United States Postal Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and David Drazek and Judi Bari, and David C. Drazek. Cases 5-CA 9170(P) and 5-CA-9331(P) March 28, 1979 DECISION AND ORDER BY MEMBERS PENELLI.O, MURPHY, AND TRUESDALE On December 14, 1978, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and Charging Party Bari filed an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 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, Largo, Maryland, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir, 1951). We have carefully examined the record and find no basis for reversing his findings. I In the absence of exceptions thereto, we adopt, pro forma, the Adminis- trative Law Judge's finding that Respondent did not violate the Act by pro- hibiting the distribution of the December and January issues of Postal Strife. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we vio- lated the National Labor Relations Act and has or- dered us to post this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bar- gaining with us To act together for your common interests or protection To refuse to participate in or oppose any or all of these things. WE WILL NOT confiscate or prohibit the distri- bution of leaflets critical of your recognized col- lective-bargaining agent, including leaflets of the Postal Underground, where such distribution takes place in nonworking areas on nonworking time. WE WILL NOT suspend you or otherwise dis- criminate against you for exercising the rights listed above. WE WVIL. NOT in any like or related manner interfere with, restrain, or coerce you in your rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE Wll.. make David C. Drazek whole for any loss of pay he may have suffered as a result of his suspension on March 8, 1978, plus interest. UNITED STATES POSTAL SERVICE DECISION STATEMENT OF THE CASE HurroN S. BRANDON, Administrative Law Judge: This case was heard before me in Washington, D.C., on August 22 23, 1978.1 The charge in Case 5-CA-9170(P) was filed by David Drazek (hereinafter called Drazek) and Judi Bari (hereinafter called Bari); both individuals, on February 1, while the charge in Case 5-CA-933 I(P) was filed by Drazek on March 24. The complaint in the initial case issued on March 22, and the complaint in the later case issued on May 16. Both were consolidated for hearing by an order consolidating cases dated June 12. The complaints as con- solidated allege violations of Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act, by United States Postal Service, herein called Respondent. The issues presented are whether Respondent violated Section 8(a)(1) of the Act by (a) banning or prohibiting distribution of publications of Postal Strife and (b) suspending Drazek for his protected concerted activities in connection with the distribution of Postal Strife. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following: I All dates are 1978, unless otherwise stated. 241 NLRB No. 74 524 UNITED STATES POSTAL SERVICE FINDINGS OF FA(' 1. JURISDICTION At all times material, the Board has had jurisdiction over this case by virtue of Section 1209 of the Postal Reorganiza- tion Act, 39 U.S.C. §1201 09, herein called PRA. II. IHE ALI.EGEI) UNFAIR I.ABOR PRA(TI(ES A. Background Respondent operates a bulk mail center in Largo. Mary- land, the only location involved in this proceeding, where it employs approximately 800 employees. A substantial num- ber of these employees are represented by Local 305 of the National Post Office Mail Handlers. Watchmen, Messen- gers and Group Leaders Division of the Laborers' Interna- tional Union of North America, AFL-CIO, herein called the Mail Handlers or the Union. The Mail Handlers and Respondent were parties to a collective-bargaining agree- ment applicable to the Largo facility commonly known as the Washington Bulk Mail Center or WBMC. The collec- tive-bargaining agreement between the parties was effective at all times material herein and contained a provision, arti- cle XVIII, in which the Union agreed on behalf of its mem- bers that it would not call or sanction a strike or slowdown. In addition, the agreement in article XXII provided that Respondent would furnish a bulletin board for the exclusive use of the Union and further provided that the Union could place their literature racks in swing rooms. However. the agreement added, "Only suitable notices and literature may be posted or placed in literature racks." In addition, the agreement stated. "There shall be no posting or placement of literature in literature racks except upon authority of officially designated representatives of the Union." In the fall of 1977, certain employees of Respondent at the WBMC became active in an organization called the Postal Underground. Drazek, the charging party herein, be- came a member of that group, which he described in his testimony as a group of rank-and-file employees whose pur- pose it was to try to change undesirable working conditions at the WBMC, including mandatory overtime and em- ployee "harassment," and also to expose the inefficiency of the unions representing employees at the WBMC. including the Mail Handlers. Pursuant to those ends, the Postal Un- derground began publishing a monthly newsletter in Octo- ber 1977, known as Postal Strife.' While statements and comments contained in the monthly publications of Postal Strife will be more fully described below. it is sufficient to note at this point that Postal Strife was highly critical of Respondent's management and the Mail Handlers. It ap- pears that the November and December 1977 issues of 2 According to Drazek's testimony, the Postal Underground was incorpo- rated in March or April as Postal Strife. No officers had been named at the time of the hearing, but the organization did have bylaws and a charter. Aside from Drazek and the other charging party, Bari, who were the primary contributors of articles to the Postal Strinfe newsletter, no other members of the Postal Underground or Postal Strife were named in the record. Postal Strife, the organization as opposed to the newsletter. appears to have been used interchangeably with Postal Underground by Drazek in his testimony. Postal Strife were distributed at the WBMC without inci- dent. It was the subsequent distributions of Postal Under- ground materials which encountered difficulties from Re- spondent and gave rise to the charges and complaints herein. B. The JanuaN 10 Incidents Drazek, employed by Respondent at the WBMC as a mail handler who loaded and unloaded trucks under the supervision of Orville Blue, supervisor of the outbound docks, came to work on January 10 at around 7:10 a.m. with a stack of leaflets3 announcing a Mail Handlers union meeting at 3 p.m. on JanuarN 14. The space on the leaflet for designation of the place of the meeting was filled with question marks, and the tone of the leaflet, which requested that employees come to the meeting prepared to ask ques- tions regarding specified matters of employee concern, was clearly sarcastic and obviously designed to put the Union and its leaders in an embarrassing light, since, according to the leaflet, the Union had agreed at its prior meeting in December to hold regular meetings on the second Saturday of each month with "adequate notification" to employees of at least I week. The leaflet advised employees to ask certain named union representatives for the location of the meeting by calling them either at their homes or at the WBMC. That the leaflet was a publication of the Postal Under- ground was established not only by the name Postal Under- ground, Mail Handlers Division, appearing on the bottom of the leaflet but also bh the symbol of the Postal Under- ground, a vulture appearing within a regular United States Postal Service logo. Drazek credibly testified without contradiction that he was stopped by Walter Robinson, mail processing manager for Respondent, and Henry Jones, tour (shift) superinten- dent, who both advised Drazek that the leaflets would not be allowed in the building. Although Drazek protested that it was illegal to stop him from trying to distribute the leaf- lets, he was advised to take the leaflets back outside and that there would be no more Postal Strife allowed in the building. Drazek then proceeded to talk to Julie McCarthy, gen- eral manager of the WBMC, and asked her why they would not be allowed to give out the leaflets. He testified that he was told by McCarthy that Respondent did not have to allow distributions of the leaflet because "they" (Postal Un- derground) were not a recognized bargaining agent. Mc- Carthy, called by Respondent, did not specifically dispute Drazek's testimony but added more details. She testified that she advised him that the Mail Handlers bulletin boards and literature racks in the facility were the proper places for official union notices of meetings and that the leaflet was not an official notice, that it was a fictitious document and Drazek was not a union official authorized to distribute no- tices of official union meetings and he would not be allowed to post and circulate the leaflet. Bari, also employed by Respondent at the WBMC as a mail handler, testified that on January 10 at around 6:20 p.m., just prior to the beginning of her shift, she distributed 'G.C. Exh. 5. 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Respondent's cafeteria some of the same leaflets regard- ing a Mail Handlers meeting referred to above. She saw Drazek, who informed her of the difficulty he had encoun- tered with the leaflets earlier that morning. The two then proceeded to Bari's timeclock, where she intended to punch in. Both were carrying leaflets. They were approached by James Strong, a tour superintendent, and General Supervi- sor James Sheppard. Sheppard proceeded to escort Drazek, who had completed his shift, out of the building while Strong told Bari that they were not to distribute those "pa- pers." Bari insisted that they had a legal right to distribute them, but Strong told her that she could take what legal recourse she wanted but that he was going to take the "pa- pers." He then refused Bari's request to either put the leaf- lets in her locker or give them to Drazek and, instead, took them from her. Strong was not called by Respondent, and the statements and action attributed to him by Bari on January 10 are uncontradicted. I therefore credit her testimony regarding Strong. The General Counsel relies upon Drazek and Bari to es- tablish complaint allegations that Respondent, through Robinson, banned distribution of Postal Strife in Respon- dent's facility; through McCarthy, prohibited distribution of literature other than that authored by the recognized bargaining agent in Respondent's facility; and, through Strong, confiscated issues of Postal Strife, all in violation of Section 8(a)(l). C. The February 2 Events The complaint alleges that on February 2 mail processing manager Robinson directed employees to remove Postal Strife publications from Respondent's facility and that General Manager McCarthy told employees that they could not bring Postal Strife publications into Respondent's facility. In support of these allegations, the General Coun- sel again relies upon the testimony of Drazek. Drazek related that on the morning of February 2 he was coming in to work with a bundle of newspapers, publica- tions of the Rank-and-File Postal Worker, a San Francisco group, when he was again stopped by Robinson. Robinson, again according to Drazek's uncontradicted and therefore credited testimony. told Drazek that Drazek was not al- lowed to bring in Postal Strife or any other paper. Although Drazek showed Robinson what the material was, Robinson replied that it did not make any difference and took the material from Drazek. Subsequently, on February 2, Drazek had a conversation with McCarthy in her office concerning the papers. Accord- ing to Drazek, McCarthy told him that the distribution of "these" newsletters involved complex legal issues and that neither she nor Drazek was competent to address those is- sues, but that if he continued to bring them he would leave her no other alternative than to have them confiscated from him. McCarthy's testimony was that she called Drazek into her office on February 2 after she had received notice of the charge' having been filed. She concedes that she told him ' It is clear that the charge in Case 5-CA 9170(P) had been filed the day preceding this statement of McCarthy, but Drazek testified that she did not refer to the filing of the charge. that the distribution of "his literature" involved compli- cated legal issues but says she added that the issues were being addressed through the framework of the Board by both Postal Service attorneys and Drazek's attorney and that management was willing to abide by any sort of ruling or settlement determination. She further asked his coopera- tion to abide by the work rules that had been set out for him until such time as a ruling was received, but also added that if he continued to ignore those work rules and her requests he would leave her with no choice but to pick up his material and possibly subject him to disciplinary action for failure to follow instructions. Drazek replied only by saying that she was wrong. I credit McCarthy's version of her conversation with Drazek on February 2 with respect to the minor but appar- ent conflicts in their respective testimony. McCarthy im- pressed me as a credible witness with a good recall of detail. Moreover, her testimony that the matter was being dis- cussed between attorneys in an attempt to resolve it re- ceives some support from the fact that on February 8 Mc- C('arthy again called Drazek in and advised him that "his material" was going to be allowed to be distributed in non- work areas, on nonwork time, "with very specific details as to where and when."5 D. The Suspension of David Drazek The complaint in Case 5-CA 9331(P) alleges that Re- spondent suspended Drazek on March 8 for 7 days because of his protected concerted activities in distributing literature during his nonwork periods in nonwork areas. The suspen- sion was based directly on events occurring on February 10 but indirectly on events occurring on February 8, inasmuch as the events of the latter date were considered in Respon- dent's deciding on the suspension. It was Drazek's testimony that on February 8 he came to work with literature including the Rank-and-File Postal Worker, Postal Strife, and some other "leaflets" which he identified as announcements of a Postal Strife meeting. Su- pervisor Blue told him that Blue was under instructions to confiscate anything that Drazek brought in. Blue then called General Supervisor Sheppard over. Sheppard told Drazek that he was not allowed to have the material in the building and asked Drazek to follow him. He directed Dra- zek to put the material in Drazek's locker and wait until 9:00, when Sheppard could talk to McCarthy and Robin- son about what to do. Drazek asked if he could check with his lawyer, and Sheppard replied that he could but said he was taking Drazek off the clock. Drazek protested that he couldn't do that. Then, according to Drazek, Sheppard es- corted Drazek to the security office and told him, "Get out and never come back." None of the restrictions noted and imposed by McCarthy on February 8 on Drazek's distributions are alleged to be unlawful. Such restrictions voiced to Drazek included a prohibition of commercial newspapers on the work- room floor (because of the possibility of confusion with mailed newspapers). McCarthy also advised Drazek that the distributor of any literature would be responsible for the content of the material distributed and that where such material "encouraged, condoned, or otherwise had the effect of producing illegal activities, such as slow-downs, sick-outs, work stoppages of one vari- ety or another," the distributor would be responsible and subject to disciplin- ary action. 526 UNITED STATES POSTAL SERVICE Drazek left but later in the day was telephoned by Mc- Carthy. who directed him to report to the WBMC. There Drazek met with McCarthy at 2:00 p.m., and McCarthy related to him the distribution rules as already referred to above. Respondent reimbursed Drazek for the time lost in being sent home that day, but on February 27 Drazek re- ceived a warning letter signed by Supervisor Blue and dated February 22 based on Drazek's February 8 conduct. Neither Drazek's suspension on February 8 nor any of the comments attributed by him to Sheppard or Blue were alleged by the General Counsel as violative of the Act. Sheppard was not called as a witness in the matter, and Blue only briefly alluded to the February 8 events on cross- examination. Blue testified that he had told Drazek the rule was that if' Drazek were to bring printed materials on to the workroom floor Blue was to confiscate them. Blue in- structed Drazek to leave the materials on Blue's desk and report to his truck. According to Drazek's warning letter, Drazek reported to his truck but took his literature or mate- rial with him. It was after that that Blue called Sheppard into the matter, and Sheppard. according to the warning letter,, directed Drazek to put the material in his locker, but Drazek refused. On February 10. Drazek had some leaflets which he tes- tified pertained to a Postal Strife meeting, which he in- tended to distribute in the break areas.' As he was going to the break area during breaktime with the leaflets, he was going through Blue's work area, where he encountered em- ployees Melvin Mitchell and Robert Barrow. According to Drazek, Barrow stopped him and took a leaflet from him although Drazek did not hand it to him. Thereafter Blue told him he was not allowed to give out leaflets in work areas, and Drazek claimed that he had not. Blue, on the other hand, testified that he had seen Drazek hand a copy of the material he was distributing to either Barrow or Mitchell but that since their backs were to him, he could not see which one. Barrow and Mitchell were both called as witnesses by the General Counsel. Mitchell testi- fied that he recalled the date but could not recall Drazek having any literature in his possession. Further, he testified that Drazek had not given him any literature and that he had not seen Drazek give Barrow any literature in Mitch- ell's presence, although Mitchell conceded that Barrow had been in the vicinity at the time. Barrow frankly and cred- ibly testified that he had received literature from Drazek numerous times but that he could not recall whether Dra- zek gave him any literature or that he took any literature from Drazek on the morning of February 10. Drazek's suspension letter, dated March I and given to Drazek on March 2, reflects that he was suspended for in- subordination, based on his distribution of material to Bar- row and Mitchell on February 10 in a work area. contrary to instructions issued him on February 8. The letter also indicated that his warning letter of February 22 and his 6 G.C. Exh. 6. Respondent contends that the record does not establish that the material or leaflets distributed hb Drazek on February 10 related to protected con- certed activity. Since I accept Drazekss testimony, uncontradicted on the point, that it pertained to a Postal Strife meeting, I reject Respondent's contention. counseling of January 38 were considered in deciding on his suspension. E. Contenlionls and Conclusions 1. The prohibition of distribution of leaflets and "Postal Strife" The General Counsel argues that Respondent's broad prohibition of the Postal Strife literature violated Section 8(a)(I). citing United Parcel Service. Inc., 230 NLRB 1147 (1977). Consistent with this argument, the General Counsel urges that "Postal Strife" and the material published therein constituted activity protected under the Act. That it was recognized by Respondent as protected was demon- strated. the General Counsel argues, because after the ini- tial charges were filed Respondent allowed the distribution of Postal Strife and never disciplined anyone for the con- tents of Postal Strife. Respondent offers a number of arguments in its defense. Initially, Respondent contends that the complaint allega- tions with respect to the January 10 incidents are without merit because they' refer to restrictions and confiscations of Postal Strife but the evidence reflected that Postal Strife was not involved, only the fake announcement of a Mail Handlers union meeting. I find no merit in this contention, inasmuch as the notices clearly designate that they were the products of the Postal Underground. the producer at that time of Postal Strife. The leaflet had the same logo as ap- peared on Postal Strife. I deem the leaflet and Postal Strife to be sufficiently related to justify the complaint references to the leaflets as Postal Strife distributions. Moreover, the complaint could not have been misleading in this regard, since the allegations involve the January 10 date and there was no showing of any other distribution of Postal Strife on that date. And finally, I credit Drazek's uncontradicted tes- timony that Robinson on January 10 stated that no more Postal Strife would be allowed in the building, thus clearly showing Respondent's recognition of the leaflet's associ- ation with Postal Strife. The Respondent next argues that the January 10 leaflet distribution and posting did not constitute protected con- certed activity under the Act. I disagree with this conten- tion insofar as distribution of the leaflet is concerned. Al- though Drazek testified that the notice of the meeting was not a "sarcastic" commentary, it is obvious from examina- tion of the leaflet that it was intended to prod the Union into action with respect to concerns listed in the leaflet and was critical of the Union's failure to meet with employees. With the name of the Postal Underground on the bottom of the leaflet and with the place of the meeting indicated only by question marks, it could hardly be mistaken as an official notice of a union meeting. And while the leaflet might have been embarrassing to the Union. such embarrassment serves as no basis to remove distribution of the leaflet from the protection of the Act. It is true that the leaflet suggested that employees ask union representatives at the WBMC about the place of meeting either in person or by phone (giving the home tele- I The record contains no explanation of any counseling of Drazek on Januar 3. 527 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone number of one union representative), but there was no evidence that those officials received any harassment as a result of the leaflet, and Respondent presented no evi- dence that the leaflet resulted in any disruption of work. Further, even if the Union complained to management about the leaflet, such complaints also do not detract from the protected nature of the leaflet.9 Considering the forego- ing, I conclude that the January 10 leaflet was a legitimate protest of what the Postal Underground viewed, rightly or wrongly, as union inefficiency or inactivity with respect to attention to, and resolution of, employee concerns listed in the leaflet, as well as the Union's failure to meet with the employees. I therefore find that the leaflet was a lawful protest entitled to the protection of the Act. To the extent that the leaflet was posted in certain areas of the WBMC, Respondent was within its rights to remove the posted leaflets. Section 7 of the Act has been interpreted to grant employees the right to distribute literature on com- pany premises under many circumstances, but it does not bestow upon them a right to the use of bulletin boards or other plant surfaces for the posting of information. Eastex, Incorporated, 215 NLRB 271 (1974), enfd. 550 F.2d 198 (5th Cir. 1977), modified on other grounds 556 F.2d 1280 (5th Cir.), affd. 437 U.S. 556 (1978). Accordingly, McCar- thy was entitled to bar, as she did on January 10, the post- ing of the leaflet in the WBMC. But she could not also bar, as I find she did, circulation of the leaflet on the premise that it was not an official union announcement. Likewise, the barring of the leaflet by Robinson, Jones, and Strong and the confiscation of the leaflets by Strong from Bari constituted interference, restraint, and coercion of employ- ees in the exercise of their Section 7 rights. That Respon- dent did not threaten or impose discipline for distribution of the leaflet is irrelevant. I find that Respondent, by pro- hibiting the circulation of the leaflet on January 10 and then confiscating the leaflet, violated Section 8(a)(l) of the Act.' 0 With respect to the complaint allegations regarding the February 2 barring of the Postal Strife newsletter from the WBMC by Robinson and McCarthy, Respondent contends there was a failure of proof. Respondent argues that Drazek was not carrying Postal Strife that morning, when Robin- son told him he could not bring Postal Strife or any other newspaper in. That is true, but the undenied fact remains that Robinson included Postal Strife in his broad prohibi- tion. The ban existed then, whether or not Drazek had any ' As the court said in V L. R B. v. Mid-State Metal Products, Inc., 403 F.2d 702. 704 (5th Cir. 1968), quoted with approval by the Board in The Magna- vox Company of Tennessee. 195 NLRB 265, fn, 7 (1972): The rights to distribute materials or solicit in organizing for collective bargaining are rights of individual employees, relating to their selecting (or choosing not to select) and constantly re-evaluating their collective bargaining agent. They are to be distinguished from rights which em- ployees acting in concert, through the collective bargaining agent, may exercise in attempts to achieve economic advantage. 0 Respondent also appears to argue that there were other means of criti- cizing the Union available to the Postal Underground, specifically the Postal Strife newsletter. aside from the leaflet distribution. This is nothing more than a bootstrap argument, which I find unmeritorious, since Respondent, around the same time it barred the leaflet, barred distribution of Postal Strife. Moreover, as will be subsequently seen. Respondent argues that bar- ring of Postal Strife was lawful because distribution of that newsletter was unprotected under the Act, inasmuch as it urged and encouraged employees to engage in unlawful conduct. Postal Strife newsletters with him at the time. This ban was imposed and existed independently of any legitimate re- striction which Respondent could impose on the bringing in of other material, including regular newspapers. Similarly, McCarthy by her own testimony admitted she told Drazek that distribution of "his literature" involved complex legal issues. "His literature" in the past had in- cluded Postal Strife newsletters. By asking him to cooper- ate, and by threatening discipline for not cooperating with respect to "his literature," McCarthy was imposing restric- tions on Drazek's distribution of "his literature." I find it not unreasonable to draw the inference that McCarthy was referring to Postal Strife newsletters and that by threatening discipline she was making it clear that she did not want Postal Strife brought in and distributed. I so conclude. This conclusion is buttressed by McCarthy's own admission that in January she instructed her supervisors not to allow distri- bution of Postal Strife. There was no showing that that direction was ever specifically countermanded or retracted, although on February 8 McCarthy announced to Drazek the legitimate distribution restrictions. Accordingly, I find that there has been no failure of proof that Respondent did ban distribution of Postal Strife newsletters through Robin- son and McCarthy, as alleged in the complaint, even though the total ban did not continue beyond February 8. This brings us to the more critical issue argued by Re- spondent, that distribution of the Postal Strife newsletter was not an activity protected by Section 7 of the Act. Re- spondent argues that its collective-bargaining agreement with the Union contains a no-strike provision, article XVIII, and, in addition, that postal employees are statutori- ly" prohibited from striking. The December and January issues of Postal Strife, according to Respondent's argument, encouraged employees to engage in concerted work stop- pages, contrary to the employees' contractual and statutory obligations, and thus the distribution of those newsletters was unprotected activity. Examination of the December and January issues of Postal Strife lend support and credence to Respondent's argument that those issues encouraged the employees to use unlawful self-help through concerted sickouts and break ex- tensions. Thus, the first page of the December issue2 re- ports on a Thanksgiving "slick-out" following an announce- ment of 2 hours of mandatory overtime. While only a relatively small number of employees engaged in the "slick- out" by filling out sick leave slips, the "slick-out" did suc- ceed in disrupting operations, according to the report. The report then proceeded to state: Postal Underground supports any progressive actions against forced overtime. But it should be pointed out that a sick-out would require workers to sign their names and stick their necks out without knowing how many people were supporting them. A more realistic approach would be to unite the work- ers in a common bond-like sitting out in the cafeteria. At least then we would know who was on out side and who was scab, and we could draw strength from each other for a united action. ' 39 U.S.C. §410b) 5 U.S.C. §7311. 1 G.C Exh. 2. 528 UNITED STATES POSTAL SERVICE The same issue of Postal Strife contained an article re- garding opposition to Respondent's allowance of only 10 minutes for breaks. The article noted that some employees at WBMC on Tour 11 had unofficially won the right to 15- minute breaks just by taking them. It then concludes: HOW ABOUT IT! Wouldn't you rather have a few minutes to relax during a busy day? You never know- it might even give you a better outlook on this place. We believe that if enough of you out there want a 15 minute break, you'll get it. Start acting today on breaks and maybe it will become official sooner than you think. We can do it by sticking together in a common goal: To try and make the WBMC a better place to work in. "ATTENTION ALL PERSONNEL: Your 10 minute break is over!" You could still have 5 more minutes. It's up to you. In another article on excessive damage to mail, supervi- sory preoccupation with quotas and speed is blamed, and the author offers the following advice: Management offers us no incentives to do things right, and the only way we can ever change this place is if we the workers take the correct running of the plant into our own hands. If your supervisor tells you to ignore sorting or operating procedures so they can get their quote [sic] ignore them. They wouldn't dare write you up for it. The December issue also contains a cartoon of which the humor is based on the comic character's obscene response to an order of a supervisor, in effect advising the supervisor that he could go f-k himself. The January issue of Postal Strife, distributed sometime after January 16, was somewhat more subtle in its over- tures. It reported on the high absentee rate over Christmas Eve and New Year's Eve as a result of people calling in sick. While this article, entitled "BMC Flu." stated that it was hoped that the sickout would "help management figure that we are human beings, and after slaving 66 or more hours a week for the holiday season, we need some time to be with our families and friends," the article pointed out that the absences were "completely spontaneous and un- planned." However, the author concluded that maybe if management would stop working the employees to death with overtime they wouldn't get sick so much. It is clear that Section 7 of the Act "protects employees ... when they denounce their employer for his conduct of labor relations or affairs germane to the employment rela- tionship." Jefferson Standard Broadcasting Company, 94 NLRB 1507, 1511-12 (1951), affd. sub nom. N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electri- cal Workers, 346 U.S. 464, 475 (1953). This protection is not without some limitation, however, and an employer's right to maintain plant discipline includes the right to bar inflam- matory propaganda from its premises in the course of an employee campaign to obtain improved wages in a collec- tive-bargaining agreement. Southwestern Bell Telephone Company,. 200 NLRB 667, 671 (1972). Further, it has also been held that distribution of literature on employer prem- ises holding employer officers and officials up to ridicule and contempt, which has the necessary tendency to disrupt discipline in the plant, is unprotected. Mary'land Drdock Company v. N.L.R.B., 183 F.2d 538, 539 (4th Cir. 1950); Indiana Gear Works, a Division of Buehler Corporation v. N.L.R.B., 371 F.2d 273 (7th Cir. 1967). Thus, some con- certed activity by employees may be so indefensible as to warrant employer discipline or discharge. Jefferson Stan- dard Broadcasting Company, supra; N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962). In any case, however, there must be "an adjustment between the undis- puted right of self-organization assured to employees . . . and the equally undisputed right of employers to maintain discipline in their establishments." Republic Aviation Corpo- ration v. N.L.R.B., 324 U.S. 793, 797-798 (1945). The issue here boils down to whether the December and January issues of the Postal Strife newsletter held Respon- dent's supervisors up to ridicule and contempt or were oth- erwise so obscene or offensive as to have the necessary ten- dency to disrupt discipline, rendering distribution of those issues unprotected under Section 7 of the Act and making Respondent's barring of such distribution lawful. Consider- ing the December and January issues as a whole, I conclude that their content and tone were so obscene, offensive, and obnoxious as to be far outweighed when balanced against Respondent's need for proper discipline. Notably, the De- cember issue, through the cartoon already noted, can only be construed as obscenely advocating complete disregard of supervisory instructions. Indeed, the same issue at another point exhorts employees to "take the correct running of the plant into our own hands" and directs employees to ignore supervisory directions which employees may individually determine are contrary to "sorting or operating proce- dures." Such exhortations and directions are nothing more than clarion calls to insubordination. The continued theme of avoidance of managerial author- ity is found in the blatant advocation of the extension of the 10-minute break periods through self-help in defiance of break rules as well as the Respondent-Union contractual provision against slowdowns and strikes. Finally, the De- cember issue's apparent approval of the Thanksgiving "slick-out," coupled with the express support of "progres- sive actions against forced overtime," including the sug- gested "sit out" in the cafeteria, is no less disruptive of production and plant discipline. The January issue, by also reporting on the Christmas Eve and New Year's Eve "sick-out," i.e., the BMC Flu, with obvious approval, was likewise disruptive of both dis- cipline and production. No doubt, although spontaneous, those "sick outs" received the encouragement of the De- cember Postal Strife's expressed support of"progressive ac- tion" against forced overtime. That many of the criticisms and concerns expressed in the December and January Postal Strife issues were well founded may not be open to question. Some of its aims may well have been legitimate. But the manner in which they were expressed here and the advocation of self-help in the face of contractual restrictions were in complete disregard of the proper employee discipline which is essential to the success of both management and employees in their com- mon enterprise. I conclude that by any measure the December and Janu- ary issues of Postal Strife could be reasonably construed as 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being obscene, offensive, and a threat to plant discipline.' Thus, I find that those issues fell outside the ambit of the protection of Section 7 of the Act. It therefore follows that Respondent's barring of distribution of those issues in its facility up to February 814 did not violate Section 8(a)( 1) of the Act. I so find. 2. The Drazek suspension In arguing that the March suspension of Drazek was un- lawful, the General Counsel refers to the February 22 warn- ing letter issued to Drazek based on the February 8 events and contends that the February 22 letter was "unwar- ranted," apparently because Respondent retracted Drazek's "discharge" of February 8 and paid him for the time he lost. The General Counsel then hypothesizes that having both the February 8 and 10 incidents, involving Drazek, before it. Respondent realized that before it could take ac- tion on the February 10 incident it had to issue a warning letter to Drazek based on the February 8 events, a warning letter that was based on "something" which was Respon- dent's own fault, i.e., its unlawful restriction on distribution of literature protected under the Act. Further, the General Counsel claims that the February 10 incident was "too triv- ial" to justify suspension. Respondent, according to the General Counsel's argument, stinging from Drazek's Postal Strife activities, decided to impose discipline and was not willing to overlook "something that they had overlooked in the past." Thus, aside from the simple issue, as framed in the complaint, of whether Respondent suspended Drazek for his alleged conduct of February 10 in distributing litera- ture in work areas contrary to Respondent's announced re- strictions, the General Counsel appears to be arguing a pre- text theory. The distribution rules announced to Drazek by McCar- thy on February 8 were clear and lawful and are not alleged to be otherwise by the General Counsel. Moreover, there was no contention that such rules were discriminatorily promulgated. Accordingly, if Drazek did violate the lawful no-distribution rule on February 10, Respondent was not precluded from taking appropriate disciplinary action, not- withstanding the existence of any previous unlawful prohi- bitions on distributions of "Postal Strife" of which Drazek may have run afoul, unless Respondent seized upon the prior incidents to obstruct protected employee activity. See Uniflite, Inc., 233 NLRB 1108 (1977). 1 am not persuaded that there was any such purpose in Respondent's actions. The pretext argument loses persuasiveness not only in view of the General Counsel's failure to allege and show that the February 22 warning letter was unlawful but also because there was no showing that the disciplinary procedure under the Respondent-Union contract required a warning letter for a prior offense as a necessary step for suspension for a subsequent offense. While the March 2 suspension letter does refer to the February 22 warning letter as a consider- 1" While the November 1977 issue of Postal Stnfe is also contained in the record. I have found it unnecessary to comment upon it, inasmuch as Re- spondent appeared to have taken no steps to bar its distribution. 14The fact that Respondent after February 8 may have allowed further distribution of the January Postal Strife newsletter does not detract from the unprotected nature of that issue or the right of Respondent to initially bar its distribution in its facility. ation in the suspension, I am not convinced that such con- sideration was improper or "unwarranted," since I have found that Respondent could lawfully have barred the dis- tribution of Postal Strife newsletters which Drazek had in his "materials" on February 8. Too, Respondent's reinstate- ment of Drazek on February 8 with pay for time lost as a result of his having been sent home does not, without more, establish that Respondent had decided to forego all disci- pline of Drazek for his conduct on that date. Lastly, the timing of the February 22 warning letter and the March 2 notice of suspension do not reflect an intent on Respon- dent's part to retaliate against Drazek for his Postal Strife activities as such. Had Respondent been so disposed, more precipitous action could have been expected. There remains, however, the issue of whether Drazek passed out leaflets in a work area, as claimed by Respon- dent. This requires a credibility resolution between Drazek and Blue. I credit Drazek's version of the February 10 inci- dent and find that he did not hand the leaflet to Barrow but that Barrow reached into Drazek's stack of leaflets and took the leaflet from him. Barrow did not contradict this, nor did Mitchell, who was also present, for neither man had a recol- lection of the incident. I am persuaded that the failure of the recollections of both Barrow and Mitchell was genuine. After all, it was not a matter of great significance to either of them and they were not questioned about it by anyone until 2 or more days later. On the other hand, I was im- pressed by Drazek's apparent sincerity in testifying on the point. Moreover, while Drazek, as shown by both his testi- mony and his conduct reflected in the case as a whole, was not the type of employee to be hesitant to confront or even contradict management, I am not convinced he would have distributed literature in work areas only 2 days after Mc- Carthy had so clearly laid out the no-distribution rules to him. Moreover, it would be highly unlikely that Drazek would go through a work area with the intent of distribut- ing material contrary to Respondent's rules and yet hand a leaflet to only one person. Finally, the accuracy of Blue's testimony on the incident was not persuasive. The backs of Mitchell and Barrow were admittedly to Blue at the time, and he was unable to specify which one received the docu- ment allegedly handed out by Drazek. And he made no effort to verify his observation by checking with either Mitchell or Barrow. This did not prevent him from signing Drazek's suspension letter drafted in such a way as to erro- neously suggest that Drazek gave a document to both men. Having found that the leaflet being distributed by Drazek was one calling for a Postal Strife meeting, I find that the leaflet distribution was a protected activity.' Since Drazek's suspension was based on alleged misconduct in connection with that protected activity, i.e., breach of the no-distribu- tion rule, and since I find that that misconduct did not is Although Respondent. as I have found, could have barred distribution of the Postal Strife newsletter, in its facilities without violating employee Sec. 7 rights, it could not similarly lawfully bar distribution of leaflets announcing meetings of Postal Strife, the organization. See United Parcel Service, Inc., 230 NLRB 1147 (1977). The aims of Postal Strife, the organization, in early February were not in derogation of the Union, nor does it appear that Postal Strife sought to displace the Union in spite of the fact that Postal Strife was highly critical of the Union. Accordingly, the distribution of notices of Postal Strife meetings, I find, was a protected activity under the Act. 530 UNITED STATES POSTAL SERVICE occur, it follows, and I find, that Drazek's suspension inter- fered with his protected concerted activities. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964). I therefore con- clude that Respondent violated Section 8(a)(l) in suspend- ing Drazek. CONCLUSIONS OF LAW 1. Respondent, United States Postal Service, is subject to the jurisdiction of the National Labor Relations Board pur- suant to the National Labor Relations Act, as amended, by virtue of certain provisions of Chapter 12 of the Postal Re- organization Act, 39 U.S.C. §1201 09. 2. By confiscating and prohibiting the lawful distribution of leaflets of Postal Underground critical of the recognized collective-bargaining representative. on January 10, 1978, Respondent violated Section 8(a)(1) of the Act. 3. By suspending David C. Drazek for 7 days, beginning March 8, because of his distribution of a leaflet announcing a Postal Strife meeting, Respondent violated Section 8(a)(1) of the Act. 4. Respondent has not violated the Act in any other re- spect alleged. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and post an appropriate notice. Since I have found that Respondent unlawfully sus- pended David C. Drazek for a period of 7 days, I shall recommend that Respondent be ordered to make him whole for any loss of earnings that he may have suffered as a result of such suspension. Any backpay for Drazek shall be computed in accordance with the formula approved in F. W. Woolworth Company,. 90 NLRB 289 (1950), with in- terest computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).'6 Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ' See, generally, Isis Plumbing & Heaing Co., 138 NLRB 716 (1962). "1 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. ORDER 7 The Respondent, United States Postal Service, Largo, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Confiscating or prohibiting the distribution among employees of leaflets critical of the recognized collective- bargaining representative, including leaflets produced by the Postal Underground, where such distribution takes place in nonworking areas on nonworking time. (b) Suspending employees for exercising rights guaran- teed by Section 7 of the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make David C. Drazek whole for any loss of pay he may have suffered by reason of his suspension by payment to him of a sum of money equal to the amount he normally would have earned as wages but for the suspension, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents. for examination and copying. all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rel- evant and necessary to a determination of the amount of backpay due under the terms of this recommended Order. (c) Post at its Largo, Maryland, bulk mail facility copies of the attached notice marked "Appendix."' s Copies of said notice, on forms provided by the Regional Director for Re- gion 5, after being duly signed by the Respondent's autho- rized representative, shall be posted by it 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. (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaints be dismissed in- sofar as they allege violations of the Act not specifically found. i' In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 531