United States Postal Service

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1131 (N.L.R.B. 1982)

UNITED STATES POSTA. SERVICE
United States Postal Service and Roy Palmer. Case
10-CA-I 5797(P)
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JlENKINS, ANI)
ZIMMERMAN
On January 12, 1982, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
certain exceptions, a supporting brief, and a brief
otherwise supporting the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United States
Postal Service, Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
BENJAMIN SCHI.ESINGER, Administrative Law Judge:
This proceeding was heard on December 10, 1980, in At-
lanta, Georgia, before Administrative Law Judge Robert
Cohn, now deceased. On December 23, 1981, Chief Ad-
ministrative Law Judge Melvin J. Welles designated me
to determine the issues presented herein and render a de-
cision based on the record made, all parties having
agreed to that procedure.
Upon reading the record and upon consideration of
the briefs filed by the General Counsel and Respondent,
I hereby render the following:
FINDINGS OF FACT AND CONCI.USIONS OF LAW
The complaint' alleges that Respondent United States
Postal Service violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C. § 151,
et seq. (the Act), by suspending employee Roy Palmer
from December 23 to 29, 1979, and by denying him a
"step increase" on March 8, 1980. The National Labor
Relations Board has jurisdiction over this matter by
I The complaint issued on June 20, 1980, based on an unfair labor
practice charge filed by Roy Palmer on May 5, 1980
261 NLRB No. 165
virtue of Section 1209 of the Postal Reorganization Act,
39 U.S.C. § 101, et seq.
Palmer acted as steward and alternate steward for the
Mailhandlers Local 310, National Post Office Mail Han-
dlers, Watchmen, Messengers, and Group Leaders Divi-
sion of the Laborers' International Union of North
America, AFL-CIO (The Union). Although there is
some dispute as to how many grievances he filed on
behalf of himself and other employees, clearly he was
,vocifcrous, persistent, and outspoken in attemping to
ensure that the contractual terms of the Union-Respond-
ent collective-bargaining agreement (agreement) 2 were
complied with and that his and his fellow employees'
rights were protected. Whether his filing of grievances
led to the discipline imposed by Respondent is the issue
herein.3
On December 7, 1979, Palmer asked his supervisor,
Sylvester Price, for permission to leave his work station
in order to make a telephone call. Palmer testified that
his request was accompanied by a request to use the rest-
room, and his request to use the telephone was denied by
Price because of the amount of work then required to be
performed.4 Returning to work, Palmer. within a minute
or two, felt compelled to go to the bathroom, and did,
despite Price's denial of permission to do so. Within a
minute of Palmer settling in a stall, employee and Union
Administrative Vice President L. C. Cunningham en-
tered the bathroom, called out Palmer's name, and
Palmer identified himself from behind the closed door.
Two minutes later, Cunningham returned and informed
Palmer that he had 5 minutes to complete his appointed
task-otherwise, Price was going to clock him out and
have the security forces escort him from work. Unfortu-
nately for Palmer, he took 8 minutes and was ordered to
clock out. As a result, Palmer grieved, claiming a loss of
2-1/2 hours' straight pay and 2-1/2 overtime hours.
Predictably, Price's story was different. Palmer asked
only for permission to use the telephone, but, due to the
fact that his work areas was very busy, Price refused
Palmer's request. Although Palmer started to return to
work, he was furious about Price's decision and deter-
mined to make the telephone call anyway, heading
toward a facility where phones were located. Price, con-
cerned that his orders were being ignored, sent Cunning-
ham after Palmer and directed that Palmer be informed
to return to work under penalty of being clocked out
(but not of being escorted from the premises).
2 The agreement provides for a multistep grievance procedure. which
commences %with an informal discussion hy the grievant with his supervi-
sor. Thereafter, and providing that the grievance has not been adjusted.
the following steps are provided for: (1) presentation of written grievance
to the supervisor: (2) appeal to Respondent's employee labor relations
area; (3) appeal to Respondent's regional level in Memphis. Tennessee:
and (4) arbitration.
3 Respondent alleged at the hearing some doubt of Palmer's status as
steward or alternate steward, based on the Union's possible failure to cer-
tify him as such, as required by the agreement. However, there is little
record support that Respondent refused to accept Palmer's grievances or
confer with him under the agreement's grievance procedure on the
ground now raised
4 Palmer did not testify that Price denied him the right to go to the
bathroom.
1131
DECISIONS OF NATI(ONAL LtABOR RELATIONS BOARD
The suspension for the remainder of December 7 is not
alleged in the complaint as a violation of the Act. Seem-
ingly, that matter has been settled under the agreement's
grievance machinery. 5 What is complained of is that at a
meeting on December 18 pursuant to the grievance pro-
cedure, when Palmer and Richard Fambrough, his union
representative and another steward, insisted on pursuing
Palmer's grievance, Price announced (according to
Palmer): "I see that you are going to insist on filing this
grievance and pursuing this matter. Then here is some-
thing for you." 6 Price then handed Palmer a letter an-
nouncing Palmer's suspension for 7 days, which was
later through step 3 of the grievance procedure reduced
to make Palmer whole for 3 days' pay.
It is that suspension which constitutes the first allega-
tion of this proceeding, the General Counsel contending
that the suspension was given by Price in retaliation for
Palmer's filing and continuing to process his grievance
and in violation of Palmer's rights to engage in concert-
ed and protected activities. It is well settled that disci-
pline of an employee for attempting to file or filing a
grievance is prohibited by Section 8(a)(1) of the Act.
N.L.R.B. v. Washington Aluminum Company, Inc., 370
U.S. 9 (1962); Walls Manufacturing Companyv. Inc. v.
N.VL.R.B., 321 F.2d 753 (D.C. Cir. 1963); Hoover Design
Corporation v. N.L.R.B., 402 F.2d 987 (6th Cir. 1968);
Clara Barton Terrace Convale.scent Center, 225 NLRIS
1028 (1976); The Detroit Edison Company, 241 NLRB
1086 (1979). Complaints of this nature are concerted be-
cause they involve the implementation and enforcement
of a labor agreement which is an "extension of the con-
certed activity giving rise to that agreement," protected
by Section 7 of the Act. Merlyn Bunney and Clarence
Bunney, partners, d/b/a Bunney Bros. Construction Com-
pany, 139 NLRB 1516, 1519 (1962). This is so even
though the employee's grievance may lack merit. Inter-
boro Contractors. Inc., 157 NLRB 1295, 1298 (1966), enfd.
388 F.2d 495 (2d Cir. 1967); John Sexton & Co., A Divi-
sion of Beatrice Food Co., 217 NLRB 80 (1975).
Respondent contends, however, that the suspension
was merely the result of Palmer's refusal to follow his
supervisor's direct order, and nothing else. If the 7-day
suspension was so aimed, it is difficult to understand why
Price also suspended Palmer on December 7 for the
same offense, but for a shorter period. Palmer kept insist-
ing that the 2-1/2-hour suspension violated the agree-
ment because employees were entitled to use the bath-
room. In all the grievance sessions involving the earlier
I The General Counsel claimed at the beginning of the hearing that he
was seeking 2-1/2 hours' pay as part of his requested remedy. This relates
solely to the December 7 suspension which was adjusted by the Union
and Repondent requiring payment to Palmer, who denied that he was
made whole. However, this suspension was not specifically alleged in the
complaint, and no motion was made to amend the complaint to allege a
violation at the hearing or in the General Counsel's brief Respondent's
counsel was under the impression during the hearing that only the two
specific allegations of the complaint were at issue; and, with one modifi-
cation, I will consider myself bound by the specific allegations of the
complaint.
6 The recollections of Union Steward Fambrough were not quite as
graphic. The statements attributed to Price were: "You gave me a step
one on this, I have something for you" which Fambrough understood
to mean that if Palmer had not decided to pursue his grievance, the 7-day
suspension would not have been served.
suspension, Price insisted that the discipline was given
because Palmer refused to comply with Price's order to
return to work.7 The second suspension was merely du-
plicative, although more harsh, and arguably an after-
thought, as Price insists. But it appears to be more than
that, because the timing of the delivery of the second
suspension, only after Palmer insisted on pursuing his
grievance, was inadequately explained by Price.
There was an I 1-day delay between the first suspen-
sion of December 7 and the second, dated December 18.
Price testified that he finally decided 2 or 3 days after
December 7 that further discipline was warranted and
that his proposed suspension letter had to be given to his
supervisor for review, a process that normally takes an
additional 2 or 3 days. Because the letter was given to
Supervisor Lester on December 10, there is accounted
for at best 6 days, leaving 5 days for the delivery of the
suspension to Palmer. But Price did not deliver it until
the step I meeting, and only after the Union had deter-
mined to process it and not to withdraw it pursuant to
Price's suggestion. Those events lend credence to the
General Counsel's complaint that the second suspension
was served only because Palmer was determined to pro-
ceed with his grievance over the first suspension. Price's
utter failure to reasonably explain his delay in serving
the second suspension at any earlier time supports the in-
ference of a violation of Section 8(a)(1) of the Act. I so
conclude.
The General Counsel also contends that the 7 days'
suspension resulted from Respondent's discrimination
against Palmer's grievance filing activities as a union ste-
ward, an 8(a)(3) and (1) claim which constitutes the basis
for the second allegation of the complaint. On February
12, 1980, Price gave Palmer a letter, dated February 4,
1980, notifying Palmer that his step increase due on
March 8 would be deferred for 7 pay periods. Because a
pay period consists of 2 weeks' work, the increase was
due to be paid on March 27, when Respondent's payroll
records reflect that it was paid. 8 However, the payment
was due to yet another of Palmer's grievances, this time
objecting to the deferment on the grounds, in part, that
Respondent's own manual dealing with step increases re-
quired that denial of step increases not be used as punish-
ment for overt acts and that supervisors must keep their
employees informed of their work performance, neither
of which, Palmer alleged, had been complied with by
Price.
Whether those reasons caused Respondent to reverse
Price's deferment of Palmer's step increase, or whether
Price found that Palmer improved his work perform-
ance, the latter being the reason relied upon by Respond-
ent, Respondent nonetheless advised the Union on
March 12 that Palmer would receive his increase, effec-
7 By so finding, I credit Palmer's and Fambrough's recollections that
there were two grievance discussions prior to that of December 18, in
light of Price's lack of recollection. I also find that, on December 18,
Price rejected Palmer's grievance. It is improbable that Price would have
needed time to consider whether his first suspension of Palmer was justi-
fied, especially in light of his delivery to Palmer of the second suspen-
sion.
' Palmer claimed that his own payroll slips demonstrated that he was
not timely paid his increase, but the slips were never introduced.
1132
UNITED STATES POSTAl SERVICE
tive March 8. I conclude that Respondent did not deny
Palmer a step increase, as alleged in the complaint. How-
ever, at least from February 12 to March 12, 1980.
Palmer had been threatened with the denial of his in-
crease, and he had to grieve in order to protect his con-
tractual rights. I consider this threat to have been sub-
sumed in the complaint's allegation; and, because it was
fully litigated and directly stems from the heart of the al-
legation concerning the deferment of the increase, I shall
dispose of the threat to defer the step increase. Southwest-
ern Bell Telephone Company, 237 NLRB 110 (1978).
The threat raises the difficult and oft-encountered
question of what Price's motivation was, that is, unless
Price was motivated by reasons which are illegal under
the Act, Respondent is otherwise entitled to discipline an
employee for good reason, for bad reason, or for no
reason at all. Edward G. Budd Manufacturing Co. v.
N.L.R.B., 138 F.2d 86, 90 (3d Cir. 1943), cert. denied 321
U.S. 778 (1943). Price contended that Palmer, whose
work in the past was dependable and productive, had
been "slacking off," and, contrary to Palmer's testimony,
stated that he consulted with Palmer and sought correc-
tive action. The threat to defer his step increase was in-
tended to prod Palmer to regain his prior admirable
work habits.
On the other hand, Palmer denied that he had been
counseled by Price and that his conduct did not justify
the discipline of a denial of an increase. The General
Counsel relies on Palmer's testimony and the following
arguments to support his contention that the threat was
merely a retaliation for Palmer's grievance filing activi-
ties on his own behalf as well as a union steward on
behalf of other employees. First, Palmer was once reas-
signed from the mail chute where he customarily worked
to the non-machineable objects area, where (Price knew)
Palmer did not like to work and where, Palmer testified,
assignments were based on seniority. However, Larry
Jones, an employee of 10-1/2 years, :' testified that the ro-
tation was normal, that he had been reassigned to the
area about which Palmer complained, and that Palmer
was not assigned to work there any more than other em-
ployees. No one, including the other union representa-
tives, corroborated Palmer's testimony that such assign-
ments were based on seniority, and Price testified that as-
signments were based solely on need. Further, he testi-
fied that it would be counterproductive to assign Palmer
to an area where he did not like to work, because he
would not work there. In light of these facts, I find it
improbable that the one related incident of Palmer's reas-
signment for a rather short time is sufficient to demon-
strate discrimination against him for any reason.
Second, Palmer complained that Price ordered him
not to clock in prior to storing his lunch and clothes in
his locker. Price testified credibly that Palmer showed
up late that day, and he had previously announced to all
employees that they were misusing the clocking-in pro-
cedure by doing other things after clocking in when they
should have been ready for actual work. No employee or
union representative contradicted Price's testimony,
which I credit.
9 Palmer was first employed in August 1978
Third, the General Counsel relied on the events of De-
cember 7 to prove that Price was motivated by Palmer's
illegal activities. Although I have found that the 7-day
suspension violated the Act, having been meted out be-
cause of Palmer's continued pursuance of his grievance
over the events of December 7, I do not find that Price's
actions of December 7 violated the Act. Rather, his
claim that Palmer became surly because he was not
given permission to use the telephone is supported by
just as much evidence as is Palmer's assertion that he
was disciplined for going to the bathroom. Indeed, al-
though Palmer did in fact go to the bathroom, he did not
have to seek Price's permission to do so. Normally, he
would merely report that he was leaving to a fellow em-
ployee, and employee Stanley Gore testified first (in
answer to questions posed by the Administrative Law
Judge) that Palmer did not do so, and only on recross-
examination by the General Counsel did he testify that
Palmer did so. At best, the General Counsel did not
prove by a preponderance of the evidence that the 2-1/2-
hour suspension was given because Palmer had a propen-
sity to file grievances.
Fourth, the General Counsel points to the extent of
Palmer's grievance filing activities. I note that Union
Representatives Cunningham and Fambrough appealed
almost three times as many grievances to step 2 than did
Palmer. There is no evidence that they were disciplined
or at all discriminated against because of their activities.
Fifth, the General Counsel argues that there is no sub-
stance to Price's February 1980 appraisal of Palmer, be-
cause Price had given Palmer a favorable evaluation on
September 11, 1979. However, that report was given 5
months before, and surely it is possible that Palmer's
work habits could have changed for the worse in the in-
terim. Further, as Respondent accurately notes in its
brief the General Counsel's theory of this case is weak-
ened by the fact that, before Price's favorable evaluation
of Palmer, Palmer had filed numerous grievances, two
complaining that Price did not allow him time to carry
out his duties as a union steward. If Price were motivat-
ed by any intention to discriminate against Palmer, surely
he would not have later given Palmer the glowing per-
formance rating. Finally, even though Palmer denied
that there was anything wrong with his work and that
Price ever counseled him, I note that he requested in a
January 1980 letter' ° that "Price refrain from telling
other employee[s] about my work performance which he
have done on several occasion[s]."
Finally, I am persuaded that Palmer was not wholly
credible; rather, that he was easily hurt by any action he
believed to be adverse to him and used as a scapegoat
for criticisms of his work, his union activities, his color,
his sex, and his religion. Thus, with respect to some of
the events at issue herein, he charged Price and Re-
spondent with discrimination in violation not only of the
Act but also of the Equal Employment Opportunity Act.
Io This letter was originally written by Palmer to Respondent's general
manager, Henry Wo