United States Postal Service

National Labor Relations Board - Board Decisions

Jun 27, 1975

218 N.L.R.B. 966 (N.L.R.B. 1975)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and National Association
of Letter Carriers, AFL-CIO, Branch 1166. Case
16-CA-5305(P)
June 27, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
KENNEDY AND PENELLo
On April 25, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
Contrary to the Administrative Law Judge, we do
not find that the record evidence establishes that the
Respondent violated Section 8(a)(3) and (1) by
discharging employee Kirby Cordell.
The record shows that Cordell was offered a job as
a "City Carrier, Part-Time Flexible Schedule" early
in July 1973.1 Cordell reported for work 4 hours late
on his first day, July 7. During the next 2 months,
Cordell was late three more times, on July 21, August
11, and September 9. In each instance he was
counseled by Respondent's officials about the
importance of being on time. During the same
timespan, Cordell also was counseled by Respon-
dent's officials for excessive time in delivering his
route (on July 1.3, 14, and 18 and August 8 and 23)
and for deficiencies in casing mail (on September 5).
The last work Cordell did for Respondent was on
Monday, September 10. That day, Superintendent of
Mails Welsh reported to Postmaster Morgan that he
had had it with Cordell. Foreman of Deliveries
Caldwell agreed. Morgan told Welsh and Caldwell
he would make a determination on Cordell's termi-
nation that week; consequently, Welsh did not
schedule Cordell for work during the period Septem-
ber 11-14. According to Morgan he decided to
terminate Cordell while driving home from work on
September 10, but inadvertently overlooked the
matter until Friday, September 14.
1 All dates hereafter are 1973.
2 Cordell claims that he talked with Morgan again on September 14, that
Morgan told hum he had seen the statements , and that Morgan told him he
would not be allowed to work on Saturday, September 15, but to report to
Welsh on Monday for further scheduling . Morgan denies seeing Cordell
218 NLRB No. 144
The record further shows that on Friday, Septem-
ber 14, Cordell was called into a meeting with
Morgan, Welsh, and Caldwell. Although Cordell's,
version of this meeting differs from the other three
participants' on a number of points, all agree that
Morgan opened the meeting with the announcement
that he had decided to terminate Cordell and would
be releasing him that day. They also agree that the
meeting continued for another hour during which
Morgan offered Cordell the choice of resigning or
being terminated. They also discussed the reasons for
Cordell's discharge and the meeting ended after
Cordell wrote and turned over to Caldwell two
admittedly false statements to the effect that the
president and vice president of .the Union had
advised him to slow down in performing his duties.2
On Saturday, September 15, Cordell gave copies of
the statements he had made on September 14 to
Union President John Shields. Thereafter, Shields
telephoned Caldwell about the status of Cordell.
Caldwell told Shields that Cordell was not scheduled
to .work and that it was not his place to tell Shields
the status of Cordell. Later that day, Shields asked
Caldwell to arrange an appointment with Morgan
regarding Caldwell's status and mentioned the
possibility that Cordell's veteran's rights might have
been violated. Caldwell agreed to arrange the
meeting.
Early on September 17, Caldwell told Morgan that
Cordell's statements were on his desk and that
Shields had requested a meeting on the Cordell
matter, including the possibility that Cordell's
veteran's rights had been violated. Morgan read the
statements and met with Caldwell and Welsh to
discuss the statements. The three officials concluded
that the statements could not be accurate as related
to Union President Shields and Vice President
Homer and were therefore useless . Morgan then told
Caldwell to notify Shields that they would meet at 3
p.m.
According to Welsh he talked with Cordell at 9
a.m. and Cordell apologized and requested Welsh's
assistance in getting reinstated. Welsh said that
Cordell could not do anything that would change the
decision. Morgan testified that he also met Cordell
that morning and asked him if he had given more
thought to resigning and that Cordell replied he
would not resign.3 Morgan also testified that he
called Respondent's personnel office in Oklahoma
City and was told that Cordell's veteran's rights had
not been violated.
after the meeting attended by the four men.
3 Cordell testified that he checked the schedule about 8 a .m. and found
that he had not been scheduled to work . He also testified that he did not see
any of Respondent's officials on September 17 until the meeting at 3 p.m.
UNITED STATES POSTAL SERVICE
The meeting between the Union and Respondent
on the Cordell matter took place in Morgan's office
at :3 p.m. Cordell was present with Union President
Shields and Vice President Homer . Morgan , Welsh,
and Caldwell represented Respondent. All the
witnesses agreed as to the discussion at the meeting.
Shields asked about Cordell's status. Morgan an-
swered that Cordell was terminated and that the
papers would be cut effective as of September 14.
Homer asked if anything could be done to restore
Cordell's job . Morgan replied that Respondent had
gone the route with Cordell and the decision was
fmal. Shields then asked whether Cordell's veteran's
rights had been violated . Morgan answered in the
negative. The meeting ended at that time.
There is complete disagreement about the events
that occurred after the 3 p.m. meeting . Cordell claims
that Morgan stopped him as he was leaving, closed
the door, and asked him, "Why did you bring the
Union into this matter?-You know the only thing
these boys can do for you is just hurt you."
According to Cordell, Morgan also told him that
nothing was going to change his mind about the
discharge ' decision, especially not the Union, and
that Morgan told him to apologize to Welsh for his
pert ormance . Thereafter, Cordell claims that he
apologized to Welsh and that during this conversa-
tion Welsh told Cordell there was nothing he could
do to help Cordell keep his job after "the stunt
[Cordell] had pulled with the Union that day."
Cordell claims this meeting with Welsh ended after
he renewed his plea for Welsh's assistance and Welsh
told him he would talk with Morgan. Shields and
Homer testified that Cordell did not leave the 3 p.m.
meeting with them and that they did not see him
after they left the meeting . The three postal officials
testified that they sat in Morgan's office and
discussed Cordell's veteran's rights after Cordell,
Shields , and Homer left . Morgan denied having any
meeting with Cordell after the 3 p.m. meeting.
In resolving the many conflicts in the testimony
between Cordell and the Respondent 's three officials,
the Administrative Law Judge chose not to rely on
the demeanor of the witnesses or on any inherent
conflicts that might exist in their testimony . Rather
the Administrative Law Judge predicated his resolu-
tions of credibility upon what he considered to be the
logical sequence of events . Applying this test, the
Administrative Law Judge in each instance drew the
inference from Cordell's testimony which fit the
intended result and became an apologist for every
action or statement by Cordell that did not fit into
his own version of the logical sequence of events.
Thus the Administrative Law Judge was able to
overlook Cordell 's testimony where it was in direct
conflict with Cordell's earlier affidavit . He acknowl-
967
edged that Cordell' s version of the events of the
morning of September 17 "seem passing strange,"
and that Cordell's testimony of the postmeeting
events is "unusual, if not bizarre," but credits
Cordell. He even appears to acknowledge that
Cordell had misplaced the whole sequence of events
of September 17, but nonetheless credits his version.
Finally, even the acknowledged and admitted fact
that Cordell wanted his job so badly he would have
done anything to retain it, including the preparation
of two false and derogatory statements, is used to
support rather than detract from the acceptance of
his testimony as a credible witness . At the same time
that the Administrative Law Judge was attempting to
rationalize Cordell's version of events , he was also
busy drawing unwarranted inferences from the
expressions , inadvertent errors , and every foible of
the Respondent's witnesses , Thus Morgan's use of
the term "resignation statement" in the context of the
termination becomes an oddity. And the delay in
cutting the termination papers becomes a major
stumbling block in the testimony of `Respondent's
witnesses , even though this delay can be easily
explained by Morgan's waiting for Cordell's decision
on whether he wanted to resign.
The only way the Administrative Law Judge's
analysis of the conflicting testimony can be under-
stood is to recognize that he was attempting to
provide an after-the-fact rationalization for the
unwarranted inferences he drew from the circum-
stances surrounding the writing of the two false and
derogatory statements . In this regard it should be
noted that the Administrative Law Judge found that
those two statements constitute the very crux of this
case and his resolution of the conflicting evidence
and finding of discriminatory motive essentially turn
on the inferences he draws largely from the circum-
stances surrounding the preparation of those docu-
ments. He began by asking why were they written
and who wanted them . He then went on to reject the
obvious answer, namely that Cordell wrote them in
an attempt to keep his job , even while finding that
the acknowledged and admitted fact is that Cordell
wanted his job so badly that he would have done
anything to keep it. Instead of accepting this logical
explanation , the Administrative Law Judge applied
his own version of present-day mores and found that
"even a scared, newly married college sophomore
does not write out statements which he knows to be
false with the knowledge that they would be futile."
From that assessment the Administrative Law Judge
had no difficulty in proceeding down the road to find
that Respondent's officials thought they could use
these statements against the Union in their current
negotiations and that they, in effect, encouraged
Cordell to come forward with the statements by
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dangling his job retention as the bait . It is on this
flimsy basis that the Administrative Law Judge
predicates his conclusion that Respondent had a
discriminatory motive for the discharge.4
While we are in full agreement with the well-
established policy of the Board not to overrule
resolutions of credibility by an Administrative Law
Judge , we are convinced, on the record herein, that
the resolutions here are not supported by the
preponderance of the record evidence and cannot be
accepted.
In finally resolving the issue presented in this case,
we find that it is undisputed that Cordell's work
record provided ample justification to show that his
discharge was for cause . Cordell had been late for
work on his first day, July 7, and thereafter he was
late at least two, maybe three or more , times . Cordell
also was counseled on five occasions for excessive
time in delivering routes and one time for deficien-
cies in casing mail. Finally , we see no basis for the
Administrative Law Judge 's finding that a case for
disparate treatment might be made out on the basis
of an almost identical record by clerk Butler. The
only real similarity in the record of Butler and
Cordell is that they were both late for work on the
first day.
In sum, the record shows that Respondent had
ample reasons for discharging Cordell when it did
and, in the absence of any credible evidence
demonstrating animosity towards the Union or its
officials , there is no logical basis for the presumption
that Cordell's efforts to get his job back were
encouraged or supported by Respondent . According-
ly, we find that the General Counsel has failed to
meet his burden of proof with respect to the
allegations of the complaint and we shall hereby
dismiss the complaint in its entirety.
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on October 5, 1973 and amended on
October 29 by National Association of Letter Carriers,
AFL=CIO, Branch 1166, herein referred to as the Carriers
or as the Union, the General Counsel of the National
Labor Relations Board, herein referred to as the General
Counsel I and the Board, respectively, the Regional
Director for Region 16, Fort Worth, Texas, issued its
complaint dated November 29, 1973, against the United
States Postal Service, herein referred to as the Postal
Service or the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, 1947, as amended,
herein referred to as the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice a hearing thereon was held before me
in McAlester, Oklahoma, on January 8, 9, 11, and 12, 1974.
All parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses, and to' introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing oral argument was waived. Briefs
were received from General Counsel and Respondent on
March 8, 1974.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The Board has jurisdiction over this matter by virtue of
Section 1209 of the Postal Reorganization Act, 39 U.S.C.
Section 101, et seq. (herein called the PRA). The facility
involved in this proceeding is the McAlester Post Office,
located in the city of McAlester, Oklahoma. Respondent is
now and has been at all times material herein an employer
within the meaning of the PRA.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
4 Nor do we believe that the General Counsel has established union
animus on the basis of the events Cordell claims occurred after the 3 p.m
meeting on September 17 As we noted earlier, the Administrative Law
Judge found his description of these events as "unusual , if not bizarre. " We
agree and, in view of our credibility findings elsewhere , would add that we
do not believe these events occurred as Cordell claimed.
II. THE UNION INVOLVED
National Association of Letter Carriers , AFL-CIO,
Branch 1166, is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
This type of case is the bane of an administrative law
judge's existence. The decision in this case depends almost
I This term specifically includes the attorney appearing on behalf of the
General Counsel at the hearing.
UNITED STATES POSTAL SERVICE
entirely on the resolution of credibility. The testimony here
is conflicting throughout; in many instances it is flatly
contradictory. Meetings Cordell testified to never occurred
according to Respondent's three witnesses. The opposite is
also true . Obviously somebody was not telling the truth.
The law of this case is well settled. If, as Respondent
contends, Cordell was terminated for his poor perfor-
mance, then he was fired for cause and the complaint must
be dismissed . If, on the other hand, as Cordell contends,
his discharge was even in part motivated by union animus,
then the discharge was discriminatory and violative of
Section 8(a)(3) of the Act.
In an effort to make this case as intelligible as possible I
propose in the more conflicting parts hereof to set forth
Cordell's testimony by itself followed by the testimony of
the Postal officials. Thereafter I will make my resolution of
credibility. This format is admittedly awkward but, due to
the nature of the testimony, the best available under the
circumstances.
B. The Evidence
1. Cordell's employment and work record
In July 1972, following his discharge from the army
which included service in Vietnam, Kirby Cordell took the
civil service exam and with his 10-pb nt Veterans' prefer-
ence passed. About a year later, in June 1973, Cordell was
interviewed by Postmaster Bill Morgan, Superintendent of
Mails Francis E. Welsh, and Foreman of Deliveries Jack
Caldwell on about four different occasions for a position
with the Postal Service. Morgan testified that he was
"impressed" by Cordell?
Cordell also began studying at Eastern Oklahoma
College in McAlester at night. He was in his sophomore
year when the present hearing occurred.
Early in July 1973, Cordell was offered an appointment
to a position known as a "part-time flexible clerk-carrier,"
i.e., he would be available for duty either as a carrier or a
clerk as required on a part-tune basis. He accepted.
As such part-time, flexible clerk-carrier, Cordell was first
scheduled for a 7 a.m. special delivery route on Saturday,
July 7, 1973, under the guidance of an experienced carrier.
That day the run was accomplished by the experienced
carrier without Cordell. Cordell arrived at the Post Office
at 11 a.m . as a result of a faniily quarrel with his in-laws
which lasted until 4 a.m. causing Cordell to oversleep. It
was an inauspicious start.
Upon orders from Welsh, Caldwell canceled Cordell's
Sunday and Monday schedule and ordered him to report
to the postmaster Monday morning, July 9. Caldwell also
2 Morgan had joined the Post Office Department some 24 years before
when he was appointed postmaster at Hartshorne , Oklahoma. About 3
years ago Morgan was promoted to the postmaster's job at the larger
McAlester , Oklahoma, Post Office.
Welsh has been in the Post Office Department in McAlester for 32 years,
fast as a postal clerk and for the past 14 years as superintendent of mails in
charge of the clerks and carriers.
Caldwell was a city carrier for the department in McAlester for some 9
years but about 2 years ago was promoted to foreman of deliveries , i.e., in
charge of city and rural carriers.
3 I I ind nothing coercive in the inquiries made by Morgan and Caldwell
in July about the Union . I therefore find that these conversations do not
969
"counseled" Cordell that promptness in the Postal Service
was of utmost importance.
On Monday, July 9, Cordell reported as ordered to the
postmaster where he explained his tardiness resulting from
the family quarrel of Friday night. Morgan "counseled"
Cordell on the necessity of promptness in reporting.
Cordell offered to and, upon Morgan's acceptance, did
bring his wife to verify his excuse. Morgan testified that the
wife was a "charming person to talk to."
Thereafter Welsh again resumed scheduling Cordell for
work; as Superintendent of Mails Welsh did all the
scheduling of the McAlester Post Office carriers and clerks,
regulars and part-timers. Welsh schedules the work to be
performed on Tuesdays, Wednesdays, Thursdays, and
Fridays 24 hours in advance on a schedule kept either on
the desk in his office or, in his absence, posted on the
board. As Welsh does not work on Saturdays, he makes up
the work schedule for Saturdays, Sundays, and Mondays
on Friday morning which is also posted. Employees are
required to see and obey these schedules.
As required Morgan advised Cordell during his "orie-
ntation" that there were two unions in the McAlester Post
Office and that he would be given the opportunity to
discuss them with the union representative. In fact
Caldwell set up a meeting for this purpose between Cordell
and John Shields, president of the Carriers Union. About
July 19 Cordell joined the Carriers Union and executed a
checkoff card for his dues payment.
.lust prior to his joining the Union Caldwell had asked
him if he had joined the Union and explained that the
Union had good insurance coverage. On July 19, after he
had joined the Union, Morgan inquired if Cordell had
joined. Cordell admitted that he had. About July 23
Caldwell again inquired if Cordell had joined the Union
and told him that it was a very serious decision to make .3
By memorandum dated July 14 Caldwell notified
Morgan that "on this date" Cordell had taken an extra 45
minutes to deliver a relay on city route 1; that "on July 14"
Cordell took 3 hours to deliver a 2-hour area of city route
13, and that "on July 18" it took him 2 hours to deliver a 1-
hour relay on city route 14. Caldwell ends this strangely
dated memo with the comment that "the time Cordell is
costing is not necessary and does hurt the overall carrier
performance." 4
By memo dated "Saturday, June 21, 1973," subsequently
corrected to "July," Higgins reported to Welsh, inter alia,
that Cordell "failed to show up at 0700. Called him 0720,
alarm failed to go off." 5 Caldwell ordered Cordell to report
at 8:45. Caldwell also sent a memorandum to the
postmaster notifying him of this lateness and that he had
again "counseled" Cordell on the "importance of being on
violate the Act as alleged in the amendment to the complaint.
4 In one of the few disagreements among the Postal Service officials in
this record, Welsh considered that a substitute should be able to carry a
route in the same time as a regular carrier whereas Morgan thought that one
could expect better performance "on the street" from a regular caner than
a substitute. In one of his numerous memos Caldwell allowed a substitute
1/2 hour more than the regular. Logic in this instance would appear to be
with Morgan.
5 It is interesting to note that this same memo notes that one Dorothy
Butler, a clerk hired the same day as Cordell , had failed to show up as
scheduled at 0200 and had given no notice. She also had failed to report for
work on her first day of employment.
970 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
time and being dependable." Upon receipt of this
memorandum Morgan discussed the matter with Caldwell
- but not with Cordell. Cordell acknowledged his lateness
on this occasion.
By memo dated August 8 Caldwell reported to Morgan
that Cordell had taken 1 hour, 50 minutes extra on city
route 4 over and beyond the time allowed for the regular
carrier. Caldwell also reported that he had "discussed" the
matter with Cordell.
By memo dated 3 days thereafter, August 11, Caldwell
notified Morgan that Cordell reported 32 minutes late for
work because he failed to set his clock. This is another
dereliction acknowledged by Cordell. Caldwell again
"counseled" Cordell so as to "help him possibly improve."
Caldwell concluded this memo with his opinion "that this
person does not have the eagerness and ability to accept
responsibility that is needed to succeed in the Postal
Service."
By memo dated August 23, 1973, Caldwell reported to
Morgan that, "instead of working 4 hours, Cordell spent 5
hours and 35 minutes" in delivering part of city route 14.
The actual times recorded in this memo by Caldwell show
that Cordell actually worked but 35 minutes over the
regular carrier's time instead of the "1 hour and 35
minutes" reported by Caldwell. However the postmaster
accepted the 1 hour, 35 minutes figure without question.
To this memo Morgan added a signed comment to the
effect that he had spoken to Cordell on the floor and asked
if Cordell "felt he was being pressured in any way" and
included the comment that "we gave him [Cordell] a color
coded map which Cordell appreciated as an assistance to
him in learning the routes."6
By memo to Morgan dated September 5 Caldwell
reported that Cordell was having trouble casing his mail on
city route 5 because of which Caldwell "was certain that
Cordell did not have the ability or willingness to make a
good Postal employee." The memo also shows that, after
consulting with Welsh, Welsh informed Cordell that "he
[Welsh] was going to watch Cordell very close for the very
next few days and if Cordell's performance was not better
and he didn't show more dedication to his job, then he
wouldn't be able to go any further with Cordell."
For the next few days Welsh inspected Cordell's time
reports closely and admitted at the hearing that he thought
that Cordell "was doing better," an opinion not shared by
Caldwell. ,
By a memo time-stamped Saturday, September 9, to
Welsh, Strickland, in charge of carriers on Saturdays,
reported Cordell reported 7 minutes late for collection.
According to a notation added subsequently to this memo,
Cordell was again counseled by Caldwell.
At 8:30 a.m. on September 10, Cordell reported to
Welsh. He explained to Welsh that the dryer at the
laundromat had not worked and had caused him to be 7
minutes late for work the previous day. Welsh explained
that "if there was one thing he could not stand it was
tardiness because the mail had to go through" and that, if
6 The actual facts as to this color-coded map were, as admitted at the
hearing, that Cordell had asked Welsh for such a color-coded route map
and, as a result, received a blank city map from Caldwell and was permitted
by Caldwell to copy thereon a color-coded route map hanging in Caldwell's
office. Hence Morgan's description appears exaggerated at best. Such color-
other carriers had to be on time, then Cordell had to be on
time too. Welsh ended this conversation by saying that "if
[Cordell] was ever 10 minutes late again that would be it."
Welsh then sent him out for 2 hours' work that morning
and another hour's work that afternoon. That proved to be
the last work that Cordell was to do for the Postal Service.
Later that same morning Welsh reported to Morgan that
he "had had it" with Cordell. Caldwell agreed. Morgan
stated that he would make a determination on Cordell's
termination that week.
According to Morgan's testimony, that evening during
his drive home from the Post Office he decided to
terminate Cordell. However, despite the fact that Morgan
had noted this matter on his desk calendar, Morgan, in his
words, "inadvertently overlooked" the matter until Friday,
September 14.
With the assurance of a decision by Morgan on Cordell's
status during the week, Welsh did not schedule Cordell for
work on Tuesday, Wednesday, Thursday, or Friday of that
week.
Based on this work record, exaggerated though it may be
judging from Caldwell's erroneous memo of August 27, it is
perfectly clear that Cordell was no exemplary employee.
This is so because Cordell denied none of it beyond the
fact that he never took extra time the second time on a
route, a contention which Caldwell's memos tend to
confirm. Hence, it must be found here that, during his
short employment with the Postal Service, Cordell was late
three times for a -total of 4 hours and 39 minutes and was
slow on his first trip around a route. It was not a good
record. In fact it is the type of record which well might
justify the discharge of the employee. However in this case
it so happens that clerk Butler had an almost identical
record to Cordell's including an absence on the first
scheduled workday. But Butler is still employed.
2. September 14 - morning meeting
a. Cordell's testimony
After September 10 Cordell checked the schedule daily
only to find that he was not scheduled for work. On
Friday, September 14, he telephoned about 8 in the
morning to Welsh about this failure to schedule him during
the week. At this time Welsh informed Cordell that he was
going to have to see the postmaster that morning at 10.7
As a result Cordell met with Morgan, Welsh, and
Caldwell in the postmaster's office that morning.
This meeting is crucial to a proper determination of this
case.
On his way to the meeting Cordell stopped in- Welsh's
office to check the schedule. He discovered that he was
scheduled to work on September 15, Saturday, at 7 a.m.
and again at 4:30 p.m.
Morgan opened the meeting by stating that the three of
them had decided to terminate Cordell so that he had a
choice of either resigning or being terminated. The
coded route maps would seem almost routine issue to newly hired carriers
not only at McAlester but at all post offices . But here Cordell had to ask for
and make his own.
4 According to Welsh's testimony no hour was set for this meeting in this
phone conversation
UNITED STATES POSTAL SERVICE
postmaster asked if Cordell had anything to say. When
Cordell inquired as to why he was being terminated,
Morgan stated it was for his poor work performance.
Cordell protested that he thought he had been doing better
lately which the postmaster disputed. Cordell added that
he liked the job and inquired if there was anything he
could do to keep it. The answer to that was "no." Then the
postmaster stated that they would review the case and see
what caused his poor performance. Morgan continued by
saying that he knew for a fact that Cordell had been
receiving "ill advice" from union officials to the effect that
he should not return from a route early and to slow down
so as to not make other carriers look bad. When Cordell
denied having received any such advice, Morgan said that
he knew from "two crackerjack substitutes" who had told
him that they had received this same "ill advice" from
union officials and who knew that Cordell had been
receiving the same advice . Cordell answered that the only
advice he had gotten was not to strain himself in order to
get back from a route early in order to make the other
carriers look bad but to go out and do the job right as he
had 8 hours in which to carry a full route. Morgan denied
that this was the advice that Cordell received and knew
that he had been receiving the ill advice he had mentioned
previously. Again Cordell denied having received any such
advice except that which he had mentioned and which he
had received from everybody in the Post Office including
Caldwell. Morgan then suggested that, if Cordell would
make statements about the union officials having given
him this "ill advice," it would probably help with his job.
Morgan would not "guarantee" his job back but said that
such statements would help his case. When Cordell stated
that he did not want to make the statements, Morgan
responded that, if he would not make the statements, he
would be terminated but that, if he would make the
statements , he (Morgan) would "see" about his job.
Morgan assured Cordell that he would not use the
statements to fire the union officials but only to stop the
practice so that future employees would be better off than
Cordell and that he needed proof in order to stop that
practice. After instructing Welsh and Caldwell to take the
"sta.tements" if Cordell decided to make them, Morgan left
the meeting.
Following Morgan's departure Caldwell and Welsh
reiterated much of what Morgan had previously said, to
wit, that making the statements would help him with his
job and that the statements would not be used to fire the
persons mentioned therein. Cordell agreed that he would
make the statements but would say everybody in the Post
Office had given him the same advice. But-Welsh insisted
that Cordell could not use the employees as a whole but
would have to specify individuals in order for it to do any
good for them to trace where this information came from
and to put a stop to it. Welsh then suggested that Cordell
put in the statements that "Union Shop Steward" John
Shields had told him to slow down on the route and not to
come in from the route when he could but to take the full 8
hours allotted to him so as not to make the other carriers
look bad. Cordell agreed to make such a statement if it
s In regard to this "free will and accord " conversation , the witnesses are
in substantial agreement.
971
would help with keeping his job. Welsh stated that it would
and that it would not be used against any of the individuals
named by Cordell. So with Welsh's assistance and
"dictation" Cordell wrote out a statement regarding the
advice he had been given by "Union Steward John
Shields." After Welsh and Caldwell had read the complet-
ed statement, Welsh inquired if a statement to the effect
that it was made on Cordell's "free will and accord" was
not necessary in order to make the document legal and
presentable. Caldwell agreed. Cordell added the statement
and signed it .8
When that was done, Welsh said that it would help
Cordell a lot if he would make other statements. Cordell
offered to make the same statement regarding Caldwell as
Caldwell had given him the same advice. Welsh wanted no
statement regarding Caldwell. After talking over other
names, Welsh suggested a similar statement regarding John
Homer.9 Cordell thereupon wrote out an almost identical
statement regarding the alleged advice given him by
"Carrier John Homer." In this statement Cordell included
the "free will and accord" addendum in the body of the
statement. After reading this statement Welsh commented
that Homer should have been referred to therein as "Vice-
President" Homer. Caldwell answered that the description
identified the individual intended sufficiently well.
After making two copies of the statements and giving
Cordell one, the meeting ended with Welsh telling Cordell
to report to the post master at 1 p.m. that day.
b. Respondent
Respondent's testimony of September 14 begins with the
postmaster's overhearing Welsh talking to "Kirby" on the
telephone in Welsh's office which was separated from the
postmaster's by a 6-foot hallway. This reminded the
postmaster of the promise he had made on Monday to
Welsh and Caldwell that he would determine Cordell's
status that week following his receipt of the report that
Cordell had been 7 minutes late on September 9.
He immediately went across the hall to Caldwell's office
and asked Caldwell for a "capsule report" on Cordell.
Morgan's testimony as to this capsule report was as
follows:
A. Mr. Jack Caldwell said "I don't think he is
going to develop for us at all. I think he is! misplaced in
the Postal Service."
Q. All right.
A. Or he said "He doesn't have any interest," one
or the other. I don't know which.
Q. Okay.
A. But he said "he is not doing us any good."
Q. All right.
A. Then I said "Okay. That's all."
From there Morgan went into Welsh's office and asked
for his "abbreviated opinion on Cordell." Welsh's answer
was "I am for letting him go. - I can't even count on him.
I can't depend on him."
9 Homer is the vice president of Branch 1166.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan then ordered Welsh to get Caldwell and come
into his office for a conference with their reports. They
held a 15-minute conference on Cordell before Morgan
ordered Welsh to have Cordell come in "at his conven-
ience" when "we'll terminate him."
Morgan then went to Personnel Officer Snow's office.
Snow was absent so Morgan left a "buck slip" requesting
Cordell's form 2526 which is the Postal Service's form for
any personnel action involving an employee including
termination, resignation, promotion, etc.
The testimony by Respondent's three witnesses, Morgan,
Welsh, and Caldwell, throughout is internally almost
identical with rare exceptions.
According to the testimony of Morgan, he opened the
meeting with Cordell by stating that he had decided to
terminate Cordell and would be releasing him effective that
day which was the end of the pay period and inquired if
Cordell had anything he wished to say. Cordell answered
that he felt that he had been doing better in the last 2 or 3
days. This the postmaster countered by noting that he had
not been working the last 2 days and that the last time he
had been scheduled he was tardy again. This Morgan
regretted very much because he thought the Service had
been "quite patient" with him. Cordell thought that some
of the routes were not too easy to learn but the postmaster
did not think this should have been too difficult.10 Morgan
then inquired if any of the supervisors in the room had
"bothered or pressured" him in any way. This Cordell
denied and said they had been a lot of help and that he just
thought that he had been doing better. Morgan answered
this by saying that "according to the documentation" he
just had not.11 At this point there was some talk which the
postmaster could not recall.12 Then Cordell said "Sir, there
is one thing - several of the letter carriers have told me
not to come in off of that route too quick as it would make
the regulars bad. - Sir, was that bad advice?" Morgan
answered, "Yes, sir. I would say that if you got that advice
it was ill advice. - Taking advice like this, which is bad
advice this is not going to help you." Cordell thereupon
offered, "Well, sir, I would be glad to make a statement to
that effect if it would help me get my job back." To this
Morgan said, "Mr. Cordell, you can feel privileged to make
any statement you wish of your free will and accord. I
won't deny you of anything. But it won't change my mind
on the issue." Then Morgan inquired "Who in the world
would tell you this?" Cordell answered that by saying that
he could remember two, John Shields and John Homer.13
After another lapse of memory by Morgan, Cordell "at the
tail end" reiterated that he would be glad to make the
statements if it would help with his job. Morgan reiterated
the fact that he "was going by documentation up to that
Friday and had to support the supervisors because they
had gone quite a ways with him." He ended by saying "I
will be cutting your papers effective today. This is the final
day of the pay period." At this point Welsh left the office.
10 At this point in his testimony Morgan expressed the opinion that he
had been more tolerant with Cordell than had Welsh and Caldwell but that
by September even he was "becoming alarmed."
11 Morgan testified that he had in front of hun his file on Cordell as well
as Caldwell's "counseling file."
12 Neither Welsh or Caldwell recalled it either.
13 It is interesting to note that both Welsh and Caldwell in their direct
Morgan noted the form 2526 on the desk whereupon he
offered Cordell the opportunity to resign on the ground
that "it may be beneficial to you on down the line, Kirby,
rather than have your papers show that you were
terminated." Before departing Morgan instructed Caldwell
"Jack, if he wants to sign the resignation statement, why,
go ahead and get the resignation statement from him."
At this point Caldwell also had "a customer" and left the
room just ahead of the postmaster, according to Caldwell,
thereby apparently leaving Cordell sitting alone in the
postmaster's office upon the postmaster's departure.
According to the testimony of Personnel Clerk Snow, the
postmaster returned Cordell's form 2526 to Snow's desk as
he left the meeting without saying anything to Snow about
the possibility of Cordell' s resigning or about his termina-
tion.
Morgan testified he never returned to his office that day.
When Caldwell finished up with his customer, he
happened to look into the postmaster's office where he saw
Cordell busily engaged in writing on a lined tablet on the
postmaster's desk. Caldwell went into the postmaster's
office and then called Welsh back into the office where
they sat wordlessly while Cordell wrote.14 When Cordell
finished writing this statement about the advice he had
received from "Union Steward John Shields," he handed
the statement to Caldwell who read it and handed it to
Welsh. Caldwell then inquired whether the statement
should not contain a subscription that it was made of
Cordell's "free will and accord" in order to be presentable
and legal.15 Welsh agreed and handed the document back
to Cordell who added the subscription and signed the same
before handing it back to Welsh. Then, without a word
more being said, Cordell started to write the second
statement regarding Homer who was described therein
only as "carrier John Homer." As Cordell started to write
Welsh had another customer and left the room after
instructing Caldwell to have two pictures made of the
statements and to give one to Cordell.
According to Caldwell, after Cordell had finished this
second statement regarding Homer, Cordell took the two
statements, had "pictures" made, and gave one such copy
to Cordell which ended this session . Welsh never returned
to the room and the session ended without words. In fact
the only words spoken at all, according to these witnesses,
related to the "free will and accord" addition.
Caldwell then placed the statements in an envelope
which he placed on the postmaster's desk about noon.
Subsequently, but prior to 1 p.m., recalling that the
postmaster was on annual leave, Caldwell sealed the
envelope and locked the postmaster's office which usually
was left unlocked. Thus ended the morning session of
September 14.
examination omitted any mention of the postmaster 's request for names of
those who had given Cordell this "ill advice."
14 Caldwell testified that he thought it would be wise to have "a witness"
at this time because he knew that Cordell was writing a "statement."
15 According to both Welsh and Caldwell, this inquiry was made of
Welsh - not Cordell.
UNITED STATES POSTAL SERVICE 973
3. September 14 - afternoon
Cordell's testimony
A little before 1 p.m. September 14, as ordered, Cordell
saw Morgan in the postmaster's office. Morgan stated that
he had seen the statements and had time-dated them.16 As
Morgan was in a hurry to get home and help with the
preparations for his son's wedding the following day, he
quickly left the office after telling Cordell that he would
not be allowed to work on Saturday but to report on
Monday to Welsh for further scheduling.17
Cordell waited to see Welsh upon his return from lunch.
He saw Welsh about 2 o'clock. Welsh said that he and the
postmaster would discuss Cordell's situation and let him
know on Monday and for Cordell to report back Monday
when he would see about further scheduling for Cordell.18
Cordell called Welsh's attention to the fact that Cordell
was scheduled to work at 7 a.m. and 4:30 p.m. on
Saturday, September 15, according to the schedule in
Welsh's office. Welsh looked at the schedule and said
"Well, this was made in error. I meant to schedule another
substitute on it. - Just report Monday for further
scheduling." 19
4. September 15
On Saturday, September 15, Cordell gave John Shields
copies of the statement he had made for the Postal Service
officials the day before.
Thereafter Shields -inquired of Caldwell as to the status
of Cordell. Caldwell answered that, as Cordell was not
scheduled for work, he could not work, and, in addition, "it
was not my place to tell him what Cordell's status was."
Still later that day Shields requested Caldwell to get him
an appointment with the postmaster regarding Cordell's
statues and mentioned the possibility that Cordell's Veter-
an's rights might have been violated. Caldwell agreed to do
so.
Beginning about September 4 the Postal Service and
Branch 1166 Carriers had supposedly been in negotiations
of the Local agreement for the Carriers. The same was true
as to the Clerks Union. The Clerks Union's negotiations
had gone smoothly while the negotiations for the Carriers
had not. In fact the Carrier negotiations began with a
squabble and had to be recessed until the middle of the
month.
Shields and Homer were actively negotiating on behalf
of the Carriers whereas Caldwell was on the Postal Service
negotiation team, if not its spokesman. Interestingly
enough during the negotiations of the Local Carrier
contract then expiring, Caldwell had negotiated on behalf
16 In fact the statements were time-dated as of September 14 by a stamp
with the handwritten notation of "8.30 a.m." followed by Morgan's initials.
However, Morgan testified that he time-dated these statements on Monday
morning, September 17, before changing his, stamp in accordance with the
information which Caldwell had given as to the time Caldwell received the
statements on Friday. The "8:50 a.m.," according to Morgan , was the time
the meeting on September 14 began.
17 Morgan denied seeing Cordell at this time and place. His Postal
Service timecard showed that Morgan was on annual leave beginning at I
p.m. although the postmaster testified that he had left for home sometime
before noon
of the Carriers Union, he then being a carrier prior to his
promotion to his present supervisory position.
Relations between the Carriers Union and the postmas-
ter had deteriorated some months prior to the time here in
question to the point that the postmaster had mentioned
that fact to the Regional Labor Relations Council for the
Postal Service who had thereafter arranged a meeting in
McAlester with the postmaster, Shields, and the Union's
regional representative after which, according to Morgan,
relations between the Carriers Union and the postmaster
had improved. However it also appears that relations in
McAlester between the Postal Service and the Carriers
Union were not of the best.
5. September 17 - a.m.
a. Cordell
Cordell checked the schedule about 8 a.m. and found
that he had not been scheduled for work. He saw none of
the officials until the meeting held at 3 p.m. that day.20
b. Respondent
When Morgan reported for work that morning, he was
met by Caldwell who informed him that there were two
statements by Cordell on his desk and that Shields had
requested a meeting with him on the Cordell matter and, in
addition, had mentioned possible violations of Cordell's
Veteran's rights in regard thereto. Admittedly neither
Morgan nor Caldwell made any mention of a resignation.
After, reading and distributing his mail, Morgan read the
two Cordell statements. Thereafter the postmaster, Welsh,
and Caldwell met in the postmaster's office and discussed
these statements, purportedly coming to the conclusions
that the statements could not be accurate as related to
Shields and Homer and were therefore useless. Morgan
authorized Caldwell to notify Shields that they would meet
at 3 p.m.
Following this, at or about 8 a.m., according to Morgan,
Morgan went to Personnel Clerk Snow's office and
inquired if Cordell had resigned. Snow knew nothing about
it. On either this occasion or at a subsequent one on that
morning Morgan ordered Snow to cut the termination
papers on Cordell effective as of September 14 because
Cordell was not going to resign.
About 9 that morning, according to Welsh, Cordell
asked to see him in his office. They then went into the civil
service room next door. Cordell then "sort of apologized"
and requested Welsh's aid and assistance in getting Cordell
reinstated. Welsh answered that nothing Cordell could do
would change his mind about that.
18 Welsh does not appear to deny this meeting but denies any
conversation about the schedule erasure.
19 It was stipulated that in fact the schedule showed Cordell scheduled
for work at 7 a.m. and again at 4:30 p.m. on September 15 but that this
schedule as far as Cordell was concerned had been erased. Welsh's
testimony is that he erased the schedule for Cordell the first time he had left
the postmaster's office during the morning meeting. Cordell's testimony was
unclear as to whether, the schedule had been erased at the time of this
conversation.
20 In view of his instructions this seems passing strange.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As they were coming out of the civil service room,
Morgan met Cordell and inquired if Cordell had given any
more thought to resigning . Cordell refused to resign. This
encounter the postmaster places at between 8 and 8:30
a.m.
It was after this conversation that Morgan instructed
Snow to cut Cordell's termination papers effective as of
September 14.
At or about 8:30 or 9 a.m., according to Caldwell,
Caldwell remembered the Postal Service equipment which
Cordell had. He asked Cordell for it and received it.
According to the time marked on a long distance
telephone call report by Morgan, at 1:35 that afternoon,
with Caldwell sitting in the office, Morgan called Respon-
dent's personnel office in Oklahoma City and was told by
them that Cordell's Veteran's rights had not been violat-
ed.21
6. September 17 - 3 p.m. meeting
At 3 o'clock Monday afternoon Shields, Homer, and
Cordell arrived at the postmaster's office for the meeting.
They were met by Morgan, Welsh, and Caldwell. All the
witnesses agree as to the events at the meeting - but not
afterwards. Shields inquired as to the status of Cordell.
Morgan answered that Cordell was terminated and that the
papers would be cut effective as of September 14. Homer
inquired if anything could be done to restore Cordell's job.
The postmaster answered that the Service had gone the
route with Cordell, that they had substantial documenta-
tion about him and so he had decided to terminate Cordell.
Shields then asked whether Cordell's Veteran's rights had
not been violated. Morgan answered in the negative. The
meeting ended at that time and the parties started to leave
the postmaster's office.22
What happened next constitutes another credibility
problem.
about this, none of your friends at the Post Office, your
family or anybody else. Especially the Union is not going
to change my mind. We're going to have to terminate you,
or you can resign." Cordell refused to resign, on the ground
that he wanted to keep his job and asked if there was
anything he could do to keep it. Morgan stated that the
best thing he could do would be to go and apologize to
Welsh for his performance.
Cordell proceeded to Welsh's office and asked to see
him. Welsh suggested that they go to the civil service room
where Cordell told him that he wanted to keep his job and
asked if there was anything he could do to keep it. Welsh
answered that he did not see how Cordell could keep it or
that there was anything he could do to keep it after "the
stunt [Cordell] had pulled with the Union that day." Wels:
stated that his mind was made up and that there was no
way at all that Cordell could keep his job as far as he was
concerned. But after another plea by Cordell, Welsh stated
that he and Morgan would talk about it between then and
10 o'clock the next day and instructed Cordell to call on
Tuesday morning about 10 o'clock and he would let
Cordell know what decision they had made.23
Cordell returned to the postmaster's office and reported
that he had met with Welsh.
b. Respondent
Morgan, Welsh, and Caldwell all testified that, after
Cordell, Shields, and Homer had left the postmaster's
office together after the 3 o'clock meeting , they sat in the
postmaster's office for a few minutes discu '•sing the
possibility of there having been a violation of Cordell's
Veteran's rights. They reached no conclusion but made no
further investigation.
The postmaster denied having any meeting with Cordell
after the conclusion of the 3 o'clock meeting as aforeder
scribed.
7. Aftermath of 3 p.m. meeting
a. Cordell
According to Cordell, as he started out the door
following Shields and Homer at the end of the meeting,
Morgan stepped in front of him, closed the door, and then
said, "Why did you bring the Union into this matter? -
You know the only thing these boys can do for you is just
to hurt you." Cordell explained that he was trying to find
out why, he was not being scheduled and why his Saturday
schedule had been canceled. The postmaster continued,
"Now you notice that those two boys don't know about the
statements you made against them. I haven't told them.
You are not going to tell them. - I was not going to bring
them up. I wasn't going to bring them out against those
two boys. But if they had gotten a little radical with me I
would have them out and shown them right where they
stand." After inviting Cordell to sit down, Morgan
continued, "Now, nobody here is going to change my mind
c. Shields and Homer
Shields and Homer testified that Cordell did not leave
the 3 p.m. meeting with them and that they waited in vain
for him some time thereafter. They did not see him after
they left the meeting.
8. September 18
a. Cordell
The next day, Tuesday, according to Cordell, he reported
at Welsh's office about 9:45 and -asked Welsh what if
anything he and the postmaster had decided. Welsh stated
that he had not talked with the postmaster yet but would
do so right then. He went into the postmaster's office. A
few minutes later Welsh called him into Morgan's office
where the postmaster told him that he had made up his
mind to terminate Cordell. He asked Welsh if he thought
that was right. Welsh agreed that that was his decision too
21 At 9.20 a in. Morgan had made a long distance call to the Service's meeting . When shown his affidavit to the contrary, Cordell changed his
Muskogee office. However , by inadvertence, Morgan admitted that he had testimony.
placed the wrong information on the wrong ticket . The Muskogee call 23 These meetings with certain additions by Cordell sound as though
apparently did not concern Cordell . they might be the same ones described by Morgan and Welsh as having
22 Cordell originally testified that Welsh and Caldwell did not attend the occurred on the morning of September 17.
UNITED STATES POSTAL SERVICE
and nothing could change his mind . Welsh thereupon left.
Morgan suggested to Cordell that he resign and brought
out the form 2526 all typed out for Cordell's signature to
resign because of "extreme personal problems ." After
Cordell again refused to resign the postmaster stated that
he would give Cordell until 5 o'clock that afternoon to
resign . Cordell did not resign and so was automatically
terminated , according to his account , at 5 p.m. Tuesday,
September 18.
b. Respondent
Both Morgan and Welsh denied ever having seen or
talked to Cordell after he left the 3 p .m. meeting on
September 17.
C. Conclusions as to Credibility
If there is one thing this record makes perfectly clear, it is
that somebody lied. There is no more polite way to express
it. WDrse yet there are few, if any, guideposts to point the
way to who it was and why, the crucial factors in the
instant case.
If Cordell is credited, then it is clear that his discharge
was, in part at least , caused by the hostility to the Carriers
Union at the McAlester Post Office. The cases are myriad
that, if a discharge is motivated even in part by such union
animus , that discharge is discriminatory.
On the other hand, if the Postal Service witnesses are to
be believed and union animus played no part in the
discharge, then, as found heretofore, Cordell was admitted-
ly no exemplary employee so that good cause existed for
his termination.
However whether Cordell's admitted derelictions in the
performance of his duties during his short employment,
numerous as they were, were sufficient to cause his
discharge at the McAlester Post Office is somewhat
dubious because clerk Butler employed about the same day
as Cordell had an almost identical record , even to being
late or absent on her first day of employment. But she is
still employed by the Postal Service. A case of disparate
treatment might be made out.
This is then a case where it is Cordell's word against that
of Morgan, Welsh , and Caldwell. Witnesses Shield and
Homer are not counted because they testified almost
exclusively concerning one meeting where all the witnesses
were in agreement . However they did testify that Cordell
was not with them when they left the 3 p.m. meeting
September 17. Hence the weight of the witnesses rests with
Respondent . It is harder to believe that three witnesses lied
than one.
There is the acknowledged and admitted fact that
Cordell wanted his job so badly that he would have done
almost anything in order to retain it . Hence he would
naturally be biased in his own favor . He admittedly
executed false and derogatory statements about Shields
and Homer in an effort to keep that job. During his
testimony he originally incorrectly testified that Welsh and
Cordell were not present at the Monday afternoon
meeting . Hence his testimony was admittedly not 100-
percent accurate.
975
Then there is the documentation . That documentation
presented by Respondent largely pertained to Cordell's
inadequacies as an employee. It was written in large part
by Caldwell who must have spent most of his time
laboriously typing out memos regarding Cordell and
others . Judging from his memo of August 23 , the part of
that documentation pertaining to Cordell may well be
considerably exaggerated in light of the admitted 1-hour
error therein . Few, if any , of the other memos were without
their own "inadvertent errors ." However that may be,
Cordell admitted the essential derelictions mentioned
therein. Other documentation presented by Respondent
proved that Caldwell was not the only Postal Service
official prone to making such "inadvertent errors" as
witness Morgan's two telephone call chits . Strict accuracy
in memos , at least, does not appear to have been either
necessary or usual among the officials at the McAlester
Post Office . The only official not guilty of such errors in
this case happened to be Welsh, possibly because there
were no memos over his signature presented in evidence.
The last piece of documentation was presented by
General Counsel, to wit , the two admittedly false and
derogatory statements referring to Shields and Homer
written on September 14 by Cordell. Even Respondent's
witnesses testified that they queried the veracity and
usefulness of these documents . However these two docu-
ments constitute the very crux of the instant case and
perhaps its only real guideposts on the search for
credibility . Why were they written and who wanted them?
The answer to these questions will determine the credibility
question.
One answer to the first question is simple : Cordell wrote
them in an effort to keep the job he wanted so badly. This
is not a pretty story from Cordell 's side.
If we accept the Respondent's version of this case, then
on Friday, September 14, Cordell was called into the
postmaster's office for final , termination because of past
derelictions of duty. The postmaster had decided on this
course of action on his way home, according to his version,
the previous Monday, ' September 10, but had "in-
advertently overlooked" making his promised decision on
that matter known until by chance on the following Friday
he happened to overhear Welsh talking to "Kirby" over the
phone . He testified he overlooked the matter despite
having noted the matter on his calendar on Monday.
So on the morning of Friday, September 14, Cordell is
called into a meeting with the usual triumvirate of Morgan,
Welsh, and Caldwell after the postmaster had hurriedly
received "capsule reports" on Cordell from Welsh and
Caldwell individually followed by a joint meeting on the
matter between the three.
Morgan opened this meeting with Cordell, according to
all witnesses, with the flat announcement that "I had
decided to terminate him from the Service and would be
releasing him effective that day ." To the ordinary individu-
al an opening statement like that would also constitute the
termination of the meeting . But, although there seems little,
if anything, left to say, this meeting admittedly continued
with the postmaster present for an hour or so before the
postmaster hurriedly departed to complete his official
business before going homeon annual leave to prepare for
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his son 's wedding the following day. Indeed this meeting
admittedly continued for at least, in Caldwell's estimation,
5 to 15 minutes thereafter while Caldwell wrote this part of
the documentation, to wit, the statements re Shields and
Homer. The question is why?
Respondent would have us believe that, even after the
above termination of his services, Cordell volunteered to
write the statements in his anxiety to keep his job. However
even a scared, newly married, college sophomore does not
write out statements which he knows to b'e false with
knowledge that the act would be futile. And as it
happened, it was Morgan who kept the morning meeting in
session after allegedly discharging Cordell in his opening
statement by inquiring if Cordell had anything to say. Why
this after the matter had been settled?
Then, according to the Postal Service version, after some
desultory conversation about the difficulties of the job and
a period of conversation which Morgan could not recall,
Cordell suddenly inquired if he had gotten bad advice from
certain unnamed carriers. After characterizing the advice
mentioned as "ill advice," Morgan inquired who gave him
that "HI advice." 24 Then Cordell volunteered to make a
statement regarding this advice "if it would help me get my
job back." At this point Morgan testified:
Then I said "Mr. Cordell, you can feel privileged to
make any statement you wish of your own free will and
accord. I won't deny you anything. But it won't change
my mind on the itsue. [Emphasis supplied.]
A little while later Morgan concluded his part of the
meeting by informing Cordell, "I will be cutting your
[termination ) papers effective "today." Yet even with that
Cordell subsequently wrote out these knowingly false
papers despite hearing the reiteration of the futility of such
action.
There is still another oddity in Morgan's account.
Although he had just stated that Cordell's termination
papers would be cut that day, yet his last words before
leaving the-meeting were as he testified:
So, then I told Mr. Caldwell, who was still there,25 I
said "Jack, if he wants to sign this resignation statement,
why go ahead and get the resignation statement for
him." [Emphasis supplied.]
The phrase "termination statement" is unusual phraseol-
ogy at best. '
According to Morgan he had, of course, just noticed the
form 2526, the personnel action form, before him and had
again offered to allow Cordell to resign. But, according to
Caldwell's testimony, he, Caldwell, had already left the
meeting ahead of the postmaster in order to take care of a
"customer," Furthermore Personnel Clerk Snow was quite
definite that Morgan returned the form 2526 to his, Snow's,
desk when he left the meeting without comment about a
resignation. It is even stranger that the postmaster would
24 Welsh testified that Cordell volunteered the names. When pressed,
Caldwell changed lus testimony into thinking that perhaps Morgan had
inquired for the names . Interesting enough the transcript shows that, until
interrupted by counsel, Morgan started to imply the Welsh version before
testifying that he did ask for the names . This constitutes one of the rare
leave a disgruntled recently discharged ex-employee all
alone in his office when he left.
In regard to Morgan's strange final word relating to a
"resignation statement," it is interesting to note that upon
his arrival on Monday morning Morgan was informed by
Caldwell that there were two "statements" on his desk -
but not one word of inquiry or information was made
about a "resignation" or a "resignation statement."
Respondent maintains that Cordell was terminated at
the meeting of September 14. But Snow's testimony,
corroborated this time by Morgan, proves that, instead of
ordering Snow to cut the papers on Cordell at the time he
returned the form 2526 to Snow on Friday, it was not until
sometime Monday, September 17, that Morgan first
actually ordered Snow to cut those papers. Why this delay?
If Morgan is to be believed, that decision was final on
September 14. It thus appears, even from Morgan's
testimony, that the decision to terminate Cordell was not
irreversibly made on September 14.
The fact that, although present at the meeting when the
postmaster allegedly announced his decision to terminate
Cordell which "nothing could change," Caldwell admitted-
ly "frankly forgot" to request Cordell to return the Postal
Service brass, shield, license, etc., issued to him as an
employee until between 8:30 and 9 a.m. Monday, Septem-
ber 17, appears to confirm the fact that even Caldwell
recognized that Cordell had not been irreversibly terminat-
ed at the conclusion of the September 14 meeting. Cordell
times this event in the afternoon after the 3 p.m. meeting.
The length of this meeting, the delay in ordering the
termination papers cut, the delay in recovering materials
issued to Cordell plus the very writing of the derogatory
statements after the postmaster's departure from the
meeting leads logically to only one conclusion, to wit, that,
contrary to the postmaster's testimony, hope of retaining
his job was being held out to an anxious Cordell if he
would make the derogative statements for the Postal
Service officials. It is illogical that Cordell, weak though he
may have been, would make knowingly false statements
knowing full well that they would aid his cause not at all.
Logic thus supports Cordell's version of the events at this
meeting, i.e., that some ray of hope for his job, at least, was
being held out to him by Postal officials if he made the
desired statements.
Nor does it make sense for Morgan to have ordered
Caldwell to take Cordell's "resignation statement" in the
event that Cordell chose to resign and at the very same
time to return personnel form 2526 to Snow. Caldwell
testified he returned the form 2526 to Snow after the
statements were written. Admittedly nothing about a
resignation was mentioned in that part of the meeting.
Again logic appears to support Cordell that the postmas-
ter's orders concerned "statements" as contrasted to the
phrase "resignation statement."
If Caldwell can be believed, he left the meeting for a
customer just before the postmaster's departure so that,
with Welsh already with a customer elsewhere, Cordell, a
variations in the testimony of these three.
25 But according to Caldwell, he had already left the room. This is the
second occasion in which the unusually consistent testimony of Respon-
dent's witnesses failed.
UNITED STATES POSTAL SERVICE
recently discharged employee, was left all alone and
unattended in the postmaster's personal office. Logically
this would appear an unwise thing to do under the
circumstances.
Cordell had testified that Welsh had assisted with or
"dictated" the "gist" of the statements he wrote. Respon-
dent's brief ridicules this testimony. From Respondent's
point of view it was convenient to have Welsh elsewhere
when Cordell started writing. However the brief omits to
mention the fact that at least upon the completion of the
statement all the individuals then present, including Welsh,
testified that the Postal officials discussed the need for a
"free will and accord" addendum to make the statements
legal and presentable and that Cordell made such an
addition, as the exhibit proves. Thus, even under Respon-
dent's testimony, Cordell was not entirely incorrect. It is
interesting to note that both Postal officials testified that
nothing was said to Cordell during this part of the meeting.
Even the conversation about the addendum was just
between Welsh and Caldwell. But the statement was
handed back to Cordell for its inclusion . This testimony
attempts to draw very fine lines. The silence during this
part of the meeting was deafening if the officials can be
believed.
The next conflict of testimony which must be mentioned
here concerned the aftermath of the 3 p.m. meeting on
September 17 at which union officials Shield and Homer
were present . The conflict in the testimony here is absolute.
Either Cordell had a short individual conversation with
Morgan followed by one with Welsh in both of which he
was castigated for having brought the Union into the
picture. Or these conversations never occurred. The
conflict is that bald.
As to the meeting of that date the testimony of all six
witnesses is unanimous . In answer to questions by Shields
and Homer the postmaster stated that he had terminated
Cordell, that there was nothing the Union could do to save'
his job, and finally that Cordell's Veteran's rights had not
been violated. The meeting then broke up with Shields and
Homer, at least, departing. Here the conflict begins.
According to Shields and Homer, Cordell did not leave
that meeting with them although they waited at the rear
exit of the post office for him. They knew not what
happened to Cordell. That was their contribution to this
conflict.
Cordell, of course, originally testified that Welsh and
Caldwell did not attend the 3 p.m. meeting. He was
incorrect in this and, upon being shown his affidavit,
corrected himself.
Cordell's testimony of the postmeeting events is unusual,
if not bizarre, in that the postmaster stepped in front of
him as he was going through the door, then closed the door
in ordler to have a private conversation. In this conversa-
tion the postmaster severely criticized Cordell for having
brought in the Union and stated that that would do him no
good and then suggested that the "best thing" he could do
would be to apologize to Welsh. This apology took place
immediately thereafter in the civil service room with Welsh
expressing the opinion that there was little that could be
done for him "after this stunt he had pulled with the Union
that day," but that he would confer with the postmaster
977
before 10 a.m. the next day, Tuesday, and let Cordell
know. Thereafter Caldwell asked Cordell for his "brass,
badge and auto driver's license" which the post office had
furnished him and which he, Caldwell, had just "forgot" to
pick up from Cordell on Friday when Cordell had been
terminated.
However, according to the testimony of the three Postal
officials, none of the above ever happened because, when
Shields, Homer, and Caldwell left the 3 o'clock meeting,
these three officials held another meeting in the postmas-
ter's office for "a few short minutes ," according to
Caldwell, or from 5 to 10 minutes according to Welsh,
where they discussed the possibility that they might have
violated Cordell's Veteran's rights but reached no conclu-
sion on that matter, according to Welsh. This meeting, of
course, occurred at the exact same time as Cordell had
testified his private conversations with Morgan and Welsh
took place.
The holding of such a meeting over Veteran's rights at
this time appears completely unnecessary. The postmaster
had just gotten through telling the 3 p.m. meeting flatly
that Cordell's rights had not been violated. Yet - the
postmeeting conference apparently reconsidered that
already disposed-of issue but reached no conclusion as to
possible violations or further investigation` thereof. Fur-
thermore at 1:35 p.m. that same afternoon the postmaster
in the presence of Caldwell had called the regional
personnel office in Oklahoma City and had been told that
no Veteran's rights had been violated. It certainly seems
logical' that, knowing that Veteran's rights were going to be
discussed at 3 p.m., as the postmaster admittedly did, he
would have prepared himself ahead of that meeting on that
question so that there would be no need for a nonconclu-
sive post mortem within minutes after his flat rejections of
the idea that Veteran's rights had been violated. Under the
circumstances this testimony of a postmeeting conference
is almost so absurb as to be unbelievable. It even has the
earmarks of having been contrived for the purpose of
eliminating the conversations with Cordell.
During his cross-examination the postmaster stated that
he had' met Cordell on Monday morning coming away
from a meeting with Welsh in the civil service room and
suggested that he resign. Welsh also testified that he had
had a meeting with Cordell in the civil service room on the
morning of September 17. At this meeting Cordell had, in
Welsh's words, "sort of apologized" and had requested his
aid and assistance in retaining his job. With the omission
of the alleged statement about the " stunt" Cordell had
pulled with the Union, Welsh's description of this meeting
appears to coincide with Cordell's post 3 p.m. conversation
with Welsh. Caldwell testified that he collected the post
office brass, badge, and license from Cordell also on the
morning of September 14 between 8:30 and 9 a.m. after
"forgetting" to collect that material after Cordell's termina-
tion the previous Friday.
The description of these individual conversations, except
that there were no references to the Union in the officials'
description thereof, appear very close to those testified to
by Cordell. However Cordell says that they all happened
following ' the 3 p.m. meeting whereas the officials time
them between 8 and 9 a.m.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted heretofore it seems passing strange that Cordell
did not check with Welsh, at least, after his admitted
examination of the schedule that morning.
But the evidence discloses that the Postal officials had
been quite busy among themselves on the Cordell matter
all day Monday, September 17. At 9:20 a.m; the postmas-
ter had called Muskogee, Oklahoma on either the Cordell
matter or a separate matter. That morning Morgan,
Caldwell, and Welsh had conferred for an undisclosed
amount of time about Cordell's statements and had
concluded that they could not be true and were, therefore,
useless.
The afternoon was busy with the Cordell matter also.
About 1:35 'p.m. the postmaster had telephoned the
regional personnel office in Oklahoma City with Caldwell
sitting in his office in an effort to determine if Cordell's
Veteran's rights had been violated. He was apparently
informed that they had not been. In sum it might have
been difficult for Cordell that day to have seen these busy
officials alone. However the meetings described by the
Postal officials, with some omissions, appear to have been
the same meetings which Cordell testified occurred after
the 3 p.m. meeting. This evidence by the Postal authorities
appears contrived and, as usual, quite self-servingly
selective. It does not ring true.
Finally Respondent's witnesses were the same individu-
als who were responsible for the "documentation" present-
ed here by Respondent which, as previously noted, was
characterized by innumerable "inadvertent" errors, mis-
takes, inaccuracies, and even self-serving statements. It is
hard to believe that the individuals responsible for such
written material could suddenly eliminate those character-
istics when testifying orally. And, in fact, the close daily
relationship of these three individuals combined with their
mutual concern over this matter appears throughout their
testimony in that the testimony of each is practically a
repetition of that of the others even as to the omissions
therein and with some answers being almost in haec verba.
Memories are not apt to be so exact.
Why were these derogatory statements made? One
reason already mentioned was that Cordell wanted to
retain his position if possible. However if, as the officials
claim, Morgan had stated flatly and reiterated throughout
the September 14 meeting that such statements, if made,
would not change his already announced decision, these
statements naturally would not have been written. They
would have been futile from Cordell's point of view.
Despite this alleged final decision, however, the postmaster
kept the meeting in session and the statements were
written. After they were written, Caldwell treated them like
money in the bank. The statements were encased in an
envelope; the envelope was sealed and placed on the
postmaster's desk, and placed there in time for his 1 p.m.
meeting with Cordell. Contrary to the then practice,
Caldwell locked the postmaster's office. Obviously the
statements were thought to be of value to the officials at
that time. On Monday the first report Caldwell made to the
postmaster was that Cordell's two statements were on his
desk. Nothing was mentioned about a resignation. Mor-
gan, Welsh, and Caldwell then went into a conference to
examine the documents and finally purported to reach the
conclusion that the statements could not be true as to
Shields and Homer and so were useless. Why this interest
by the officials when the statements purportedly could not
and would not affect their decision as to Cordell?
The answer to that appears to be that on September 4 the
Postal Service, in the persons of these same three Postal
officials, began negotiations of the local contract with the
Carriers Union in the persons of Shields and Homer,
respectively president and vice president of Branch 1166.
From the start these negotiations were not amicable which
caused a postponement. Then the negotiations were to
resume about the middle of September. Thus derogatory
reports regarding these union negotiators might therefore
well be considered a convenient tool or leverage in the
negotiations. In fact in his last conversation with Cordell
on September 14, Morgan suggested that he had not
disclosed these statements to Shields and Homer because
they had not "gotten radical" with him at the September 14
meeting. Thus it is clear that the officials had a definite
interest in securing derogatory reports about Shields and
Homer and had a willing victim who was willing to supply
those reports, if it would savehis job.
As a result of all the reasons mentioned above plus the
logic of the situation, particularly in respect to the meeting
on September 14, I credit the testimony of Kirby Cordell
and further find that the testimony given here by
Respondent's witnesses was no more accurate, complete,
unbiased, or completely truthful than was the documenta-
tion in evidence.
D. Final Conclusions
With this credibility resolution it thus appears that for its
own purposes Respondent enticed and/or coerced Cordell
into making false and derogatory statements regarding two
of the Union's negotiators, its president and vice president
respectively, for possible aid and assistance in the negotia-
tions then pending between the Postal Service and that
Union. Such action could only tend to discourage Cordell
from participation in union activities as well as to
discourage others from such participation if and when
those statements became public knowledge. This violates
Section 8(a)(1) of the Act.
As regards the discharge of Cordell , it is true that his
work record possibly justified his discharge for cause.
However clerk Butler with an almost identical work record
has never been discharged.
If Cordell had been terminated on September 14 when
Morgan first said he was terminated, as Respondent
claims, then it would appear that Cordell's discharge was
for cause.
But the fact is that Cordell was not terminated on
September 14 despite Morgan's reiterated statements to
that effect. The termination papers were not cut. The
Postal Service equipment issued to him was not requested
of him. In fact neither of these normal results of a
termination occurred at least until Monday even under
Respondent's testimony. Respondent's excuse for this was,
as usual, "inadvertent mistakes." In this instance it just
does not jell. The postmaster saw Personnel Clerk Snow
following his flat termination statement to Cordell but said
nothing to Snow about cutting the termination papers nor
UNITED STATES POSTAL SERVICE
about a resignation . Caldwell was present at the alleged
"termination" meeting but "forgot" to ask for the Services'
equipment to be returned.
Instead Cordell was told, after the September 14 meeting
finally ended with the two statements written , to report
back on Monday for, at least , possible scheduling.26
The presence of these two statements being on his desk
was the first report the postmaster received on Monday
plus the fact that the Union wanted a meeting on the
Cordell matter.
Even under Respondent's testimony, it was only after
Morgan, Welsh, and Caldwell had carefully evaluated the
statements which Cordell had given that the postmaster
finally informed Cordell that he was either terminated or
could still resign.
Thus the price which Respondent had set on September
14 for Cordell to retain his position was that he give
derogatory statements concerning Shields and Homer who
were both officers and negotiators for the Union which was
then about to resume negotiations with the officials who
also held Cordell's employment tenure in their power. Even
though these statements apparently proved to be insuffi-
cient for the officials purposes , it is clear , even under
Respondent's testimony, that the discharge of Cordell was
union related and hence discriminatory within the meaning
of the Act.
Of course the discrimination is even clearer under
Cordell's version of events as the statements by Morgan
and Welsh at the September 14 meeting were quite explicit
as to the antiunion purpose those statements were intended
for. The subsequent Morgan and Welsh statements really
only corroborate the real purpose intended for these
statements which Respondent enticed or forced from a
scared employee by the thought of losing his job on
September 14.
I am convinced from the testimony of both Cordell and
the more selective testimony of the three officials that this
antiunion use was one of the purposes of the meeting of
September 14 when Morgan instructed Welsh and Cald-
well to take any statement - not resignation statement -
adverse to Shields and Homer which Cordell might choose
to make in his efforts to save his job.
It is further clear from Cordell's testimony that neither
Morgan nor Welsh appreciated the fact that Cordell had
seen fit to interest the Union in his job tenure problem and
further that the Union's interest in helping Cordell try to
retain his job played a definite part in his actual
termination.
Thus the discharge of Cordell on either September 17 or
18, 1973 , was both union related and coercive and thus in
violation of Section 8(aX3) and (1) of the Act. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
979
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade , traffic , and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. United States Postal Service is covered by the Act
and subject to the Board 's jurisdiction.
2. National Association of Letter Carriers , AFL-CIO,
Branch 1166, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure
and employment of Kirby Cordell by discharging him on
or about September 18, 1973 , because of his membership in
and activities on behalf of said union and in order to
discourage such membership and activities among its
employees , Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Kirby Cordell on
or about September 18, 1973 , in order to discourage such
membership and activities on behalf of the Union, I will
recommend that Respondent offer him full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of said discrimination against him by payment to
him of a sum of money equal to that which he would have
earned from the date of said discrimination to the date of
Respondent's offer of reinstatement less his net earnings
during such period in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon at 6 percent per annum
26 Welsh denied giving Cordell this order only by implication in that he
testified that he had left the room before the second statement was
coml,leted.