United States Postal Service

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Alfred Schreiber. Case 21-CA-10734(P) March 1, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 3, 1972, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a -supporting brief, and Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This proceeding was tried before me on July 18 and 191 at Los Angeles, California, with all parties present or represented by counsel. The_ complaint,2 issued pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleged that the United States Postal Service (herein Respondent) had violated Section 8(a)(4) and (1) of the Act when it suspended employee Alfred Schreiber because he had filed an unfair labor practice charge with the National Labor Relations Board (herein the Board). The complaint further alleged that Respondent I All dates herein are 1972 unless otherwise indicated 2 The original charge was filed by Schreiber on March 7 and the first amended charge filed on April 17 3 Public Law 91-375, 84 Stat 719, Title 39, USC, Section 1209 Applicability of Federal labor laws (a) Employee-management relations shall, to the extent not inconsistent with provisions of this title, be subject to the provisions of subch 2 of ch 7 of title 29 (b) The provisions of ch Il of title 29 shall be applicable to labor organizations that have or are seeking to attain recognition under sec 1203 of this title, and to such organizations, officers, agents, shop stewards, other representatives, and members to the extent to which such provisions would be applicable if the postal service were an employer under sec 402 of title through its agent and supervisor, Jacob Landesman, ordered employees not to discuss unionism or veteranism with their fellow employees and further requested employ- ees to substantiate their visits to the Board and did thereby, discourage the employees from exercising their statutory rights all in violation of Section 8(a)(1) of the Act. The answer of Respondent denied the commission of any unfair labor practice and additionally denied that it is an employer as defined in Section 2(2) of the Act because the U.S. Postal Service is an agency of the United States Government, but at the hearing stipulated that the Respondent is subject to the Act because of the language contained in section 1209 of the Postal Reorganization Act.3 Respondent also stipulated that Lucille Ashford and Jacob Landesman are supervisors and agents of Respon- dent within the meaning of Section 2(11) and (13) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and the briefs received from the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION The United States Postal Service, as established and created by the Postal Reorganization Act, (herein PRA), is a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by act of Congress, and supported by the people. The postal service has as its basic function the obligation to provide postal services to bind the nation together through the personal, educational, literary, and business correspondence of the people. As reflected in that portion of the PRA set forth, supra, at footnote 3, in creating the United States Postal Service Congress specifi- cally provided that it shall be subject to the provisions of the Act, to the extent not inconsistent with provisions of the PRA. I find Respondent to be an employer engaged in commerce within the meaning of the Act and that it will accord with the will of Congress and effectuate the policies of the Act for the Board to exercise jurisdiction herein. 11. THE LABOR ORGANIZATION The complaint alleges, the Respondent admits and I herewith find the National Association of Postoffice Mail Handlers, Local 21, herein called the Union, is and at all material times herein has been a labor organization within the meaning of Section 2(5) of the Act. 29 In addition to the authority conferred on him under sec 438 of title 29, the Secretary of Labor shall have authority, by regulation issued with the written concurrence of the postal service, to prescribe simplified reports for any such labor organization The Secretary of Labor may revoke such provision for simplified forms of any such labor organization if he determines, after such investigation as he deems proper and after due notice an opportunity for a hearing, that the purposes of this chapter and of ch i I of title 29 would be served thereby (c) Each employee of the postal service shall have the right, freely and without fear of penalty or reprisal , to form, join, and assist a labor organization or to refrain from any such activity, and each employee shall be protected in the exercise of this right 202 NLRB No. 24 UNITED STATES POSTAL SERVICE 51 III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Why was Schreiber suspended for 3 days? 2. Did Respondent interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Act? B. The Evidence Alfred Schreiber is an employee at the Los Angeles terminal annex where he is employed as a full-time mailhandler assigned to permanent light duty because of a job-incurred injury. He is vice president of the Los Angeles local of the National Postal Union (NPU) which was recognized by the Los Angeles Post Office prior to July 20, 1971, but which has not had an official status since that date because recognition is now on a national basis only and the NPU is not one of the seven nationally recognized unions. He is an officer of the Disabled American Veterans Organization in Los Angeles. His immediate supervisor is Jacob Landesman. On March 6, Schreiber submitted & request for 6 hours of unscheduled annual leave to be taken on March 7 on form 3941 which is normally used to request unscheduled annual leave.4 The reason given for the request was: "Appoint- ment National Labor Relations Board. Personal Business." Schreiber was asked to provide some substantiation (upon his return to work) that he actually visited the National Labor Relations Board. According to the testimony of Mrs. Ashford, who is the second tour (meaning "shift") superintendent, requiring substantiation is not an unusual procedure. Substantiation is required by the supervisor if the workload is particularly heavy or in the event the individual requesting the unscheduled leave is frequently absent and in the judgment of the supervisor it is necessary under the circumstances at that time. According to Landesman, the leave form was first marked approved. When Schreiber indicated that he would not provide substantiation for this request, or any other annual leave request, the leave slip was then marked disapproved with the letters AWOL appearing thereon. According to uncontradicted testimony in the record, these leave slips are the property of the government and are filed with the data center, but no action is taken unless the leave is actually taken by the individual making the request. In this instance, Schreiber did not take the leave. On the ninth day of March, Schreiber reported for work and worked approximately 15 minutes at which time he and Mr. Feldman went to see Mr. Landesman to ask permission to go to the break area where they wished to discuss Mr. Feldman's adverse action case in which Mr. Schreiber was going to represent him.5 Mr. Landesman had prior knowledge of the adverse action hearing regarding Mr. Feldman and readily granted the request. At that time, according to Mr. Landesman, he told Schreiber and Feldman that he would leave their 7020 forms, which are required for employees who are leaving the work area, on his desk to be picked up when they were ready to leave the work area. The hearing was to be held at approximately 8 a.m. on the morning of March 9. According to the testimony of Mr. Schreiber and Mr. Feldman, they did not see Mr. Landesman again that morning and picked up the forms from Mr. Landesman's desk and proceeded to the adverse action hearing. Both men testified that they had seen Supervisor Hockenhull shortly before 8 o'clock and asked him if he knew the whereabouts of Mr. Landesman. This conversation was verified by Mr. Hockenhull. According to Jacob Landesman, Schreiber approached him about 7:45 or 7:50 on the morning of ,March 9 and accused Landesman of having destroyed the 3971 request for unscheduled leave form which he had submitted on the prior Monday. (The March 6 request related heretofore.) According to Landesman, Schreiber had apparently checked with the data service and the data service had not been able to indicate to them that his form had been filed as would have been the normal procedure. Landesman contended that he had filed the 3971 form in the normal routine manner. During this conversation, according to Landesman, Schreiber became very loud and abusive and it was because of this act of insubordination on the part of Schreiber that Landesman thereafter submitted a person- nel action request recommending that Schreiber be given a 3-day suspension for insubordination. Schreiber denies this conversation ever occurred. However, Virginia Williams, an employee of 27 years at the terminal annex who is now a foreman of mail, stated that she saw Schreiber and Landesman talking sometime after 7:30 a.m. on the morning of March 9, 1972. Mrs. Williams was not able to add any material evidence regarding the conversation, but could only testify that she did see them talking. Manuel Lest, a rank-and-file employee of some 24 years' service, testified that he saw Landesman and Schreiber talking about 7:45 a.m. on the morning of March 9, and he heard Schreiber state that "he would file charges." According to Lest, they appeared to be arguing and Schreiber was talking in a very loud voice. Anna Mae Ward has been employed by the postal service for the past 6 years as a regular mail carrier and is the steward for the mail handlers' union. Mrs. Ward testified that on March 10, shortly after Schreiber received his notification of suspen- sion, a first-step grievance meeting was held as provided for in the provisions of the now current union contract, and at that meeting Schreiber "did not deny having had the conversation with Landesman on March 9." Mrs. 4 Scheduled leave refers to an employee's vacation period as scheduled in the late fall of each year for the following year . Presumably this was done on the basis of seniority keeping in mind the necessity of maintaining a reasonable work force at all times . Unscheduled leave refers to leave which has been earned by an employee, but which is taken on short notice and generally for short periods such as increments of I hour. Thus an employee might earn 120 hours of leave per year , take 80 hours as a scheduled vacation period and still have 40 hours to be used as needed or necessary in the form of unscheduled leave. 5 Mr. Schreiber was entitled to represent certain employees prior to the Postal Reorganization Act, but after the new legislation his union was not one of those recognized during the transitional period pending elections to determine the employee representatives . However, Mr. Schreiber was permitted to represent employees at their request on matters which arose prior to January 3. 1972. This particular adverse action regarding Mr. Feldman had occurred prior to January 3, 1972, and Mr. Schreiber was properly entitled to represent him at the hearing upon Mr. Feldman's request. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mann, who has been employed by the postal service at the Los Angeles terminal annex for the past 4 years as a clerk, testified that she saw Schreiber and Landesman on the early morning of March 9, and they appeared to be arguing. Mr. Frierson, an employee of the Los Angeles terminal annex for the past 25 years as a regular mail handler, testified that he heard Schreiber and Landesman talking together on March 9 sometime after 7:30 and that they were speaking in loud voices and appeared to be arguing. The testimony of Feldman does not corroborate Schreiber's denial of the incident. The testimony of Feldman only makes clear that there were several minutes between 7:43 a.m. and 8:00 a.m. on the morning of March 9, that he was working and did not know where Schreiber was or what Schreiber was doing. The evidence is overwhelming that Schreiber and Landesman argued on the morning of March 9 and I so find. The critical evidence and testimony in this proceeding was given by Mrs. Ashford who testified that following the receipt of the recommended suspension of Schreiber by Landesman that she had her supervisors make a careful investigation of the situation and then report to her. Mrs. Ashford indicated that the decision to suspend Mr. Schreiber for 3 days was entirely hers and that she did not consult with her superior. Following the investigation which she directed be made, she alone made the decision to suspend Mr. Schreiber and at that time she had no knowledge that Mr. Schreiber had at any time ever filed an unfair labor practice with the National Labor Relations Board or for that matter had ever gone, or requested leave to go, to the National Labor Relations Board. Mrs. Lucille Ashford was a most impressive witness and I credit her testimony in its entirety. As superintendent of tour 2, or the 7 a.m. to 3:30 p.m. shift, at the terminal annex, she directs the work of 1,070 employees of whom 69 are supervisors. Mrs. Ashford has occupied her current position for 5 years, has been in supervisory positions for 15 years, and has 30 years of service with the post office. While the evidence seems unmistakable that notification of the filing of a charge by Schreiber against the Respondent was received in Mrs. Ashford's office at 12 noon on March 9, I credit fully her testimony that she had no knowledge of the filing of a charge until late March or mid-April-well after the suspension of Schreiber on March 15 through 17. The timestamps indicate that the letter containing the notification of a charge having been filed with the National Labor Relations Board was stamped in by one of the clerks in Mrs. Ashford's office at about 12 noon on March 9; there followed a stamp of 1:15 or 1:45 by the executive division, Los Angeles. The executive division is located in another building from that building in which Mrs. Ashford's office is located and she testified that the letter was evidently placed in the intraoffice mail and sent to the postmaster shortly after having been received and stamped by the clerk in her office. The mail also has the stamp of the personnel department and the assistant personnel director's initials indicating it was forwarded from the 6 While final disposition of the resulting grievance filed by Schreiber with the Union would not in any way effect the disposition of this matter, nevertheless it is of interest to note that the grievance was settled at the third step of the grievance procedure Schreiber's suspension was reduced from 3 executive division to personnel and received by personnel on March 10, 1972. Mrs. Ashford's explanation is perfectly logical, is supported by the timestamps on the mail (see Resp. Exh. 2(a), (b), and (c)) and I am convinced that it happened exactly in accordance with her explanation and I so find. Jacob Landesman testified that he had no -knowledge of a charge having been filed when he prepared the recommendation for the 3-day suspension because of insubordination on Mr. Schreiber's part. Mr. Landesman further testified that it was not until some 3 weeks to a month after March 9 that he learned that Schreiber had filed an unfair labor practice charge against the Postal Service and Mr. Landesman had never seen the charge or Board cover letter (Resp. Exh. 2(a), (b), and (c)) until it was shown to him at the trial of this case. I fully credit Mr. Landesman's testimony in this regard. It is therefore apparent that there cannot be an 8(a)(4) violation because Jacob Landesman had no knowledge of the filing of an unfair labor practice charge with the National Labor Relations Board at the time he made his recommendation to have Schreiber suspended for 3 days because of insubordination. More importantly, the individual who made the actual decision to suspend Schreiber for 3 days, Mrs. Ashford, had absolutely no knowledge of the filing of a charge by Schreiber and made the decision to suspend Schreiber only after a thorough and impartial investigation by supervisors other than herself or Mr. Landesman.6 I therefore find that the sole and only reason for Schreiber's suspension on March 10, for the period March 15 through March 17, by Superintendent Ashford stemmed from his acts of insubordination toward Foreman Landesman and was done in accordance with the recommendation of Foreman Landesman, but only after a thorough and impartial investigation of the material facts indicated the recommended suspension to be necessary and desirable. I shall recommend dismissal of the alleged violation of Section 8(a)(4). The 8(a)(1) Allegations The complaint alleged that Respondent, through Fore- man Landesman, ordered employees 7 not to discuss unionism or veteranism with their fellow employees and that Foreman Landesman requested employees to substan- tiate visits to the Board in order to discourage them, from exercising their statutory rights all of which is alleged to be in violation of Section 8(a) (1) because it interfered with, restrained, or coerced employees in the exercise of their rights as guaranteed in Section 7 of the Act. These allegations I find to be without merit and I shall recommend dismissal of this portion of the complaint for the reasons set forth hereinafter. For some time prior to January 1972, Schreiber was employed as a light-duty mailhandler in the cutting-belt area of the terminal annex where his supervisor was Foreman of Mails Sobel. Landesman replaced Sobel as the supervisor for the cutting-belt area in mid-January 1972. At the terminal annex, regular quarterly reports are days to I day, but no further action was taken and the Union elected not to proceed to arbitration 7 The complaint was drafted in the plural, but all the evidence related only to what may or may not have been said to one employee UNITED STATES POSTAL SERVICE distributed to all supervisors showing the names of employees who regularly use their sick leave as it accumulates. If an employee's name appears on three consecutive quarterly reports the employee is placed on restricted sick leave . The effect of restricted sick leave is to require an employee to substantiate the use of all subsequent sick leave by providing a written statement from a physician or other reasonable evidence verifying the purposes for which an employee is using his sick leave. On February 3, 1972, Landesman placed seven employees in his unit on restricted sick leave based on information appearing in a quarterly report issued the latter part of January. Although Schreiber's name appeared on the January report, indicating that he too was using more sick leave than was desirable, Landesman did not place him on restricted sick leave . Landesman testified that he did not place Schreiber on restricted sick leave on February 3, at the time he placed the other seven employees in his unit on restricted sick leave, because Schreiber informed him that he was already substantiating all of his sick leave absences. On a later date, Landesman checked the Postal Service Data Office and learned that Schreiber was not substantiat- ing his sick leave and thereafter placed Schreiber on restricted sick leave . This action was not taken until after Landesman had discussed the matter with Schreiber's former supervisor, Mr. Sobel, who informed Landesman that he had counseled Schreiber about excessive use of sick leave. There were two or three other instances during the month of February in which Schreiber either requested unscheduled leave for union business , or questioned Landesman's personnel decisions in a manner which necessitated Landesman advising Schreiber that he was no longer authorized to represent employees in union matters under the new contract and any further union business or leaves for union business would have to be substantiated. Mrs. Ashford testified that on February 17 the mailhan- dler's union president, Brownlee, had complained to her concerning the attempts by Mr. Schreiber to represent mailhandlers in union-related matters. These conflicts between Landesman and Schreiber had caused Landesman on February 7 to recommend a 15-day suspension of Alfred Schreiber because of these minor acts of insubordi- nation and his general attitude toward supervision. (See Resp. Exh. 1.) After an investigation , Mrs. Ashford denied the recommended 15-day suspension of Schreiber, but requested General Foreman Edward Kamper to have an instructional meeting with Schreiber and Landesman to advise them of the elements of insubordination . General Foreman Edward Kamper had conducted classes instruct- ing all supervisors regarding the terms of the national agreement and was considered well qualified for such an instructional meeting. Kamper testified that at the meeting he discussed the meaning of insubordination , describing examples such as demeaning a supervisor in front of employees, challenging order of supervisors, threatening to file charges against supervisors in front of employees and in general "showboating." On Friday, March 3, Landes- man and Schreiber were engaged in a conversation regarding a minor personnel action and in the conversation Schreiber contends that Landesman gave him a direct order that he should not talk veteranism or unionism to 53 any of the employees . Under cross-examination, Schreiber modified his testimony stating that Landesman told him not to talk about veteranism or unionism among the employees when they were "on the clock." Landesman denied ever ordering Schreiber not to discuss unionism or veteranism with his fellow employees. There is no independent corroboration of either man's version of this incident and I am left to determine through some magical powers exactly which version is correct . Based on the entire testimony in this proceeding, I am inclined to feel that Landesman may have apprised Schreiber again of the fact that he was no longer authorized to represent employees in union matters. I cannot conclude that Schreiber was ordered by Landesman not to discuss unionism or veteranism with his fellow employees . In any event even if it did occur, and I have the gravest doubt, it would be a lone and isolated incident not warranting the finding of a violation. The complaint alleges that Respondent through Fore- man Landesman requested employees to substantiate visits to the Board in order to discourage them from exercising their statutory rights . There is no conflict in the evidence and I find that Landesman asked Schreiber to provide some substantiation of his request for unscheduled leave on March 7 in order to keep an appointment with the National Labor Relations Board . However, in view of the established policy of the Postal Service to require substan- tiation for all unscheduled leave if the supervisor deemed it necessary and desirable under the working conditions at the time, and particularly in view of Schreiber's frequent periods of being away from the job for one excuse or another, I find nothing unusual in the request by Foreman Landesman of Schreiber . As has been expressed many times before and with approval of the courts "worktime is for work." The problem of "unscheduled absences" was the subject of a memo to all supervisors from the postmaster dated November 17, 1971. (See Resp . Exh. 4.) The record in this case makes it obvious that Schreiber resented the efforts by Landesman to maintain some reasonable degree of efficiency and productivity in his area of work and authority . Undoubtedly, Mr. Schreiber is somewhat miffed because "his" union no longer has the right to represent the employees and the resulting curtail- ment of his freedom of movement has caused him to be somewhat resentful of all supervisory authority. Upon the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, United States Postal Service, is an employer engaged in commerce and specifically made subject to the provisions of the National Labor Relations Act by action of the United States Congress by the Postal Reorganization Act. 2. The National Association of Post Office Mailhan- dlers, Local 21, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not through numerous alleged acts violate Section 8(a)(1) as alleged in the complaint, and Respondent did not in any manner interfere with, restrain, 54 DECISIONS OF NATIONAL or coerce its employees in the exercise of rights guaranteed in Section 7 of the Act. 4. The Respondent did not violate Section 8 (a)(4) of the Act in suspending employee Alfred Schreiber for 3 days. Alfred Schreiber was suspended because of acts of insubordination. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case , and pursuant to Section LABOR RELATIONS BOARD 10(c) of the Act, I hereby issue the following recommend- ed: ' ORDER It having been found and concluded that the Respon- dent, United States Postal Service , has not engaged in unfair labor practices the complaint herein is dismissed in its entirety.