of
slander” question subtly change the direction away from Cline’s
communication with the postal inspectors and towards Cline’s
unfair labor practice allegations, the ones which prompted Torres
to call Cline a “liar.”
The question immediately after the “definition of slander”
question asked: “Did you write down every incident or
conversation you have with Mr. Torres in your notebook?”
Respondent next asked Cline, “Did you write down in your
notebook that Mr. Torres called you a liar when presented with a
copy of labor charges on August 26, 2005?”
The next question concerned, in part, whether Cline considered
Torres calling him a liar significant enough to warrant an entry in
his notebook. Considered in isolation, this puzzling question does
not bear an obvious relationship to Cline’s protected activities, but
the next one clearly does. It asks: “Why did you give Mr. Torres
a copy of the labor charges there is no reason to do this? The
Labor Board notifies management.” Asking this question during a
predisciplinary interview reasonably would convey the message
that the employee could be disciplined for serving an unfair labor
practice charge on a supervisor. Moreover, the words “there is no
reason to do this” strengthen the message that the employee might
be disciplined for engaging in protected activity, because they
imply management’s disapproval.
Respondent next asked the following: “Were you trying to
instigate a reaction or intimidate Mr. Torres?” An employee
reasonably would understand this question to reflect Respondent’s
disapproval and the setting, a predisciplinary interview, leads to
the reasonable conclusion that the employee’s protected activities
could lead to disciplinary action.
In the context created by these questions which followed, the
earlier question about knowing the definition of slander refers not
only to the accusation that Cline made to the postal inspectors but
also to the content of the unfair labor practice charge which Cline
and Jackson served on Torres. After reading this charge, Torres
admittedly called Cline a “liar,” signifying in no uncertain terms
his belief that the charge was false. Significantly, this question
about knowing the definition of slander then continued with
Respondent’s definition: “The utterance of false charges. . . .”
Thus, the predisciplinary interview questions conveyed that
management disapproved of slander, that management defined
slander in terms of false charges, that management was concerned
about Cline’s serving an unfair labor practice charge on a
supervisor at work, and that management suspected Cline had
done so for a malicious reason, namely, trying to provoke or
intimidate the supervisor.
Still another question asked during the predisciplinary
interview also implicated the statements made on the unfair labor
practice charge. After asking Cline if he had written on his
POSTAL SERVICE 961
“3971” (leave request) that he had been threatened by the
postmaster, the supervisors went on to pose this question:
Do you know that the furnishing of false information on
Federal forms including the 3971 may result in a fine of not
more than $10,000.00 or imprisonment of not more than 5
years, or both?
(Emphasis added.) The unfair labor practice charge form, of
course, also is a Federal form, and Supervisor Torres had called
Cline a liar after reading the charge Jackson and Cline had
served upon him.
In sum, the record indicates that management believed Cline
had made false statements in a number of documents—the
statement Cline gave the postal inspectors, the “3971” leave
request, the unfair labor practice charge—and wanted to put an
end to this practice. Management’s lumping together of the
“false” statements may be inferred from McGinnis’ testimony.
When asked why he had included the “definition of slander”
question, McGinnis explained that he had asked it because Cline
“was uttering these false charges. We thought they were false
charges.” (Emphasis added.) As the italicized words indicate,
McGinnis referred to “charges” in the plural, suggesting that he
meant not only the accusation Cline made to the postal
inspectors—that Torres had taken his notebook—but also Cline’s
comment on the leave request and the content of the unfair labor
practice charge which prompted Torres to call Cline a “liar.”
From the tenor of the questions McGinnis prepared, I conclude
that he intended the predisciplinary interview to do more than
gather information. Rather, management used these questions to
send a warning which did not appear to be in the form of a
warning. Although the disguised form of the warning conceivably
might make the message harder to discern, Respondent had a way
to make sure that Cline got the point. Respondent made Cline
attend three separate predisciplinary interviews and answer the
same questions each time.
McGinnis’ intent in drafting the questions, although relevant to
the 8(a)(3) and (4) allegations, does not determine whether or not
they interfered with, restrained or coerced employees in violation
of Section 8(a)(1). However, I conclude that a typical employee
reasonably would understand these questions as a veiled threat. In
other words, in context, the questions communicated the message
that Cline must stop the kind of activities the questions described,
including filing and serving unfair labor practice charges.
In the context of a predisciplinary interview, where an
employee reasonably would expect his responses to affect whether
he receives discipline and, if so, what kind of discipline, these
questions would have a chilling effect on the exercise of protected
rights, particularly an employee’s right to file charges with the
Board. That would be true even if Respondent only asked these
questions one time rather than three times. Therefore, I conclude
that by asking the questions discussed above at the November 16,
2005 meeting, Respondent violated Section 8(a)(1) of the Act.
The complaint alleges not only that Respondent unlawfully
interrogated Cline but also that it subjected him to harassment by
requiring him to attend these repetitive interviews. Specifically,
both complaint subparagraphs 7(b) and (d) raise this allegation.
For reasons discussed below in connection with complaint
paragraph 7(d), I conclude that the repetition of the unlawful
questions, and requiring Cline to answer them repeatedly, also
violated Section 8(a)(1).
The complaint also alleges that this conduct violated Section
8(a)(3) and (4). The record provides extensive evidence of Cline’s
protected activities and Respondent’s knowledge of them.
However, requiring Cline to attend an interview and answer
questions does not itself adversely affect his employment status,
even though the discipline which Respondent later imposed
certainly does. Additionally, finding a violation of Section 8(a)(3)
or (4) would not change the remedy.
I conclude that although this interview violated Section 8(a)(1),
it did not also violate Section 8(a)(3) and (4).
XIV. COMPLAINT SUBPARAGRAPHS 7(d) AND (e)
Complaint dubparagraph 7(d) alleges that on about December
12, 2005, Respondent harassed employee Cline by conducting an
investigatory interview with Cline. Respondent’s answer admitted
that it “completed this investigatory interview with Mr. Cline on
December 12, 2005,” but otherwise denied the allegations.
Respondent also denied that it engaged in this conduct because
Cline assisted the local union and engaged in concerted activities,
and to discourage employees from engaging in these activities, as
alleged in complaint paragraph 14. Similarly, it denied that it
engaged in this conduct because Cline gave testimony to the
Board at a hearing in Case 15–CA–17506, filed charges with the
Board, and notified Respondent that he was filing additional
charges against Respondent, as alleged in complaint paragraph 15.
Respondent further denied that the conduct alleged in
complaint subparagraph 7(d) violated Section 8(a)(1), (3), or (4)
of the Act, as alleged in complaint paragraphs 24 and 25.
Complaint subparagraph 7(e) alleges that on about December
12, 2005, Respondent interrogated employee Cline about pending
unfair labor practice charges. Respondent’s answer denied this
allegation.
Respondent also denied that it engaged in the conduct described
in complaint subparagraph 7(e) because Cline assisted the local
union and engaged in concerted activities, and to discourage
employees from engaging in these activities, as alleged in
complaint paragraph 14. Similarly, it denies it engaged in this
conduct because Cline gave testimony to the Board at a hearing in
Case 15–CA–17506, filed charges with the Board, and notified
Respondent that he was filing additional charges against
Respondent, as alleged in complaint paragraph 15.
Respondent further denied that the conduct alleged in
complaint subparagraph 7(e) violated Section 8(a)(1), (3), or (4) of
the Act, as alleged in complaint paragraphs 24 and 25.
1. Facts
Cline received a letter from Officer-in-Charge Dossantos
instructing him to report to the Fort Walton Beach, Florida post
office on December 12, 2005, for another interview. He attended
this interview, along with Local Union President Bobby Pruett.
Also present were Supervisors Jerry Maynard and Lease Ginn.
Cline testified that Maynard “was asking the same questions all
over again.” Cline’s account thus conflicts with the following
testimony given by Maynard:
Q. And did you ask questions at that time that were
different from what you asked during the previous one?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD962
A. Yes.
Maynard did not provide any further information concerning
the questions he asked on December 12. Thus, he neither
described the questions he said were different nor explained why
he had added such questions. Moreover, his affirmative answer to
the question—“did you ask questions . . . that were different”—
does not constitute a denial that Maynard repeated the same
questions Cline had answered twice before. A witness truthfully
could answer that question in the affirmative if he simply had
added two new questions to the others.
Although Maynard’s testimony does not describe what new
questions he asked, it does offer an explanation for scheduling a
third interview. According to Maynard, he did not have the postal
inspectors’ report when he interviewed Cline on November 16,
2005, but received that report somewhat later. Therefore, he had
to schedule another interview to ask Cline questions based on the
content of that report and its exhibits.
This explanation does not withstand close examination.
Postmaster McGinnis, not Maynard, wrote the questions used by
the interviewers. One of these questions leaves little doubt that
McGinnis knew the contents of the postal inspectors’ report when
he wrote it. The question states:
In your interview with Postal Inspector Guy Nelson [on]
August 31, 2005 you stated you did not take your notebook
home since nothing happened on that particular Friday
August 26, 2005. Yet you stated Mr. Torres allegedly called
you a liar that day. This did not warrant your writing in your
notebook?
(Emphasis added.) In view of this difficulty with Maynard’s
explanation, and considering that Maynard did not describe any
questions, I conclude that Maynard’s testimony is not as
reliable as Cline’s, which I credit. Accordingly, I find that
during the December 12, 2005 interview, the supervisors asked
the same questions which Cline had been asked in the two
earlier interviews. Further, I find that Maynard did not ask any
additional questions.
2. Analysis
The allegations associated with complaint subparagraph 7(e)
will be addressed first. For the reasons discussed above, I have
found that Respondent did ask Cline the same questions on
December 12, 2005, it had asked him on two earlier occasions.
Because the questions asked are identical, the same legal analysis
applies.
Accordingly, for the reasons stated above in connection with
complaint paragraph 6 and complaint subparagraph 7(c), I
conclude that Respondent interrogated Cline about his protected
activities on December 12, 2005, and that this interrogation
violated Section 8(a)(1) of the Act. However, I also conclude that
the evidence does not suffice to establish that the interrogation
constituted an “adverse employment action” sufficient to satisfy
the third Wright Line requirement. Therefore, I do not find that
the interrogation also violated Section 8(a)(3) and (4) of the Act.
The analysis of complaint subparagraph 7(d) presents a little
more difficulty. Like complaint subparagraph 7(b), it alleges that
Respondent “harassed” Cline by conducting this investigatory
interview. For the same reasons discussed in connection with
complaint subparagraph 7(b), I conclude that this one interview,
even considered by itself, interfered with the exercise of protected
rights in violation of Section 8(a)(1).
Moreover, subjecting Cline to the same violative questions on
three separate occasions also chills the exercise of protected rights.
The repetition reasonably would communicate to an employee the
degree to which Respondent disapproved of the employee’s
protected activities, and it also would make clear to the employee
that Respondent would be tireless in its opposition to those
activities.
The remedy for this 8(a)(1) violation remains the same whether
Respondent conducted the same unlawful interrogation once or
three times. An order that Respondent cease and desist from
interrogating employees about protected activities would, of
course, prohibit repeated interrogations.
The complaint also alleges that these interviews violated
Section 8(a)(3) and (4) of the Act. Although requiring Cline to
attend these interviews arguably might constitute an “adverse
employment action,” I do not conclude that it is sufficient to
satisfy the third Wright Line criterion. Therefore, I do not
recommend that the Board find that this conduct, which violated
Section 8(a)(1), also violated Section 8(a)(3) or (4).
3. Continuing Wright Line Analysis
Because the Government has not proven the third Wright Line
element—that Cline suffered an adverse employment action—it is
not necessary to proceed to the fourth criterion. However, in case
the Board disagrees with my conclusion that there was no adverse
employment action, I will continue the Wright Line analysis here.
At the fourth step, the General Counsel must prove a
connection between the protected activities and the adverse
employment action. For reasons discussed above, I have found
that unlawful animus motivated Respondent’s decision to suspend
Cline on September 2, 2005. Considering the relatively brief time
which elapsed between that the suspension and the predisciplinary
interviews in November 2005, that same evidence of animus helps
the government prove the fourth Wright Line element here. That
evidence of animus need not be discussed further, but the record
also includes other evidence specific to the issue here.
Requiring an employee to answer the same questions three
times, during three separate interviews is unusual. It doesn’t
happen often because generally, employers try to eliminate
expenses which foreseeably will not increase profits. Paying a
supervisor and an employee to participate in one interview may be
necessary to obtain facts before deciding upon discipline and, as in
this case, complying with a collective-bargaining agreement.
However, the record does not indicate that Respondent had
entered into any collective-bargaining agreement requiring it to
conduct three predisciplinary interviews.
Moreover, there is no obvious benefit in asking an employee
the same questions on three different occasions. Certainly, a
supervisor may decide to conduct a followup interview to ask the
employee further questions because an investigation has turned up
some new information requiring explanation. But in such an
instance, unlike here, the supervisor asks the employee different
questions.
The record does not reveal any other instance in which
Respondent subjected an employee to three different predisci-
POSTAL SERVICE 963
plinary interviews and asked him the same questions each time,
and Respondent hasn’t claimed to have such a practice.
Accordingly, I conclude that when Respondent made Cline attend
three such interviews and repeated the same questions at each, it
was departing from its usual practice.
Such a departure from the norm does not compel an inference
of unlawful animus at work and I do not infer animus from the
mere fact of multiple interviews. However, Respondent’s attempt
to explain away the triple interviews resulted in evidence which
does point to an unlawful motivation.
During the hearing, Respondent tried to establish that it had a
legitimate reason through the testimony of Supervisor Jerry
Maynard. As discussed above, Maynard did not participate in the
November 8, 2005 interview, but at some time, higher
management assigned Maynard to complete the investigation.
Maynard explained that he could not read the notes taken at the
first interview. For the reasons discussed above, I have not found
that explanation convincing. His explanation for conducting a
third interview—that he didn’t have the postal inspectors’ report
before the second interview—is even less persuasive. As noted
above, Postmaster McGinnis obviously did have information from
the postal inspectors at the time he drafted the questions which
Maynard would ask. Moreover, I have concluded that Maynard
added no new questions during the third interview.
Assuming, for analysis, that Maynard received the postal
inspectors’ report sometime after the second interview, as he
claimed, then he had two options. If the report prompted new
questions, he would have asked them, but did not. But if the
report did not raise any new questions, then there would have been
no need for a third interview, but he conducted one.
The fact that Maynard’s testimony fails to persuade doesn’t
inevitably lead to a conclusion that animus motivated
Respondent’s conduct. However, Postmaster Paul McGinnis’
testimony, and a statement McGinnis made earlier to Cline,
provide additional evidence of motive.
As discussed above, McGinnis wrote the questions which
Ouellette and Ginn asked Cline during the first interview, and
which Maynard and Ginn asked Cline during the second and third
interviews. McGinnis’ testimony gains added relevance because
of his participation in, and direction of, the investigation. During
this testimony, McGinnis did not deny a statement attributed to
him by Cline.
Specifically, Cline testified that on March 15, 2005, he had had
a conversation with McGinnis, who told him that “if the Post
Office would give him power to handle all the grievances in the
Postal Service nationwide, that he would bankrupt the unions and
do away with them.” Cline further testified:
He [McGinnis] said, I don’t even have to win all the
grievances. He said, The Post Office has a lot of money, a lot
more than all the unions in the Post Office. He said, I will
drag these things out as far as I can, and he said, The unions
don’t have the resources if I do that.
McGinnis took the witness stand after Cline gave this
testimony, but he did not deny making the statements quoted
above. Considering the significant nature of the comments
attributed to McGinnis, his failure to deny or repudiate them is
significant. Based on Cline’s uncontradicted testimony, which
I credit, I find that McGinnis did say that he would “bankrupt
the unions” and “drag these things out as far as I can. . . .”
Although McGinnis made the comment about “dragging things
out” in the context of grievance processing, more generally it
signifies a strategy of exhausting the Union’s resources through
protracted proceedings. Based on this undenied remark, I
conclude that McGinnis favored a strategy of wearing down the
Union by dragging out the grievance process.
However, particular care must be taken at this point because it
is not clear that McGinnis’ strategy, when applied to the grievance
process, would be unlawful. Indeed, for purposes of analysis, I
will assume here (without deciding) that McGinnis’ proposed
strategy of forcing every grievance to arbitration would be lawful.
May evidence of a respondent’s willingness to use a tough-but-
lawful tactic be used to infer willingness to cross the line of
legality?
Here, at least, where the record discloses other evidence of
intentional unlawful conduct, a “get-tough-with-unions” comment
certainly does have relevance. Other documented instances of
Respondent crossing the line certainly depict an environment in
which animus trumps restraint. Specifically, the record reveals
three instances in which Respondent falsely accused employees of
misconduct to retaliate against them for engaging in protected
activities. In the most extreme instance, Postal Service
management lied about Cline making a “threat” and then placed
him on emergency suspension because Cline had filed and
assisted the Union in filing unfair labor practice charges, had
given testimony in a Board proceeding, and engaged in other
protected activities. This type of retaliatory conduct makes it
plausible that McGinnis’ hostility towards unions found
expression in his actions.
The absence of any credible, legitimate reason for conducting
the same unlawful interrogation three times also increases the
relevance of Postmaster McGinnis’ “bankrupt the unions” remark.
Moreover, apart from the unlawfulness of the questions about
Cline’s protected activities, Respondent also instructed the union
president that he could not speak or ask questions.
Other Board decisions have found this Respondent guilty of
refusing to permit a union representative to participate in an
investigative interview or to consult with the employee before the
interview. In those instances, the Board has ordered this
Respondent to cease and desist and to post notices to that effect.
Postal Service, 288 NLRB 864 (1988); Postal Service, 303
NLRB 463 (1991) (nationwide posting requirement); Postal
Service, 314 NLRB 227 (1994); Postal Service, 345 NLRB 426
(2005); Postal Service, 347 NLRB 885 (2006).
Respondent’s Weingarten violation in the present case,
discussed above, took place after all but the last of these cited
cases. Thus, Respondent clearly was on notice that it could not
lawfully engage in such conduct, but it did so anyway. At the
least, this new violation demonstrates Respondent’s inattention to
the law, if not indifference. In these circumstances, when
Respondent has repeatedly been placed on notice of its legal
obligations, the occurrence of another, similar violation suggests
that it has failed to take adequate measures to assure that its
managers understand that whatever their personal feelings about
unions, they may not let those sentiments push them across the
line of legality. In this environment, Postmaster McGinnis’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD964
“bankrupt-the-unions” remark does have relevance to the issue of
animus because there was more than a remote possibility that his
antiunion hostility would affect the conduct of the investigation.
The November 8, 2005 Weingarten violation described above
not only violated past Board and court cease-and-desist orders, but
also contravened Respondent’s own agreement with the Union.
As discussed above, on June 10, 2004, Respondent agreed to a
“Joint Contract Interpretation Manual.” Both the Respondent and
the National Union signed this agreement, which remained in
effect in November 2005. Article 17.4 includes the following
agreement about an employee’s Weingarten rights:
The employee has the right to a steward’s assistance, not just
a silent presence, during an interview covered by the
Weingarten rule. An employee’s Weingarten rights are
violated when the union representative is not allowed to speak
or is restricted to the role of a passive observer.
(Emphasis added.) This agreement constitutes an admission by
Respondent that it knew it could not lawfully instruct a union
representative that he was not allowed to speak during the
predisciplinary interview. Moreover, Cline’s credited testi-
mony establishes that he and the union president reminded the
supervisor of the union representative’s right to speak. That
reminder did not change the supervisor’s instruction.
Respondent’s November 8, 2005 Weingarten violation must
therefore be considered willful. This willful violation occurred
during an investigation for which Postmaster McGinnis had at
least ad hoc responsibility. McGinnis admitted writing the
questions which the various supervisors asked during all three
interviews.
Moreover, McGinnis’ testimony indicates that his role extended
beyond drafting these particular questions. Besides this
investigation, a predicate to imposing on Cline a 14-day
disciplinary suspension, McGinnis also was involved in preparing
Respondent’s defense against the grievance Cline already had
filed over being placed on emergency leave.
Stated another way, McGinnis’ testimony shows that he was
doing more than guiding an investigation to determine whether
Cline should be disciplined. He also was trying to build a case
against Cline for use when Cline’s grievance went to arbitration.
When asked by Respondent’s counsel to explain why he wanted
Cline to answer this question—“Were you trying to instigate a
reaction or intimidate Mr. Torres?”—McGinnis testified in part as
follows:
Q. Okay. What was the reason for that question?
A. Well, basically, once again, I had just gotten done
with the emergency placement grievance, and I knew it
was going to be a credibility issue if something came
about with any kind of corrective action for the threat or
the deals with Pete Torres notebook being supposedly—
well, accusing Mr. Torres of stealing a notebook. So I was
trying to build a pattern. . . .
McGinnis’ further testimony indicated that he wasn’t acting
alone. To the contrary, Cline’s protected activities concerned
others in Respondent’s management. McGinnis testified that he
was trying to find out
[W]hat was the reasoning for [Cline] to be a witness for
[service of] the NLRB charge? Was it trying to get Mr.
Torres to react? Was it an intimidation thing? Is it a bullying
thing? We were just trying to find out once again what was
his role, why did he have to be there when Mr. Jackson gave
the NLRB charge.
(Emphasis added.) In the italicized sentence, McGinnis
essentially admits that he was using this investigation not
merely to determine whether Cline had broken a work rule or
policy, but also to learn about Cline’s protected activity and the
reason for it. Moreover, his use of the word “we” indicates that
McGinnis wasn’t simply indulging his own personal curiosity
but rather was involved in a management team effort prompted
by Cline’s protected activity.
Indeed, the incident upon which McGinnis focused—Cline’s
acting as a witness while Union Steward Jackson served the unfair
labor practice charge—entailed three separate activities which
enjoy the Act’s protection: Concerted activity by two employees,
union activity, and filing a charge with the Board.
McGinnis’ testimony leaves no doubt that this teaming up of
Cline and Jackson concerned him: “I was trying to figure out why
it took two people to hand a labor charge to Mr. Torres.”
Moreover, McGinnis observed that in all his years as a manager,
he had never before seen someone hand a charge to a supervisor
rather than serve it by certified mail, and he had never seen
someone serve as a witness while someone else served the charge.
When McGinnis’ testimony is considered along with his earlier
“bankrupt-the-unions” remark, it becomes clear why this new
union militancy concerned him. McGinnis perceived it as a threat.
McGinnis, who was calling the shots in the investigation of
Cline, had both the power to implement his “drag it out” strategy
and a motive to do so: To put the brakes on the Union’s new
assertiveness. It was disturbing when the Union picketed the
Destin facility. It was also disturbing when Cline testified in a
Board proceeding and when the judge in that proceeding ordered
Respondent to cease and desist and post a notice. But those
activities, troubling as they were, had taken place outside. When
Jackson and Cline brought the unfair labor practice charge inside
the workplace and served in on a first-line supervisor, they took
their union activity to a level McGinnis had not previously
experienced.
Also, as mentioned above, McGinnis’ testimony establishes
that he also was developing Respondent’s defense to Cline’s
grievance, and was using the investigatory interview process for
an unlawful purpose—obtaining information about Cline’s
protected activities—unrelated to the ostensible purpose of the
predisciplinary interview. The more often Cline was forced to
answer questions about his protected activities, the more likely
that he would either disclose useful information or respond
intemperately, opening himself up to further discipline. Noting
the absence of any plausible, legitimate reason for asking an
employee the same unlawful questions in three separate
interviews, I conclude that Respondent embarked on a calculated
course to discredit and neutralize Cline before he further
embarrassed management with more protected activities.
In sum, if subjecting Cline to three separate predisciplinary
interviews constituted an “adverse employment action” sufficient
POSTAL SERVICE 965
to satisfy the third Wright Line criterion, I would conclude that the
General Counsel also has proven the fourth Wright Line element.
Therefore, the burden would shift to Respondent to prove that it
would have taken the same action against Cline in any event, even
in the absence of his protected activities.
Respondent has not met such a burden. In particular, I note that
the evidence does not establish that Respondent made any other
employee attend three separate disciplinary interviews and answer
the same questions at each. Moreover, because many of these
questions concerned Cline’s protected activities, they obviously
would not have been asked if he had not engaged in such
activities.
Accordingly, should the Board conclude that Respondent’s
conduct resulted in an adverse employment action, I would
recommend that the Board find that Respondent violated both
Section 8(a)(3) and (4) of the Act. However, because I do not
conclude that the three interviews constituted an adverse
employment action, I recommend only that the Board find that
this conduct, alleged in complaint subparagraphs 7(d) and (e)
violated Section 8(a)(1) of the Act.
XV. COMPLAINT PARAGRAPHS 13(a) AND (b)
Complaint paragraph 13(a) alleges that on about March 13,
2006, Respondent issued Cline a written notice of disciplinary
action involving a proposed April 1 through 14, 2006 suspension.
Complaint paragraph 13(n) alleges that on about April 1 through
14, 2006, Respondent suspended Cline. Respondent has admitted
both of these allegation. Respondent has denied that these actions
violate Section 8(a)(3), (4), and (1) of the Act, as alleged in
complaint paragraphs 24 and 25.
1. Facts
The notice of disciplinary action dated March 13, 2006, notified
Cline that he would be on suspension beginning April 1, 2006,
and ending at the end of his “tour” (shift) on April 14, 2006. This
notice gave three reasons for the suspension: (1) Falsely reporting
to the Postal Inspection Service that Supervisor Torres had taken
Cline’s notebook; (2) Threatening Supervisor Grossi on
September 2, 2005; and (3) the March 4, 2005 warning letter
which Cline received on March 7, 2005.
As discussed above, I have concluded that Cline was not
engaged in protected activity when he notified the postal
inspectors that his notebook was missing and strongly insinuated
that Supervisor Torres had taken it. Cline maintained that he only
told the inspectors that Torres had the opportunity to take the
notebook and a motive to do so. However, the record reveals at
least one instance in which his statements to the inspectors slipped
into the realm of accusation. Cline admitted writing and sending
to the postal inspectors an August 28, 2005, “To Whom It May
Concern” note which stated as follows:
On Friday August 26, 2005 at 1710 Destin Supervisor
Pete Torres was given a copy of labor charges that were
filed against him. The charges were filed on my behalf by
union steward Marcus Jackson. I was asked to be present
by Mr. Jackson as a witness. Mr. Torres told me that I
was a liar. I told him that I had notes and I knew exactly
what happened when he threatened me. He told me that I
should read my notes again. I told Mr. Torres that I would
not argue with him and just let the Labor Board handle it.
On Sunday August 28, 2005 I went to the Destin office
to retrieve the notebook as I should half [sic] on Friday.
The notebook was in my locker with a small lock attached.
When I opened the locker I found that the notebook had
been stolen. I know that Mr. Torres is the only one that
had reason to steal the notebook. He is a hot head and
took it to protect himself. Mr. Torres did not know that I
had already typed the notes on my home computer. I feel
very angry that not even my locker is safe anymore! I
would gladly open my locker for inspection anytime. To
have my personal items stolen further shows that I am
working in a hostile environment.
I reported the theft to the Inspection Service from the
Destin office. I will make formal charges to see that either
my notebook is returned or Mr. Torres is punished for the
theft.
(Emphasis added.) As noted above, Torres admitted calling
Cline a liar. However, he vigorously denied, both to the Postal
Inspection Service and while testifying at the hearing, that he
had taken Cline’s notebook. The postal inspectors found no
evidence to indicate that Torres had taken the notebook and
took no action against him.
Based upon the record and my observations of the witnesses, I
conclude that Cline was upset to discover his notebook missing
and sincerely believed Torres had taken it. This belief arose not
from any objective evidence, such as Torres’ fingerprints or the
reports of eyewitnesses, but instead from Cline’s reasoning that
only Torres had both access to the locker and a motive, which
Cline’s “To Whom It May Concern” note described. The words
“he took it to protect himself” support a conclusion that Cline
accused Torres of stealing his notebook without having objective
evidence to support that claim. I so find.
The second stated reason for suspending Cline is different. For
the reasons discussed above, I have found that Cline did not make
the September 2, 2005 threat which Grossi attributed to him.
Further, I have concluded that when Respondent placed Cline or
emergency leave, it was seizing upon the “threat” as a pretext for
removing Cline from the workplace.
Respondent also based the March 13, 2006 suspension on a
warning letter, dated March 5, 2005, which Cline had received.
For the reasons discussed above, I have concluded that
Respondent unlawfully issued this warning letter.
2. Analysis
Although the March 13, 2006 notice of disciplinary action
describes the notebook accusation before discussing the asserted
“threat,” beginning the analysis with the latter will make this
section more concise. Respondent offers the threat as the sole
justification for the emergency placement and as a partial
justification for the 14-day suspension. The same reasons which
led me to conclude that the “threat” was a pretextual justification
for the emergency placement bring me to the same conclusion
regarding the 14-day suspension.
Most of the facts to be examined here also formed the basis for
the Wright Line analysis applied above in connection with
complaint paragraph 10. The main difference is that the “adverse
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD966
employment action” at issue here is a 14-day suspension during
the first part of April 2006 rather than the emergency placement
leave which began on September 2, 2005. Moreover, one of
Respondent’s asserted reasons for imposing the 14-day
suspension—Cline’s accusing Torres of taking the notebook—is
not protected activity. In this mixed-motive situation, Respondent
may present evidence that the presence of the unlawful animus did
not affect the outcome.
Clearly, the General Counsel has proven the first three Wright
Line elements. Cline certainly engaged in numerous protected
activities known to Respondent. Moreover, there can be no doubt
that a 14-day suspension constitutes an “adverse employment
action.”
With respect to the final Wright Line requirement, the same
evidence of animus discussed above also supports the Govern-
ment’s case here. Such evidence notably included Postmaster
Malishan calling Cline a “troublemaker,” which Malishan did not
deny, and Supervisor Torres calling Cline a “liar,” which Torres
admitted.
In addition to the evidence considered in connection with
complaint paragraph 10, other manifestations of animus bolster
the conclusion that the General Counsel has proven the fourth
Wright Line element. Before examining this additional evidence it
may be noted that to carry the Government’s initial burden under
Wright Line, the General Counsel does not have to prove that
unlawful animus was the “proximate cause” for the decision to
discriminate. Similarly, the government does not have to establish
that in the absence of such animus, no adverse employment action
would have taken place. Rather, the General Counsel only must
prove, by a preponderance of the evidence, that union animus was
a “substantial or motivating factor” in the adverse employment
action. Desert Toyota, 345 NLRB 1335 (2005).
The additional evidence of unlawful motive inheres in the
unfair labor practices Respondent committed while conducting its
predisciplinary investigation of Cline. As discussed above, before
deciding to suspend Cline for 14 days, management required
Cline to attend three separate investigatory interviews and, on
each occasion, interrogated Cline about his protected activities.
The discussion above focused on the effect these questions
reasonably would have on the exercise of protected rights. The
discussion here examines what these same questions reveal about
Respondent’s motivation.
Respondent typically interviews the affected employee before
imposing discipline. Because such “predisciplinary interviews”
serve the precise purpose of acquiring information to be used by
the discipline decisionmaker, the nature of the information sought
sheds light on the factors management weighed in deciding upon
discipline. Logically, management would not waste time
gathering information about matters which could not affect the
outcome of the discipline decision.
In Cline’s case, it is true that the manager who drafted the
questions, Postmaster Paul McGinnis, had an additional purpose
in mind. His testimony indicates he sought to use the
predisciplinary interview as a kind of discovery device to obtain
information which might be useful in defending against Cline’s
grievance. However, the fact that McGinnis used the pre-
disciplinary interview for a secondary purpose does not negate the
primary and ostensible purpose, gathering information which
would be considered while making the discipline decision.
Respondent has not claimed, and no witness testified, that
Respondent segregated Cline’s answers to the questions about
protected activity from Cline’s other responses so that the former
would not be considered by the discipline decisionmaker. Absent
such a claim and evidence to support it, I conclude that
Respondent used all the information obtained during the
predisciplinary interviews for its primary purpose, determining
whether to impose discipline.
By itself, the fact that Respondent gathered information about
Cline’s protected activities and considered it while deciding upon
discipline, establishes that animus played some kind of role in the
decision making. The other evidence of animus, including
Postmaster Malishan calling him a “troublemaker,” compels the
conclusion that Cline’s protected activities weighed significantly
in the decision to suspend him. In light of all the evidence
reflecting Respondent’s hostility towards the Union, I conclude
that unlawful animus was both a substantial factor and a
motivating factor in Respondent’s decision to suspend Cline for
14 days.
In sum, I conclude that the General Counsel has established the
initial four Wright Line elements. Thus, the burden shifts to
Respondent to prove, as an affirmative defense, that the presence
of an unlawful motivation during the decisionmaking process did
not change its outcome. North Fork Services Joint Venture, 346
NLRB 1025 (2006), citing Manno Electric, 321 NLRB 278, 280
fn. 12 (1996). To establish this affirmative defense, “[a]n
employer cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the
protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995),
enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
In Lampi LLC, 327 NLRB 222 (1998), the Board stated that in
assessing whether a respondent has established this defense, “we
do not rely on our views of what conduct should merit discharge.
Rather we look to the Respondent’s own documentation regarding
[the alleged discriminatee’s] conduct, to its ‘Personnel Policy’
handbook, and to the evidence of how it treated other employees
with recorded incidents of discipline.” 327 NLRB at 222–223.
Here, Respondent has not established that, in other instances
which were similar except for protected activities, it imposed the
same discipline Cline received. Thus, it did not prove that it
would have imposed the same discipline on Cline even in the
absence of protected activities. Therefore, I conclude that
Respondent has not carried its Wright Line rebuttal burden.
The March 13, 2006 notice of disciplinary action lists one other
ground for the 14-day suspension: The warning letter dated
March 4, 2005. However, for reasons discussed above, I have
concluded that Respondent unlawfully discriminated against Cline
by issuing this warning. Therefore, this warning must be
rescinded, and may not afford a basis for further disciplinary
action.
In sum, Respondent predicated its decision to suspend Cline on
three grounds, two of which—the March 4, 2005 warning and the
September 2, 2005 emergency placement—were unlawful. The
remaining ground—Cline’s accusation that Supervisor Torres had
POSTAL SERVICE 967
stolen his notebook—did not concern a previous unlawful
personnel action. However, the evidence established that
unlawful animus was a substantial and motivating factor in the
decision to impose discipline, and Respondent did not carry its
rebuttal burden.
Accordingly, I conclude that the March 13, 2006 notice of
disciplinary action and the 14-day suspension it described violated
Section 8(a)(4), (3), and (1) of the Act.
XVI. THE INFORMATION REQUEST ALLEGATIONS
As discussed above, under the “Admitted Allegations” heading,
Respondent has admitted and I have found that the National
Union and Local Union are labor organizations within the
meaning of Section 2(5) of the Act, that the National Union is the
exclusive representative of employees in an appropriate
bargaining unit, that the National Union and the Respondent have
entered into a collective-bargaining agreement, and that the Local
Union is the National Union’s agent for administering this
agreement at the Destin facility.
Complaint paragraph 20 alleges, and Respondent’s answer has
admitted, that since on or about September 15, 2005, the local
union, by hand delivered note, has requested that Respondent
furnish it with a copy of the postal inspector’s notes regarding the
investigation of an alleged threat made by Cline on September 2,
2005. Respondent also has admitted that this information is
necessary for and relevant to the local union’s performance of its
duties as the National Union’s agent for administering the
collective-bargaining agreement at Respondent’s facility, as
alleged in complaint paragraph 21.
Complaint paragraph 22 alleges that since on or about
September 15 until about December 14, 2005, Respondent
unreasonably delayed in providing the local union with the
requested information described in complaint paragraph 20.
Respondent’s answer states:
The allegations of paragraph 22 are denied, except that
Respondent admits that it complied with the September
15, 2005 request on or about December 14, 2005. Further,
respondent avers that, in mid-October, the new Officer-In-
Charge met with APWU local president and steward,
asked the Union for all outstanding issues, and honored all
outstanding information requests brought to his attention
by the Union. Respondent reasonably believed that the In-
spection Service notes were no longer an issue as the mat-
ter was not identified by the Union as still outstanding.
Thus, Respondent has admitted that it did not provide the
requested information until December 14, 2005, but has denied
that this delay was unreasonable. Further, it has asserted, in
essence, that it acted reasonably and with the good-faith belief
that it no longer had to provide the requested information.
1. Facts
As noted above, Respondent has admitted that on about
September 15, 2005, it received an information request from the
local union. Based on the testimony of Local Union President
Pruett, which I credit, I find that Postmaster Leon Malishan
actually received the information request on September 16, 2005.
The request sought the following:
1. Any & all documentation concerning Bobby
Cline’s emergency placement. This includes all state-
ments from all managers, clerks & carriers.
2. Copy of the Postal Inspection IM report including
their handwritten notes.
3. Copy of the Okaloosa Sheriff’s report from this
placement on 9–2–05.
Union President Pruett’s signature appears at the bottom, just
below these handwritten words: “The Union demands full &
complete disclosure at this time. We request & demand all
documents used against Bobby Cline, statements, notes,
everything.”
Union President Pruett credibly testified that he gave copies of
this information to Postmaster Malishan and Supervisor Torres on
September 16, 2005. I so find.
About a month later, Respondent reassigned Malishan and
another manager, Billy Dossantos, took charge of the Destin
facility. After assuming the position in Destin, Dossantos met
with Union President Pruett and Shop Steward Jackson. Also
present were the former postmaster, Leon Malishan, and a
supervisor, Jerry Maynard.
During this transition period, the presence of the former
postmaster at the meeting isn’t surprising. However, the record
does not establish why Maynard attended. Dossantos testified that
Maynard did not work in the Destin facility and Dossantos did not
know Maynard’s title within the organization. When Maynard
testified, he neither referred to this meeting nor explained why he
was present.
When asked if the subject of information requests came up
during the meeting, Dossantos at first expressed uncertainty. He
explained that the meeting was heated and Malishan left. Then,
Dossantos turned to the union representatives and asked them
what they needed. According to Dossantos, he “wrote it all
down” and “complied with everything on the list.”
This testimony sounds plausible. Uncontradicted testimony,
discussed above, establishes that on September 2, 2005, Malishan
had gotten close to Cline and loudly called him a “troublemaker.”
Considering Malishan’s strong feelings and apparent tempera-
ment, it would not be surprising if he began to get loud again
during this meeting with union officials.
The record does not establish that the new manager, Dossantos,
harbored similar hostility. For example, Cline’s testimony
establishes that when he told Dossantos that he had not received
any paycheck even though he was supposed to be on
administrative leave, Dossantos insisted that Cline accept some
compensation then and there. Dossantos then said he would make
sure that Cline received a paycheck.
Considering the steps Dossantos took when he learned that
Cline was not being paid, it is not difficult to believe that
Dossantos also demonstrated an accommodating attitude when he
and the union officials discussed the information request. Union
President Pruett’s testimony also portrays Dossantos as being
helpful on this occasion. According to Pruett, Dossantos said that
“[t]his is all the documents that the postal inspector told me they
had in their possession.”
Pruett did not specifically testify that Dossantos then gave him
the documents, but that is the most reasonable inference.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD968
Additionally, Pruett’s testimony does not establish whether
Dossantos tendered these documents at the mid-October “labor
management meeting” or sometime later. However, the most
logical sequence of events would place this tender during the
“labor management meeting” which took place about October 15,
2005.
In that regard, Pruett testified that what the Postal Inspection
Service had provided to Dossantos concerned “the interview with
Mr. Cline over Mr. Cline’s complaint of his notebook being
stolen” rather than Cline being placed on emergency leave. That
would be consistent with Dossantos’ testimony, quoted below,
which indicated that his predecessor had not tried to obtain any
postal inspectors’ documents concerning Cline’s emergency
suspension.
As noted above, Dossantos’ “labor management meeting” with
Union President Pruett and Steward Jackson took place on about
October 15, soon after Dossantos’ arrival as officer-in-charge of
the Destin facility. Although Dossantos left that meeting with a
list of information the Union needed, the record does not establish
what he did first to obtain the information or when he took that
action.
Dossantos testified that at some later date, he spoke with Union
Steward Jackson, who told him that the Union no longer needed
the postal inspectors’ notes. Dossantos could not pinpoint the date
of this conversation with Jackson, but only said that it “could have
been a few weeks” after the mid-October meeting. However,
Dossantos then added, “I really don’t know.”
Jackson, who testified before Dossantos, did not refer to any
occasion when he told Dossantos that the Union no longer needed
the postal inspectors’ notes. Dossantos’ testimony to that effect
remains uncontradicted, and I credit it. Thus, I find that Jackson
did tell Dossantos that the Union no longer needed the postal
inspectors’ documentation. Further, I find that Jackson made this
statement to Dossantos some time after October 15, 2005, but
otherwise reach no conclusion regarding the precise date.
Dossantos further testified that some time later, when he told
Union President Pruett about Jackson’s statement, Pruett
contradicted Jackson. According to Dossantos, he asked Pruett to
look through Dossantos’ information request log “and make sure
that I’ve given you everything.” After examining the log, Pruett
told Dossantos that the Union had not received “the notes.”
Dossantos replied, “I’ll get you the notes.”
Pruett, who testified before Dossantos, neither contradicted nor
corroborated Dossantos’ account. Crediting Dossantos, I find that
Pruett did tell him that the Union needed the notes and that he
replied that he would get Pruett the notes. However, Dossantos’
testimony does not establish when this conversation with Pruett
took place. Presumably, it occurred some time around the first of
November 2005, but that date could be off by a couple of weeks in
either direction.
Dossantos contacted a postal service lawyer, John Oldenburg,
asked for the notes, and got a copy within “a couple of days.”
Dossantos then provided them to the Union. Dossantos testified
that he decided to involve the attorney because he had heard that
the former postmaster, Malishan, had been unable to obtain the
notes.
What Dossantos had heard—that Malishan had been unable to
obtain the notes—implies that Malishan had tried to get the notes.
However, Malishan’s own testimony establishes that he did not:
Q. Prior to your leaving the Destin Post Office, do you
know what, if any, efforts were made to comply with the
information request?
A. From the postal inspection?
Q. Yes.
A. Peter Torres should have—I can’t say that he
did—should have requested from the postal inspector—he
should have informed Marcus Jackson that he was going
to request the information from the postal inspection in or-
der to get that information form. . . .
Q. Were you involved at all with any of these—any
discussions regarding the documents?
A. Not from the postal inspection. No.
(Italics added.) Torres’ testimony does not address whether or
not he requested the documents and the record does not
establish that he made any attempt. I conclude that he did not.
Indeed, a close examination of Malishan’s testimony does not
establish that Malishan even asked Torres to seek the notes.
Malishan only testified that Torres should have requested them.
The record establishes that Malishan and Torres both harbored
animus towards Cline and I have concluded that they bore
responsibility for Cline’s emergency placement. Additionally, I
have concluded that Respondent’s asserted reason for this action
was pretextual. In these circumstances, it seems quite unlikely
that either Malishan or Torres would have expended much effort
to assist the Union in obtaining the postal inspectors’ notes.
Indeed, the record suggests that when Respondent changed
Cline’s leave status from nonpaid to paid, the duty fell on Torres
to make sure that Cline received a paycheck, but Torres did not
perform that duty. Only after Dossantos took over did Cline get
paid. Considering that the combined efforts of Postmaster
Malishan and Supervisor Torres failed to correct Cline’s payroll
status, it is not surprising that they also failed to request the postal
inspectors’ notes.
Dossantos proved to be more conscientious about these matters
but there were still problems. During the hearing, Pruett identified
portions of the requested documents which he had not received
until December 14, 2005. One of these documents is a lined sheet
of paper with the date “9/2/05” in the upper right and bearing
these words in handwriting: “The US Postal Inspection Service
has received the following property from Bobby Cline on 9/2/05
@ 4:55 pm CST. . . .” The sheet then listed one identification
badge and seven keys. Towards the bottom of the page, following
the words “Witnessed By,” appear the putative signatures of two
postal inspectors, Cline, and Steward Jackson.
Pruett identified another page which, he testified, he did not
receive before December 14, 2005. This lined sheet also bore
handwritten notes. The unidentified writer described contacting
Cline by telephone on September 2, 2005, and notifying him that
he would have to turn in his keys because he was on emergency
placement. The notes correspond with Cline’s testimony
concerning the afternoon of September 2, 2005. From that
testimony, I infer that Postal Inspector Jennifer McDaniel
prepared the notes.
POSTAL SERVICE 969
Respondent had attached these two documents, among others,
to a position statement it sent by facsimile to the Board’s New
Orleans office on December 14, 2005. In a later fax to counsel for
the General Counsel, Respondent identified these two pages as
copies of postal inspectors’ handwritten notes.
Respondent had also attached to its December 14, 2005
position statement another page bearing postal inspectors’ notes.
(In evidence, it is the last page of GC Exh. 35.) Union President
Pruett credibly testified that he had never seen this document
before the day of the hearing.
Pruett’s testimony that he had not received some of the
requested information until December 14, 2005, is consistent with
the admission in Respondent’s answer “that it complied with the
September 15, 2005 request on or about December 14, 2005.”
Additionally, no evidence contradicts Pruett’s testimony that he
never received one document and had not seen it until the hearing.
I credit this testimony.
2. Analysis
In determining whether an employer has unlawfully delayed
responding to an information request, the Board considers the
totality of the circumstances surrounding the incident. “Indeed, it
is well established that the duty to furnish requested information
cannot be defined in terms of a per se rule. What is required is a
reasonable good-faith effort to respond to the request as promptly
as circumstances allow.” West Penn Power Co., 339 NLRB 585,
587 (2003) (internal quotation marks omitted), citing Good Life
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993).
In this case, Respondent has admitted the relevance and
necessity of the requested information and has not asserted that the
information was confidential. Instead, it argues that a misunder-
standing, not bad faith, caused a delay. Relying on Jackson’s
statement, Dossantos did not try to obtain the notes until Pruett
informed him that the Union still wanted them.
This argument, of course, does not explain why Respondent
never provided the Union with one document, even though it had
sent a copy to the Board’s Regional Office on December 14, 2005.
This document—the last page of General Counsel’s Exhibit 35—
is a photocopy of notes taken by a postal inspector. The notes
include a reference to an Officer Taylor at the Okaloosa County
Sheriff’s Department, and the words, in quotes, “When I come
back it won’t be pretty.” This note has particular significance
when considered together with the sheriff’s department’s log,
discussed above.
Although that log included a quotation different from the words
Grossi attributed to Cline, it provided no particulars. Thus, the log
did not indicate who had contacted the sheriff’s department and
did not reveal what officer had taken the call. The postal
inspectors’ note did identify a person: Officer Taylor.
Even if Respondent had provided this information as late as
December 14, 2005, it would have given the Union an
investigative lead to follow before the arbitration of Cline’s
grievance on January 31, 2006. However, Union President Pruett
testified that he had not seen the document before the unfair labor
practice hearing in June 2006.
Pruett discovered the document after the General Counsel
handed him Respondent’s position statement and elicited
testimony about other documents attached to that position
statement. Looking at these attachments, Pruett spotted the note he
had not seen before.
Respondent sent this position statement and attachments to the
Board on December 14, 2005, the same date it furnished other
documents to the Union. Thus, Respondent could have provided
the Union with a copy of this note at the same time but, crediting
Pruett, I find that Respondent did not. However, the failure to
furnish the Union with this one document certainly does not prove
that Respondent was acting in bad faith. Its omission from the
material send to the Union on December 14, 2005, might have
resulted from clerical error.
The information request allegation encompasses more than
failure to produce one document. The General Counsel alleges
that Respondent breached its duty to bargain in good faith because
of an unreasonable delay in furnishing the requested information.
Crediting Pruett’s testimony, I find that Respondent did not
provide until December 14, 2005, certain other documents the
Union had requested on September 16, 2005. Respondent’s
answer, which admits that Respondent furnished the Union with
some documents on December 14, 2005, is consistent with this
finding.
As stated above, the Board has not established a set of
deadlines to determine whether an employer’s response to an
information request is timely. Rather, the Board examines
whether a respondent has made a “reasonable good-faith effort” to
comply with the information request. West Penn Power Co.,
above; see also Postal Service, 337 NLRB 820 (2002).
On September 16, 2005, the Union made its information
request to Postmaster Malishan, who then ran the Destin facility,
and to Supervisor Torres, who reported to Malishan. To comply
with the information request, these local managers had to obtain
the documents from one of Respondent’s other branches, the
Postal Inspection Service. Malishan’s own testimony establishes
that he did nothing. Moreover, the record fails to establish that
Torres took any action. I have concluded that neither Malishan
nor Torres made any effort to obtain the documents.
Even if the evidence revealed no reason for this inertia, the
lack of action itself would call into question whether
Respondent had made a reasonable good-faith effort. However,
much credible evidence demonstrates that bad faith prompted
the foot dragging.
After Dossantos replaced Malishan, the Union began
receiving some, but not all, of the requested information. So,
the period of blatant, bad-faith inaction lasted only a month or
slightly longer. Should the Board find an 8(a)(5) violation
based on so short a period? Prior cases involving this same
Respondent answer that question “yes.”
In Postal Service, 308 NLRB 547 (1992), the Board adopted
the administrative law judge’s finding that a 4-week delay
breached the duty to provide information. That conclusion did not
require the kind of bad faith obvious here. The judge wrote:
The information requested . . . has not been shown to be
complex or difficult to retrieve: the information consists of
only a few documents. Respondent has not explained why it
did not produce the requested documents until about 4 weeks
had passed and why it waited until after the charge had been
filed to comply with the Union’s request. Thus, I conclude
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD970
that Respondent violated Section 8(a)(1) and (5) of the Act by
delaying for 4 weeks to furnish the Union with information
requested by Brister. Bundy Corp., 292 NLRB 671, 672
(1989); Postal Service, 276 NLRB 1282, 1288 (1985).
Similarly, Respondent has not shown in this case that the
requested information was complex. I conclude that it was not.
Likewise, Respondent has not shown that it experienced any
difficulty obtaining or retrieving the requested information.
Rather, the record establishes that for a month, Respondent
didn’t even try.
After Malishan left the Destin facility, Dossantos did seek the
information the Union had requested. Based on the credited
evidence, I conclude that he acted in good faith when he relied on
Steward Jackson’s statement that the Union no longer needed the
requested information. He could not, of course, undo the 1-month
delay resulting from bad faith.
In sum, I find that Respondent breached its duty to provide
relevant and necessary information to the requesting union in a
timely manner and thereby violated Section 8(a)(5) and (1) of the
Act. These violations include both the 1-month period beginning
September 16, 2005, when Respondent did nothing to obtain and
provide some of the requested information, and the period
thereafter, when Respondent still did not furnish the Union with
all of the requested documents.
REMEDY
Except in extreme cases, the Board issues a narrow cease-and-
desist order which enjoins a respondent from committing any
“like or related” violations in the future. The Board doesn’t
simply assume that a respondent which violated one section of the
Act yesterday will commit some other type of unfair labor practice
tomorrow. Powerful reasons must drag the Board reluctantly to
such a pessimistic conclusion.
In Hickmott Foods, 242 NLRB 1357, 1357 (1979), the Board
described two circumstances warranting a broad cease-and-desist
order, which enjoins a respondent from violating the Section 7
rights of employees “in any other manner.” The evidence must
show either that (1) the respondent has a proclivity to violate the
Act, or (2) has engaged in such egregious or widespread
misconduct as to demonstrate “a general disregard for the
employees’ fundamental statutory rights.”
In either situation, the Board reviews the totality of
circumstances to ascertain whether the respondent’s specific
unlawful conduct manifests “an attitude of opposition to the
purposes of the Act to protect the rights of employees generally,”
which would provide an objective basis for enjoining a reasonably
anticipated future threat to any of those Section 7 rights. Five Star
Mfg., Inc., 348 NLRB 1301 (2006), citing Postal Service, 345
NLRB 409, 410 (2005).
The Board issued a broad cease-and-desist order against
Respondent in the Postal Service case cited in the paragraph
above. In that case, the Board found that Respondent had violated
Section 8(a)(5) by failing to provide a union with requested
information in a timely manner, but it did not find that Respondent
had committed other types of unfair labor practices. The United
States Court of Appeals for the Fifth Circuit concluded that the
Board’s “broad order” was, in this instance, overly broad, and
modified it. The court held that the Board had articulated the
correct standard in Hickmont Foods, above, but had not applied it
correctly. NLRB v. Postal Service, 477 F.3d 263 (5th Cir. 2007).
The present record, involving the same Respondent, establishes
a much more alarming set of facts. Section 8(a) of the Act
includes five subparagraphs listing the types of employer conduct
which the Act prohibits. In the present case, Respondent violated
four of these five subsections, namely Section 8(a)(1), (3), (4), and
(5). (The complaint did not allege that Respondent had dominated
or contributed support to a labor organization in violation of Sec.
8(a)(2) of the Act.) Thus, this case may be distinguished from
NLRB v. Postal Service, above, in which the Board found only an
information request allegation.
However, the fact that Respondent violated more than one
subsection of the Act is not as significant as what the pattern of
unfair labor practices reveals about Respondent’s attitude and
intent. For the following reasons, I conclude that Respondent has
demonstrated “an attitude of opposition to the purposes of the Act
to protect the rights of employees generally.”
This analysis begins by noting that on July 13, 2005, the Board
published the decision of Administrative Law Judge Marcionese
in Case 15–CA–17506(P). Judge Marcionese found that
Respondent, at the same facility involved in the present
proceeding, had unlawfully threatened an employee with a lawsuit
and other reprisals. Employee Bobby Cline had filed the charge
which began that proceeding, and testified at the hearing.
Cline engaged in other protected activity, described above,
including accompanying a union steward who was serving another
unfair labor practice charge on one of Respondent’s supervisors.
The present record shows that Respondent retaliated against Cline
for engaging in such protected activity and then asserted a
pretextual reason for its action.
Respondent’s retaliation against Cline for filing charges and
testifying in unfair labor practice proceedings provides one
indication that it harbors an attitude of opposition to the purposes
of the Act. Congress created the Board to enforce the Act, and the
Board’s existence derives from the Act. Hostility to the Board’s
processes pretty clearly suggests an opposition to the Act and its
purposes.
Besides creating the Board, the Act also empowered employees
to select a labor organization to represent them and conferred
upon such an exclusive representative certain rights and duties. A
persistent pattern of unfair labor practices which undermine a
union’s ability to perform that function also suggests hostility to
the purposes of the Act.
Respondent disciplined a union steward for misdeeds he did not
commit, told the union president he could not speak or ask
questions during a predisciplinary interview, and failed to provide
the Union with information which, Respondent admits, was
relevant and necessary for the Union to perform its representation
functions. This constellation of unfair labor practices indicates an
unwillingness to accept the Union’s statutory role as exclusive
bargaining representative and an intent to curtail that role.
An “attitude of opposition” also manifests itself when a
respondent flouts Board and court orders to cease and desist and,
despite those orders, repeats the offending conduct. Similarly,
when a respondent continues to commit similar violations
notwithstanding a series of orders to refrain from that conduct, it
demonstrates a “proclivity to violate the Act.”
POSTAL SERVICE 971
As the cases cited below establish, Respondent has a long
history of violating Section 8(a)(5) by failing and refusing to
provide information needed by a requesting union to perform its
representation function. The Board also has found Respondent
guilty, although not as frequently, of denying employees their
Weingarten right to union representation during predisciplinary
interviews, as it did here when Respondent prohibited the union
representative from asking questions. Both the information
request and the Weingarten violations impede the union, and the
latter type manifests overt hostility to the union’s function.
Specifically, the Board has found that Respondent unlawfully
failed and refused to furnish a requesting union with relevant and
necessary information in the following 25 cases: Postal Service,
276 NLRB 1282 (1985); Postal Service, 280 NLRB 685 (1986),
enfd. 841 F.2d 141 (6th Cir. 1988); Postal Service, 289 NLRB
942 (1988), enfd. 888 F.2d 1568 (11th Cir. 1989); Postal Service,
301 NLRB 709 (1991), enfd. 980 F.2d 724 (3d Cir. 1992); Postal
Service, 303 NLRB 502 (1991); Postal Service, 305 NLRB 997
(1991); Postal Service, 307 NLRB 429 (1992); Postal Service,
307 NLRB 1105 (1992), enfd. 17 F.3d 1434 (4th Cir. 1994);
Postal Service, 308 NLRB 358 (1992), enfd. in part 18 F.3d 1089
(3d Cir. 1994); Postal Service, 308 NLRB 547 (1992); Postal
Service, 308 NLRB 1305 (1992); Postal Service, 309 NLRB 309
(1992); Postal Service, 310 NLRB 391 (1993); Postal Service,
310 NLRB 530 (1993); Postal Service, 310 NLRB 701 (1993);
Postal Service, 314 NLRB 901 (1994); Postal Service, 321 NLRB
1199 (1996); Postal Service, 332 NLRB 635 (2000); Postal
Service, 337 NLRB 820 (2002); Postal Service, 339 NLRB 400
(2003); Postal Service, 339 NLRB 1162 (2003) [broad cease-and-
desist order]; Postal Service, 341 NLRB 655 (2004); Postal
Service, 341 NLRB 684 (2004); Postal Service, 345 NLRB 409
(2005); and Postal Service, 345 NLRB 426 (2005).
In the last of these cases, Postal Service, 345 NLRB 426, the
Board issued a broad cease-and-desist order against Respondent
less than a week before Respondent embarked upon a new series
of violations. These violations began with Cline’s September 2,
2005 suspension, followed by other unfair labor practices directed
at Cline, including subjecting him to unlawful interrogation, and
interfering with the Union’s ability to represent him by failing to
honor the Union’s information request and denying the Union
representative the right to speak at a disciplinary interview.
The similarity of Respondent’s violations here to the violations
in Postal Service, 345 NLRB 426, also warrants comment.
Although the Board there issued a broad cease-and-desist order
prohibiting Respondent from violating the Act “in any other
manner,” even a narrow order should have prevented
Respondent’s in the present case, because the violations here are
so similar. In its August 27, 2005 Order, the Board specifically
ordered Respondent to cease and desist from disciplining
employees because of their union activities, from denying an
employee the right to union representation during an investigatory
interview, and from failing and refusing to furnish a union with
requested information relevant to and necessary for the union to
perform its representation functions. However, in the 3 months
following that order, Respondent committed almost identical
violations in the present case.
The Board’s August 27, 2005 Order also failed to prevent
Respondent from committing violations at other facilities besides
Destin. As already noted, that order specifically prohibited
Respondent from denying an employee’s Weingarten right to
union representation during a predisciplinary interview. Yet on
October 4, 2005, at one of Respondent’s facilities in Columbus,
Ohio, Respondent announced at a predisciplinary interview that
the union representative attending the interview could not speak.
Postal Service, 347 NLRB 885 (2006).
The Columbus Weingarten violation occurred less than 6
weeks after the Board specifically prohibited this conduct, and the
Destin Weingarten violation occurred less than 11 weeks after this
same cease-and-desist order.
To summarize, for the following reasons, I conclude that
Respondent has demonstrated a proclivity to violate the Act: (1)
Respondent broke the law again within weeks (and in one
instance, within days) of the broad cease-and-desist order which
the Board issued on August 27, 2005; (2) the new unfair labor
practices violated four different subsections of the Act; (3) the
new violations repeated the specific types of conduct prohibited
by the Board’s August 27, 2005 cease-and-desist order; (4) in
approximately 2 dozen prior cases, the Board had issued orders
prohibiting “information request” violations, but despite those
orders, Respondent committed a similar violation in the present
case; and (5) Respondent continues to commit Weingarten
violations notwithstanding a number of prior cease-and-desist
orders and also notwithstanding its own written agreements to
recognize this right.
In view of this demonstrated proclivity, I recommend that the
Board issue a broad cease-and-desist order. See Postal Service,
supra at 426; Postal Service, supra at 1162; cf. Postal Service,
supra at 684 fn. 4 (“In light of three Houston districtwide Board
orders recently enforced by the Fifth Circuit, we find no need for
the judge’s recommended special remedies of districtwide notice
posting and a broad order.”).
Although I recommend that the Board issue a broad cease-and-
desist order, Respondent’s past conduct causes me to doubt
whether even a broad order will have much effect. The alacrity
with which Respondent returned to violative conduct after the
Board’s August 27, 2005 order raises the following tough
question: If this broad cease-and-desist order did not prevent
Respondent from violating the Act again, very quickly, and if
quite specific cease-and-desist language did not deter Respondent
from committing the same type of violations, what kind of remedy
can be fashioned which will, in fact, stop the unfair labor
practices? Something more than a broad order may be needed
here.
The Act is remedial rather than punitive and I do not review the
past cases in which Respondent violated the Act with any notion
of recommending a stiffer “penalty” because of recidivism. That
concept from the criminal law has no place here. Rather, the goal
must be simply to figure out what kind of a remedy will repair the
damage the current unfair labor practices have caused and will
prevent similar violations in the future. It cannot be assumed that
a more burdensome remedy necessarily will be a more effective
one.
However, something has to be done. For Respondent to begin
violating the Act again less than a week after the Board’s broad
cease-and-desist order simply isn’t satisfactory. For Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD972
to violate the Act again in a number of specifically proscribed
ways is both unsatisfactory and discouraging.
An examination of Respondent’s Weingarten violations may
reveal the depth and extent of the problem. A Weingarten
violation—denying an employee the right to union representation
during an interview which reasonably may result in discipline—
provides a good “marker” for the existence of animus because it is
a clear and unequivocal act overtly antagonistic to the purposes of
the statute. When a supervisor announces that a union
representative may not attend such an interview, or that the
representative must remain silent, that manifestation of hostility to
the union’s statutory role cannot easily be disguised by a pretext
or explained away.
Moreover, a respondent’s management logically should be able
to stop its supervisors and agents from committing these
violations, and doing so should not be difficult. However,
Respondent’s efforts have failed to end the violations.
It is appropriate here to take official notice of United States
Postal Service, JD(ATL)–38–06 (Oct. 20, 2006) for a limited
purpose. In that decision, Judge John H. West found that
Respondent had violated the Weingarten rights of a number of its
employees at a number of its facilities. However, I do not cite this
decision as proof that Respondent committed still another such
violation. Rather, the decision is relevant here because it
describes a nationwide training program which Respondent
conducted as part of a settlement agreement.
Specifically, the decision in United States Postal Service,
JD(ATL)–38–06 quotes a notice to employees which Respondent
posted pursuant to an order of a United States Court of Appeals.
This notice read, in part, as follows:
PLEASE TAKE NOTICE that on December 18, 2003, the
United States Court of Appeals for the District of Columbia
Circuit issued a Consent Order against the United States
Postal Service approving a settlement between the Postal
Service and the National Labor Relations Board. Under that
Consent Order the Postal Service is required to institute a
nationwide educational program directed at all supervisors,
acting supervisors, postal inspectors and managers with direct
responsibility for bargaining unit employees concerning
employee rights in investigatory interviews, otherwise known
as Weingarten rights. As part of that education program, we
list below a summary of such employee rights. . . .
The notice continued with a detailed description of an
employee’s Weingarten rights, including the right to confer
with a union representative before the investigatory interview,
and the right to have the union representative speak during the
interview. The notice stated, in part:
At the investigatory interview, the employee is entitled to a
union steward’s assistance. The Postal Service violates the
employee’s rights if it refuses to allow the steward to speak or
tries to restrict the steward to the role of a passive observer.
Pursuant to the Court’s order, Respondent posted this notice
employerwide in 2003. But notwithstanding this nationwide
notice and training, Respondent then committed additional
Weingarten violations in the present case and in Postal Service,
supra, 347 NLRB 885.
Additionally, as discussed above, Respondent entered into a
June 10, 2004 agreement with the Union which specifically stated
that “[a]n employee’s Weingarten rights are violated when the
union representative is not allowed to speak or is restricted to the
role of a passive observer.” This agreement was in effect on
November 8, 2005, when Respondent specifically prohibited the
union representative from speaking during Cline’s first
predisciplinary interview. Moreover, Cline and the union
representative reminded the supervisor of this right, but to no
avail.
Thus, broad cease-and-desist orders, a court-ordered nation-
wide training program and notice posting, specific language in a
collective-bargaining agreement, and a reminder at the time of a
predisciplinary interview all failed to prevent Respondent from
violating the Act in the same way. If those remedial measures
failed to prevent a violation, then what will?
Another consideration makes the problem puzzling as well as
frustrating. No apparent incentive exists which might motivate a
supervisor to disregard the notices, training, and collective-
bargaining agreement, and, indeed, not merely disregard these
instructions but do exactly the opposite. Supervisors typically
follow rather than flout orders from higher management.
Respondent’s vice president, labor relations, signed its June 10,
2004 agreement which acknowledged and described employees’
Weingarten rights, but that didn’t stop the violations. Therefore, I
recommend that the Board require that the notice to employees be
signed by Respondent’s chief executive officer.
This notice still would be posted only at the Destin facility.
The record does not establish the existence of any nationwide
policy which would require posting the notice at any other
location. Cf. Postal Service, 303 NLRB 463 at fn. 5 (1991)
(employerwide policy resulted in Weingarten violations,
warranting an employerwide notice posting).
Requiring that Respondent’s chief executive officer sign the
notice to employees clearly would convey that Respondent
seriously intended to abide by the law and expected its supervisors
to do so. This additional remedy imposes minimal burden and
certainly does not constitute a penalty. However, the postmaster-
general’s signature may command the attention of supervisors in a
way that the vice president of labor relations’ signature did not.
Moreover, like the sign which graced President Truman’s desk,
the postmaster-general’s signature would show where the buck
stops.
Respondent also should be placed on notice that if it commits
further Weingarten violations requiring a Board order, it will be
assessed the expenses of that litigation. Weingarten violations do
not involve any gray or unsettled area of the law and do not
present any factual ambiguities. Their blatant nature makes them
obvious and unmistakable. Moreover, Respondent clearly knows
the line it must not cross because its written agreement with the
National Union precisely describes the boundaries. If Respondent
commits another Weingarten violation which burdens the Board’s
docket and consumes the Board’s time, clearly it should bear the
expense.
With respect to the 8(a)(3) and (4) violations, Respondent must
rescind the disciplinary actions and expunge all references from its
files. Moreover, it must make employee Cline whole, with
POSTAL SERVICE 973
interest, for all losses he suffered because of Respondent’s
unlawful discrimination against him.
Respondent’s threat assessment and emergency suspension
procedures seek to prevent a recurrence of certain violent and
tragic events which have taken place at Postal Service facilities.
These events, and other recent tragedies not involving the
Respondent, have been associated with individuals having mental
illness. Respondent’s placement of Cline on emergency
suspension after an “assessment” that he posed a threat
foreseeably would be stigmatizing, by creating the false
impression that he was mentally ill and violently so. Similarly,
requiring Cline to report to a psychologist for a fitness-for-duty
examination reinforced the impression created by Respondent’s
false claim.
The gravamen of Respondent’s actions against Cline can be
appreciated by comparison with another instance in which
Respondent falsely claimed an employee had made a threat.
Although Respondent pretextually accused Union Steward
Jackson of “threatening” a postmaster, it did not place Jackson on
emergency leave, require him to turn over his keys to a postal
inspector or change the lock combinations to keep him out of the
building. Similarly, it did not perpetuate the falsehood by
requiring Jackson to take a psychological fitness-for-duty
examination. Thus, in Jackson’s case, it did nothing to
communicate that this particular employee was deranged and
could be violent.
However, it did take these actions against Cline. Moreover, by
placing Cline on administrative leave, rather than recalling him to
work after he was found fit for duty, Respondent may have
aggravated the harm by making it appear, falsely, that Cline had
not passed the psychological examination.
In these circumstances, the notice to employees which
Respondent will post should clearly retract its false claims.
Additionally, Respondent should be required to provide to
employee Cline, on his request, a signed and dated copy of this
notice. Cline is a Charging Party and thus entitled, upon request,
to a copy of the signed and dated notice. See General Counsel’s
Casehandling Manual, Part III, Section 10518.4.
CONCLUSIONS OF LAW
1. Respondent, the United States Postal Service, is subject to
the Board’s jurisdiction pursuant to section 1209 of the Postal
Reorganization Act.
2. The National Union, American Postal Workers Union,
AFL–CIO, and its Local 5643, are labor organizations within the
meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for the
purposes of collective-bargaining within the meaning of Section
9(b) of the Act:
All employees in the bargaining unit for which the American
Postal Workers Union, AFL–CIO has been recognized and
certified at the national level, excluding managerial and
supervisory personnel, professional employees, employees
engaged in personnel work in other than a purely non-
confidential clerical capacity, security guards as defined in
Public Law 91-375, 1201(2), all Postal Inspection Service
Employees, employees in the supplemental work force as
defined in Article 7 [of Respondent’s collective-bargaining
agreement with the American Postal Workers Union, AFL–
CIO], Rural Letter Carriers, Mail handlers, and Letter carriers.
4. At all material times, the National Union has been, and has
been recognized by Respondent to be the exclusive collective-
bargaining representative of the employees in the unit described in
paragraph 3, above, within the meaning of Section 9(a) of the Act.
5. At all material times, Local 5643 has been, and has been
recognized by Respondent to be the National Union’s agent for
administering the collective-bargaining agreement at Respon-
dent’s Destin, Florida facility.
6. On about February 22, 2005, Respondent discriminated
against employee Marcus Jackson by issuing him a warning letter,
in violation of Section 8(a)(3) and (1) of the Act.
7. On about March 4, 2005, Respondent discriminated against
employee Bobby Cline by issuing him a warning letter, in
violation of Section 8(a)(4), (3), and (1) of the Act.
8. On about September 2, 2005, Respondent discriminated
against employee Bobby Cline by placing him on an emergency
suspension, in violation of Section 8(a)(4), (3), and (1) of the Act.
9. On about October 1, 2005, Respondent discriminated
against employee Bobby Cline by requiring him to undergo a
fitness-for-duty examination, in violation of Section 8(a)(4), (3),
and (1) of the Act.
10. On about October 26, 2005, Respondent discriminated
against employee Bobby Cline by placing him on administrative
leave, in violation of Section 8(a)(4), (3), and (1) of the Act.
11. On about November 8, 2005, Respondent denied an
employee his right to union representation during an interview
which the employee had reasonable cause to believe would result
in disciplinary action against him, in violation of Section 8(a)(1)
of the Act.
12. On about November 8 and 16, 2005, and December 12,
2005, Respondent unlawfully interrogated an employee about his
union and other protected activities in violation of Section 8(a)(1)
of the Act. Also on about November 8 and 15, 2005, and
December 12, 2005, Respondent interfered with, restrained, and
coerced an employee in the exercise of rights guaranteed by
Section 7 of the Act by subjecting the employee to harassment in
the form of unlawful interrogations concerning the employee’s
union and other protected activities, in violation of Section 8(a)(1)
of the Act.
13. On about March 13, 2006, Respondent discriminated
against employee Bobby Cline by imposing a suspension without
pay for the period April 1 through April 14, 2006, in violation of
Section 8(a)(4), (3), and (1) of the Act.
14. On about September 15, 2005, Local 5643, acting as the
National Union’s agent at the Destin, Florida facility, requested
that Respondent furnish information relevant to, and necessary
for, its representation of a bargaining unit employee. Respondent
failed and refused to provide all of the requested information in a
timely manner and thereby failed and refused to bargain in good
faith the exclusive bargaining representative in violation of
Section 8(a)(5) and (1) of the Act.
15. Respondent did not violate the Act in any other manner
alleged in the complaint.
[Recommended Order omitted from publication.]

POSTAL SERVICE
352 NLRB No. 115
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