U.S. Postal Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. Postal Service and American Postal Workers Union, Local 810, Florence, Alabama. Case 10- CA- I 1924(P) November 15, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 27, 1977, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the 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 herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Based on a charge and an amended charge filed on April 29 and June 25, 1976, respectively, by American Postal Workers Union, Local 810, Florence, Alabama, herein called the Union, a complaint was issued by the General Counsel on July 14, 1976, alleging that U.S. Postal Service, herein called the Respondent, violated Section 8(a)(1), (3), and (4) of the Act. A hearing in this proceeding was held in Florence, Alabama, on February 7, 1977. In issue are the questions whether the Respondent, in violation of Section 8(a)(1) and (3) of the Act, changed the working hours of its employee James D. LeMay in February 1976 because of his union activities and because he filed grievances on behalf of employees and whether the Respondent violated Section 8(a)(1), (3), and (4) of the Act on April 28, 1976, by allegedly issuing a written reprimand to LeMay and prohibiting LeMay from discussing union matters without first obtaining permission and from parking his car in a particular parking lot because he had filed an unfair labor practice charge with the Board and otherwise engaged in union activities. Upon the entire record,I including my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Respondent, I hereby make the following: FINDINGS OF FACT I. JURISDICTION AND THE LABOR ORGANIZATION INVOLVED The Board has jurisdiction over this matter by virtue of section 1209 of the Postal Reorganization Act. The facility involved in this proceeding is the Florence, Alabama, post office. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES This case involves certain actions directed by manage- ment to LeMay which the General Counsel contends were taken because of his union activities and the filing of an unfair labor practice charge with the Board's Regional Office in Atlanta. LeMay has been employed by the Respondent at its Florence, Alabama, post office as a part-time flexible clerical employee since 1972. He normally worked 40 hours a week over a 6-day period. A part-time flexible employee does not work any set hours but works a variable schedule and as a fill-in for regular clerical employees. In September 1975, LeMay was elected as president and chief steward of the Union. Before then he had been only a member. He testified that after assuming office he filed an average of three grievances a month in his official capacity. Before that time, about two to three grievances a year had been filed. There is no evidence that the Respondent has failed to comply with the grievance procedure. In early December 1975, LeMay was transferred to the North Florence station and thereafter filed a grievance challenging the transfer. On January 20, 1976, the griev- ance was resolved in his favor at the regional level in the third step. The parties agreed that under the collective- bargaining contract, LeMay, as chief steward, could not be involuntarily transferred to another tour or station. He was directed to be reinstated to his former tour and station. Upon his receipt of a copy of the decision, LeMay first spoke to Postmaster Donald Holt and then to Thomas Darby, superintendent of postal operations at Florence. He was told they had not yet received a copy of the decision and would take the necessary action when they received the decision. Upon receipt of the grievance disposition letter several days later, LeMay was transferred back to his original position at the main post office in Florence on January 28. Darby told him he did not agree with the disposition of the grievance but would abide by it. This transfer has not been alleged in the complaint as unlawful. The General Counsel contends this transfer was the Respondent's first overt reaction to LeMay's activities as a I Errors in the transcript have been noted and corrected. 233 NLRB No. 89 518 U.S. POSTAL SERVICE union official. Darby testified LeMay was sent to the North Florence station for the Christmas rush period.2 On January 16, 1976.3 Postmaster Holt was notified by higher management of a tightening of the budget and that expenses would have to be reduced through the end of June in all areas, including Florence. The Respondent then embarked on an expense reduction program with the major thrust being in reducing man-hours. Sometime in late January or early February, John Riggs, director of mail processing, Decatur, Alabama, center, made a routine visit to the Florence, Alabama, post office. At the time the afternoon shift consisted of one regular clerical employee, one part-time flexible employee (LeMay), and one or sometimes two casual employees. LeMay worked on this shift from I p.m. to 7-8:30 p.m.; the regular clerical employee worked from 11 a.m. to 7 p.m.; the casual employee worked from 3 p.m. to 6 p.m. Riggs explained that from I to 3 p.m. no first-class mail needed processing at the station and recommended to Darby that LeMay's starting time be moved ahead to 3 p.m. He also recom- mended discontinuing the use of casual employees on the afternoon tour. Thus, a saving of 5 man-hours would result on this tour. Moreover, Riggs considered the reduction in man-hours from I to 3 p.m. to be operationally more advantageous because of changes which were made whereby more raw mail was being processed in Decatur than had been previously processed in Florence. The next day Darby told LeMay of Riggs' visit and explained he would have to rearrange LeMay's schedule because his afternoon starting time would be at 3 p.m. rather than I p.m.4 He offered LeMay three alternative schedules in order to maintain a 40-hour week for LeMay and asked LeMay to consider them. Three or 4 days later, Darby asked LeMay if he had decided which of the alternatives he desired. LeMay rejected them and said he would not agree voluntarily to any change in his hours. Thereupon Darby decided to change LeMay's afternoon hours to 3-7 p.m. and also scheduled him for morning hours whereby LeMay retained his 40-hour week. On April 20, LeMay mailed an unfair labor practice charge against the Respondent to the Board's Regional Office in Atlanta where it was received on April 22. A copy of the charge was received by the Respondent on April 20.5 In this charge he referred to his involuntarily transfer to North Florence and the change in his shift hours. On or about April 22, LeMay asked Acting Supervisor Hanback for permission to discuss a grievance concerning employee Haddock.6 Hanback suggested Le- May wait until Darby returned from leave to discuss the grievance. On April 28, after Darby had returned, LeMay received permission from Hanback to discuss the grievance with Darby. LeMay and Haddock stood by Darby's office talking to each other for about 10 minutes waiting to see Darby who was then talking on the telephone. Finally, Hanback told LeMay to return to work and see Darby 2 The four branch stations flowing from the Florence post office were at North Florence, Tuscumbia. Sheffield. and Muscle Shoals. 3 Unless otherwise indicated, all dates hereinafter refer to 1976. The use of casual employees was discontinued on the afternoon tour. After a conversation with a Board agent, the charge was returned to LeMay without being docketed. The instant charge using more standardized descriptive language was thereafter filed on April 29. a In accordance with the contract, permission is first required to investigate or process a gnrievance. later. When LeMay said he wanted to discuss the grievance with Darby, Hanback insisted he return to work, Darby then being unavailable. LeMay then requested and was granted permission by Hanback to write up a formal grievance concerning Haddock. LeMay testified he spent about 45 minutes in preparing the formal grievance and then returned to work. That afternoon Hanback handed LeMay a piece of paper he had prepared and asked LeMay to read it. Employee Hill was present at Hanback's request who wanted someone to witness that LeMay read the paper. It contained a list of four "Do's" and "Don'ts." First, LeMay was not to confer with employees about the Union or other matters for extended periods of time without permission. Second, LeMay was not to work out of his schedule unless requested to do so. Third, LeMay was responsible for changing the date on the canceling machine since he worked on Saturday afternoon on a regular basis. Fourth, LeMay was not to park his car at the north end of the building because these parking spaces were reserved for supervisors. Hanback told LeMay not to violate any of the items listed or he would be counseled. 7 LeMay told Hanback he did not think he was guilty. Hanback replied he did not want to hear about it. LeMay then called him an "asshole." Hanback then got angry and said he would take LeMay to the postmaster and "We'll straighten you out." In Holt's office, Hanback explained to Holt he had given LeMay written instructions because LeMay had not been carrying out oral instructions and he complained that LeMay called him an "asshole." Holt said he did not condone such language and told both Hanback and LeMay the working area was not the place to settle disputes. He said the collective-bargaining agreement provided for machinery to resolve disputes. He directed LeMay to follow Hanback's instructions and if he disagreed he could file a grievance.8 There was no discussion about Hanback's instructions to LeMay. Ill. ANALYSIS AND DISCUSSION The complaint does not allege that LeMay's transfer to North Florence in December 1975 was unlawfully motivat- ed. Although more grievances were filed during the 3- month period LeMay was in office than theretofore, there is no evidence the Respondent harbored any resentment towards him because of the grievances. The grievance he filed concerning this transfer was resolved in his favor. I do not find that the transfer was motivated by antiunion considerations. I find that the Respondent did not change LeMay's schedule in February 1976 because of his union activities. The Respondent's reasons for the change were convincing. We are not faced with a question of disparity of treatment. LeMay was the only part-time flexible employee on the afternoon tour. The casual employees on that tour were eliminated. The Respondent recognized that eliminating 2 hours from LeMay's afternoon tour would 7 Art. XVI, sec. 1, of the contract provides as follows: "For a minor offense, counselling in pnvate shall be the method of dealing with that offense. Counselling is a private matter between the supervisor and the employee." 8 There are some minor variances in the versions of the conversation in Holt's office offered by Holt and LeMay. I find Holt's account more plausible and convincing and credit his version. 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cut down his weekly number of hours and accommodated him by offering him alternatives so that he could retain the full 40 hours. The General Counsel considers the paper presented to LeMay by Hanback on April 28 as a written reprimand. I do not agree. Rather, I consider the items listed therein as cautionary instructions to LeMay. LeMay admitted he was told by Hanback the April 28 incident did not constitute "counseling," the first step in the disciplinary procedure. The first item which instructed LeMay not to confer about union matters for extended periods without permission cannot be viewed as undue harassment. That very morning Hanback had given LeMay permission to discuss a grievance with Darby. It was only after Darby remained unavailable for about 10 minutes while LeMay stood around talking with Haddock that Hanback first directed LeMay to return to work. And then LeMay was immedi- ately granted permission by Hanback to prepare a formal grievance concerning his fellow employee. The preparation of the grievance took about 45 minutes and no adverse reaction or criticism was displayed by Hanback. As to the second cautionary instruction, the working out of the schedule, Hanback testified LeMay did not maintain the hours called for on the afternoon tour and did not perform all the work that should have been done during the tour. As for the responsibility to change the date on the canceling machine on LeMay's Saturday afternoon tour, the testimo- ny clearly showed management was concerned that it should not be charged by higher headquarters with late deliveries of mail. And when the date stamp was not changed from a Friday to a Saturday, one additional day for delivery was charged. This had occurred in the past and had occurred again on Saturday, April 24. LeMay had been told in the past of his failure to change the date on the machine. Concerning the parking, LeMay had been parking his car at the north end of the building occasional- ly for some period of time without comment from management. There were only four spaces available. There 9 Hanback also posted a notice to employees they were not to park there. '0 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. was another parking lot where employees normally parked. On April 27, another supervisor had remarked to Hanback that he had been experiencing difficulty in finding a space for his car at the north end of the building. Thus, Hanback included this caution in his "instructions" to LeMay. 9 It is not for me to sit in judgment as to whether Hanback exercised supervisory wisdom in issuing the instructions to LeMay. The question properly posed is whether the Respondent was motivated by unlawful considerations; i.e., LeMay's activities as a union official and/or his aborted unfair labor practice charge. I am not convinced such is the case. There is no evidence of any union animus or of any resentment towards LeMay because of his role as union president or chief steward. No complaints were registered because of his filing of grievances. There is no evidence he was ever refused permission to investigate or process a grievance. It was true the Respondent was aware of LeMay's unfair labor practice charge on April 20, but nothing was said about it. Accordingly, I conclude the preponderance of the evidence does not support any of the allegations contained in the complaint. CONCLUSIONS OF LAW 1. U.S. Postal Service is covered by the Act and subject to the Board's jurisdiction. 2. The General Counsel has not established by a preponderance of the evidence that the Respondent has engaged in any unfair labor practices as alleged in the complaint. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '0 The complaint is dismissed in its entirety. 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. 520