United States Postal Service

UNITED STATES POSTAL SERVICE United States Postal Service and St. Louis Local, American Postal Workers Union, AFL-CIO. Case 14 CA-1I 1572(P) March 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 15, 1978, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, United States Postal Service, St. Louis, Missouri, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me in St. Louis, Missouri, on August 10, 1978, pursuant to charges timely filed and a complaint duly issued on July 18, 1978, wherein it is alleged that Respon- dent violated Section 8(a)(1) and (3) of the Act by suspend- ing employee Melvin Sanders for 7 days because he en- gaged in union and/or concerted activities with other employees for their mutual aid and protection. Respondent duly denied the commission of any unfair labor practices. On the basis of the entire record, the demeanor of the witnesses as they testified before me, and the post-trial briefs filed by the parties, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent provides postal service for the United States of America and operates various facilities throughout the United States in the performance of its duties. Its main office is in Washington, D.C. The facility involved in this proceeding is located in St. Louis, Missouri. The Board has jurisdiction over this matter by virtue of Section 1209 of the Postal Reorganization Act. 11. THE I.ABOR ORGANIZATION St. Louis Local. American Postal Workers, AFL-CIO. herein referred to as the Union. is a labor organization within the meaning of Section 2(5) of the Act. III. THEF ALI.lFGED UNFAIR LABOR PRACTICES A. The Evidence The facts are not in dispute. Employee Melvin Sanders is a union steward who writes a monthly column in the Union's newsletter, "Press On."' On June 13, 1978, Sanders was given the following suspension notice: You are hereby notified that you will be suspended for a period of seven (7) calendar days beginning on June 16, 1978. at 3:30 P.M. You are to return to duty June 23, 1978, at 3:30 P.M. The reasons for this suspension are: I. Disrespectful Attitude Towards Postal Supervi- sion In the June 1978 issue of the American Postal Work- ers Union's publication, the "Press On," an article appears on Page 6 entitled "Tour 3-A Closer Look." This article contains your byline and reads, Management is loading Tour 3 with acting super- visors. These are the flunkies that management doesn't really want to make full time supervisors, so they let them act as supervisors, so they can make damn fools of themselves. For instances, there is one on the LSM's who gives letters of warning for look- ing in the trash can, there's one in the Illinois Sec- tion who management makes take off his hat before he can act as supervisor, and they even have a sub that can't qualify on the LSM, but he acts as an LSM supervisor. Acting supervisor, acting fool, or acting a-hole. Three different names, but they all mean the same. This article represents a grossly disrespectful atti- tude towards postal supervision and undermines management's efforts to maintain the efficiency of its operations. You have the right to file a grievance under the Griev- ance-Arbitration procedure set forth in Article XV, Section 2 of the National Agreement within 14 days of your receipt of this notice. The quoted language in the notice is a verbatim recita- tion of the entire content of Sander's June column which he I "Press On" is mailed to local union members, honorary retired personnel, advertisers, state and national offices of the Union, the Library of Congress, members of the Senate and House Post Office committees, the Postal Press Association which is apparently composed of member papers issued at other postal locations, and some of the St. Louis Post Office's supervisors. 241 NLRB No. 61 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrote as a result of information from other employees that they were having difficulties with acting supervisors. On June 14, Respondent issued Sanders the following notice of suspension: This letter amends letter "Notice of Suspension of 30 days or less," which you received June 13, 1978. You are hereby notified that you will be suspended for a period of seven (7) calendar days beginning on Mon- day, June 19, 1978, at 3:30 PM. You are to return to duty Monday, June 26, 1978, at 3:30 PM. The reasons for this suspension are: I. Disrespectful Attitude Towards Postal Supervi- sion In the June 1978 issue of the American Postal Work- ers Union's publication, the "Press On," an article appears on Page 6 entitled "Tour 3-A Closer Look." This article contains your byline and reads, (second paragraph) as follows: Acting supervisor, acting fool, or acting a-hole. Three different names, but they all mean the same." This article represents a grossly disrespectful atti- tude towards postal supervisions and undermines management's efforts to maintain the efficiency of its operations. You have the right to file a grievance under the Griev- ance-Arbitration procedure set forth in Article XV, Section 2 of the National Agreement within 14 days of your receipt of this notice. The amended letter was issued after Respondent received legal advice that the first paragraph of Sanders' article was protected and any action against him should be based on the second paragraph. As the June 14 letter reflects, Sand- ers was suspended the 7 calendar days commencing June 19. B. Discussion and Conclusions Respondent's position is that Sander's suspension was based solely on his use of the word "a-hole,"2 which con- stituted vulgar, abusive, egregious, and opprobrious name- calling directed at acting supervisors, whose indentities were known on the workroom floor, and was "designed to dissuade a member of the bargaining unit from acting as a supervisor and to effectively dissuade them from carrying out their role while acting in that capacity." Respondent contends that the use of the word is therefore unprotected activity warranting discipline, and asserts that it only took issue with that portion of the newsletter article referring to "a-hole." I find that Respondent's position that it only took issue with the use of the word "a-hole" is belied by its action in issuing the initial suspension notice of June 13 on the basis of the entire content of Sanders' article. That it may have later decided to base the suspension solely on the second paragraph because of legal advice that paragraph I would not warrant discipline does not alter the plain fact that Re- spondent took umbrage at the entire article. Its retreat to I agree with Respondent that this is a contraction of"asshole" and would generally be so understood by the reader. ostensible reliance on the second paragraph indicates to me that Respondent sought to do on the basis of that para- graph what it wanted to do on the basis of the entire article, which was thwarted by advice that it could not legally sus- pend Sanders for statements made in the opening para- graph. In short, Respondent read Sanders' article, reacted with a suspension on the basis of the entire article, and then seized on the second paragraph, more specifically the word "a hole," as a reason which might hold water. Accord- ingly, I am persuaded that the asserted reliance on the sec- ond paragraph is a pretext designed to disguise Respon- dent's real motive for the suspension, which was the entire article. Further, the two sentence paragraph ultimately proffered by Respondent as a reason for suspension is directly related to the preceding statements which criticize Respondent's utilization of acting supervisors and the qualifications and performance of those employees so designated. In effect, paragraph 2 is a summation of Sanders' opinion of the con- duct of the acting supervisors discussed in paragraph I and must be considered in that context. Sander's article in the union newsletter, whose primary targets are Respondent's employees even though it is dis- tributed to others, conveyed the message that the on-the-job conduct of acting supervisors, an obviously work related problem of interest to employees, was of concern to and protested by employees. This message was based on com- plaints of Respondent's employees made to Sanders, a union steward. The article is clearly protected concerted union activity. That Sanders resorted to "rhetoricl hyper- bole" to emphasize disapproval of the acting supervisors does not deprive the article of its protected nature, nor does the fact that Respondent may have been offended by the use of "a-hole" as a descriptive term. Sanders' expression of opinion might have been couched in words more accept- able to management, and "a hole" is plainly a derogatory epithet, but, as the Supreme Court has said: . . the most repulsive speech enjoys immunity pro- vided it falls short of a deliberate or reckless untruth.3 Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 63 (1966); and: But Linn recognized that Federal law gives a union license to use intemperate, abusive, or insulting lan- guage without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point. Old Dominion Branch No. 469, National Associ- ation of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1974). For the foregoing reasons, I find that, by suspending Melvin Sanders because he authored an article in "Press On" and thereby engaged in protected concerted union ac- tivity, Respondent violated Section 8(a)(1) and (3) of the Act.4 There is no contention that Sanders' article was, in full or in part, delib- eratel and/or recklessly untrue. ' See Springfield Library and Museum Association, 238 NLRB 1673 (1978). 390 UNITED STATES POSTAL SERVICE IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take other appropriate actions to remedy its unfair labor practices. I therefore rec- ommend that Respondent be required to make Melvin Sanders whole for wages lost by reason of the 7-day suspen- sion levied upon him, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 5 I further recommend an order that all records of and references to said suspension be totally ex- punged and physically removed from all of Respondent's personnel and other records wherein the suspension is now noted, and that Respondent be required to post a notice advising its employees of their rights and of "The Remedy" in this case. CONCLUSIONS OF LAW 1. Respondent is an employer engaged within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By suspending Melvin Sanders because he engaged in protected concerted union activity Respondent violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER6 The Respondent, United States Postal Service, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Suspending its employees, or otherwise discriminat- ing in any manner with respect to their tenure of employ- ment or any term or condition of employment, because they engage in protected concerted union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: sSee, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Make Melvin Sanders whole for any loss of pay he suffered by reason of his unlawful 7-day suspension. Said backpay shall be computed in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge and physically remove from its records any suspension notices and any references thereto relating to the suspension of Melvin Sanders for 7 calendar days begin- ning June 19, 1978. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll and all other records required to assertain the amounts of any backpay due under the terms of this Order. (d) Post at its St. Louis, Missouri, facility copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILtl. NOT suspend our employees or otherwise discriminate in any manner with respect to their tenure of employment or any term or condition of employ- ment because they engage in protected concerted union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. WE WII.L make Melvin Sanders whole for any loss of pay he may have suffered by reason of his suspension for 7 calendar days beginning June 19, 1978. WE WILL expunge and physically remove from our records and files any suspension notices and any refer- ences thereto relating to the suspension of Melvin Sanders beginning June 19, 1980. UNITED STATES POSTAL SERVICE 391