United States Postal Service

National Labor Relations Board - Board Decisions

Jul 29, 2016

364 NLRB No. 62 (N.L.R.B. 2016)

364 NLRB No. 62
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United States Postal Service and American Postal
Workers Union, AFL–CIO, Portland Oregon
Area Local 128. Case 19–CA–092096
July 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On December 4, 2013, Administrative Law Judge El-
eanor Laws issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions in
part, to reverse them in part, and to adopt the
recommended Order as modified and set forth in full
below.1
This case concerns a series of incidents, occurring
August 9 through September 27, 2012, involving
employee Cheryl Walton, who served as a union steward,
and supervisor Gina Babb. Citing the entire course of
conduct, the Respondent issued a written warning to
Walton; shortly thereafter, Babb, acting on her own
behalf, separately sought and secured a protective order
against Walton in state court. The General Counsel
alleged that the Respondent violated Section 8(a)(3) and
(1) of the Act by disciplining Walton for her conduct in
performing her duties as a union steward, and violated
Section 8(a)(1) of the Act by seeking and enforcing
(through Babb) the state court order based on the same
protected conduct. The judge, however, found that the
Respondent violated the Act only insofar as it allowed
Babb to enforce the broad terms of the protective order
on the Respondent’s premises, thereby interfering with
Walton’s service as a steward.2 The General Counsel
excepts to the judge’s failure to find the additional
violations alleged.
For the reasons explained below, we find, in
agreement with the General Counsel and contrary to the

1 We have amended the judge’s conclusions of law, remedy, and
recommended order, to conform to our findings and to the Board’s
standard remedial language.
2 There were no exceptions to the judge’s finding of this 8(a)(1) vio-
lation.
judge, that the Respondent violated Section 8(a)(3) and
(1) of the Act to the extent that it disciplined Walton for
her conduct during the course of a protected grievance
discussion on August 9, 2012. In all other respects,
however, we affirm the judge’s findings.3
I. BACKGROUND
The Respondent operates 25 postal facilities in the
Portland, Oregon area. During the relevant time period,
Babb was a supervisor in the finance unit at the Re-
spondent’s main office in Portland; Walton was a lead
sales service associate at Midway Station, a facility sev-
eral miles away, but she would occasionally visit the
main office in her capacity as the Union’s director of city
stations. Walton’s union position involved filing and
processing grievances on behalf of bargaining unit em-
ployees and the Union, and performing the duties of shop
steward at the main office and certain other designated
locations.
By nearly all accounts, Walton was loud, aggressive,
and confrontational when acting in her role as steward,
and she was known for her regular use of profanity.
Before the events at issue, however, Walton had never
been disciplined for such behavior. Babb’s approach had
been simply to end meetings with Walton when she used
profanity.
On August 9, 2012, Walton and Babb met at the main
office to discuss a number of grievances involving em-
ployees working under Babb. In order to ensure privacy,
they met in a break room away from the finance unit.
The discussion proceeded without incident until they
reached the fourth grievance, involving a leave request
that Babb said she had already discussed with higher-
level officials of both the Respondent and the Union.
Babb told Walton that she (Babb) could not grant the
leave request, given those prior discussions. Walton re-
sponded that Babb could grant the request if she adopted
a different interpretation of the requesting employee’s
position. Babb refused to consider Walton’s suggestion,
saying, “Cheryl, this one I’ve already talked to Joe

3 Specifically, we agree with the judge that the Respondent did not
violate Sec. 8(a)(3) and (1) of the Act by disciplining Walton for her
unprotected visits to the Respondent’s Portland, Oregon main office
after August 9, 2012, and particularly on September 8 and 11, 2012.
Those visits, as the judge found, were unauthorized by the parties’
collective-bargaining agreement and only tenuously, if at all, related to
any bona fide representational purpose. See NLRB v. City Disposal
Sys., Inc., 465 U.S. 822, 840–841 (1984) (finding that grievance-related
activity under the Act must be “based on an honest and reasonable
belief that a right ha[s] been violated,” and “if the collective-bargaining
agreement imposes a limitation on the means by which a right may be
invoked,” any effort to enforce such a right “would be unprotected if it
went beyond that limitation”). We further agree with the judge that the
Respondent did not initiate and maintain an unlawful lawsuit against
Walton, in violation of Sec. 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
[Cogan, the Union’s vice president]. This is against the
contract. This one doesn’t exist. So . . . [d]o you want to
argue it this side and I’ll deny her or do you want to ar-
gue this side and I’ll deny?” Walton told Babb that she
was “being an ass.” Babb reiterated that she would deny
the grievance “either way.” Walton became frustrated
and began to “pepper her language with profanity.” Ac-
cording to Babb, whose testimony was credited by the
judge, Walton used “the F word a lot.” At that point,
consistent with her usual practice, Babb said, “Okay . . .
we’re done. I’m just going to end this meeting.”
As Babb stood and made her way toward the exit,
Walton also stood up, tipping her chair back in the
process, and stepped toward Babb. Walton shook her
finger and said, “I can say anything I want. I can swear
if I want. I can do anything I want.” When Babb began
to disagree with these statements, Walton took another
step towards Babb and loudly repeated that she could say
and do whatever she wanted, and added that Babb could
not stop her. Babb responded by backing away from
Walton and leaving the room.
Later the same day, Babb complained to Customer
Service Manager Jeff White and other officials of the
Respondent about Walton’s behavior. After considering
Babb’s complaint, the Respondent determined that
Walton had been engaged in protected activity, but
established a “cooling off” period during which Walton
would not meet with Babb to discuss grievances, but
would meet with White instead4. White conveyed the
Respondent’s decision to Walton in mid-August and
further told Walton that she could not work on
grievances outside her regular work hours.5
As more fully detailed in the judge’s decision,
notwithstanding White’s instructions, Walton began
visiting the main office while off duty, sitting on a bench
in the lobby, near the locked doors to the finance unit
where Babb worked. On September 8, again while off
duty, Walton appeared at the main office. From the
lobby, Walton telephoned Babb and demanded to see her
regarding unspecified grievances. When Babb reminded
Walton that she was to communicate with White about
grievances, Walton falsely claimed that one of the
employees whom Babb supervised had requested a
steward, and she attempted to enter the locked finance
unit on that pretext—without the supervisory permission
required under the parties’ collective-bargaining

4 This determination was made by the Respondent’s own assess-
ment team.
5 The parties’ collective-bargaining agreement (Article 17.3,
“Rights of Stewards”) does not give employee representatives the right
to perform grievance-related duties outside their regular work hours.
agreement.6 Matters came to a head 3 days later, on the
morning of September 11, when Walton appeared at the
main office and began closely watching Babb when she
arrived for her shift. Babb complained to her superiors
that Walton was stalking her and took leave from work to
determine what she could do about the situation.
On September 27, the Respondent issued a letter of
warning to Walton, expressly referring to her conduct on
August 9, September 8, and September 11, as well as her
“persistent” off-the-clock visits to the main office “to
observe [Babb].” The warning noted that Walton’s “ac-
tions were perceived to be intimidating and threatening”
and identified specific Postal Service conduct rules that
Walton allegedly violated. The warning ended by em-
phasizing the Respondent’s zero-tolerance policy for
“harassment, intimidation, threats, or bullying,” and stat-
ed that violations of this policy could result in removal
from the Postal Service.7
II. JUDGE’S FINDINGS
The judge found that the Respondent was privileged to
discipline Walton because she forfeited the protection of
the Act “by acting in a persistently insubordinate,
obstinate, and disruptive manner designed to harass
Babb.” In reaching this conclusion, the judge relied in
part on Walton’s conduct during the August 9 grievance
meeting referenced in the Respondent’s letter of warning.
The judge emphasized, however, that she had not
considered Walton’s conduct at that meeting “in
isolation,” but rather as part of a “course of conduct” that
unfolded over time.
Taking this approach, the judge found that Walton’s
August 9 conduct was “the beginning of a connected and
disturbing pattern of conduct . . . directed at Babb.”
According to the judge, the pattern included Walton’s
later visits to Babb’s place of work—particularly on
September 8 and 11, 2012—without authorization and
with no purpose other than to harass Babb. Reasoning
that Walton lost the protection of the Act during those
later incidents, the judge found that the Respondent
lawfully issued a written warning to Walton citing her
conduct beginning on August 9 and continuing through
September 11.
III. ANALYSIS
We do not agree with the judge’s legal analysis of the
August 9 incident and, in particular, the implication that

6 The agreement permitted stewards to enter any work area or facili-
ty of the Respondent to perform grievance-related duties, but only after
obtaining permission from the supervisor in the area or facility in-
volved.
7 Walton filed a grievance over the warning, and it was eventually
expunged.
POSTAL SERVICE 3
an employee’s protected conduct at a grievance meeting
may lose its protection owing to separate events
occurring days or weeks later. See Carolina Freight
Carriers Corp., 295 NLRB 1080, 1080 fn. 1 (1989)
(rejecting administrative law judge’s suggestion that past
misconduct may be considered in determining whether
employee’s otherwise protected activity lost the
protection of the Act). The judge cited no authority for
that proposition, and we are aware of none. Nor do we
perceive, as the judge did, a necessary link between
Walton’s August 9 outburst, in the heat of a grievance
meeting, and her later unauthorized visits to Babb’s
office for no legitimate or protected purpose. We
accordingly address the question—whether Walton lost
the protection of the Act by her conduct during the
August 9 grievance meeting—as an issue distinct from
her loss of the Act’s protection on later dates. See
DaimlerChrysler Corp., 344 NLRB 1324, 1329–1330
(2005) (separately analyzing each incident referred to in
a written warning issued to employee union steward).8
Under well-established law, a four-factor balancing
test applies where, as here, we must determine whether
an employee acting in a representative capacity lost the
protection of the Act on account of her outburst during
an otherwise statutorily protected grievance discussion
with the employer. See, e.g., Postal Service, 360 NLRB
No. 74, slip op. at 1 fn. 2, 7–8 (2014) (applying Atlantic
Steel Co., 245 NLRB 814 (1979), to alleged steward
misconduct). The four factors to be balanced are: (1) the
place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was in any way provoked by the
employer’s misconduct or unfair labor practice. Atlantic
Steel, 245 NLRB at 816. After considering those factors
here, we find that Walton’s conduct at the August 9
grievance meeting, albeit obnoxious, was not so
opprobrious as to cause her to lose the protection of the
Act.
In regard to the first factor, the place of the discussion,
the August 9 grievance meeting took place in a break
room away from the work floor. Babb and Walton were
the only participants in the discussion, and the only
occupants of the room at the time. There is no evidence
that anyone else was within earshot of their discussion.9

8 Thus, we disagree with the dissent that the separate events here—
on one hand, Walton’s outburst during a grievance meeting and, on the
other hand, her subsequent efforts to communicate with Babb outside
the contractual grievance structure—are so similar in character as to
warrant treatment as one “connected whole” under a “totality of the
circumstances” analysis.
9 Compare Overnite Transportation Co., 343 NLRB 1431, 1437
(2004) (location favored protection where there was no evidence that
any employees overheard work-floor outburst), with DaimlerChrysler
As a result, Walton’s outburst during the course of that
discussion could not have disrupted the work of others or
undermined Babb’s authority in the eyes of other
employees.10 The location of the discussion accordingly
favors a finding that Walton retained the protection of
the Act. See Datwyler Rubber & Plastics, Inc., 350
NLRB 669, 670 (2007) (location of outburst, in break
room, favored protection); Stanford Hotel, 344 NLRB
558, 558 (2005) (lunch room).
The second factor in the analysis, the subject matter of
the discussion, strongly favors a finding that Walton did
not forfeit the Act’s protection. Walton’s outburst
occurred during a discussion with Babb about pending
grievances under the parties’ collective-bargaining
agreement. Such discussions are “especially important to
the effectiveness of contractual grievance-arbitration
mechanisms,” and therefore are protected as a critical
aspect of collective bargaining under the Act.11 Postal
Service, supra, 360 NLRB No. 74, slip op. at 7 (citing
cases).
Turning to the third factor, the nature of the outburst,
there is no doubt that Walton became confrontational in
the course of advocating the cause of a fellow employee
and then protesting Babb’s efforts to end the discussion.
But “[t]he Board has repeatedly held that strong, profane,
and foul language, or what is normally considered
discourteous conduct, while engaged in protected
activity, does not justify disciplining an employee acting
in a representative capacity.” Hawaii Tribune-Herald,
356 NLRB 661, 680 (2011), enfd. 677 F.3d 1241 (D.C.
Cir. 2012) (citing cases); accord Noble Metal Processing,
Inc., 346 NLRB 795, 799 (2006). Indeed, “a certain

Corp., 344 NLRB 1324, 1329 (2005) (location favored loss of protec-
tion where “quite a few” employees overheard work-floor outburst),
and Piper Realty Co., 313 NLRB 1289, 1289–1290 (1994) (location
favored loss of protection where two employees overheard outburst in
supervisor’s office).
10 See Plaza Auto Center, Inc., 360 NLRB No. 117, slip op. at 7
(2014) (noting that the Board has “regularly observed a distinction
between outbursts under circumstances where there was little if any risk
that other employees heard the obscenities and those where that risk
was high” (internal quotation marks and citation omitted)); see also
United States Postal Serv. v. NLRB, 652 F.2d 409, 412 (5th Cir. 1981)
(recognizing the “established policy that in the context of grievance
meetings the Act should be lenient with spontaneous employee insub-
ordination that is not disruptive of other employees”).
11 Although Walton’s outburst continued after Babb abruptly called
an end to the grievance meeting and began to exit the room, we find
that Walton’s continuing protest of Babb’s decision that day was part of
the res gestae of the protected grievance discussion. See, e.g., United
States Postal Serv., 652 F.2d at 412 (upholding Board finding that
heated argument immediately following grievance meeting was part of
that protected meeting, and noting that “the Act’s protection of em-
ployee participation in grievance meetings would be seriously threat-
ened if the employer could at any emotional and argumentative point
during [a] meeting call an immediate halt to the operation of the Act”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
amount of salty language and defiance” is to be expected
and “must be tolerated” in disputes over employees’
terms and conditions of employment. Severance Tool
Industries, 301 NLRB 1166, 1170 (1991), enfd. mem.
953 F.2d 1384 (6th Cir. 1992).
Applying these principles, we find that Walton, at the
August 9 meeting, did not go beyond the measure of
coarse language and defiance one might expect in a
heated dispute over a grievance. Although Walton told
Babb she was “being an ass” and proceeded to pepper
her language with more vulgar outbursts, Walton said no
more about Babb.12 Nor is there any evidence that
Walton threatened Babb, verbally or otherwise.13 To be
sure, when Babb called an end to the meeting, Walton
stood up, declared that she could do and say what she
wanted, pointed at Babb, and took two steps towards her
as she left the room. But Walton never sought to touch
Babb or prevent her from leaving, nor did Walton pursue
Babb as she left. Applying, as we must, an objective
test,14 we find that Walton was not threatening, merely
loud, profane, disrespectful, and obnoxious—none of
which was unusual for Walton or beyond the bounds of
what the Respondent had tolerated in the past. See
Severance Tool Industries, supra at 1170 (employee did
not lose protection of the Act by “disrespectful, rude, and
defiant demeanor,” including raised voice and vulgar
language). In these circumstances, we find that the
nature of Walton’s outburst weighs, albeit not by much,
in favor of finding that she retained the protection of the
Act.15 See United States Postal Serv., 652 F.2d at 411

12 Cf. Trus Joist MacMillan, 341 NLRB 369, 371 (2004) (nature of
outburst weighed against protection, where employee launched “a
planned, vituperative personal attack, with foul language and obscene
gestures, against [one supervisor] in the presence of other supervi-
sors”); Aluminum Co. of America, 338 NLRB 20, 22 (2002) (nature of
outburst weighed against protection, where employee directed “repeat-
ed, sustained, ad hominem profanity” at supervisors).
13 Cf. Crowne Plaza LaGuardia, 357 NLRB 1097, 1101 (2011) (na-
ture of employee conduct weighed against protection where employees
made deliberate physical contact with manager’s person, thereby rea-
sonably threatening him); Starbucks Coffee Co., 354 NLRB 876, 878–
879, fn.13 (2009) (nature of employee conduct weighed against protec-
tion where employee participated in group that followed and taunted
supervisor as he left work, telling him “we know where you live”;
Board distinguishes this “deliberate intimidation” from cases involving
“brief, spontaneous reactions to workplace stress, such as cursing and
refusing to follow directions”), incorporated by reference in 355 NLRB
636 (2010), enfd. in relevant part 679 F.3d 70 (2d Cir. 2012).
14 See Plaza Auto Center, Inc., supra, 360 NLRB No. 117, slip op.
at 3 (noting that “settled precedent tasks the Board with ‘using an ob-
jective standard,’ rather than a subjective standard, to determine wheth-
er challenged conduct is threatening” (quoting Kiewit Power Construc-
tors Co. v. NLRB, 652 F.3d 22, 29 fn. 2 (D.C. Cir. 2011))).
15 Our dissenting colleague takes issue with our analysis of this fac-
tor, emphasizing Babb’s perception that Walton’s behavior on August 9
was different from on prior occasions, and that Babb felt afraid. How-
(noting that “both the Board and the courts have
recognized that some tolerance is necessary if grievance
meetings are to succeed at all,” and “bruised sensibilities
may be the price exacted for industrial peace” (internal
quotation marks and citation omitted)).
As to the final factor to be considered, provocation,
there is no evidence that Walton’s conduct was provoked
by misconduct or an unfair labor practice. See Felix
Industries, 331 NLRB 144, 145 (2000), enf. denied and
remanded 251 F.3d 1051 (D.C. Cir. 2001), on remand
339 NLRB 195 (2003), enfd. mem. 2004 WL 1498151
(D.C. Cir. 2004). Walton was frustrated and became
agitated as a result of Babb’s refusal to discuss a pending
grievance. Although Walton’s frustration is
understandable, Babb refused to continue the discussion
because, as she contemporaneously informed Walton,
she had already discussed it with the Union’s vice
president. Babb committed no unfair labor practice or
misconduct.
As shown, three of the four Atlantic Steel factors
weigh in favor of a finding that Walton retained the
protection of the Act notwithstanding her outburst in the
course of the August 9 grievance meeting. Our analysis,
of course, is not purely one of numbers. Two of the
factors weigh very heavily in favor of protection: the
location of the discussion and the subject matter. As
discussed, the subject matter here involved a critical
aspect of collective bargaining under the Act—pending
contract grievances. While the lack of provocation
weighs against protection, we find that the remaining
factors—especially the subject matter—outweigh that
one factor. We accordingly find that the Respondent was
not privileged to discipline Walton based on that day’s
outburst, and that the Respondent therefore violated
Section 8(a)(3) and (1) of the Act to the extent that it did
so in its letter of warning.16

ever, as shown above, we have carefully examined the credited evi-
dence as to what Walton said and did, rather than how Babb felt, and
based on that objective evidence we do not agree that Walton threat-
ened Babb. Walton simply stood, moved two steps towards Babb, and
ranted that she could say and do as she pleased. She neither pursued
Babb nor prevented her from leaving.
16 Contrary to our dissenting colleague, who contends that the Re-
spondent did not discipline Walton for her conduct at the August 9
grievance meeting, we believe our finding is based on a reasonable and
plausible reading of the Respondent’s warning letter to Walton. That
letter recited Walton’s actions, beginning with the “grievance meeting
in August that ended when [Walton] began yelling and cursing.” The
letter then stated that Walton’s “actions”—without limitation as to the
date or type of action—were “perceived to be intimidating and threat-
ening” and “are in violation of postal rules.” By those statements, the
Respondent plainly implied that Walton’s protected conduct during the
August 9 grievance meeting was part of a course of conduct that
formed the basis for her discipline.
POSTAL SERVICE 5
AMENDED CONCLUSIONS OF LAW
The Respondent, United States Postal Service, has
engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act as
follows:
1. By enforcing a state court stalking order that
enjoined protected activity, the Respondent violated
Section 8(a)(1) of the Act.
2. By issuing a warning to Walton based, in part, on
her August 9, 2012 protected activity, the Respondent
violated Section 8(a)(3) and (1) of the Act.
AMENDED REMEDY
Having found that the Respondent engaged in the
8(a)(3) and (1) violation described above, it must be or-
dered to cease and desist, and to take certain affirmative
action designed to effectuate the policies of the Act. To
the extent that it has not already done so, the Respondent
shall be required to expunge from its records any refer-
ence to the unlawful discipline of Walton for her August
9, 2012 conduct. The Respondent shall further be re-
quired to inform Walton in writing that this has been
done and that the unlawful discipline will not be used
against her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Portland, Ore-
gon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing any State court order that enjoins activity
protected by the Act.
(b) Disciplining any employee for engaging in activi-
ties on behalf of the American Postal Workers Union,
AFL–CIO, Portland, Oregon Area Local 128.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Seek expungement of the State court Temporary
Stalking Protective Order from Cheryl Walton’s record,
and notify the Union and Walton that this has been done.
(b) Within 14 days from the date of the Board’s Order,
to the extent that it has not already done so, remove from
its files any reference to the unlawful discipline of Wal-
ton for her August 9, 2012 conduct, and within 3 days
thereafter notify Walton in writing that this has been
done and that such discipline will not be used against her
in any way.
(c) Within 14 days after service by the Region, post at
all of its Portland, Oregon facilities copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 9, 2012.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. July 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
On August 9, 2012,1 during a grievance meeting, em-
ployee Cheryl Walton unleashed a stream of profanity at
supervisor Gina Babb. Walton, who was serving as a
union steward, stepped toward the supervisor in a menac-
ing manner and, while within striking distance, shook her

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 All dates are in 2012.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
finger and repeatedly screamed, “I can say anything I
want,” “I can swear if I want,” and “I can do anything I
want.” Afraid that Walton would hit her, the supervisor
retreated, and Walton continued to scream that she could
say and do whatever she wanted and Babb could not stop
her. Subsequently, Walton engaged in persistent “stalk-
ing” behavior, repeatedly calling Babb’s work and cell
phones (on one day placing at least 13 calls within a 50-
minute period), calling Babb a “fucking idiot,” and bang-
ing on her office door, ultimately resulting in a court-
issued protective order restraining Walton from continu-
ing her “harassing, stalking, or threatening” conduct.
Based on “credibility determinations, both general and
specific,” the judge found that Walton’s behavior was
not protected by the National Labor Relations Act
(NLRA or Act), and that her behavior on August 9 was
“the beginning of a connected and disturbing pattern of
[unprotected] conduct that Walton directed at Babb.”
I agree with the judge’s findings, and I respectfully
dissent from my colleagues’ recharacterization of the
August 9 meeting. Contrary to the record and the
judge’s detailed credibility determinations, my col-
leagues conclude that Walton “was not threatening” at
that meeting but “merely loud, profane, disrespectful,
and obnoxious.” My colleagues also find, inexplicably,
that the nature of Walton’s conduct during the August 9
meeting favors the Act’s protection. Further, my col-
leagues conclude that a subsequent warning letter, which
focused almost exclusively on Walton’s post–August 9
misconduct, constituted unlawful antiunion discrimina-
tion and unlawful coercion, restraint or interference
against Walton because the letter briefly mentioned her
reprehensible conduct during the August 9 meeting.
This case resembles Alice in Wonderland: nothing is
what it appears, and everything is what it shouldn’t be.2 I
agree that our statute should rush to the defense of em-
ployees who exercise their right to engage in union and
other protected concerted activity, even though it may be
unwelcome and produce some significant degree of con-
flict. However, when Congress enacted the National
Labor Relations Act, it did not grant absolute immunity
to an employee who menacingly approaches a supervisor
while repeatedly screaming “I can say anything I want,”
“I can swear if I want” and “I can do anything I want,
and you can’t stop me” and then proceeds to stalk the

2 In the 1951 Walt Disney movie, Alice in Wonderland – based on
Alice’s Adventures in Wonderland & Through the Looking-Glass, by
Lewis Carroll—Alice says: “If I had a world of my own, everything
would be nonsense. Nothing would be what it is, because everything
would be what it isn't. And contrariwise, what is, it wouldn't be. And
what it wouldn't be, it would. You see?” Wikiquote, Alice in Wonder-
land (https://en.wikiquote.org/wiki /Alice_in_Wonderland
_%281951_film%29).
supervisor. Nor should the Board give its own cloak of
approval to such conduct, which goes way beyond what
anyone would reasonably deem acceptable in a civilized
work setting.
I believe the warning letter issued by Respondent was
clearly lawful and appropriate. My colleagues’ contrary
view improperly disregards both the content of the warn-
ing letter and the unprotected nature of Walton’s actions
on August 9. Regarding the first point, even if one could
regard Walton’s August 9 conduct as protected, I believe
a reasonable reading of the warning letter establishes that
it constituted discipline for acts committed after August
9—which my colleagues agree were unprotected—not
for her misconduct on August 9; and the letter’s passing
reference to the August 9 meeting cannot reasonably be
regarded as unlawful discrimination and restraint, coer-
cion or interference with protected rights. Regarding the
second point, I believe Walton’s misconduct on August 9
was clearly unprotected under our statute, even if viewed
in isolation. Accordingly, from the majority’s finding
that the September 27 warning letter violated the Act, I
respectfully dissent.3
Facts
On August 9, employee Walton, serving as union
steward, met with supervisor Babb in a break room to
discuss grievances. When Babb informed Walton that
one of the grievances was being denied, Walton said
Babb was “being an ass.” Babb stuck to her position,
and Walton began to pepper her language with profanity,
including frequent repetition of the “F” word. This was
typical behavior on Walton’s part, and Babb’s usual re-
sponse when Walton acted this way was to end the meet-
ing. Babb attempted to end the meeting, but Walton be-
came irrational and out of control. As Babb walked to-
ward the door and was about to pass a seated Walton,
Walton stood up forcefully, stepped toward Babb, shook
her finger at Babb and began screaming: “I can say any-
thing I want! I can swear if I want! I can do anything I
want!” Babb testified that “it was a litany. She just kept
doing this” (Tr. 84). Babb replied: “No, you can’t. This
meeting’s over. You’re going to need to leave” (id.).
Walton took another step toward Babb—bringing her
close enough to strike Babb—and continued shaking her
finger and screaming over and over, “I can say anything I
want,” “I can swear if I want,” and “I can do anything I
want,” and Walton added that Babb could not stop her
and could not make her leave the building (id.). Babb
testified that she had many times seen Walton “get very
angry, yell, scream, slam doors, pound on tables,” but

3 I join my colleagues in adopting the judge’s decision in all other
respects.
POSTAL SERVICE 7
this time “was completely different” (id.). Afraid that
Walton was going to hit her, Babb backed her way to the
door, exited, and enlisted the help of another supervisor
to get Walton to leave the facility. By this time, Babb
was “shaking” and “almost in tears” (Tr. 86).
Over the next month, Walton stalked Babb at her of-
fice repeatedly. As noted above, this stalking behavior
included calling Babb’s work and cell phones (placing at
least 13 calls within one 50-minute period), calling Babb
a “fucking idiot,” and banging on Babb’s office door. It
culminated with Walton showing up at Babb’s work-
place—Walton worked at a different location—and star-
ing disturbingly at Babb through the lobby window.
Ultimately, Babb obtained a court-issued protective order
restraining Walton from continuing her “harassing, stalk-
ing, or threatening” conduct. My colleagues concede
that Walton’s post–August 9 conduct was unprotected by
the Act.
On September 27, Walton received the following letter
of warning written by Customer Service Manager Jeff
White:
After a grievance meeting in August that ended when
you began yelling and cursing, you have persistently
focused on Ms. Babb's workplace, coming in to ob-
serve her actions from the lobby even on a number of
times when you were off duty. You were notified that I
would be meeting with you on grievances for Main Of-
fice, but on September 8th, you attempted to contact
Gina Babb to set up step 1 grievance meetings. You
were informed by Ms. Babb that she would not be
meeting with you as the Step 1 designee and advised
you to contact Manager Jeff White. Later that same
morning you arrived at the Main Office Finance in per-
son. Ms. Babb again informed you that she would not
be meeting with you. After gaining access to the plant
floor, you pounded on the back security door and rang
the buzzer for an extended period of time. You also
began yelling comments through to the door that were
directed towards Mrs. Babb. When you were unable to
gain access to the office, you began calling the Main
Office Finance phone numbers repeatedly. At approx.
13:19 pm you then called Mrs. Babb on her personal
cell phone. Your actions were disruptive and negative-
ly affected the workplace environment.
On September 10th, you were given instructions by my-
self that you were not to contact Gina Babb in any
manner. You were instructed, again, that I am the step
1 designee for Main Office Finance and Central. You
were also instructed that you were not to go to the Main
Office without prior permission from myself and in my
absence from [Manager of Customer Service] Anthony
Spina-Denson.
On Septemember [sic] 11th, you went to the Main of-
fice and at approx. 7:15 am you proceeded to stand out-
side of the windows that are in the window lobby and
peered in, making your presence known to Ms. Babb.
In investigative interviews you were questioned about
your behavior. You were uncooperative in the inter-
views, and the explanations of your behavior were not
credible. Your actions were perceived to be intimidat-
ing and threatening. Harassment is among the behav-
iors for which the zero tolerance policy applies. More-
over, you were previously put on notice that you need
to refrain from unprotected disruption of the operation.
Your actions are in violation of postal rules and regula-
tions . . .
. . .
It is hoped that this official Letter of Warning will serve
to impress upon you the seriousness of your actions and
that future discipline will not be necessary.
Discussion
For two reasons, I believe Respondent’s warning letter
to Walton is appropriate and lawful under Section 8(a)(3)
of the Act, which makes it unlawful for an employer to
engage in “discrimination” with the intention “to encour-
age or discourage” union membership, and Section
8(a)(1) of the Act, which makes it unlawful for an em-
ployer to “interfere with, restrain, or coerce employees”
in the exercise of their protected rights under Section 7 of
the Act.
1. The Warning Letter’s Passing Reference to the Au-
gust 9 Meeting Did Not Constitute Unlawful Antiunion
Discrimination or Unlawful Interference with Section 7
Rights. My colleagues agree with the judge’s finding
that Walton’s “stalking” behavior after the August 9
grievance meeting was unprotected by the Act. They
nonetheless find that Respondent’s warning letter consti-
tutes unlawful antiunion discrimination and interference
with protected activity because (i) at the August 9 meet-
ing, Walton was discussing grievances in her role as a
union steward, and (ii) Respondent’s warning letter made
passing reference to the August 9 meeting. I disagree
with the majority’s analysis for several reasons.
First, Respondent’s warning letter cannot reasonably
be understood to impose discipline on Walton for her
misconduct at the August 9 grievance meeting. The let-
ter briefly mentions the grievance meeting in passing and
clearly focuses on events that postdate the meeting. The
first sentence of the letter contains the only reference to
the August 9 meeting, and even that reference directs
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Walton’s attention to her post–August 9 conduct: “After
a grievance meeting in August that ended when you be-
gan yelling and cursing, you have persistently focused on
Ms. Babb's workplace, coming in to observe her actions
from the lobby even on a number of times when you were
off duty” (emphasis added). The remainder of the letter,
consistent with this initial sentence, deals exclusively
with Walton’s irrational and outrageous “stalking” be-
havior that my colleagues and the judge agree was un-
protected. The warning letter does not describe any spe-
cifics regarding Walton’s conduct at the August 9 griev-
ance meeting. It does not even specify the date of that
meeting. In contrast, the letter describes in detail Wal-
ton’s “stalking” behavior on specific dates—September 8
and 11—and at specific times on those dates. It then
refers to “investigative interviews” in which Walton was
“questioned about [her] behavior.” There is no evidence
that the “behavior” about which Walton was interviewed
included her misconduct on August 9, and undisputed
testimony supports a finding that these interviews exclu-
sively dealt with Walton’s actions occurring on Septem-
ber 8 and 11.4 Therefore, when the letter concludes by
informing Walton that her “actions are in violation of
postal rules and regulations” and expresses the hope that
“this official Letter of Warning will serve to impress
upon you the seriousness of your actions,” the “actions”
at issue were those that occurred in September. Indeed,
this point was conceded at the hearing, where the Gen-
eral Counsel’s opening statement indicated that “Re-
spondent issued Walton a letter of warning based on her
attempts to schedule contractually mandated grievance
meetings with Ms. Babb” (Tr. 10; emphasis added). This
characterization precludes a view that the warning letter
constituted discipline based on Walton’s August 9 be-
havior because that misconduct occurred during a sched-
uled grievance meeting, not when Walton was purported-
ly “attempt[ing] to schedule . . . grievance meetings.”
Second, the record provides no support for my col-
leagues’ insistence that Walton’s behavior on August 9,
even if protected, can be separated from Walton’s subse-
quent “stalking” conduct. Based on “credibility determi-
nations, both general and specific,” the judge concluded
that “Walton lost the Act’s protection by acting in a per-
sistently insubordinate, obstinate, and disruptive manner
designed to harass Babb.” In so concluding, the judge

4 Jeff White, who wrote the September 27 disciplinary letter, testi-
fied that Babb told him “about the phone calls and the time that she
[Walton] came to the office on a Saturday [September 8] demanding to
speak with [Babb] and then also the incident where Ms. Walton was
outside of our office early in the morning, pacing back and forth in
front of the window. Q: Okay. And what did you do as a result of
that? A: I—I’ve conducted I and Is with Ms. Walton. Q: And what is
an I and I? A: That’s an investigative interview.” (Tr. 145.)
“[did] not consider the August 9 meeting in isolation
. . . , but rather as the beginning of a connected and dis-
turbing pattern of conduct Walton directed at Babb”
(emphasis added). Indeed, nobody argues that the Au-
gust 9 meeting was unconnected to Walton’s subsequent
“stalking” behavior. By disconnecting the August 9
meeting and viewing it in isolation, my colleagues effec-
tively overturn the judge’s credibility-based finding that
Walton’s behavior at that meeting was part of a “con-
nected and disturbing” whole.
Third, my colleagues’ insistence on disentangling the
August 9 grievance meeting from subsequent events is
contrary to the Board’s well-established practice of re-
garding as a totality related events that occur in reasona-
ble proximity to one another. The Board has repeatedly
considered the totality of circumstances—even though
some may be distinct from the particular conduct chal-
lenged in a case—where they reasonably explain or shed
light on matters in dispute.5 Such an analysis is warrant-
ed here. My colleagues concede that Walton was “loud,
profane, disrespectful, and obnoxious” during the August
9 grievance meeting; the record plainly supports the
judge’s finding that the grievance meeting commenced a
“connected and disturbing pattern of conduct”; and my
colleagues concede that Walton’s post–August 9 conduct
was unprotected. Viewing the totality of Walton’s con-
duct as a connected whole, I believe the Board should
affirm the judge’s finding that Respondent lawfully is-
sued Walton a warning letter even assuming her August
9 conduct, considered in isolation, retained the Act’s
protection.
2. The Act Does Not Protect Walton’s Outrageous
Confrontational Conduct on August 9. The above analy-
sis warrants a finding that Respondent’s warning letter is
lawful under Section 8(a)(3) and (1), even if one assumes
that Walton’s actions on August 9 were protected under
the Act. However, I also believe that Walton’s behavior
in the August 9 meeting lost her that protection.

5 See, e.g., Rhodes-Holland Chevrolet Co., 146 NLRB 1304, 1304–
1305 (1964) (Board did not rely “solely on the positions taken by Re-
spondent on substantive contract terms . . . which, standing alone, . . .
might not have provided sufficient basis for the violation found, but . . .
considered that factor as simply one item in the totality of circumstanc-
es . . . .”); General Electric Co., 150 NLRB 192, 197 (1964) (“[W]hen
questions are raised . . . concerning the conformity of a . . . course of
conduct with the requirements of the law, the Board must apply the law
to the totality of that conduct in the interest of preserving and fostering
collective bargaining itself.”), enfd. 418 F.2d 736 (2d Cir. 1969), cert.
denied 397 U.S. 965 (1970); Darlington Mfg. Co., 165 NLRB 1074,
1083 (1967) (“[W]e have relied upon what we consider to be fair infer-
ences arising from the totality of the evidence, considered in the light of
then-existing circumstances.”), enfd. 397 F.2d 760 (4th Cir. 1968), cert.
denied 393 U.S. 1023 (1969).
POSTAL SERVICE 9
Preliminarily, I disagree, for the reasons expressed
above, that this case can appropriately be resolved by
looking at Walton’s August 9 behavior in isolation. I
believe the judge correctly found that Walton’s behavior
at the August 9 grievance meeting was “the beginning of
a connected and disturbing pattern of conduct” properly
viewed as a whole, and that “Walton lost the Act’s pro-
tection by acting in a persistently insubordinate, obsti-
nate, and disruptive manner designed to harass Babb.”
Contrary to the judge’s findings in this regard, my col-
leagues focus selectively on the August 9 meeting alone;
and applying the four-factor balancing test set forth in
Atlantic Steel, 245 NLRB 814 (1979), they conclude that
Walton’s conduct on August 9 retained the Act’s protec-
tion. My colleagues find that three Atlantic Steel factors
favor protection—(i) the place of the discussion, (ii) the
subject matter of the discussion, and (iii) the nature of
Walton’s behavior—and they maintain that the only fac-
tor disfavoring protection is (iv) lack of provocation by
Babb. Even if one applies the Atlantic Steel factors to
the August 9 meeting in isolation, I disagree with my
colleagues’ conclusion that Walton’s actions on August 9
retained the Act’s protection. It is true that two factors,
the place of the meeting and the subject matter being
discussed, favor protection. My colleagues concede,
however, that the lack of provocation weighs against
protection, and I strongly disagree that the nature of Wal-
ton’s behavior during the August 9 meeting favors the
Act’s protection. I believe the record and relevant prece-
dent clearly establish that the nature of Walton’s behav-
ior during that meeting also weighs against protection.
This factor plus the lack of provocation outweigh the
other two factors, and I believe that Walton clearly lost
the Act’s protection as a result of her profane, out-of-
control behavior at the conclusion of the August 9 meet-
ing.
Contrary to my colleagues’ characterization, Walton’s
abhorrent behavior went far beyond the “coarse language
and defiance one might expect in a heated dispute over a
grievance.” The stream of profanities Walton unleashed
at Babb was just the beginning. As Babb attempted to
leave the room, Walton stood up so forcefully that she
knocked the chair backward, stepped toward Babb twice
(coming within striking distance), shook her finger at
Babb, and screamed over and over again “I can say any-
thing I want,” “I can swear if I want” and “I can do any-
thing I want.” While Babb was backing toward the door,
Walton continued to scream these words at Babb, adding
to the “litany” that Babb could not stop her and could not
make her leave the building. Especially combined with
Walton’s physically menacing actions, the repeated
screaming of “I can do anything I want” and that Babb
could not stop her would make any reasonable person
apprehensive about his or her physical safety. And Babb
was a reasonable person: she was “terrified” (Tr. 84) and
“thought [Walton] was going to hit [her]” (id.), and after
she made her escape from the room, she was “shaking”
and “almost in tears” (Tr. 86).6 Babb had experienced
Walton’s profanity-laced tirades before, but as she testi-
fied, “this was completely different.” Walton’s repre-
hensible conduct was far worse than conduct in other
cases where the nature of an employee’s outburst was
found to weigh against the Act’s protection. See, e.g.,
Felix Industries, Inc., 251 F.3d 1051, 1054–1055 (D.C.
Cir. 2001) (calling a supervisor “a f—ing kid” three
times and saying that employee did not need to listen to
the supervisor weighed against protection); Stanford Ho-
tel, 344 NLRB 558, 559 (2004) (calling a manager a “f—
ing son of a bitch” while angrily pointing finger weighed
against protection); Aluminum Co. of America, 338
NLRB 20, 20, 22 (2002) (twice loudly stating, “Wonder
how Kid Mitch [supervisor Mitchell] is going to fuck us
now?” weighed against protection).7
I agree that grievance processing is a fundamental as-
pect of collective bargaining, and the Act broadly pro-
tects employees when they are acting in a representative

6 My colleagues say that Walton’s conduct was not “unusual for
[her] or beyond the bounds of what the Respondent had tolerated in the
past.” This conclusion is flatly contradicted by Babb’s testimony,
credited by the judge, that Babb “had seen Walton become angry many
times, but she . . . perceived something different this time and was
scared.” The August 9 confrontation was clearly beyond what Babb
had previously experienced from Walton. Yet, even if Walton had
acted in the same manner previously, I would still find that the nature
of her conduct was unprotected under the Act. The fact that Respond-
ent may have tolerated Walton’s outrageous behavior in the past does
not expand the scope of the Act’s protection. Any past restraint exer-
cised by an employer, in the face of such conduct, is irrelevant to an
Atlantic Steel analysis.
7 The cases cited by my colleagues are not in tension with this prec-
edent and do not warrant finding the nature of Walton’s outburst
weighs in favor of protection. They compare Walton’s conduct to the
facts of only one case—Severance Tool Industries, 301 NLRB 1166
(1991), enfd. mem. 953 F.2d 1384 (6th Cir. 1992)—in which the Board
found an employee retained the Act’s protection. In that case, the
employee raised his voice disrespectfully to the employer’s president,
told the president that he would “tell everybody what [the president’s]
true colors are and plaster it all over the place,” and while walking
away, said “son of a bitch,” although perhaps only as a general curse
not as a remark about the president. Id. at 1169–1170. Without ques-
tion, Walton’s profanity-laced tirade, aggressive demeanor, and menac-
ing declaration that she could do anything she wanted and Babb could
not stop her were far more severe. Otherwise, my colleagues describe
in footnotes the facts of cases where the Board found the nature of the
outburst did weigh against protection. Those cases may involve more
egregious conduct than Walton’s, but they do not stand for the proposi-
tion that conduct must rise to that level before it may be found to weigh
against protection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
capacity to discuss grievances with management.8 How-
ever, these considerations bear on the second Atlantic
Steel factor, the subject matter of the discussion, which I
agree weighs in favor of protection. At issue here is the
third Atlantic Steel factor, whether the nature of Walton’s
conduct weighs against the Act’s protection. I believe
there can be no reasonable question that it does, and this
factor in combination with the fact that Walton’s outburst
was entirely unprovoked require a finding that Walton
lost the Act’s protection on August 9. For this additional
reason, I believe Respondent’s warning letter to Walton
was lawful under Section 8(a)(3) and (1) even if it disci-
plined her, in part, for her conduct on August 9.
CONCLUSION
Our statute does not give an employee carte blanche to
invoke the Act’s protection, on the one hand, while phys-
ically threatening another person, literally, with the other.
In today’s decision, my colleagues find that an employer
cannot even give a written warning to an employee who
directs abusive, profane speech at a supervisor, physical-
ly confronts the supervisor by advancing to within an
arm’s length, shaking a finger, and repeatedly screaming
“I can say anything I want,” “I can swear if I want” and
especially “I can do anything I want, and you can’t stop
me,” leaving the supervisor shaking and almost in tears.
In my view, the record clearly establishes that Walton
was physically threatening Babb.
There is no small irony in the fact that Walton’s objec-
tionable behavior occurred during a grievance meeting
that, ostensibly, was devoted to the “peaceful resolution
of disputes.”9 We live in a civilized society, and the D.C.
Circuit has criticized the Board for being “‘remarkably
indifferent to the concerns and sensitivity’ that lead em-
ployers to adopt rules intended “‘to maintain a civil and
decent workplace.’” Medco Health Solutions of Las Ve-
gas, Inc. v. NLRB, 701 F.3d 710, 718 (D.C. Cir. 2012)
(quoting Adtranz ABB Daimler–Benz Transp., N.A. v.
NLRB, 253 F.3d 19, 25, 27 (D.C. Cir. 2001)). Our stat-
ute protects zealous union representation, which I fully
support, but it also permits parties to have reasonable

8 As I indicated in Babcock & Wilcox Construction Co., 361 NLRB
No. 132, slip op. at 15 fn. 1 (2014), grievance arbitration plays a central
role in labor policy, which makes “[f]inal adjustment by a method
agreed upon by the parties . . . the desirable method for settlement of
grievance disputes arising over the application or interpretation of an
existing collective-bargaining agreement.” Labor Management Rela-
tions Act Sec. 203(d). See also Steelworkers v. American Mfg. Co., 363
U.S. 564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363
U.S. 593 (1960).
9 Associated Press v. NLRB, 492 F.2d 662, 667 (D.C. Cir. 1974);
Plumbers & Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744,
752 (D.C. Cir. 1992).
standards and expectations regarding verbal abuse, po-
tentially violent threats and out-of-control confrontations
in the workplace.
For the reasons stated above, I respectfully dissent
from my colleagues’ finding that the Respondent violat-
ed the Act by issuing Walton the September 27 warning
letter.
Dated, Washington, D.C. July 29, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT enforce any state court order that pre-
vents you from exercising the rights stated above.
WE WILL NOT discipline you for engaging in activities
on behalf of the American Postal Workers Union, AFL–
CIO, Portland, Oregon Area Local 128.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL seek expungement of the State court Tempo-
rary Stalking Protective Order from Cheryl Walton’s
record, and notify the Union and Walton that this has
been done.
WE WILL, within 14 days from the date of the Board’s
Order, to the extent that we have not already done so,
remove from our files any reference to the unlawful dis-
cipline of Cheryl Walton for her conduct during an Au-
POSTAL SERVICE 11
gust 9, 2012 grievance meeting, and within 3 days there-
after notify her in writing that this has been done and that
such discipline will not be used against her in any way.
UNITED STATES POSTAL SERVICE
The Board’s decision can be found at www.nlrb.gov/case/19-CA-
092096 or by using the QR code below. Alternatively, you can
obtain a copy of the decision from the Executive Secretary, Na-
tional Labor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Helena A. Fiorianti, for the General Counsel.
Dallas Kingsbury, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Portland, Oregon, on August 27, 2012. The American
Postal Workers Union (Union or Charging Party) filed the
charge on October 24, 2012, and served it on the Respondent
by regular mail on or about October 26, 2012. The General
Counsel issued the complaint on January 28, 2013. The United
States Postal Service (Respondent or Postal Service) filed a
timely answer denying all material complaint allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Postal Service provides postal services for the United
States and operates various facilities throughout the United
States, including a facility at 715 NW Hoyt Street in Portland,
Oregon. The Postal Service admits, and I find, that the Nation-
al Labor Relations Board (the Board) has jurisdiction over this
matter pursuant to Section 1209 of the Postal Reorganization
Act of 1970, 39 U.S.C. 1201 et seq., and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the United States Postal Service
(Postal Service or Respondent) violated Section 8(a)(3) and (1)
of the of the National Labor Relations Act (the Act) when it
issued a written letter of warning to the employee and union
shop steward. The complaint further alleges that the Respond-
ent violated Section 8(a)(1) of the Act when a supervisor filed
for and obtained in State court a stalking protective order
against an employee who also worked for the Union as a shop
steward and director of City Stations.
A. Background
The Postal Service operates 25 postal facilities in Portland,
Oregon. At all relevant times, Shawneen Betha has been Port-
land’s Postmaster.
Cheryl Walton has worked for the Postal Service since 2005.
At the time of the hearing, she was a lead sales service associ-
ate at the Respondent’s Midway Station, with a regular sched-
ule from 10 a.m. to 7 p.m. Her first-line supervisor was Linda
Soga, supervisor of customer service. Her second-line supervi-
sor was Jeff White, manager of customer service for the follow-
ing five Portland facilities: Midway, Central, main office Fi-
nance (main office), Airport Mail Facility, and Collections.
White is not the immediate supervisor of any of the union-
represented clerks.
Walton serves as the Union’s director of City Stations, a po-
sition she has held since 2007 or 2008. In this capacity her
supervisors are Brian Dunsmore, president of the Union’s Port-
land chapter and Joe Cogan, vice president. Walton’s position
with the Union is paid, and it entails monitoring Portland’s 25
city stations. Her duties include filing and adjusting grievanc-
es, conducting investigations on the Union’s behalf, and meet-
ing with members. To fulfill these duties, she visits all 25 city
stations. During the time period at issue, Walton was the stew-
ard of record for the main office, among other facilities. Daniel
Cortez, another shop steward, was the steward of record at the
Oak Grove post office as well as some other facilities.
Walton has a hearing impairment that at times causes a high
pitching sound in her left ear. When this occurs, she talks over
herself to try to hear if she is speaking loudly enough.
The current collective-bargaining agreement (CBA) between
the Respondent and the Union runs from November 21, 2010,
through May 20, 2015. Article 15 is the grievance and arbitra-
tion procedure, which contains multiple steps. Either the ag-
grieved employee or the Union may initiate a step1 grievance.
If the employee initiates the grievance, there is a step 1 meeting
involving the employee and his or her immediate supervisor.
Representation is addressed in article 17. Section 3 states:
When it is necessary for a steward to leave his/her work area
to investigate and adjust grievances or to investigate a specific
problem to determine whether to file a grievance, the steward
shall request permission from the immediate supervisor and
such request shall not be unreasonably denied.
In the event the duties require the steward leave the work area
and enter another area within the installation or post office,
the steward must also receive permission from the supervisor
from the other area he/she wishes to enter and such request
shall not be unreasonably denied.
(Jt. Exh. 1.)1

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “Jt. Exh.” for joint exhibit; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General
Counsel’s brief; and “R. Br. for the Respondents’ brief. Although I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
B. Babb and Walton Interactions
Gina Babb is a supervisor at the Respondent’s main office.
She reports directly to White. Babb and Walton have had many
meetings over grievances. Walton is known to use foul lan-
guage, and in particular the word “fuck” and its grammatical
variants. Babb is offended by this and has notified Walton that
she will end meetings if Walton starts swearing profusely.
According to Walton, Babb often refuses to meet with her at
step 1. When this occurs, Walton advances the grievance to
step 2 and files a grievance over Babb’s refusal to meet at step
1.
On August 9, 2012, Walton met with Babb in the supervi-
sors’ lounge at the main office to discuss eight grievances. The
fourth grievance involved a Selena Smith, a clerk with low
seniority who had been denied time off she had requested for an
upcoming holiday weekend.
According to Walton’s testimony, when discussing Smith’s
grievance, Babb became upset and proceeded to say, repeated-
ly, “So, is it this way or that way?” Walton did not know what
Babb meant. After not receiving a response to the grievance,
Walton said, “I can be a bitch or I can be nice, you know . . .
which way would you like it?” Babb responded, “This way or
that way, which way do you want it?” Walton said, “Okay, is
this your decision?” Babb repeated herself and Walton said,
“Okay, that’s your decision” and proceeded to write it down.
Walton moved on to the next grievance from lead sales service
associate Marilyn Telfor, which asserted Babb was working as
a lead sales associate in violation of the rules. Babb started
fidgeting in her chair and stated, “I can’t believe this” and told
Walton she had nothing to support the grievance. When Wal-
ton disagreed, Babb began swaying in her chair and denied the
grievance. When asked for a reason Babb said, “Because I said
so.”
Babb then stood up, leaned across the table pointing at Wal-
ton and said, “Cheryl, you’re a fucking bitch.” Walton re-
sponded, “Now, now, Gina, we shouldn’t be talking that way.”
Babb went around and stood at the edge of the table toward
where Walton was sitting. She ranted about the step 1 proce-
dure and how Walton was always swearing, and said she was
going to leave. She then leaned in toward Walton, who was
sitting and doing paperwork. Walton moved off to the side and
said, “Okay, just go then. If you’re leaving, just go.” Babb
continued and Walton said, “I’m not going to take your fucking
bullying or intimidating me. It’s just not going to happen. If
you’re going to go, just go.” Babb responded, “That’s it,
you’re threatening me” and screamed at Walton to leave. Babb
was standing at the exit door and Walton testified she continued
to stand right where she was. When prompted, Walton said she
was actually sitting, because Dunsmore had told her that there
were times she may come across as aggressive because she is
vocal, so she should keep seated. After Babb left, Walton
grabbed her belongings and left. Walton proceeded to try to
enter the secure main office finance area. Babb screamed to

have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are
based not solely on the evidence specifically cited, but rather are based
my review and consideration of the entire record.
clerk Dayna Jones not to open the door and screamed at Walton
to leave. Walton went out through the lobby area to clock out.
As she was leaving, Babb and a male were right behind her.
When they got to a swinging door, which is waist high, Walton
said “excuse me” so the man backed up and she “just shut the
door and went out the other door and went up and clocked out.”
She went to the Union hall and saw Dunsmore, who told her to
write up what had occurred. (Tr. 22–27.)
Walton wrote a statement roughly 15 minutes after she left
the main office. (GC Exh. 2.) According to the statement,
when discussing Smith’s grievance, Babb kept repeating, “One
or the other Cheryl one or the other. What is your problem?
You can’t have it both ways.” Walton responded, “Gina, now
if you want me to be an ass continue with your sarcasm and I
will be an ass. So you decide how do you want this meeting to
go? Me to be nice and to the point or a bitch, you decide.”
Babb repeated, “One or the other,” and when Walton asked for
a decision and reason, Babb said, “How can I give a decision if
you can’t even figure out whether you want it one way or the
other?” Walton then moved to Telfor’s grievance which in-
volved being denied her lead clerk (T-7) duties. Babb, very
upset, stated, “Are you kidding? What T-7 duties am I denying
her?” Walton responded that Babb was denying her all T-7
duties and just keeping her at the window. Babb raised her
voice and said T-7s stay at the window. When Walton tried to
explain this was not true, Babb interrupted her, began yelling,
shook her head, sat back and forth in her chair, and said the
grievance was denied. When asked for the reason, Babb said,
“Because I said so.” Walton asked if this was really her reason,
and Babb replied that Walton could not provide any T-7 duties
Telfor was not performing. Walton’s notes are then a little
unclear, but denote Walton saying, “Well I believe I did but
you denied the grievance because (I looked at my notes) ‘I said
so’ it appears you are not allowing her to work as a T-7 by you
yelling at me with you answer then.”
Babb then leaned forward in her chair and said in a low tone,
“Cheryl, you are a fucking bitch.” Walton responded, “Now,
now Gina that is uncalled for and I will not accept that.” Babb
then stood up and said, “You file these grievances that aren’t
grievances.” Walton replied, “Gina if you are done meeting
then go, but I will not continue for you to yell at me, because I
can yell louder.” Babb said she was leaving, and Walton said
she would send the remaining grievances up without a step 1.
Babb walked to the edge of the table, within an arms’ length,
but because Babb had grabbed Walton before, Walton did not
look at her. She was writing down what Babb stated. Babb
then said, “You feel like you can file anything you want and
say anything you want.” Walton interrupted and told Babb to
leave. Babb stated she did not have to and commented on Wal-
ton’s swearing. Walton cut in, saying that Babb was the one
who had called her a “fucking bitch.” Babb replied that nobody
would believe Walton because she has a problem. Walton, still
sitting, looked at Babb and with her voice a little raised, stated,
“Okay, Gina I am not going to be fucking berated by you any
longer, Your [sic] mad, fine I really don’t fucking care. But I
will not continue with this bull shit of you standing there and
venting, go fucking vent to someone else. I will continue to file
fucking grievances because you continuously work in our
POSTAL SERVICE 13
craft[.] [W]hy? Because I am not scared or immediate [sic] by
you one bit.” Babb told Walton she could not swear at her, and
Walton told Babb, “Gina understand English at no time did I
swear at you, I used swear words in my sentences. Now on the
other hand you swore at me (I pointed at myself), remember.
Oh that’s right you lie. I almost forgot.” Babb again told Wal-
ton she could not swear and Walton responded, “Oh I can
swear and there will be times I will swear, get over it.” At that
point Babb said Walton was threatening her, and told her to
leave the facility immediately. Babb moved a little toward
Walton, who said, “Gina, don’t you touch me.” Babb then
screamed at Walton to leave immediately, so when Babb left
the room, Walton gathered her things and left.2
Babb’s account of what happened at the meeting differs from
the discussion of Smith’s grievance forward. By way of back-
ground, Babb testified that the clerks were going to be required
to rebid their jobs. When discussing Smith’s grievance, Babb
asked Walton which job title the grievance denial should re-
flect: Smith’s current position or the position she would be in
at the time of the requested leave, assuming she would still be
employed following the rebidding process. Walton initially
wanted it to be based on Smith’s then-current position. Babb
explained to Walton that she had spoken to someone from the
Respondent’s labor department and Cogan from the Union, and
they agreed it was against the contract to grant the leave based
on her current position. Walton then said that Babb should
grant the leave based on Smith’s new job, noting that she may
not even have a job. Babb responded that she could not grant
the leave request based on a future job she may or may not
obtain through the rebidding process. Walton continued to
argue both sides, and Babb reiterated that she couldn’t settle the
grievance either way and asked her which way she wanted the
denial to reflect. Walton told her she was being an ass. Babb
again asked her how she wanted to argue the grievance, again
stating she could not settle it either way. Walton then got very
angry and proceeded to “pepper her language with profanity.”
Babb got up, told Walton the meeting was over, and walked
toward the door. As she was passing by where Walton was
sitting, Walton stood up, tipped back her chair, stepped toward
Babb while shaking her finger at her, and said, “I can say any-
thing I want. I can swear if I want. I can do anything I want.”
When Babb refuted this, Walton took another step toward her
and Babb became fearful Walton was going to hit her. Babb
started backing toward the door, and Walton continued to
scream that she could say and do whatever she wanted and
Babb could not stop her. Babb had seen Walton become angry
many times, but she was perceived something different this
time and was scared. Shaking and in tears, Babb went to get
Supervisor Duncan Santoro and told him he needed help re-
moving from the facility a shop steward who had gotten vio-
lent. She saw that Walton was trying to gain entrance to the
secure main office finance area and said, “No Cheryl, you’re
not going into my unit. You’re not allowed in my unit.” She
instructed Jones not to let Walton in. Walton proceeded to
leave the area with Santoro and Babb following her. She

2 The statement also recites what occurred after the meeting, which
essentially mirrors Walton’s testimony.
opened a swinging door and when Santoro tried to walk
through it, she slammed it on him. At that point, Walton was in
the lobby, so she and Santoro let her go. (Tr. 78–89.)
In Babb’s statement, dictated later the same day to Trish Ad-
ams, manager of customer service operations, she described
asking Walton how she wanted to argue the Smith’s grievance
because Walton wanted to argue both current and future sched-
ules. Walton got frustrated and, in a raised voice said Babb
was “being an ass.” Babb again asked which one Walton want-
ed to argue, and Cheryl started swearing, saying “fuck” several
times. Babb told Walton the meeting was over and while she
was walking away, Walton stood up in an aggressive manner,
tipping her chair back, and screamed, “I can say anything I
want, I can swear if I want, do anything I want.” When Babb
told her she could not, Walton approached her, shaking her
hand aggressively, pointing and screaming, “I can say anything
I want, I can swear if I want, do anything I want, you can’t stop
me.” Walton was in an arms’ length reach of Babb, who per-
ceived a “crazy, out of control look in her eyes.” Babb said she
was removing Walton from the facility, and Walton took a step
toward her and said Babb could not make her leave. Babb re-
sponded that Walton was being violent and she had to leave the
facility. Babb went to get Santoro to assist her, and she then
saw Walton trying to gain access to the secure main office fi-
nance area. Babb instructed Jones not to let Walton in and
again told Walton to leave. Santoro and Babb followed Walton
as she exited the building. When Santoro tried to follow Wal-
ton through a swinging door, she shut it directly in front of him.
(Jt. Exh. 6.)
C. Postal Service’s Response to Babb “Making the Call”
When an employee feels threatened at the Postal Service,
they are to report it immediately. This is referred to as “making
the call,” and when it occurs the incident is referred directly to
the district manager. Babb, who was upset and shaking, called
White “in a pure panic, in a frantic mode” and told him she was
“making the call.” (Tr. 90, 143.) White came to the main of-
fice and they went to see Kim Anderson, the district manager.
She was out of the office, so they explained what occurred to
Mike Norbom, the acting human resources manager. Norbom
went down to the workroom floor to interview potential wit-
nesses. Babb dictated her statement to Adams. Walton was
eating lunch in the cafeteria on the fourth floor with Cortez, so
Babb was told to stay on the third floor, which is secure. Even-
tually, White walked Babb to her car and she went home.
A threat assessment team, which included Babb, met and de-
termined that Walton was in a protected status during the
events at issue. The team concluded that Walton and Babb
would have a cooling off period and would not meet for awhile.
In the interim, Walton was to meet with White rather than Babb
about grievances at step 1. White conveyed this to Walton on
or about August 11. (GC Exh. 12; Tr. 147.)
On August 17, White gave Walton an official discussion and
told her she was not permitted to work on grievances outside of
her regular work schedule, which was 10 a.m. to 7 p.m. She
was to clock in and then White would authorize any steward
time. Babb viewed this as a change because she had previously
requested steward time on a weekly basis from her immediate
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
supervisor. (Tr. 29–30.) Babb’s normal practice was to meet
with union stewards while they were on the clock. (Tr. 106.)
D. Events Culminating in Letter of Warning and
Stalking Order
Walton continued to contact Babb and show up at the main
office outside her scheduled work hours. Walton sometimes
just sat on the bench in the lobby, which is a public area. This
caused Babb to become afraid.
On Saturday, September 8, Walton called Babb to work on
some step 1 grievances. She had not received permission from
her home office, Midway, to visit the main office. (Jt. Exh. 12,
p. 6.) By Walton’s account, Babb told Walton she would not
meet with her. Walton then went and knocked lightly on the
back security door. She claimed she would not have pounded
because she has degenerative joint disease and it would have
hurt. She also said she did not yell any comments through the
door. Walton then called the main office phone number repeat-
edly, stating that her purpose was to get a steward for Bob
Mullin, the main office window clerk, and to file a step 1 griev-
ance over Babb denying Mullin a steward.3 When she called,
Babb hung up on her. (Tr. 33–35.) Walton told Mullin to ring
the buzzer to get Babb, who appeared at the door and she said
she did not need to talk to Walton because she was not on the
clock. When Mullin rang the buzzer again, Babb did not come
out. Mullin then went back and spoke with Babb, and reported
to Walton that Babb would not be coming out. Walton called
Babb repeatedly because Babb kept hanging up on her before
she could speak. Finally, she called Walton’s personal cell
phone. She did not testify about what she said, but stated she
did not laugh. (Tr. 48–50.)
Shortly after the incidents, Babb made notes of what oc-
curred. She recalled Walton calling and asking to meet with
her at 12:30. When Babb told Walton that White was the de-
signee for step 1 meetings, Walton repeatedly called Babb,
using profanity, including calling Babb a “fucking idiot,” and
telling her she had better come out and see her. Mullin came
back and told Babb Walton wanted to speak to her, and said he
didn’t think she was going away. Walton continued to call,
requesting a steward for Mullin. Babb checked with Mullin,
who denied he requested a steward. When Walton’s calls went
unanswered, she banged on the back door and pressed the
buzzer. Walton then called Babb’s personal cell phone. Ac-
cording to Babb, Walton laughed and said, “Well, since you
gave your personal cell phone out to the city, I thought I'd use
it.” Babb told Walton not to call her personal cell phone and
then hung up. (Jt. Exh. 6; Tr. 108.) Between 12:33 and 1:19
p.m., Walton placed at least 13 calls to Babb.4 Babb, who was
scared, reported what happened to White. White talked to clerk
Rachel Kelley-Yancey, who confirmed that Walton was pound-
ing on the door. (Tr. 146.)

3 The General Counsel asserts that Walton learned through the
phone calls on September 8 that White was the step 1 designee. (R. Br.
10.) This is inconsistent with Walton’s testimony.
4 For some of the times Babb references, Walton called two separate
phones. The 13 calls are reflected in Babb’s log. On the printout of the
phone records, 17 calls are flagged, but it is not clear whether the four
calls not reflected in Babb’s log were from Walton.
At Babb’s request, Mullin walked her to her car after work.
Mullin had not asked to talk to a steward that day. Instead, he
wanted to talk to Walton briefly to ask when the union picket
was. (Tr. 172.) Mullin recalled that one Saturday, Walton
“hung around for quite a while in the front office” observing
what was going on. (Tr. 169.)
At 4:22 p.m. on September 8, Babb sent an email to District
Manager Kim Anderson.5 She recounted the events of August
9, when she “made the call” and stated that Walton continued
to demand to meet on step 1 grievances. Babb also noted that
Walton watched her in the main office before work and has
followed her. She expressed her belief that Walton was fixated
on her and stalking her. Babb conveyed the events from earlier
in the day, and said that after these incidents she was shaking,
having heart palpitations, and was afraid to go in the lobby or
out in the plant. She noted that she has been suffering for
weeks from sleeplessness, nightmares, migraines, digestive
problems, and migraines. Babb expressed that she felt threat-
ened and opined that Walton should not be considered in a
protected status on her days off from work. She expressed her
belief that Walton was deliberately and maliciously threatening
and intimidating her. Babb said she was terrified to come to
work on Saturdays, stating she could not continue to perform
her duties. She concluded with a plea for help. (GC Exh. 4.)
Anderson responded the morning of September 10, stating
that she agreed Walton’s behavior was unacceptable. She in-
formed Babb that action was being taken, including a meeting
that day. (GC Exh. 4.)
White met with Walton on September 10, told her not to
have any contact with Babb, and reminded her that he was the
step 1 designee for the main office. (Jt. Exh. 2; Tr. 147.) Wal-
ton recalled this was the first time she was instructed that White
was the step 1 designee. Walton was also instructed not to go
to the main office without permission from White or Anthony
Spina-Denson, manager of customer service.6 (Jt. Exh. 2; Tr.
32–37.) According to Walton, prior to this, she had called
Babb to set up times for grievance meetings. Walton also re-
called White told her she needed to be on the clock to schedule
step 1 meetings and file step 1 grievances. At the time, she had
performing these tasks while both on and off the clock because
of scheduling issues. (Tr. 37.)
The morning of September 11, Walton was at the main office
prior to her shift. She stood outside the window watching Babb
set up the lobby prior to the clerks’ arrival at work. Walton
testified she was working in her capacity as director of City
Stations investigating to see if Babb was working in the clerk
craft. Babb, who had gone in early to catch up after the events
of the previous Saturday, saw Walton, who appeared to be
looking at her and laughing. She “freaked out,” and ran into
Supervisor Justin Lowe’s office, crying and shaking. (Tr. 111.)
She did not approach Walton to inquire about why she was
there. Babb called White, wrote a statement, and then tried to

5 Various people were copied, including Postmaster Betha, Adams,
Norbrom, White, and other individuals not identified at the hearing.
(GC Exh. 6.)
6 Walton had two equal employment opportunity (EEO) complaints
against Spina-Denson.
POSTAL SERVICE 15
drive home. (Jt. Exh. 6.) Unable to drive, she went to her par-
ents’ house, and her husband picked her up and took her to the
doctor. Babb took leave and proceeded to make calls to figure
out what she could do.
Walton received a letter of warning (LOW) on September
27, 2012, charging her with misconduct. (Jt. Exh. 2.) The
letter referenced the August 9 grievance meeting that allegedly
ended with her yelling and cursing. It further stated that alt-
hough Walton had been instructed to meet with White for
grievances involving the main office, she attempted to contact
Babb to set up step 1 meetings on September 8. The LOW
recounted that when Babb told her to contact White, Walton
pounded on the back security door, rang the buzzer for an ex-
tended time, yelled comments directed at Babb through the
door, and repeatedly called Babb. Next, the LOW referenced
Walton’s discussions with White on September 10, when she
was again instructed that White was the step 1 designee for the
main office, and Walton was not to go there without permission
from White or Spina-Denson. The LOW further noted Wal-
ton’s repeated visits to the main office, and said she was unco-
operative when questioned in interviews. Finally, the LOW
cited to various provisions of the Respondent’s employee and
labor relations manual (ELM) allegedly violated, and offered to
assist Walton with any problems she might be experiencing.
Walton filed a grievance and the LOW was ultimately ex-
punged. (GC Exhs. 3, 16.)
On October 9, while on her own time, Babb filed a petition
for a temporary protective stalking order (stalking order)
against Walton in Clackamas County Circuit Court.7 All of the
incidents listed in support of the petition occurred at the main
office while Babb was working. (Jt. Exh. 5.) Circuit Court
Judge Jeffrey S. Jones granted the stalking order on October 10.
(Jt. Exh. 3.) The stalking order restrained Walton from “harass-
ing, stalking, or threatening” Babb or engaging in conduct that
would place her in reasonable fear of bodily injury. It further
prohibited the use, attempted use, or threatened use of physical
force against Babb or her children. Babb was also ordered to
stop and avoid all contact with Walton, defined as:
A. Coming into the visual or physical presence of the other
person;
B. Following the other person;
C. Waiting outside the home, property, place of work or
school of the other person or of a member of that person’s
immediate family or household and being at the following
places: [left blank];
D. Sending or making written or electronic communications
in any form to the other person;
E. Speaking with the other person by any means;
F. Communicating with the other person, including through a
third person;
G. Committing a crime against the other person;
H. Communicating with a third person who has some rela-
tionship to the other person with the intent of affecting the
third person’s relationship with the other person;

7 The main office is in Multnomah County but Babb was told to file
it in Clackamas County where she resides.
I. Communicating with business entities with the intent of af-
fecting some right or interest of the other person;
J. Damaging the other person’s home, property, place of
work, or school; or
K. Delivering directly or through a third person any object to
the home, property, place of work or school of the other per-
son.
(Jt. Exh. 3.) Babb notified the Postal Service that she had ob-
tained the stalking order and remained away from work while
Walton worked on an arbitration at the main office. When
Babb returned to work she instructed employees to contact her
if they saw Walton in the main office.
On Saturday, October 13, 2012, Walton visited the main of-
fice to mail a personal item. Babb, representing herself as a
Postal Service supervisor, called the police to alert them that
Walton was in violation of the stalking order. Walton was
served with a temporary protective stalking order later that
same day while at the union hall. She understood it as preclud-
ing her from going to the main office and prevented her from
working on grievances with White or others. (Tr. 56–57.)
Walton was ordered to appear in Clackamas County court on
October 30. (Jt. Exh. 4.)
On October 15, while at work, Walton was approached by
two Portland police officers who stated they were there to arrest
her for violating the stalking order on October 13. When the
officers learned that Walton had not received the stalking order
until the evening of October 13, they did not arrest her.
On October 23, the Respondent settled eight grievances filed
on Walton’s behalf for denial of steward time and denial of
union hall access in September and October. The step 1
decisionmakers for the grievances were Soga, White, and Chris
Cornejo. Under the agreement, Walton was paid $900. The
agreement provided that permission to enter Postal Service
facilities was still required in accordance with article 17 of the
CBA. Walton was to communicate on a daily basis with her
supervisor with regard to steward activities, times, and loca-
tions.8 (GC Exh. 7.)
Walton appeared in court on October 30 with Adam Arms,
an attorney the Union hired for her. Babb was also present. On
January 31, 2013, Arms filed a motion to dismiss the stalking
order, based in part on an argument that it was preempted by
the Act. (Jt. Exh. 10.) Babb, pro se, opposed the motion to
dismiss on February 5. (Jt. Exh. 11.) The judge denied the
motion. At some point, Arms went to talk to Babb about set-
tling the stalking order matter. Babb told Arms that because
she was unrepresented, she wanted to have someone accompa-
ny her, and asked if Kimberly Kelly, a labor relations specialist
for the Postal Service, could join them. The three of them met,
and Kelly proposed a global settlement of all outstanding mat-
ters. Kelly forwarded a settlement offer to Arms on March 19,
2013. (GC Exh. 5.) The parties ultimately reached a settle-
ment, and the stalking order was lifted on March 22, 2013. (Jt.
Exhs. 14–16.)

8 There is also a settlement from 2009, but it is not clear which
management officials were involved.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
E. Other Employees’ Interactions with Walton
Kathy Cooper is a lead clerk who, at the time of the hearing,
was in an acting supervisor position. In late December 2012,
she and Walton were both working as lead clerks at the Re-
spondent’s airport facility. Walton yelled at her while she was
explaining something to a customer. Cooper asked her to
please say anything she felt she needed to say to her in the back
office. Walton replied, yelling, “I will say anything I want to
you.” (Tr. 160.) Cooper walked away and tried to call a super-
visor. She eventually reached the Postmaster, and while they
were still on the phone, Walton came around the corner, yelling
at Cooper and using profanity. The postmaster sent Spina-
Denson to the facility. He and Walton had words, and then
Walton went home.
When Cooper worked as an acting supervisor at the main fa-
cility, she and Walton sometimes interacted for step 1 griev-
ances. Cooper observed Walton tended to scream and yell and
cuss. On one occasion, Cooper cut their meeting short because
Walton would not settle down. Cooper went back to work at
her computer, and Walton came behind her yelling and scream-
ing. Some people from labor relations on the floor above them
came down because they were concerned that the situation
might be unsafe. Cooper has also heard Babb ask Walton to
stop cussing and yelling, and Walton responding with a litany
of profanity.
Mullin has heard Walton yell and curse to the point where
his customers could hear her, causing him embarrassment. (Tr.
173–174.)
At the Oak Grove post office, Lyudmila Basarab is an acting
supervisor and Julie Pimental is the manager. On one occasion
in the fall of 2012, Pimental had scheduled an investigative
interview for 11 a.m. with Union Steward Cortez and an em-
ployee. Walton came to the facility at 7:30 a.m., saying she
was there to represent the employee. Pimental told Walton she
had the meeting scheduled with Cortez later that day and asked
if she had permission to be at the Oak Grove station. When
Walton told her Cortez gave her permission to be there,
Pimental asked her to leave because White is the only person,
other than herself, who could grant the requisite permission.
Walton refused to leave, became increasingly louder, and called
Pimental stupid. Basarab heard Walton screaming at Pimental
so she went to check on them. According to both Pimental and
Basarab, Walton was running toward Pimental aggressively.
Pimental thought Walton was going to attack her. Pimental put
her hand up and told Walton to leave the station or she would
call 9-1-1. Walton was yelling so loudly the customer Basarab
was speaking to asked what was going on and asked if she
needed to call the police.
According to Walton, she did not leave because White had
told her to stay at Oak Grove for the day. She then called
White and asked for written permission to leave Oak Grove and
go back to Midway, but Pimental told Walton she would shred
whatever White faxed over.
Another time, Walton noticed a new clerk was working and
told Basarab she needed to talk with her. Basarab asked Wal-
ton to request a time, and she started screaming and cursing,
using very bad language. She got 6 to 8 inches from employee
Shelley Lifto’s face. There were customers in the lobby and
Basarab felt embarrassed. She was close to calling 9-1-1 be-
cause of how aggressively Walton was acting. On her way out,
Walton smacked the door very hard.
During a telephone conversation about a step 1 grievance,
Walton yelled at Pimental when she would not give her an an-
swer right on the spot.
III. DECISION
A. Letter of Warning
The complaint, at paragraphs 6 and 7, alleges that the Re-
spondent violated Section 8(a)(3) and (1) when, on September
26, 2011, White issued a written LOW to Walton.
It is a violation of the Act for an employer to discipline a un-
ion steward for “processing grievances, policing the collective-
bargaining agreement or for engaging in other activities as a
union steward.” Pacific Coast Utilities Service, 238 NLRB
599, 606 (1978) (citations omitted.) A steward, however, does
not have unfettered protection to carry out his union duties.
Pathe Laboratories, Inc., 141 NLRB 1290 (1963). Leeway for
impulsive behavior when engaging in protected activity is sub-
ject to the employer’s right to maintain order and respect in the
workplace. See Piper Realty Co., 313 NLRB 1289, 1290
(1994); NLRB v. Ben Pekin Co., 452 F.2d 205, 207 (7th Cir.
1991). Accordingly, “activity is [not] protected if carried out in
a manner that is abusive or unjustifiably disruptive of an em-
ployer's operations.”9 Nynex Corp., 338 NLRB 659, 661
(2002). Section 7 “does not permit employees to use grievanc-
es as a sword to gain immunity from the consequences of har-
assment.” Caterpillar Tractor Co., 242 NLRB 523, 530
(1979), citing Rocket Messenger Service, 167 NLRB 252
(1967); Charles Meyers & Co., 190 NLRB 448 (1971). More-
over, the Board has found that persistent failure to follow a
supervisor’s instructions can remove a steward’s actions from
the Act’s protection. Carolina Freight Carriers Corp., 295
NLRB 1080 fn. 1 (1989); Marico Enterprises, 283 NLRB 726
(1987).
I find Walton lost the Act’s protection by acting in a persis-
tently insubordinate, obstinate, and disruptive manner designed
to harass Babb. In coming to this conclusion, I have made
certain credibility determinations, both general and specific. In
general, I found Babb and White were more credible than Wal-
ton, based both on demeanor and the plausibility of their re-
spective versions of events. I found Babb’s testimony to be
thoughtful and sincere, and her demeanor was open and forth-
right, even when testifying about topics that were clearly diffi-
cult for her emotionally. White, who supervises both Babb and
Walton, struck me as very matter-of-fact and sincere. Walton’s
testimony, particularly when discussing her interactions with
Babb, came across as overly self-serving and orchestrated to
downplay the more aggressive and flippant side of her person-
ality. Specific credibility determination for these witnesses and
other witnesses are discussed in context below.
With regard to the August 9 meeting, Walton’s testimony
that it began by Walton asking for an answer on Smith’s griev-
ance, and Babb repeatedly just saying “this way or that way”
makes no sense. Babb’s explanation, which was thorough and

9 It is very clear the word “not” was inadvertently omitted.
POSTAL SERVICE 17
open-ended, put the conversation into a plausible context. I
credit her version, and find Walton’s testimony that she had no
idea what Babb was asking her lacks credibility. Regardless of
how Babb and White began arguing, it is clear to me that Babb
left the meeting shaken enough to “make the call.” This was
confirmed by White, who described her as “in a pure panic, in
frantic mode” just after the meeting. Had Walton sat quietly in
her chair the entire time as she stated (upon prompting after she
initially said she was standing) it is extremely unlikely Babb
would have reacted the way she did.
Babb’s version of events is also more credible when consid-
ering witness testimony from both union members and supervi-
sors regarding Walton’s tendency to scream and yell, use disre-
spectful language, become physically aggressive, and loudly
assert her right to do and say whatever she wants. In this re-
gard, I found Cooper to be a reliable and credible witness,
based both on her calm and straightforward demeanor, the
open-ended nature of her testimony, and the quality of detail in
her testimony. For the same reasons, and because their testi-
mony was generally corroborative, I also found Basarab and
Pimental to be reliable witnesses. Mullin, who I also found
credible, testified that he has heard Walton yell and curse from
an adjacent room, and that he was embarrassed because cus-
tomers could hear. The testimony of these multiple witnesses
more than sufficiently refutes Walton’s uncorroborated state-
ment that she does not scream in the course of her union duties.
(Tr. 63.) Walton’s testimony that she does not run and could
not bang on a door is likewise refuted by testimony from
Pimental and Basarab.10 (Tr. 182, 184, 191, 146).
The General Counsel points out that Babb did not call any
witnesses to support her assertion that Walton was screaming
during the August 9 meeting, and argues that an adverse infer-
ence is warranted. I note, however, that Walton asserted Babb
was screaming both during the meeting and after the meeting,
and in particular that she screamed at clerk Jones, yet neither
the General Counsel nor the Charging Party called any witness-
es to corroborate this account. As noted, between the two ver-
sions of events, I credit Babb’s.
The General Counsel argues that Walton was provoked by
Babb stating “this way or that way” repeatedly, and calling
Walton a “fucking bitch.” I have addressed the “this way or
that way” comments above. With regard to the “fucking bitch”
comment, I credit Babb’s testimony that, as a result of her up-
bringing and beliefs, she does not swear and finds it highly
offensive. I also find that Walton’s response to the alleged
comment, either “Now, now Gina that is uncalled for and I will
not accept that,” or “Now, now, Gina, we shouldn’t be talking
that way,” does not ring true. The record establishes that Wal-
ton is someone who, when challenged, reacts impulsively and
does not take things quietly. Either version of this measured
response upon being called a “fucking bitch” strains credibility.
Given that I have credited Babb’s description of events, the

10 White further testified that Kelley-Yancey saw Walton banging
on the door. This is hearsay that is corroborated by Babb’s testimony,
and consistent with Pimental and Basarab’s. See RC Aluminum Indus-
tries, 343 NLRB 939, 940 (2004). Because I would come to the same
conclusion without it, I need not rely on it.
General Counsel’s argument that Walton was provoked by
Babb fails.
The General Counsel notes that the threat assessment team
determined that Walton’s conduct on August 9 was protected.
Applying the factors set forth in Atlantic Steel Co., 245 NLRB
814 (1979), the General Counsel asserts that Walton’s conduct
on August 9 was not sufficiently egregious for her to lose the
Act’s protection.11 I am aware of and have considered the
Board’s case law, some of which is relied upon in the General
Counsel’s brief, holding that profane outbursts and other such
conduct retains the Act’s protection if it is part of the res gestae
of protected activity. I do not consider the August 9 meeting in
isolation, however, but rather as the beginning of a connected
and disturbing pattern of conduct Walton directed at Babb.
Turning to the events of September 8, I credit the testimony
of Babb, White, and Mullin, which was generally corrobora-
tive. Mullin, a bargaining-unit member, was very soft-spoken
and, though confused at times, appeared to be genuinely trying
to recall the events at issue and testify honestly. As to the spe-
cific question of whether Walton had been told White was the
step 1 designee for main office grievances, I find that she was
aware of this when she repeatedly attempted to speak with
Babb. The cooling off period between Babb and Walton was
the result of the threat assessment team’s review of the August
9 events.12 White testified he conveyed this to Walton. I find
Walton’s testimony to the contrary is unconvincing and riddled
with problems. First, White’s failure to convey this to Babb
simply makes no sense in light of what occurred, and there was
nothing in his demeanor when he testified to indicate he was
being untruthful about giving Walton this instruction. Im-
portantly, Walton admittedly had already been told, in line with
the CBA, that she was to get permission from the supervisors at
both her home office and the office she was visiting prior to
using steward time for grievances. She likewise had been in-
structed not to schedule grievances when she was off the clock.
Yet, in contravention of these orders, she visited Babb’s of-
fice, without permission, on a Saturday when she was not
working.13 In addition, Babb told Walton during their first
brief phone call that White was the step 1 designee. Yet again,
in contravention of this, Walton continued to call Babb repeat-

11 I do not find the Atlantic Steel analysis applicable here, because
this case does not present an “outburst” as is contemplated in two of the
four evaluative factors. Nor does it involve a “moment of animal exu-
berance” as in Milk Wagon Drivers Union of Chicago, Local 753 v.
Meadowmoor Dairies, 312 U.S. 287, 293 (1941), but rather a course
conduct over time.
12 Babb was part of this team, but even if Walton knew this, it did
not give her license to ignore disregard White’s directives.
13 The General Counsel’s brief, in the statement of facts, assert that
White’s instructions that he would need to approve her requests for
steward time and he would serve as the step 1 designee for the main
office were contrary to the CBA, though none of its arguments rest on
contract interpretation. The Respondent’s brief points to various parts
of the CBA and argues they support White’s directives. Disposition of
this case does not depend on an arbitral-like interpretation of the CBA.
White received no permission for her visit on September 8, and had no
reason to request steward time from Babb on Mullin’s behalf. Any
ostensible disagreement with management’s directives thus cannot
serve as justification for her behavior.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
edly and make repeated requests to see her. It is clear Walton
did not care what instructions management had given her be-
cause, true to the words ascribed to her, she was going to do
what she wanted. Finally, Walton’s testimony that her contin-
ued attempts to contact Babb were to request steward time pur-
suant to Mullin’s request has been squarely discredited by
Mullin’s own disinterested, credible, and corroborated testimo-
ny that he never requested a steward.
The fabrication of Mullins’ request for steward time, along
with the continued attempts to contact Babb, are very telling as
to Walton’s state of mind and lead to the conclusions that her
actions by this point were, at best, only “tangentially related” to
any legitimate grievance she was ostensibly pursuing.14
Calmos Combining Co., 184 NLRB 914 (1970). It is clear to
me Walton’s purpose, at least as time progressed, was to harass
Babb and it did not matter to her that she was acting in blatant
defiance of White’s orders. The multiple profane and taunting
phone calls to Babb over the course of 45 minutes and the dis-
ingenuous attempts to have Babb come out of her work area to
grant steward time that was never requested clearly caused
Babb to panic, as shown by her email to Anderson. (GC Exh.
4.) To me, these actions are strong evidence that Walton was
acting outside the boundaries of genuine steward activity, and
was pursuing her own unprotected agenda. See Roadmaster
Corp. v. NLRB, 874 F.2d 448, 453 (1989) (motive relevant in
determining whether employee engaged in protected activity);
Newark Morning Ledger, 316 NLRB 1268, 1271 (1995).
The remaining conduct cited in the LOW is Walton’s repeat-
ed visits to the main office without permission while off duty to
observe Babb. Walton’s visit to the main office before her shift
on September 11, peering in at Babb, was also cited. Walton
asserts she was there in her role as director of City Stations to
investigate whether Babb was performing clerk work. Under
the CBA, permission is required to visit a facility “to investi-
gate a specific problem to determine whether to file a griev-
ance” and Walton has not refuted testimony and other evidence
that management requires such permission. (Jt. Exhs. 1, 14;
GC Exh. 7, p. 2; Tr. 100.) Though I have found that Walton’s
conduct lost the protection of the Act based on previous events,
the continued visits are further evidence of Walton’s intransi-
gence.
The General Counsel argues that, because regional manage-
ment determined the LOW failed to establish that Walton en-
gaged in misconduct and her behavior did not rise to the level
of a threat or violence, it is disingenuous for the Respondent to
rely on the conduct cited in it to defend against the instant
charges. I disagree. The Respondent’s regional management is
not charged with interpreting and applying the Act, and there-
fore their findings are unpersuasive. Moreover, it is a clear part
of the problem internal management had with the LOW was the
charge and the ELM rules alleged to have been violated in sup-
port of the charge. I am not evaluating whether the Respondent

14 The later focus on needing access to Babb for Mullins’ nonexist-
ent steward request casts doubt on whether Walton was present at the
main office to discuss legitimate grievances in the first place. None
were identified and Babb’s normal practice was to meet with stewards
during their regular work hours.
can support a misconduct charge governed by the ELM’s rules.
It is also not clear what evidence regional management consid-
ered. In any event, I have considered all of the evidence and
carefully evaluated the content and credibility of witness testi-
mony and, applying the Act and the Board’s interpretive case
law to the evidence, find Walton lost the Act’s protection for
the reasons set forth above.
B. The Stalking Order
Paragraphs 5 and 8 of the complaint allege that the Respond-
ent violated Section 8(a)(1) of the Act when Babb filed for and
received a temporary protective stalking order against Walton.
1. Babb’s status as agent
To decide whether the Respondent can be held liable for
Babb’s actions in petitioning for and obtaining the stalking
order, I must first determine whether Babb acted as an agent of
the Postal Service. The Respondent asserts that Babb pursued
the stalking order on her own time and the Postal Service was
uninvolved except for assisting with settlement efforts after the
fact. The General Counsel asserts that the Respondent is liable
for the acts of its supervisor because Babb acted with actual or
apparent authority from the Postal Service.
The Board applies the common law of agency to determine
whether a supervisor’s actions are within the scope of employ-
ment and thus binding on the employer. Sea Mar Community
Health Centers, 345 NLRB 947, 950 (2005). The burden of
proving agency status is on the party asserting it. Section 2(13)
of the Act states that “[i]n determining whether any person is
acting as an ‘agent’ of another person so as to make such other
person responsible for his acts, the question of whether the
specific acts performed were actually authorized or subsequent-
ly ratified shall not be controlling.”
The Restatement (Third) of Agency, § 7.07(2), provides:
“An employee acts within the scope of employment when per-
forming work assigned by the employer or engaging in a course
of conduct subject to the employer's control.” Section 7.07 cmt
b., elaborates: “If an employee undertakes a course of work-
related conduct for the sole purpose of furthering the employ-
ee's interests or those of a third party, the employee's conduct
will often lie beyond the employer's effective control.” Babb’s
conduct of seeking and obtaining the stalking order was not
work assigned by the Respondent. Based on her testimony, I
find Babb’s sole purpose in taking these actions was to further
her own interests. Specifically, I am convinced it was an act of
desperation concerned with trying to alleviate her own personal
fears.
The General Counsel asserts that by using the main office
address on the petition for the stalking order, identifying herself
as a supervisor, and attaching documents supplied by the Re-
spondent, she brought the petition within the scope of employ-
ment. Babb supplying the address and identifying herself as a
supervisor, however, was not within the Respondent’s control,
as Babb took these actions without the Postal Service’s
knowledge. The General Counsel has not established that the
Respondent was aware of any of the other information she sup-
plied at the time of the petition. As will be discussed below, by
the time she supplied White’s declaration, I find liability had
already attached.
POSTAL SERVICE 19
I find, however, that when Walton was served with the stalk-
ing order on October 13, and Babb enforced it against her at the
main office, Babb brought the stalking order within the scope
of employment and potential liability for the Respondent at-
tached. This is because, even if the Respondent did not actually
authorize Babb to enforce the stalking order, it is clear that she
acted with the apparent authority to do so. In determining
whether an individual has apparent authority, the Board applies
common law principles which it summarized in Mastec
Directv, 356 NLRB 809, 809–810 (2011):
Apparent authority “results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for the lat-
ter to believe the principal has authorized the alleged agent to
perform the acts in question.” . . . “Either the principal must
intend to cause the third person to believe the agent is author-
ized to act for him, or the principal should realize that his
conduct is likely to create such a belief.” [Citations and inter-
nal punctuation omitted.]
As the General Counsel points out, it is clear that after Babb
obtained the stalking order, she informed the Postal Service
about it. Thus, the Respondent knew about the stalking order
and did nothing to prevent Babb from enforcing it. In addition,
Babb notified employees about the stalking order and told them
to let her know if Walton came to the main office. The em-
ployees who worked under Babb would reasonably believe she
had the authority to issue and carry out this order.15 As such, I
find that as of October 13, the Respondent was liable for any
unfair labor practices that arose from the stalking order.
2. Did the stalking order violate the Act?
Citing to Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S.
731 (1983), BE&K Construction (BE&K II), 351 NLRB 451
(2007), and other Board case law, the General Counsel first
asserts that the stalking order violated Section 8(a)(1) because it
lacked a reasonable basis and was filed with a retaliatory mo-
tive. Judge Jones granted Babb’s petition and issued the stalk-
ing order, and I therefore find it had a reasonable basis. For the
reasons detailed above, I find Babb’s motivations in seeking it
were genuine and not retaliatory. The fact that Babb and Cor-
tez are able to work together productively to process grievances
lends support to the Respondent’s contention that Babb was not
motivated by union animus but rather a desire to escape from
the troubling behavior Walton had been directing at her. The
General Counsel points out that Babb admitted she wanted her
“pound of flesh.” While this is true, I do not view this com-
ment as evidence of retaliatory motivation toward Walton be-
cause of her union status or protected union activities. Instead,
I see it as a secondary emotional response related to the unpro-
tected actions that frightened Babb.16
For similar reasons, I do not find Babb had an illegal objec-

15 I disagree with the General Counsel’s contention that the re-
strictions the Respondent had placed on Walton prior to the stalking
order affirmatively reinforced Babb’s conduct. White’s order to Wal-
ton not to contact Babb was much narrower than the stalking order and
provided a designee for Babb in the grievance process.
16 It is noted that after some reflection and the realization of the
harm her actions inflicted on the Respondent, Babb’s feelings changed.
tive when she filed the petition. The conduct she cited to sup-
port the petition falls outside the Act’s protection.17 Moreover,
there is nothing in the petition itself that requests Walton ab-
stain from most of the behaviors the court ultimately enjoined.
As such, this case is distinguishable from Manno Electric, 321
NLRB 278, 297 (1996). The General Counsel also points to
Teamsters Local 776 (Rite Aid), 305 NLRB 832 (1991), but
that case involved a lawsuit aimed directly at achieving a result
contrary to the Board’s ruling in the very same matter. The
present situation is therefore not analogous.
The General Counsel further asserts that had the stalking or-
der proceedings not settled, Oregon law would have required
the order’s dismissal because Oregon law is not to be “con-
strued to permit the issuance of a court's stalking protective
order for conduct that is authorized or protected by the labor
laws of this state or of the United States.” O.R.S. §
163.755(1)(a). As I have found Walton’s conduct was unpro-
tected, this argument fails.
Next, the General Counsel asserts that Babb’s stalking peti-
tion is preempted by the Act. The Supremacy Clause of the
United States Constitution, Article VI, Section 2, provides that
the “Constitution, and the Laws of the United States . . . shall
be the supreme Law of the Land.” Thus, as a general rule,
Federal laws preempt contrary to or conflicting state laws.
Pursuant to the Supreme Court’s decision in San Diego Build-
ing Trades Council v. Garmon, 359 U.S. 236, 244 (1959):
When it is clear or may fairly be assumed that the activities
which a State purports to regulate are protected by § 7 of the
National Labor Relations Act, or constitute an unfair labor
practice under § 8, due regard for the federal enactment re-
quires that state jurisdiction must yield.
Following Garmon, the Court honed its preemption jurispru-
dence in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180
(1978), distinguishing between an employer’s state action
aimed to stop activity the Act arguably prohibits as opposed to
a state action aimed to stop activity the Act arguably protects.
In Sears & Roebuck, the employer demanded that the union
remove picketing activity from its property. The union refused
to stop picketing, claiming its actions were protected by Section
7. It did not file an unfair labor practice charge under Section
8(a)(1), but said instead it would continue the pickets unless
compelled to stop through legal action. The employer respond-
ed by filing a trespass action in state court. There, like in the
present case, at the time of the state court action, “the Union
failed to invoke the jurisdiction of the Labor Board, and Sears
had no right to invoke that jurisdiction and could not even pre-
cipitate its exercise without resort to self-help.” Id. at 207.
(Footnote omitted.) The Court held that in such cases, where
the conduct at issue is “arguably protected” the state court is
not deprived of jurisdiction. The Court noted, however, that
preemption may be appropriate in some cases where there is a
strong argument that the conduct is protected by Section 7 and

17 In her petition, Babb did not reference the August 9 incident as
the most recent incident or as an example of “unwanted conduct” but
rather as part of the reason the later unwanted conduct was “alarming or
coercive.” (Jt. Exhs. 5, 6.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
“the exercise of state jurisdiction might create a significant risk
of misinterpretation of federal law and the consequent prohibi-
tion of protected conduct.” Id. at 203.
Even though the conduct cited to support the petition was not
protected, the stalking order enjoined Walton from a broader
range of conduct.18 The next inquiry, then, is whether the con-
duct the stalking order enjoined was “arguably protected” or
whether there is a strong argument the conduct was protected.
This determination “is within the exclusive province of the
Board.” Beverly Health & Rehabilitation Services, 336 NLRB
332, 334 (2001). It is clear that the stalking order enjoined both
Walton’s unprotected activity of harassing Babb as well as her
protected activities attendant to her roles with the Union. This
finding compels the conclusion that, at the time the court issued
the stalking order, there was a strong argument that some of the
conduct it regulated was protected. In this regard, the instant
case bears similarities to Youngdahl v. Rainfair, Inc., 355 U.S.
131 (1957), where a state court issued an injunction prohibiting
unprotected behaviors connected to a strike as well as the pro-
tected conduct of peaceful picketing. The Court found that the
state court “entered the preempted domain” of the Board by
enjoining peaceful picketing. I likewise find that the state
court’s temporary protective stalking order entered the Board’s
preempted domain by enjoining Walton from engaging in pro-
tected Section 7 activity.
CONCLUSIONS OF LAW
1. By maintaining and enforcing the stalking order, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
2. The Respondents did not engage in any other of the unfair
labor practices alleged in this proceeding.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having maintained and enforced a stalking
order that violates the Act, must cease and desist from main-
taining or enforcing a stalking order that enjoins Walton from
engaging in protected activity.
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). Also in accordance
with that decision, the question as to whether a particular type
of electronic notice is appropriate should be resolved at the
compliance stage. Id., slip op. at p. 3. See, e.g., Teamsters
Local 25, 358 NLRB 54 (2012).
The General Counsel requests reimbursement of legal costs
the Charging Party incurred in defending against the stalking
order. Based on the unusual circumstances present in the in-
stant case, I decline to grant such an award. As previously

18 I agree with the General Counsel, however, that the conduct does
not meet the standards to render Walton unfit to serve as the union
representative in all contexts. See GC Br. pp. 29–30 and cases cited
therein.
stated, I have found that the lawsuit was not unlawful at its
inception. This was a novel situation for the Respondent,
which faced significant tension between the legitimate concerns
of one of its supervisors and the bounds of a union agent’s pro-
tection under the Act. Accordingly, I find an award of legal
fees and expenses is not necessary to discourage the Respond-
ent from permitting its supervisors to maintain preempted law-
suits enjoining conduct protected by the Act. I realize this does
not make the Union whole for the fees it paid in defending
against the stalking order. In this unusual case, however, where
the Union’s agent’s unprotected activity was the catalyst for the
state court action, I find it is not warranted. An order requiring
the Postal Service to cease and desist and to post a remedial
notice, is a “significant sanction” and, given the unique situa-
tion present here, is sufficient. Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 152 (2002); see also J.A. Croson
Co., 359 NLRB No. 2 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.19
ORDER
The Respondent, United States Postal Service, Portland, Or-
egon, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Pursuing and enforcing any lawsuit that is preempted by
Federal law;
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Seek expungement of the Temporary Stalking Protective
Order from Cheryl Walton's record, and notify the Union and
Walton that this has been done.
(b) Within 14 days after service by the Region, post at all of
its Portland, Oregon facilities copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
POSTAL SERVICE 21
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 13, 2012.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 4, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce lawsuits that interfere with
protected union activities.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL seek the expungement of the temporary stalking
protective order and associated official records and notify the
Union and Walton that this has been done.
UNITED STATES POSTAL SERVICE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-092096 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.