United States Postal Service

National Labor Relations Board - Board Decisions

Dec 6, 2018

367 NLRB No. 40 (N.L.R.B. 2018)

367 NLRB No. 40
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 Ann Dolan. Case 12–
CA–207188
December 6, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On July 16, 2018, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Charging
Party filed exceptions with supporting argument and a
reply brief, and the Respondent filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order.

1 In its answering brief, the Respondent argues that the Charging
Party's exceptions should be disregarded in their entirety for failure to
comply with Sec. 102.46 of the Board’s Rules and Regulations. Alt-
hough the Charging Party’s exceptions do not conform in all respects to
the Board’s Rules, they are not so deficient as to warrant disregarding,
particularly in light of the Charging Party’s pro se status. See Budget
Heating & Air Conditioning, Inc., 333 NLRB 199, 199 fn. 2 (2001),
citing A.P.S. Production/A. Pimental Steel, 326 NLRB 1296, 1297
(1998) (“The Board typically has shown some leniency toward a pro se
litigant's efforts to comply with our procedural rules.”).
2 Chairman Ring is recused and took no part in the consideration of
this case.
3 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Nonetheless, we do not rely on the
judge’s statement that, by informing the Respondent in an email of her
request to her doctor to place a limitation on her work clearance so that
she would qualify for a disability-related work accommodation, the
Charging Party engaged in “manipulative efforts” that “significantly
diminished her credibility.” This assertion is contradicted by the
Charging Party truthfully informing the Respondent that her doctor did
not impose any work limitations. We find that this specific remark by
the Charging Party about talking with her doctor to see if she could
receive a disability-related work accommodation would not have di-
minished her credibility, and in any event, the judge’s finding as to this
emailed remark was not based on his observation of the Charging Par-
ty’s testimonial demeanor. However, we do not think our decision not
to rely on this specific statement by the judge has any bearing on his
other credibility findings.
The Charging Party has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the issues
and the positions of the parties.
In addition to excepting to the judge’s dismissal of the 8(a)(3) alle-
gation, the Charging Party also excepted to the judge’s failure to find
that the Respondent violated her rights under NLRB v. J. Weingarten,
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. December 6, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Steven Barclay and Rafael Aybar, Esqs., for the General Coun-
sel.
Kelly E. Elifson, Esq., USPS Law Department, of St. Louis,
Missouri.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried on May 21, 29, and 30, 2018, in Tampa, Florida. The
Charging party, Ann Dolan, alleges that the United States Post-
al Service (Postal Service or Respondent) discharged her from
her employment at the Ybor Processing and Distribution Center
(the Ybor facility) on September 7, 2017,1 in violation of Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act2 (the
Act) because she sought the assistance of the American Postal
Workers Union, AFL–CIO and the American Postal Workers
Union, Local 259, AFL–CIO (collectively referred to as the
Union) and requested that the Union file grievances on her
behalf. The Postal Service denies the allegations, contends that
it sought to accommodate Dolan’s requests to meet with availa-
ble union stewards, and discharged her during her probationary
period for legitimate business reasons which were consistent

Inc., 420 U.S. 251 (1975), by not permitting her to have a union repre-
sentative present when she received her evaluation. However, we find
it unnecessary to pass on that exception because the General Counsel
did not allege in the complaint that the Respondent violated Sec. 8(a)(1)
by interfering with the Charging Party’s right to have a union repre-
sentative present at an investigatory interview.
In affirming the judge’s finding that the Respondent met its Wright
Line rebuttal burden, we do not rely on the judge's citation to Tinney
Rebar Services, Inc., 354 NLRB 429 (2009), a case decided by a two-
member Board. See New Process Steel, L.P. v. NLRB, 560 U.S. 674
(2010).
1 All dates refer to 2017 unless otherwise indicated.
2 29 U.S.C. §§ 151–169.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
with Postal Service policy.
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 Postal Service, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Postal Service provides postal services for the United
States and operates various facilities throughout the United
States in performing that function, including a facility located
at 1801 Grant Street, Tampa, Florida, the only facility involved
in this proceeding. The Postal Service admits that the Board
has jurisdiction over it and this matter by virtue of Section 1209
of the Postal Reorganization Act3 and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Ybor Processing and Distribution Center
The Ybor facility is a Postal Service facility that engages in
incoming and outgoing mail processing operations. Dan Fisher
and Jeremy Wray are managers of distribution operations
(MDO), whose primary responsibility is managing supervisors.
Robyn Flick and Regina “Gigi” Johnson, as acting supervisors
of distribution operations, issue the craft employees’ daily
schedules and ensure that employees in their sector complete all
necessary tasks. During the relevant time period, Draven Leto
was a supervisory trainee who had supervisory authority.
Dolan, the Charging Party, was appointed by the Postal Ser-
vice as a Postal Support Employee (PSE) on August 5. PSEs
are assigned flexible work duties. They are employed up to
360 days at a time, are then let go for 5 days, and typically
return to employment. Upon returning, PSEs restart as new
and, thus, probationary employees. As probationary employ-
ees, they are evaluated at the 30th, 60th and 80th day intervals.
B. The Bargaining Unit
The following employees of the Postal Service constitute a
unit (the unit) appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees in the bargaining unit for which APWU has
been recognized and certified at the national level: mainte-
nance employees, motor vehicle employees, postal clerks,
mail equipment shops employees, material distribution cen-
ters employees, and operating services and facilities services
employees; excluding managerial and supervisory personnel ,
professional employees, employees engaged in personnel
work in other than a purely non-confidential clerical capacity,
security guards as defined in Public Law 91-375, 1201(2), all
Postal Inspection Service employees, employees in the sup-
plemental work forces as defined in Article 7 of the collec-
tive-bargaining agreement between Respondent and APWU,
rural letter carriers, mail handlers, and letter carriers.
Since on or before May 21, 2015, the Union has been the
designated exclusive collective-bargaining representative of the

3 39 U.S.C. §§ 101, et seq.
unit and responsible for administering the collective-bargaining
agreements between Postal Service and the Union on behalf of
unit employees employed at the Ybor facility and other Postal
Service facilities in Tampa, Florida. This recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which is effective, by its terms, from May 21,
2015, to September 20, 2018 (the CBA).
C. The Disciplinary Process
The applicable collective bargaining agreement between the
Union and the Postal Service (the CBA) sets forth the discipli-
nary procedure at Article 16. It is premised on the basic princi-
ple “that discipline should be corrective in nature, rather than
punitive.” The CBA further provides that “[n]o employee may
be disciplined or discharged except for just cause” and subjects
such action to the grievance-arbitration procedure.
Consistent with the CBA, a Memorandum of Understanding
between the Union and the Postal Service (the MOU), dated
February 27, 2013, contains several provisions pertinent to the
discipline of PSEs:
PSEs may be disciplined or removed within the term of their
appointment for just cause and any such discipline or removal
will be subject to the grievance arbitration procedure, provid-
ed that within the immediately preceding six months, the em-
ployee has completed ninety (90) work days, or has been em-
ployed for 120 calendar days, whichever comes first.
The parties agree that the [PSEs] who have successfully com-
pleted either a 90 day work day or a 120 calendar day period
within the preceding six months may be disciplined within the
term of their appointment for just cause. The parties further
agree that such discipline is subject to the grievance-
arbitration procedure.
The parties recognize that removal is not the only mechanism
available to correct deficient behavior when warranted.
The full range of progressive discipline is not always required
for PSEs; however, the parties agree that an appropriate ele-
ment of just cause is that discipline be corrective in nature, ra-
ther than punitive.4
As a probationary employee, however, article 12 clarifies
that the disciplinary process outlined in the MOU was not ap-
plicable to Dolan during her probationary period of employ-
ment except in certain situations:
A. The probationary period for a new employee shall be nine-
ty (90) calendar days. The Employer shall have the right to
separate from its employ any probationary employee at any
time during the probationary period and these probationary
employees shall not be permitted access to the grievance pro-
cedure in relation thereto. If the Employer intends to separate
an employee during the probationary period for scheme fail-
ure, the employee shall be given at least seven (7) days ad-
vance notice of such intent to separate the employee. If the
employee qualifies on the scheme within the notice period,

4 GC Exh. 22.
POSTAL SERVICE 3
the employee will not be separated for prior scheme failure.5
D. Ann Dolan
Dolan’s employment with the Postal Service spans a period
of 20 years. She started as a casual employee in 1998, then
moved into other positions, including data conversion operator,
mail carrier, and eventually to a PSE position in late 2016.
Dolan received no formal discipline prior to 2017. Her educa-
tional background includes a college degree, a graduate school
degree, and a practical nursing certificate.
In January 2017, Dolan was laid off from her PSE position
because of a lack of work and placed on the PSE rehire list.
The rehire list is created based on an employee’s seniority and
initial start date in that capacity. In April, Dolan took urine and
background tests, but was not rehired at that time. On July 7,
Dolan was notified by human resources employee Vicki Plum-
mer about the possibility of being rehired. On July 12, Dolan
was notified of an effective start date of July 22. Her start date,
however, was placed on hold on July 17 when she was in-
formed that the medical unit needed to evaluate her application.
In an email to Dolan, Plummer stated:
You should hear back from someone at Ybor by Friday. But I
just remembered, you answered ‘Yes’ to two of the medical
questions and your paperwork has been forwarded to the
Medical Unit for review. You will be contacted by someone
at the Medical Unit and then by someone at Ybor.6
Keith Beattie, an employee in the Postal Service’s occupa-
tional health services department, requested applicable medical
information from Dolan on July 20. On August 2, Beattie fol-
lowed up with Dolan to remind her that he was still waiting for
the completed forms from her doctor. Dolan replied:
I spoke to the Dr. Chaumont’s office today and they will have
the forms faxed to you by Friday. There was a hold up with
Mia having a few days of and getting the surgeon’s records
with the needed documentation. The surgery was in May 24,
2010.
They have what they need now, so it is just filling out your
paperwork . . . the surgeon did not give me limitations; how-
ever, I told Dr. Chaumont that 8 hours is enough on my feet,
if he had to put a limitation. I worked the ten and twelve hour
shifts at Christmas, but I would prefer not to. There was a
young girl at Christmas that only worked 8 hours a day and
she said she had a note from her doctor.
Thanks for your patience. Please call if you need to.7
On August 4, Beattie received the doctor’s report, which
cleared her to work with no restrictions. He also informed
Dolan at that time that, since the next pay period started the
next day, she would probably start the next one on August 19.
While waiting to be medically cleared, Dolan was informed
by Plummer that the available PSE positions at the Ybor facili-

5 A “scheme failure” was not explained in the record. Nor is there
any indication that the term was ever applied to Dolan.
6 GC Exh. 18.
7 Dolan’s manipulative efforts to dictate the contents of her doctor’s
report significantly diminished her credibility. (GC Exh. 20.)
ty had been filled. On August 7, Plummer informed Dolan that
her effective date would be changed from July 22 to August 5.8
On August 9, Dolan complained to Beattie about being passed
over for the job:
Thanks Keith. I will keep you posted, as I will have to con-
tact the surgeon for this. I have proved that I am qualified to
perform the essential functions of the job; however, I will in-
quire into the requested limitation caused by my disability.
I disagree with the process of being offered a job in Ybor, af-
ter being on the rehire list, only to have it taken away by
someone junior to me. From my brief understanding, of
ADA laws, a medical inquiry can only be requested after a
conditional offer of a job or if there was some reason in my
prior performance that required it. I did not delay my start
date, management did. There was nothing in my prior per-
formance to question my abilities, as I was a qualified em-
ployee.
I was unsure of how to answer questions, on the medical form
and was penalized for over thinking. I disclosed my back
problems on November 2016, when I was hired for the
Christmas season. I do remember writing about my back on a
form. I proved that I had the skills to do the job in Christmas
2016.
I spent money with the medical request and lost money with
the delayed start date and now the conditional Ybor position
has been taken away by someone junior to me, who did not
go through a medical.
This sounds wrong to me and I question, if it is legal; specifi-
cally, discrimination. Offering me a different job location
changes the conditional offer that allowed them to request the
medical in the first place. I signed off on the job in Ybor.
Management delayed my rehire, as they hired juniors to fill
my place, who did not go through medical. They are sup-
posed to go in order, on the rehire list.
Every person who takes some type of prescription medication
should answer, “yes” to the question on the medical form,
“Are you in treatment or. . . .” All prescription medications
can potentially effect job performance. All applicants in the
same job category who are under the care of a physician
should be required to have a medical inquiry. If the question
had the word, “and”, it would clarify the question and re-
quired information. For example, beta blockers can make a
person dizzy, sleepy or depressed. I am sure there are people
taking medications that answered, “no” to the question, but
these meds can impair a person. I worked Christmas and the
behaviors of many of the workers were questionable.
Sorry for the length, but I feel like I have been wrongly treat-
ed and I have lost money, because of this. A conditional of-

8 Since Dolan was cleared to start the next pay period, it is unclear
what position was “taken away” from her. In any event, the August 5
effective start date remained in Dolan’s record even though she started
12 days later. This was an oversight by the Human Resources depart-
ment. (GC Exh. 164–19.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
fer, based on a seniority list, needs to be followed; especially,
if there is a medical inquiry; otherwise it can appear to be dis-
crimination.9
On August 11, Dolan emailed Plummer about reporting to
work on August 14. In this email, Dolan questioned the legiti-
macy of the rehiring process, complained about losing a week
of work, mentioned that she contacted the Union, and threat-
ened to file a grievance:
I am still waiting to report to Ybor, since that is what I was
canvassed for about a month ago. It appears that the seniority
list is not followed, if there is a medical inquiry and juniors
can fill the position that I was canvassed for. I do not agree
with this for many reasons.
Can you please let me know if I will be reporting to Ybor at 8
p.m.? That is the conditional offer that I signed off on, before
the medical inquiry and planned on an 8 pm start time. It
does not make any sense that I lost my seniority, because of a
medical inquiry and juniors took the conditional offer.
Debbie was supposed to get back to me, but did not. I can
forward you the emails, if you want. I have lost another week
of work, because of this and have contacted the union for as-
sistance and possibly filing a grievance. Thank you for your
assistance.
This email was forwarded to human resource office employ-
ees Marisol Ongrady and Dana Cowgill because Plummer was
out of the office that day.10
Dolan began orientation as a PSE on August 17, and was
told by Fischer to report to work at 10 p.m the next day. When
she reported to work on August 18, Dolan was instructed by
Angela Lewis, at Wray’s directive, to clock out and clock back
in at 10:30 p.m. There was confusion again on August 25 when
Dolan tried to clock in at 9 p.m. but was told by supervisors
Flick and Johnson to clock in at 10:30 p.m. Dolan claimed that
she was scheduled on the workplace bulletin board with a start
time of 9 p.m. She asked for a union representative but none
was present. She went to her car, filled out a grievance form,
and punched in at 10:30 p.m. Dolan gave the form to a union
representative at 10 a.m. In her grievance, Dolan complained
about her delayed start date and inability to clock in as sched-
uled.11
E. Dolan’s Performance and Complaints During Her Tenure
Dolan’s PSE duties included operating the automated parcel
and bundle sorters and temporarily relieving career employees
at their stations. She was previously certified to operate the
automated parcel and bundle sorters but had not been recerti-
fied or trained in operating these machines at the Ybor facili-
ty.12

9 Dolan’s initial discrimination claim was limited to the Human Re-
sources department and the record does not reflect that any Ybor facili-
ty supervisors became aware of these allegations. (GC Exh. 20.)
10 GC Exh. 18.
11 GC Exh. 21.
12 Dolan’s rambling explanation of her job duties amounted to a
medley of unsubstantiated obfuscation – the failure to provide her with
recertification or retraining on a machine that she previously operated;
Breaks became an issue during Dolan’s brief tenure. She
was supposed to get a break after working at least 2 hours and,
over the course of an 8-hour shift, an additional 30-minute
break and two 15-minute breaks. Dolan, however, was not
given breaks at regularly scheduled intervals when assigned to
the small parcel bundle sorter, as was the case with the career
employees. Generally, PSEs have to wait for the career people
to return from break before they can take one. Dolan com-
plained about the loose enforcement of the break policy and
spoke to a union representative about it.13
During one shift during the Labor Day weekend, around
September 1 to 3, all of the relief employees were told to take
breaks early in their shifts. Johnson instructed Dolan to take
her lunch break an hour before her scheduled time. Dolan told
Johnson that this should not be happening and she complained
to the Union about her breaks. Johnson replied that she was
simply carrying out Wray’s policy. On the way to clock out,
Dolan ran into Fischer and complained to him. Fischer went to
Johnson and told her that there were fixed times for breaks,
which could only deviate 15 minutes either way, and that the
machines did not have to run fully loaded and be in sync with
the career employees’ schedules. He told Dolan that Johnson
responded that she did not know. It happened again, however,
on another unspecified occasion when Johnson told Dolan to
take her break about a half hour after her required time.14
As Dolan’s supervisor, Flick had one discussion with Dolan
about her job performance prior to September 7. Flick ex-
plained that Dolan failed to follow instructions, took long
breaks and routinely complained about the work assignments
she was given.15
F. Dolan’s Discharge
Dolan clocked into work on September 6 sometime between
9 and 10:30 p.m. At the beginning of the shift, she was as-
signed to perform relief work by Johnson or Flick. Around
12:30 a.m. on September 7, Supervisor Angela Lewis called her
to a meeting in her office and said that Dolan did not clock
back in from lunch the prior day. Dolan apologized, saying “I
thought I did.” Dolan asked Angela Lewis to present the clock
rings with her missing time punch but Angela Lewis did not
provide her with any clock rings. Dolan later got the clock ring
information from supervisor Mike Spanos and spoke with a

and the improper assignment of relief work that was either not within
her job description or was within the realm of career employees’ duties.
(Tr. 111–115.)
13 I did not credit Dolan’s uncorroborated hearsay testimony that a
union representative told her that breaks were a repetitive problem that
the career employees complained about or that the problem with early
or late breaks was due to Wray’s insistence that the machines run con-
tinuously. (Tr. 100–101.)
14 I credited Dolan’s undisputed testimony regarding statements
made by supervisors as opposing party statements pursuant to Fed.R.
Evid. 801(d)(2).
15 Dolan denied Flick’s assertion that they had any formal discussion
prior to September 7 or that she told her that she needed to improve.
However, I found Flick more credible than Dolan on this point because
the latter conceded that she refused work when she believed that it was
outside the scope of her job duties or inconsistent with her medical
condition. (Tr. 37, 50–51, 66, 108–111, 125–126.)
POSTAL SERVICE 5
union representative about the clock ring issue.16
At some point during Dolan’s shift, Leto assigned her to per-
form mail handling along with four others. Mail handling,
which consists of bringing mail to mail processers, is typically
done by workers in the motor or manual craft.17 Dolan com-
plained to Leto and the Union about being assigned mail han-
dler work that she was not medically qualified to perform, and
told a Union representative that another employee had similar
complaints.18
At about 3:15 a.m., Johnson asked Leto for employees to
relieve the career employees on the small parcel bundle sorter
(SPB). He sent her Dolan. Dolan, however, wanted to take a
break. Johnson asked her to wait about 10 minutes and to tidy
up the area, sweep the bins and pick up mail from the floor.
Dolan took a break 10 minutes later and left the area. Johnson
returned to the SPB area at several 10 minute intervals thereaf-
ter to find Dolan nowhere in sight and the mail piling up on the
floor.19
Dolan did not return to the SPB area because, as she left the
locker room after her break, she encountered Angela Lewis,
who asked “are you here?” Dolan acknowledged her availabil-
ity without mentioning her assignment to the SPB machine.
Angela Lewis told her to sort mail and, when done with that, to
go work in another area on the other side of the building.20
After completing those tasks, Dolan spoke with another super-
visor, Curtis Lewis, who asked her to move boxes. After fin-
ishing that task, Dolan asked Curtis Lewis what time she should
show up for work the next day. He called to confirm the time
and, suddenly, told Dolan that she needed to go talk to Wray.
When she got to Wray’s office, Flick said it was time for her
30-day review. Dolan told her she had only been working for
21 days. Johnson said that Dolan never returned to the SPB
machine after her break and asked where she went. Dolan re-
sponded that she was not told to go back to the machine and

16 Dolan’s testimony about the clock rings, none of which were in-
troduced into the record, was inconsistent and unclear. She also con-
ceded that she did not clock in after lunch as she was supposed to. (Tr.
103-108.)
17 Dolan says she was neither in the proper craft nor medically
cleared to perform mail handling work. However, PSEs are expected to
work wherever they are needed, (Tr. 182–184), and Dolan was ap-
proved by her doctor to work without any medical restrictions. (GC
Exh. 20.)
18 Dolan’s claim that she contacted the Union on behalf of herself
and a similarly situated employee was not documented in an official
grievance nor was it otherwise corroborated by the record. I give no
weight to any uncorroborated hearsay statements allegedly made by
other employees or Union representatives to Dolan regarding this issue.
(Tr. 109–110.)
19 Dolan’s assertion–that she was essentially free to wander the facil-
ity because Johnson did not specifically instruct her to SPB machine
after her break—was not credible. (Tr. 115–118.) Johnson credibly
testified that Dolan was assigned to staff the SPB and, in Dolan’s ab-
sence, mail piled up in her section. (Tr. 136–138.) Wray also con-
firmed that PSEs are expected to continue providing relief at their as-
signed stations until a supervisor determines otherwise. (Tr. 182–184.)
20 Dolan did not inform Angela Lewis that she was doing SPB relief
for Johnson prior to her break. At a minimum, Dolan should have
made her aware of this fact before accepting a new assignment.
requested a union representative. Flick said she did not need a
union representative for an evaluation.
Flick started the meeting by reading Dolan’s evaluation
form.21 All of the categories were marked unsatisfactory and
no explanations were provided. As they went through the eval-
uation, people walked in and out of Wray’s cubicle area, in-
cluding Curtis Lewis, Angela Lewis, and Leto. After reading
the evaluation, Flick informed Dolan that she was being sepa-
rated from the Postal Service. After Dolan refused to sign at
the conclusion of the evaluation, the form was cosigned by
Johnson. The separation document noted violations of ELM
regulations 665.13 and 665.15: unsatisfactory performance and
failure to follow instructions.22 Flick recited Dolan’s failure
earlier that morning to return to the SPB machine, which John-
son assigned her to, after her break.23 This event was subse-
quently documented by Johnson in an email sent to Wray at
6:20 a.m. on September 7.24
After being informed of her termination, Dolan asked to
speak with a union steward, but none was available. Flick told
her that she could get one on her own at a later time. Dolan
requested a copy of her time clicks, received them, and then left
the supervisors’ office without signing her evaluation form.
She was escorted to the locker room by Flick and Johnson,
gathered her belongings, turned in her badge and time card, and
left.25
G. Evaluations and Discipline of Other Employees at the
Ybor Facility
The evaluation or discipline of Dolan and other employees at
the Ybor facility in 2016 and 2017 varied depending on wheth-
er they were probationary or nonprobationary employees.
Probationary PSE Tiarra Cheathem received unsatisfactory
ratings in all but one category in her 30-day evaluation; she
received a satisfactory rating for “work relations.” Fulfilling
that category was defined to mean that she maintained positive
working relations with others, worked harmoniously with oth-
ers in getting the work done, and cooperated well with co-
workers, supervisors and others with whom he/she came into

21 GC Exh. 12.
22 Contrary to the General Counsel’s assertion, Wray’s initial testi-
mony that Flick was responsible for recommending Dolan’s separation
was not inconsistent with subsequent testimony that it was a group
decision. Flick initiated the separation process, but required approval at
the MDO level to move forward. (GC Exh. 14; Tr. 19–199.)
23 I found Wray’s denial more credible than Dolan’s assertion that he
told her that she had been trouble since day one or had a penchant for
contacting her steward. (Tr. 123, 170.) Flick, Johnson and Wray credi-
bly testified that Flick was the only supervisor to speak with Dolan
during the meeting, which lasted less than five minutes and occurred
sometime between 5:00 and 6:00 a.m. All three also credibly testified
that no other supervisors participated in the meeting except for them-
selves and Dolan, (Tr. 59-60, 69-70, 141, 152, 168-170), while Dolan
was unable to provide a coherent timeline or consistently describe
which supervisors attended. (Tr. 108, 120-125).
24 GC Exh. 15.
25 I did not credit Flick’s testimony, however, that Dolan resisted
giving up her badge and time card when asked. (Tr. 60.) Dolan denied
that assertion and Johnson, who assisted in escorting Dolan out of the
facility, made no mention of such difficulty. (Tr. 125, 142.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
contact. She went on to complete her 90-day probation, receiv-
ing at that time satisfactory ratings in every category.26
Other probationary employees were not as fortunate and
were separated without an evaluation. Mail handler assistant
Ian Hancock was recommended for separation after 36 days
and separated the following day (June 2017). Hancock’s defi-
ciencies included unsatisfactory performance and failure to
follow instructions. PSE Angelic Drew was recommended for
separation by the Postal Service 52 days after her appointment
and separated about a week later. Drew’s behavior included
multiple occasions of not being in her assigned area, failure to
follow instructions, unsatisfactory performance, and unsatisfac-
tory attendance (May 2017).27
In contrast, non-probationary employees were afforded in-
vestigative interviews and other procedural protections pursu-
ant to Article 15 of the CBA, and generally received warning
letters for misconduct or deficient performance: mail handler
assistant Sharla Atakpa—unsatisfactory performance and fail-
ure to follow instructions by leaving her workstation without
authorization and ending her tour after being instructed to re-
main at her station (May 2016);28 mail handler Matthew
Gard—failure to follow instructions on a particular occasion
when he was instructed to remain working but clocked out with
other employees (January 2017);29 manual clerk Louis Colon,
Jr—unsatisfactory performance and failure to follow instruc-
tions (August 2017);30 mail handler Doshain Blake—failure to
follow instructions to report to a particular machine and dis-
patch mail (September 2017);31 and mail handler Katie Thomp-
son—failure to perform her job duties and leaving her work
station without permission (December 2017).32
PSE clerk Jordan Bronson, a casual/transitional employee,
was the exception. Bronson initially received a 30-day evalua-
tion that included unsatisfactory ratings for all but two catego-
ries – work relations and personal conduct. Although undated,
the report indicated that it was to be completed by May 3,
thereby implying that Bronson’s appointment date was on or
about April 3. Subsequently, Bronson encountered difficulties
and, on June 7 was removed and terminated for unsatisfactory
performance and failure to follow instructions.33
Legal Analysis
I. APPLICABILITY OF WRIGHT-LINE TEST
In determining whether Dolan was subjected to adverse em-
ployer action because she engaged in protected or union activi-
ty, the appropriate test is found in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied

26 GC Exh. 2c.
27 There is no evidence that either received an evaluation prior to
their separation. (GC Exh. 2a-2b, 3.)
28 GC Exh. 5.
29 GC Exh. 6.
30 GC Exh. 8.
31 GC Exh. 9.
32 GC Exh. 10a-c.
33 Although the record suggests that Bronson was terminated approx-
imately 60 days after his appointment as a “transitional/casual” em-
ployee, there is no information as to why he was not considered a pro-
bationary employee.
455 U.S. 989 (1982), approved at NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983). The Gen-
eral Counsel must initially show the employee’s protected ac-
tivity was a motivating factor in the decision to terminate. See
Coastal Sunbelt Produce, Inc. & Mayra L. Gagastume, 362
NLRB 997, 997 (2015) (“Under Wright Line, the General
Counsel has the initial burden to show that protected conduct
was a motivating factor in the employer's decision”). Establish-
ing unlawful motivation requires proof that: “(1) the employee
engaged in protected activity; (2) the employer was aware of
the activity; and (3) the animus toward the activity was a sub-
stantial or motivating reason for the employer’s action.” Con-
solidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007),
enfd. 577 F.3d 467 (2d Cir. 2009) (unlawful motivation found
where the employee became active in union activity, the em-
ployer was aware that he was leading employee meetings, and
the employer singled out the employee for testing).
If the General Counsel prevails, the burden shifts to the Post-
al Service to prove that it would have terminated Dolan regard-
less of her protected concerted activity. Wright Line, 251
NLRB at 1089; Manno Electric, 321 NLRB 278, 281 (1996)
(employer’s affirmative defenses failed to establish that it
would have transferred the workers to new job sites regardless
of their union activities). An employer may not offer pretextual
reasons for discharging an employee. Metropolitan Transpor-
tation Services, 351 NLRB 657, 659 (2007) (finding that em-
ployer’s reliance on a minor infraction and a claim of insubor-
dination were pretexts for discharging an employee); Golden
State Foods Corp., 340 NLRB 382 (2003) (noting that there is
no need to perform the second part of the Wright-Line test if the
reasons for discharge are merely pretextual.
II. THE POSTAL SERVICE’S KNOWLEDGE OF DOLAN’S
UNION ACTIVITIES
Ann Dolan engaged in activity protected under Section 7 of
the Act when she emailed Plummer, Grady, and Marigold about
her intent to file a grievance with the Union over the arbitrary
changes to her start date, and again when she filed a grievance
over that issue and her schedule. In determining the signifi-
cance of such activity within the Wright-Line framework, the
Board is quite alert to the technique of employers “laundering”
a “bad” motive by forwarding a “dispassionate report” to neu-
tral supervisors or superiors. Boston Mutual Life Insurance. Co.
v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982). Here, however,
there is no evidence that any such conspiracy is afoot. Plum-
mer, Grady, and Marigold worked in the Postal Service’s Hu-
man Resources Department and there is no evidence that in-
formation from that portion of the process ever made its way to
Wray or Flick.34
Subsequently, however, supervisors Flick and Johnson were
both present when Dolan asked for a union representative, and
one of these two supervisors permitted Dolan to see a union
representative once they arrived at the facility. Dolan also com-
plained to Fischer and Johnson about not getting her breaks at
the appropriate time, and informed the latter that she brought

34 In fact, Flick unequivocally and credibly denied having any
knowledge of Plummer.
POSTAL SERVICE 7
that issue to the Union’s attention. It is inapposite that Wray,
the supervisor whose approval was needed to terminate Dolan,
may have lacked direct knowledge of Dolan’s union activities.
Boston Mutual Life Insurance, 259 NLRB 1270, 1282 (1982),
enfd. 692 F.2d 169 (1st Cir. 1982) (finding a Section 8(a)(3)
violation even though the management official who ultimately
fired the complainant was unaware of that employee's union
activity). Under Board law, a manager's or supervisor's
knowledge of an employee's union activities is generally im-
puted to the employer. Collins & Aikman Corp., 187 NLRB
620, 625 (1970) (imputing knowledge to the employer where
two supervisors had direct knowledge of employee’s solicita-
tion of union interest signatures); cf. Dr. Phillip Megdal,
D.D.S., Inc., 267 NLRB 82 (1983) (holding that there is no
imputation of knowledge as a matter of law where the employer
affirmatively establishes that the supervisor did not pass on
knowledge of union activities to others).
III. LACK OF ANIMUS TOWARD DOLAN’S UNION ACTIVITIES
Unlawful motive can be proven by direct evidence or cir-
cumstantial evidence of general animus. See Lewis Grocer
Co., 282 NLRB 166 (1986) (finding unlawful motivation based
on the suspicious timing of discipline and respondent’s
knowledge that the discriminatee was involved in a Board in-
vestigation). It is undisputed that Dolan engaged in union ac-
tivity and the Postal Service was aware of this activity. Howev-
er, the General Counsel failed to demonstrate that the Postal
Service displayed animus towards this protected conduct.
Aileen, Inc., 218 NLRB 1419, 1422 (1975) (dismissing an
8(a)(3) claim where discriminatory motive was not proven by a
preponderance of both direct and circumstantial evidence).
A. Dolan’s Requests for Union Assistance
Dolan filed a single grievance complaining about her de-
layed start date by human resources personnel and initial
scheduling at the Ybor facility. There is no evidence, however,
that the Flick, Johnson, or Wray were ever made aware of it.
See Port-A-Crib, Inc., 143 NLRB 483, 484 (1963) (finding the
employer’s incomplete or nonexistent knowledge of the dis-
criminatees’ limited union activities was a compelling factor in
rejecting retaliation claim). Moreover, whenever Dolan asked a
supervisor to consult with the Union, she was able to access a
union steward as soon as one was available. Her supervisors
never inquired as to why she sought union assistance, and there
is no evidence that her supervisors failed to properly follow
proper protocols when employees asked for union assistance.
At no time did any of Dolan’s supervisors express annoyance
towards Dolan’s union activities. See Keller Mfg. Co., 272
NLRB 763, 765 (1984) (rejecting a Section 8(a)(3) retaliation
claim where the employee engaged in limited union activity,
including picketing, attending union meetings, and signing an
authorization card).
B. Alleged Disparate Treatment
The General Counsel contends that Dolan was treated dis-
parately in comparison to other employees. Fluor Daniel, Inc.,
304 NLRB 970, 970-971 (1991), enfd. 976 F.2d 744 (11th Cir.
1992) (holding that “evidence of a blatant disparity is sufficient
to support a prima facie case of discrimination.”). Dolan’s
evaluation and termination process, however, was standard for
probationary employees, and complied with Postal Services
procedures. As a probationary employee, she was not governed
by the progressive disciplinary scheme utilized for non-
probationary employees. Even though Dolan’s evaluation was
completed prior to her 30th day at the Postal Service, she was
nonetheless terminable at-will because of her probationary
status. Moreover, the instructions simply required supervisors
to complete the form “by” 30 days.
The circumstances of Dolan’s separation are largely indistin-
guishable from those of the other two probationary employees
separated from the Postal Service. Hancock and Drew were
employed 36 and 52 days, respectively, when they were sepa-
rated due to unsatisfactory performance and failure to follow
instructions. Neither was afforded the benefit of an evaluation.
Probationary employee Tiarra Cheatham, on the other hand,
was not terminated after receiving a 30-day evaluation that
included four unsatisfactory ratings and one satisfactory rating.
She went on to successfully complete the 90-day probationary
period with satisfactory ratings in every category. Dolan, on
the other hand, received all unsatisfactory categories when she
was evaluated after 21 days and terminated. While Cheatham
may have bested Dolan in only one category—work relations –
the Postal Service’s decision to give her the opportunity to
improve merely highlights the benefit of the doubt accorded an
employee who worked well with co-workers and supervisors.
The General Counsel’s reliance on the disciplinary records
of employees Gard, House, Atakpa and Bronson is misguided
as none of the four employees are similarly situated to Dolan.
No inference of unlawful discrimination can be made where
there are differences in treatment between or among employees
who are not similarly situated. See, e.g., Syracuse Scenery &
Stage Lighting Co., 342 NLRB 672, 674 (2004) (finding no
disparate treatment where confessing employee was not disci-
plined while employees who did not acknowledge their wrong-
doing were disciplined). Gard’s former job title at the Postal
Service is unknown, House was a mail handler, and Atakpa was
a mail handler assistant. Bronson was a PSE, but was a casu-
al/transitional employee. None of these employees were identi-
fied as probationary employees.35 The General Counsel relies
on the fact that none of these employees were discharged for
leaving their workstation, but fails to consider that Dolan was
also terminated for failing to follow instructions, unsatisfactory
work performance, and causing significant problems on her
assigned equipment.
In Merillat Industries, 307 NLRB 1301 (1992), the Board
found that the employer’s termination of the discriminatee was
consistent with its treatment of other employees, even though a
more tenured employee was not terminated for similar conduct.
Id. at 1303. The Board noted that an 8(a)(3) respondent will
rarely be able to present evidence of past employees who were
discharged under identical circumstances to those of the dis-
criminatee. Id. at 1303 fn. 10.
After considering the fact and circumstances relating to Do-

35 The information relating to Bronson is inconclusive given that he
was a “casual/transitional employee” who was terminated about one
month after a mostly unsatisfactory 30-day evaluation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
lan’s separation, including evidence of the Postal Services
comparable treatment of other nonprobationary employees, I
conclude that the General Counsel failed to demonstrate by a
preponderance of the evidence that Dolan was separated in
retaliation for her union activities.
IV. DOLAN WOULD HAVE BEEN DISCHARGED EVEN IN THE
ABSENCE OF HER UNION ACTIVITIES
Assuming, arguendo, that Dolan’s separation was attributa-
ble to unlawful motivation, the preponderance of the evidence
further supports the Postal Service’s claim that it would have
separated her regardless of her protected activities. Manno
Electric, 321 NLRB at 281; Tinney Rebar Services , 354 NLRB
429 (2009) (endorsing the employer’s Wright Line defense after
weighing the employer’s practice of terminating employees
who intend to resign against the employer’s animus).
Dolan’s supervisors reported that she failed to accept instruc-
tions without complaining, did not always clock in and out
appropriately, and did not perform her job duties adequately.
Dolan conceded that she complained about her assigned job
tasks and did not clock out properly on one occasion. She pre-
sented no valid justification for these complaints, as she was
cleared to work without medical restrictions by her doctor prior
to commencing her employment at the Ybor facility. Prior to
September 7, Dolan’s chronic complaining about her job as-
signments foreshadowed a likely negative evaluation. Under
Postal Service procedures, Dolan’s supervisors could have
waited another 9 days before completing her evaluation. How-
ever, Dolan’s failure to return to her work station, thereby caus-
ing mail to back up, spurred a decision by Flick and Wray to
complete Dolan’s evaluation and separate her that day.
The General Counsel argues that Postal Service supervisors
circumvented applicable timeframes in their quest to separate
Dolan. However, Dolan was not the beneficiary of any such
provisions. Article 12 of the ELM does state that the Postal
Service must give at least 7 days advance notice to a probation-
ary employee who is being separated for “scheme failure.”
There is no evidence in the record, however, defining a scheme
failure, much less evidence that Dolan was separated for that
reason. Although she was qualified for her position, Dolan
simply did not meet the standards set by the Postal Service and
her supervisors, leading to her separation. Accordingly, the
Postal Service has met its burden of demonstrating that it would
have fired Dolan regardless of her union activity.
Based on the foregoing, the General Counsel failed to prove
by a preponderance of the evidence that the Postal Service dis-
ciplined and separated Dolan on September 7, 2017, in viola-
tion of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, United States Postal Service, provides
postal service for the United States and operates various facili-
ties throughout the United States. The Board has jurisdiction
over Respondent and this matter by virtue of Section 1209 of
the Postal Reorganization Act.
2. The American Postal Workers Union, AFL–CIO and the
American Postal Workers Union, Local 259, AFL–CIO are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The United States Postal Service did not violate Section
8(a)(3) and (1) of the Act.
4. Ann Dolan was terminated by the United States Postal
Service on September 7, 2017, for legitimate business purposes
due to her failure to follow instructions, long work breaks and
her resistance towards work assignments, and not because she
engaged in union or other protected concerted activities.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36
ORDER
The complaint is dismissed.
Dated: Washington, D.C. July 16, 2018

36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.