256 NLRB No. 12
United States Postal Service
78
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and National Associ
ation of Letter Carriers, Local 76, AFL-CIO
and James R. Durkin. Cases 32-CA-1386(P)
and 32-CA-146 l(P)
May 20, 1981
DECISION AND ORDER
On
September 27, 1979, Administrative
Law
Judge George Christensen issued the attached De
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
The Board has considered the record and the at
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The complaints allege that Respondent, by its
foreman, James H. Siller, violated Section 8(a)(1)
of the Act by:
1. Denying employee Eileen Williams' and James
Durkin's requests for consultation with their shop
steward to file grievances in order to harass them
because of their union or protected activities.
2. Encouraging employee Eileen
Williams
to
transfer out of her unit because of her union or
protected activities.
3.
Threatening
to
discipline
employee
Gary
Neroda because he filed a grievance.
4. Denying employee James Durkin's request for
union representation while Siller conducted a disci
plinary interview of Durkin.
5. Disciplining employee James Durkin because
of his conduct during the interview.
The Administrative Law Judge dismissed the
complaint in its entirety. We find merit in certain
of the General Counsel's exceptions.
As background, 1 we note that Respondent and
the Union have executed a series of collective-bar
gaining agreements since 1971. Respondent's man
agement in the city of Oakland and the branch of
fices involved here include the following persons:
Bertha Young, Oakland director of employee and
labor relations; George Banks, Oakland labor rela
tions representative; Clarice Golden, general fore
man of delivery at West Grand Carrier Annex; and
James H. Siller, foreman of delivery at Temsecal
Station.
1 The record evidence described in this Decision and Order is substan·
tially as the Administrative Law Judge described it in his Decision. Most
facts are not in dispute. There is, however, certain uncontradicted record
evidence that the Administrative Law Judge failed to consider or that he
considered in connection with one but not all relevant allegations. Such
evidence is described in detail in connection with the particular allega
tion.
256 NLRB No. 12
1. Alleged denial of access to a union steward
The parties' agreement provides that the Union
shall notify Respondent in writing who its stewards
and alternative stewards are at the various postal
stations. Juan Elizondo was elected steward at the
Temsecal Station in January 1975. On October 4,
1977, the Union distributed a new list of stewards,
listing Juan Elizondo as the union steward at Elm
hurst rather than the Temsecal station, 2 and failing
to certify a steward for the Temsecal station. That
same month, Banks advised Golden not to recog
nize Elizondo until the matter was straightened
out. Golden passed on this instruction to Siller.
Thereafter,
Banks contacted William
Kelly, the
Union's president, about the situation and Kelly
told Banks he would submit a corrected list. Young
received a corrected certification, dated October
20, from Kelly on October 26, and a copy was sent
to Banks on October 31.
On October 3 1, employee Williams asked permis
sion of Siller to cease work and consult with Eli
zondo over filing a grievance concerning a disci
plinary warning she received from Siller on Octo
ber 28. Employee Durkin made a similar request of
Siller. Siller denied both requests, stating that Eli
zondo was not the Temsecal steward, and directed
the employees to return to work. Siller also told
Durkin that he no longer recognized Elizondo as
the Union's steward at Temsecal because Elizon
do's name did not appear on the Union's list of cer
tified shop stewards. Later, Siller confirmed his po
sition on this matter for Elizondo who made ar
rangements with Union President Kelly to tele
phone Banks and reaffirm Elizondo's position. On
November 3, Golden told Siller to resume recog
nizing Elizondo and Siller did.
The Administrative Law Judge found that the
withdrawal of recognition of Elizondo as shop ste
ward at Temsecal for a 3-day period was not pa
tently unreasonable and that the General Counsel
failed to establish that the purpose of the action
was to harass Williams and Durkin because of their
union activities. We disagree with the Administra
tive Law Judge's dismissal of this allegation.
In dismissing this allegation, the Administrative
Law Judge relied in part on his finding that there
is no evidence that Golden and Siller recognized
Elizondo at Temsecal after they became aware Eli
zondo was no longer certified at Temsecal. Con
trary to the Administrative Law Judge's finding,
there is such record evidence. Thus, the uncontra
dicted testimony of Durkin is that Golden and
2 The certificatmn waƛ erroneous; at that time Elizondo was the duly
selected union steward at Temsecal See Admimstratlve Law Judge's De·
c1sion, fn. 4.
UNITED STATES POSTAL SERVICE
79
Siller
met
on
October
27
with
Elizondo
and
Durkin about a grievance filed by Durkin. But the
credited testimony shows that Golden and Siller
had been instructed not to recognize Elizondo on
or before October 26.3 Hence, it is plain that the
grievance
meeting
on
October
27,
which
was
called by Golden, occurred after Golden and Siller
had been instructed not to recognize Elizondo.
The Administrative Law Judge also failed to
consider in connection with this allegation that
friction had developed between Williams and Siller
over Williams' grievance-filing activities, 4 and that
Golden had reversed Siller on a grievance filed by
Durkin, 5 in the days before Siller denied these two
employees access to their shop steward. Undoubt
edly, both of these matters had some bearing on
Siller's attitude toward Williams and Durkin on
October 31.
In addition, the Administrative Law Judge failed
to afford proper weight to other material record
evidence in resolving this allegation. For example,
Elizondo had been elected shop steward at Temse
cal in January 1975 and continued to work at the
Temsecal station at the time of the events here.
This evidence, coupled with the fact that the Octo
ber 4 Jist failed to designate a shop steward at
Temsecal,
suggests
that
Respondent
had
good
reason to believe that the October 4 certification of
Elizondo at Elmhurst rather than Temsecal was an
inadvertent error. Also, it cannot be overlooked
that Respondent had received oral notice correct
ing the certification on or about October 20 and
written confirmation of the correct certification on
October 26, which was 5 or more days before
Siller denied the employees access to Elizondo on
October 3 1. 6 Final! y, there is evidence that Re
spondent's practice was not strictly to limit a shop
steward to representing employees at the particular
station for which he was certified.1 This evidence
3 As described above and in the Administrative Law Judge's Decision,
the instructions from Banks to Golden and Golden to Siller occurred
before Banks contacted Kelly about Elizondo's certification. Kelly prom
ised to submit a corrected certification Jist and such list, dated October
20, was received by Young on October 26. Hence, we find that the cred
Ited record evidence shows that the conversations and instructions, rupra.
occurred, probably on or before October 20, but certainly by October 26
4 See fn. 9 of the Administrative Law Judge's Decision.
We also note that the Admimstrative Law Judge dtd constder th" fnc
tion between Siller and Williams in connection wtlh the separate allega
tion that Respondent violated the Act by encouragmg Williams to trans
fer.
6 See fn. 17 of the Administrative Law Judge's Dcci>ron
• See fn. 3, supra.
There is no evtdence that Siller personally knew the certification had
been corrected on October 31. But Respondent's failure prompt!Ú to
communicate this new information to Siller must be consodered along
with other record evidence in determining whether u provtdes an exn!Se
for denying the important employee rights involved here.
7 See, for example, fns. 7 and 8 of the Administrative Law Judge's De
cision.
of flexibility and accommodation in the operation
of the shop steward system is in marked contrast to
the strict application by Siller here.
We are persuaded by the record as a whole that
Respondent did not have a justifiable reason for
denying Williams and Durkin access to shop ste
ward Elizondo on October 3 1. In so finding, we
rely particularly on the evidence that Golden and
Siller met with Elizondo on a grievance matter
after they became aware that Elizondo was not
certified and the evidence that Siller's denial of
access to Williams and Durkin followed on the
heels of other disagreements over grievance mat
ters involving these employees and Siller. In addi
tion, we have considered the evidence of Respond
ent's practice of not strictly limiting a shop steward
to representing employees at a particular location,
that Respondent had reason to believe that Elizon
do's designation at Elmhurst rather than Temsecal
was an inadvertent error, and that Respondent had
received the corrected certification list properly
designating Elizondo as the shop steward at Tem
secal 5 days before Siller denied the employees
access to their shop steward. Hence, we find that
Respondent violated Section
S(a)( 1) by denying
Williams and Durkin access to shop steward Eli
zondo on October 31.
2. Alleged threat of discipline for filing
gnevances
As more fully described by the Administrative
Law Judge, employee Gary Neroda, a part-time
flexible letter carrier, 8 did not report for duty on
November 1-4 and November 11.9 On November
14, Siller handed Neroda a document stating his
November
ll failure to report for duty was an
AWOL and warning him his continued failure to
report for scheduled work would expose him to
discipline. On November 15, Siller asked Neroda to
sign a report admitting that he had been scheduled
to work on November
11 and failed to report.
Siller told Neroda he would not be disciplined for
not reporting. On November 22, Neroda filed two
written grievances, including a claim for 1 day's
pay for November 1 1. Neroda was informed on
November 23 and 24 by his shop stewards that the
grievances had been denied.
R Employee!ii in this classitication may be assigned to work at any sta
tion and are not assured of regular (40 hours per week) employment.
• November II was a scheduled holiday with no regular mail dehv
enes. Neroda tcst1fied he did not report for duty because he believed a
standhy assignment only required hnn to remain at home near the tele
phone suh_1ect to call. Instead. 'uch scheduling requtres the employee to
report for duty at the special delivery section and fill m for absentees
among regularly scheduled letter carrierÛ or perform m1scellaneous duties
to earn a guaranteed mmimum 2 hours of pay
80
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 28, Siller asked Neroda to sign a
document acknowledging that Respondent was re
cording his status as AWOL for November 11.
Neroda protested, reminding Siller that Siller had
told him earlier that he would not be disciplined
for failing to report on November 11. Neroda's un
controverted testimony, as found by the Adminis
trative Law Judge, is that Siller stated that circum
stances had changed in view of Neroda's claim he
was due pay for November 11.
The Administrative Law Judge dismissed this al
legation because the General Counsel failed to es
tablish that Respondent threatened Neroda with
discipline for filing any of the three grievances. We
disagree.
It is plain that Siller's statement in the circum
stances here represented actual retaliation for filing
grievances. Thus, the warning letter Neroda re
ceived from Siller on November 14 was for being
AWOL on November 1 and 4. This warning letter
specifically stated: "A recurrence of this irregular
ity will result in further disciplinary action." On
November 15, Siller made no mention of recording
Neroda as AWOL for November 11 but Siller did
tell Neroda that he would not be disciplined. Less
than 2 weeks later, after Neroda filed his griev
ances, Siller first sought to record Neroda's status
as AWOL for November 11. In these circum
stances, a natural and foreseeable consequence of
Siller's statement of November 28 would be to in
hibit Neroda from filing grievances in the future.
Such conduct violated Section 8(a)(l).
3. Alleged denial of union representation and
levy of discipline
The credited testimony shows that, on December
8, Durkin finished his route and punched out 42
minutes after his shift was scheduled to end. Al
though Respondent's policy is that a letter carrier
must secure authorization from his supervisor prior
to working overtime or telephone the supervisor if
he cannot complete the route on time, Durkin did
neither. As Durkin was leaving after punching out
on December 8, Siller asked for an explanation of
his failure to comply with the
overtime
rules.
Durkin told Siller he was off the clock and did not
answer Siller's question. Siller told Durkin they
would discuss the matter in the morning.
Immediately upon Durkin's arrival at work the
following morning, Siller asked Durkin to accom
pany him to Golden's office. Durkin asked if he
needed his union representative. Siller answered
no, it was only a discussion. 10 In the office, Siller
10 The parties' agreement provides in art. XVI that:
For minor offenses by an employee, management has a respOtiSibihty
to discuss such matters with the employees. Discussions of thiS type
again asked Durkin for an explanation for being
late the previous day and for failing to seek prior
approval for overtime. The Administrative Law
Judge found that
Durkin was evasive,
that he
asked Siller what he meant, said he had already ex
plained, did not want to say more, called Siller a
"sucker," and walked out.
In
recommending
dismissal
of the allegations
pertaining
to
Durkin,
the
Administrative
Law
Judge found that Durkin was apprised that the dis
cussion provision of the contract was applicable,
that Durkin was not reasonably apprehensive of
discipline for participation in the conference, and
that, in any event, the Union waived by the provi
sion quoted above any right Durkin may have had
to representation at the conference. Further, the
Administrative Law Judge found that Durkin was
disciplined for his insubordination during the inter
view, not for being late in returning from deliveries
on December 8.
The
General
Counsel
contends
that a
union
cannot waive employees' Weingarten rights11 but,
even assuming it can, the waiver is not clear here.
The General Counsel points out that Durkin re
quested a union representative and contends that
Durkin had a reasonable belief that the interview
would result in disciplinary action.
Finally, the
General Counsel urges that Respondent suspended
Durkin for exercising his right to refuse to partici
pate without union representation in the interview.
In the first place, the Administrative Law Judge
failed to offer any discussion of the basis for his
finding that "the Union waived by the provision
[article XVI] any right to representation at the
conference Durkin otherwise may have had." He
did not point to explicit language in the parties'
contract unmistakably waiving or in some manner
limiting the employees' Weingarten rights. Nor did
he point to language warranting consideration of
collateral intent and describe evidence that clearly
and unequivocally establishes that the Union under
stood and intended such language to waive or limit
the employees' Weingarten rights. In short, the Ad
ministrative Law Judge failed to describe a waiver
of union representation rights consonant with the
shall be held in private between the employee and the supervisor.
Such d1scussion„ are not considered disc1pline and are not grievable.
Following such discussions, there is no prohibition against the super·
visor and/or the employee makmg a personal notation of the date
and subject matter for their own personal record(s). However, no
notation or other information pertaining to such discus…ion may be
cited as an element of a prior adverse record in any subsequent disci
plinary action against an employee, they may be, where relevant and
timely, relied upon to estabhsh that employees have been made
aware of their obligations and re,ponsibilities.
11 /V.L.R.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975)
UNITED STATES POSTAL SERVICE
81
announced Board standards for the waiver of statu
tory rights.12
Even assuming that article XVI could be inter
preted to show that the Union intended to waive
employees' rights of union representation in certain
situations, it is not clear that the waiver would
apply here. Thus, the application of article XVI on
its face is limited to "minor offenses." But "minor
offenses" is not defined in the article or the con
tract. The situation here offers a ready example of
the ambiguity of the meaning of this term. Durkin
is in effect accused of authorizing his own overtime
by failing to seek prior approval before working
overtime. But the approval of overtime is a man
agement prerogative and the usurping of a manage
ment prerogative can hardly be characterized as a
minor offense. In short, even if the parties intended
in article XVI to waive certain of the employees'
union
representation
rights,
the
scope
of
the
waiver, including the application of such waiver
here, is ambiguous and not explicit and unmistak
able, as required by the Board.
In addition, we find that Durkin had a reason
able fear of discipline on the morning of December
9 when Siller directed Durkin to accompany him
to Golden's office. One month earlier, Durkin had
received a warning letter for his failure to respond
to Siller.13 This warning letter stated that a "recur
rence of this irregularity will result in further disci
plinary action." It is in this context that Durkin
was confronted with a parallel situation on the
morning of December 9. Thus, on December 8,
Siller had asked Durkin for an explanation for his
late return from deliveries that day, and Durkin,
who was off the clock at the time, left without an
swering.
The
following
morning,
December
9,
Siller immediately confronted Durkin and directed
Durkin to accompany him to Golden's office. In
these circumstances, including the location of the
interview, we find that Durkin reasonably believed
that discipline might result from the interview.
12 See Keller-Crescent, a Division of Mosler. 21 7 NLRR 6RS, 687 (lq75)
Art. XVI never mentions union representation much less an exphctt or
unmistakable waiver or limitation of employeeƜ· union representation
rights. For example, the use of the term "minor ofTenses" m the first sen
tence and the term "private" in the second sentence of art. XVI are suh
Ject to various interpretations.
But we find it unnecessary to reach the issue of whether the Union in
tended to waive employees' rights of union representation in certain Situ
ations here, for reasons described elsewhere in this Decision. Consequent
ly, we also find it unnecessary to reach the issue of whether the rights set
forth in Weingarten may be waived or restricted by contract
'" The letter, dated November I, 1'178, descnbed the mcident as fnl-
lows:
You began your street t1me at 1 031 and you returned from the 'lrect
at 1 583. You had a short conversation with an employee. After
wards, I tried to approach you concerning the casing of pnltt1cal
maiL You ignored me and hurriedly walked away. clocking nut and
leaving the butldmg. You also failed to get cleared of your account
able maiL
There is no dispute that Durkin requested to
have his union representative present for the inter
view. Respondent not only denied the request but
also failed to offer Durkin the option of continuing
the interview unaccompanied by the union repre
sentative or having no interview at all. Under these
circumstances, it is clear that Durkin did not waive
his
Weingarten rights, and thus, that Respondent
violated Durkin's Section 7 rights to union repre
sentation at the December 9 interview.
Finally, we come to the allegation that Durkin's
suspension violated Section 8(a)( I) and the appro
priate remedy for Respondent's conduct affecting
Durkin. Respondent contends, and the Administra
tive Law Judge found, that Durkin was disciplined
for his insubordinate conduct during the interview,
not for being late in returning from deliveries on
December 8. In his exceptions, the General Coun
sel contends that Respondent imposed discipline on
Durkin for his refusal to participate in an investiga
tory interview without union representation.
We have found that Respondent violated Dur
kin's Section 7 rights by denying his request to
have a union representative present during the De
cember 9 interview. As noted above, Respondent
admits that Durkin was disciplined for his conduct
during the December 9 interview. It is plain, there
fore, that Durkin's conduct was the product of an
unlawful interview. Such conduct may never have
taken place if the unlawful interview had not taken
place. 14 In these circumstances, we find that Dur
kin's suspension violated Section 8(a)( I). The ap
propriate remedy here is to make Durkin whole for
lost wages resulting from his unlawful suspension
and to expunge from his records the suspension
letter as well as related documents. 1 5
THE REMEDY
Having found that Respondent violated Section
8(a)(l) of the Act, we shall order it to cease and
desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act.
Having found that James Durkin was unlawfully
disciplined on December 15, 1978, we shall order
Respondent to make Durkin whole for any loss of
wages or benefits he suffered as a result of his sus-
14 Although we do not cnndl1nc Durkin\ conduct during the inter
vtew. neither do we find hts conduct to be so egregMnus that he \o..,t the
mantle of the protecllon that Respondent demed h1m
1 This case does not lend ttself to the ana\y..,ts ..,et forth 10 our recent
Jeusion m Kruft hx>ds. Inc., 251 NLRH 598 (!980)
Thu,, th" IS not a
case where the Ge11eral Counsel need make a prima facie showing that an
employee whose U'em,r:artcn right!'! were vtolated "was subsequently dis
ctphned for the conduct whtch was the LUhJect of the unlawful mter
vtew," tna,much a' ReƝrnndcnt dnes not contend that Durktn was "iU't
pended for hemg late tn rL'Iurmng from deilvenes on Decemhcr S
82
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension, together with interest, computed as set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Florida Steel
Corporation, 231 NLRB 651 ( 1977).16 See, general
ly, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
ORDER
Pursuant to Section lO(c) of the National Labor
Relations Act, as amended, the National Labor Re
lations Board hereby orders that the Respondent,
United States Postal Service, Oakland, California,
its officers, agents, successors, and assigns, shall:
l. Cease and desist from:
(a)
Disciplining
or
otherwise
discriminating
against employees for refusing to take part without
union representation in an interview or meeting
where the employee has reasonable grounds to be
lieve that the matters to be discussed may result in
the employee's being the subject of disciplinary
action.
(b) Denying employees the right to consult with
their shop steward concerning the filing of a griev
ance.
(c) Threatening to discipline or otherwise retali
ate against employees for filing grievances.
(d) In any other manner interfering with, re
straining, or coercing employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole James Durkin for any loss of
earnings occasioned by his disciplinary suspension
issued on December 15, 1978, in the manner de
scribed in this Decision.
(b) Expunge any record of the disciplinary sus
pension of James Durkin issued on December 1 S,
1978.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy
ing, all payroll records, social security payment re
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Oakland, California, place of busi
ness copies of the attached notice marked "Appen
dix." 1 7 Copies of said notice, on forms provided by
16 Member Jenkms would compute interest on backpay m accordanct.·
With his partial dissent in 0/ymprc Medical Corporation. 250 NLRH 141>
(1980).
17 In the event that th1ų Order ts 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 Pursu
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
the Regional Director for Region 32, after being
duly signed by Respondent's authorized representa
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio
lations not found herein.
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discipline or otherwise dis
criminate against employees for refusing to
take part without union representation in an
interview or meeting where the employee has
reasonable grounds to believe that the matters
to be discussed may result in the employees
being the subject of disciplinary action.
WE WILL NOT deny employees the right to
consult with their shop steward concerning
the filing of a grievance.
WE WILL NOT threaten to discipline or oth
erwise retaliate against employees for filing
grievances.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer
cise of their right to self-organization, to form,
join, or assist any labor organization, to bar
gain
collectively through
representatives
of
their own choosing, to engage in concerted ac
tivities for the purposes of collective bargain
ing or other mutual aid or protection, or to re
frain from any and all such activities.
WE WILL reimburse James Durkin for any
loss of wages or other benefits occasioned by
his suspension issued on December 15, 1978,
plus interest.
WE WILL expunge from all records any and
all
references
to
the
suspension
of
James
Durkin issued on December IS, 1978.
UNITED STATES POSTAL SERVICE
UNITED STATES POSTAL SERVICE
83
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN,
Administrative
Law Judge:
On June 7, 1979, I conducted a hearing at Oakland, Cali
fornia, to try issues raised by a complaint issued on Janu
ary II, 1979 (Case 32-CA-1386(P)), based on an original
and two amended charges filed by the National Associ
ation of Letter Carriers, Local 76, AFL-CI0,1 on No
vember 20, 1978, December 15, 1978, and January 10,
1979, and a second complaint issued on May 5, 1979, on
the basis of a charge filed by Durkin on December 20,
1978.2 To avoid unnecessary cost and delay and other
wise effectuate the purposes of the Act, the two cases
were consolidated on May 9, 1979, for purposes of hear
ing and disposition.
The complaints allege that the United States Postal
Service, 3 by its foreman James H. Siller, violated Section
8(a)(l) of the National Labor Relations Act, as amended
(hereafter called the NLRA) and the Postal Reorganiza
tion Act (hereafter called the PRA) by:
I. Denying employee Eileen Williams and James Dur
kin's requests for consultation with their shop steward to
file grievances in order to harass them because of their
union or protected activities.
2. Encouraging employee Eileen Williams to transfer
out of her unit because of her union or protected activi
ties.
3. Threatening to discipline employee Gary Neroda
because he filed a grievance.
4. Denying employee James Durkin's request for a
union representation while Siller conducted a disciplin
ary interview of Durkin.
5. Disciplining employee James Durkin because of his
conduct during the interview.
The PO denied the commission of the above-recited
acts or any violation of the Act.
The issues before me are whether Siller committed the
alleged acts and, if so, whether by such commission the
PO violated the Act.
The parties appeared by representatives at the hearing
and were afforded full opportunity to produce evidence,
examine and cross-examine witnesses, argue, and file
briefs. Briefs have been received from the General Coun
sel and the PO.
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I
enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaints alleged, the answers admitted, and I
find that at all times material the National Labor Rela
tions Board (hereafter called the Board) had jurisdiction
over the matters raised in the two complaints under Sec
tion 1209 of the PRA, that the PO was an employer, and
1 Hereafter called the Union.
2 Read 1978 after all further date references omitting the year.
3 Hereafter called the PO.
that the Union was a labor organization within the mean
ing of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
To serve the city of Oakland, California, the PO main
tains a main office in the downtown area and a number
of branches and stations in various sections of the city.
These cases involve a station known as Temescal within
a branch known as the West Grand Carrier Annex, 575
West Grand Avenue, Oakland (the branch building also
houses the Diamond, Grand Lake, and Rockridge sta
tions). At times pertinent, Austin Simon was the Oakland
PO's postmaster, Bertha Young was the Oakland PO's
director of employee and labor relations, George Banks
was the Oakland PO's labor relations representative,
Edward Broglio was the manager of delivery and collec
tion at the PO's West Grand Carrier Annex, Clarice
Golden was general foreman for delivery at the PO's
West Grand Carrier Annex and Siller was foreman of
delivery at the PO's Temescal station. Durkin, Williams,
and Neroda were letter carriers at the Temescal station.
B. The Alleged Denial of Access to a Union Steward
Since 1971 the PO and the national union with which
the Union is affiliated have executed a series of collec
tive-bargaining agreements; the agreement pertinent to
this proceeding extends for a 3-year term from Septem
ber 15, 1978, through July 20, 1981. That agreement de
fines a grievance as a dispute between the parties relative
to wages, hours, or working conditions and provides
either an employee alone, the Union alone, or an em
ployee through the Union may initiate a grievance at
step one of the grievance procedure with first line super
vision (in the case of the Temescal station, this would be
Siller). The agreement further provides that the Union
shall notify the PO, in writing, who its stewards and al
ternate stewards are at the various stations. On or about
October 4, Simon distributed a list to all branches listing
the stewards certified by the national union at locations
within Oakland; Eileen Williams was certified as the
union steward at Diamond station, Juan Elizondo was
certified as the union steward at Elmhurst station (locat
ed in Berkeley, California), and no steward was certified
for Temescal station. 4
Sometime in October, after her receipt of a copy of
the Jist, Golden telephoned Banks and asked if Elizondo
should continue to be recognized as the union steward at
Temescal in view of the fact that he was not so listed;
Banks advised her the PO had to respect the certified list
and not to recognize Elizondo until the matter was
straightened out. Golden passed on Banks' advice to
Siller. A few days after Golden's call, Banks contacted
William Kelly, president of the Union, and informed
4 The certification was erroneous: at that time Elizondo was the duly
selected union steward at Temescal and had been serving in that capacuy
since his transfer from Elmhurst in 1975 (he was elected steward by the
Temescal letter carriers in January 1975 and remained m that capacity
until April 1979, when he was replaced by Williams: between 1971 and
1975, he was the Union's steward at Elmhurst).
84
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelly of the situation. Kelly promised to submit a cor
rected certified list. Young received a corrected certifica
tion from Kelly on October 26; a copy was sent to Banks
on October 31, though he did not see it that day.
On the latter date Williams asked permission from
Siller to cease work and consult with Elizondo over
filing a grievance concerning a disciplinary warning she
received from Siller on October 28. Siller denied her re
quest, stating Elizondo was not the Temescal steward.
Williams protested, stating Elizondo had been the union
shop steward at Temescal for 3 years and had processed
several grievances on behalf of Temescal employees ear
lier that month. Siller repeated his position and directed
Williams to return to work. On her way back to her
mail-sorting case, Williams stopped at Durkin's case and
told Durkin what Siller said. Durkin went over to Siller
and stated that he wanted to confer with Elizondo over
a grievance. Siller took the same position he took with
Williams. Durkin asked why Elizondo no longer was
union steward at Temescal. Siller replied Elizondo was
no longer recognized as the Union's steward at Temescal
because he was not so named on the Union's certified list
of shop stewards. Durkin stated he did not know any
thing about any list, but he knew Elizondo was his shop
steward. Siller repeated his position and directed Durkin
to return to work.
Elizondo was informed of Siller's position and asked
Siller to confirm it. Siller stated that the PO was not
going to recognize Elizondo as the Union's steward at
Temescal because his name was not certified as the
Temescal steward by the national union. Elizondo con
tacted Golden, who confirmed the accuracy of Siller's
statement. Elizondo began trying to contact Kelly, final
ly contacting him on November 3. Elizondo reported
Golden and Siller's position. Kelly telephoned Banks and
asked
Banks to resume
recognizing
Elizondo
as the
Union's steward for Temescal, Banks agreed and advised
Golden. 5 On November 3 Golden informed Siller to
resume recognizing Elizondo as the Union's steward at
Temescal and he was so recognized thereafter. 6
The General Counsel contends the PO nevertheless
violated the Act because the PO permitted stewards cer
tified for one location to process grievances for employ
ees at another location, 7 on the October 4 list Elizondo
was listed as a duly designated union steward (at Elm
hurst) and Golden and Siller permitted Elizondo to proc
ess several grievances at Temescal after October 4.
Inasmuch as there is no evidence that Golden and
Siller recognized Elizondo as the Temescal steward after
they became aware Elizondo was no longer so certified (and
were instructed by Banks to withdraw recognition), and
the record does not establish that Golden, Siller, and
Banks knew and accepted the contention that Elizondo
could process the grievances of Temescal employees on
• The Union's corrected written certification from Kelly, as noted
above, also had arrived.
• These findings are based upon the testimony of Banks, Siller, Wil
liams, Durkin, and Elizondo and supported by the October 4 and 26
Union certifications of its designated stewards.
1 Williams' testimony is undisputed, and is credited, she continued to
process grievances of employees at the Diamond station subsequent to
her October transfer from Diamond to Temescal station.
the strength of his erroneous certification as the Elm
hurst steward, 8 I find these arguments lack merit.
I find, rather, that Banks, Golden, and Siller's with
drawal of recognition from Elizondo as the Union's
Temescal steward for a 3-day period extending from Oc
tober 31 to November 2 was not patently unreasonable,
that recognition was restored immediately when the
Union's mistaken removal of Elizondo's designation as
the designated Temescal steward was corrected, and that
the General Counsel failed to establish that Golden,
Siller, and Banks' recognition of Elizondo as the Union's
Temescal steward over the 3-day period was instituted to
harass Williams and Durkin because of any union activi
ties on their part.
I therefore shall recommend that those portions of the
complaint so alleging be dismissed.
C. The Alleged Encouragement To Transfer
Under normal practice, vacant carrier routes open for
letter carrier bid are posted in a bid book at the front of
the Annex for inspection and bid by letter carriers.
On November 3, Siller placed on Williams' case a just
published list of vacant routes available for letter carrier
bid, including two vacancies at Diamond station. Wil
liams' former supervisor at Diamond station,
Shirley
Shewmake, previously advised Siller that Williams indi
cated she would like to transfer back to Diamond station,
and Siller hoped she would do so. 9 On finding the notice
on returning from her deliveries, Williams checked and
learned that Siller placed the sheet on her case and that
it was not posted in the bid book; she promptly filed a
grievance alleging Siller violated the PO-Union agree
ment by giving her preferential treatment for bidding
purposes. 1 0
On the basis of the foregoing, I find and conclude that
the General Counsel failed to establish that Siller encour
aged Williams to transfer from Temescal to Diamond be
cause of her union or protected activities; I therefore
shall recommend those portions of the complaint so al
leging be dismissed.
D. The Alleged Threat of Discipline for Filing
Grievances
Neroda was employed by the Oakland PO in early
1978 as a part-time flexible letter carrier. Employees in
that classification may be assigned to work at any station
and are not assured of regular (40 hours per week) em
ployment. Neroda was assigned for the most part to
work out of the Temescal station.
• It was Siller's belief that only another steward at the same branch
could process a grievance by a Temescal letter carrier absent special per
mission. Williams conceded she secured special permission from her su
pervisor and the supervisor at other locations before processing the
grievances of employees outside the annex.
• Friction developed between Siller and Williams beginning immediate
ly after her transfer (by bid) from Diamond to Temescal station; on Octo
ber 24 Siller 1ssued a warning notice to Williams over her unexcused ab
sence on October 16; or October 27 Siller issued a second warning notice
to William' over her t .. rdine" on October 17, 18, 19, and 23; on Novem
ber 2 Siller issued a verbal warning to Williams over her tendency lo
visit and chat with friends rather than attend to work; etc.
10 The grievance wa' denied at the first step; it was not appealed.
UNITED STATES POSTAL SERVICE
85
Neroda was scheduled to work at Temescal from No
vember I to 4, but failed to report. He testified that on
receiving his pay on November 9,1 1 he noted he had not
been paid for the November 1-4 period, contacted Siller,
asked why he had not been paid for the period as a
charge against his earned sick leave; that Siller replied
Neroda was considered absent without leave (AWOL)
for the period because he had not provided the re
quired 1 2 certification from his doctor that he had been ill
for the period; and that he stated he thought he only had
to call in and state he was ill to receive sick leave and
pay, that he did not know he needed a doctor's certifi
cate, and neither had nor saw a doctor. Neroda also tes
tified he saw Williams after this alleged November 9
conference with Siller and expressed a desire to file a
grievance over the matter, but did not file one at the
time.
Saturday, November I I, was a scheduled holiday on
which no regular mail was delivered. Neroda, however,
was scheduled to work that day on a standby basis in the
special delivery section at the main post office. Such
scheduling required the employee to report for duty at
the special delivery section and fill in for any absentees
among the letter carriers regularly scheduled for duty
that day or, in the event all the regularly scheduled letter
carriers reported, to perform miscellaneous duties to earn
his guaranteed minimum 2 hours of pay. Neroda did not
report for duty that day; he testified he did not report in
the belief a standby assignment only required him to
remain at home near his telephone subject to call.
On November 14, Siller handed Neroda a document
stating his November 11 failure to report for duty was an
AWOL and warning him his continued failure to report
for scheduled work would expose him to discipline.
On November 15 Siller asked Neroda to sign a report
wherein Neroda would admit or concede he had been
scheduled to work on November I I and failed to report.
Siller told Neroda he would not be disciplined for not
reporting, because his previous work performance was
good. Siller went on, however, to state that Neroda
seemed to be slipping lately, that he appeared to be fol
lowing the advice of the wrong people.
On November 22, Neroda filed two written grievances
through Williams; one claimed pay for the November 1-
4 period as a sick leave entitlement and the second
claimed I day's pay for November 11. Both were denied.
On November 23 and 24, Elizondo and Williams sepa
rately informed Neroda the grievances were denied.
On November 28, Siller asked Neroda to sign a docu
ment signifying his awareness that the PO was recording
his status as AWOL for November I I. Neroda protested,
stating Siller previously advised him he would not be
disciplined for failing to report for work on November
11. 1 3 Siller stated that circumstances had changed in
1 1 The record does not disclose when employees receive pay for a pre·
viously worked pay period, but it is normal Federal practice to pay em
ployees on a Thursday, such as November 9, for work performed J and 4
tWeks prior, i.e., there is a normal 2-week Jag.
12 When an absence for alleged sickness is 3 days or more.
13 Neroda erred in characterizing the not1ce as a "disciphne.'' the PO
Union agreement specifically excludes such notices and discussions there
of as constituting "disc1pline" of an employee.
view of Neroda's claim that he was due pay for the day
and informed Neroda he could note his protest and the
basis therefor on the document. Neroda asked if it would
change anything if he so noted. Siller stated he was
through talking to Neroda, since Neroda was following
the advice of the wrong people. Neroda signed the docu
ment and filed a grievance over the AWOL designation
on the ground that he was not aware he was supposed to
report for duty and thought he was only required to
remain on call.
The grievance was settled by agreement of the PO and
the Union, Neroda's status on November I I would be re
corded as L WOP (leave without pay), i.e., without enti
tlement or receipt by Neroda of any pay for the day (the
same result as obtained by recording the day as an
AWOL day for Neroda).
No appeal was taken of the PO's denial of Neroda's
two November 22 grievances.
By the facts recited above I find that the General
Counsel failed to establish the PO threatened Neroda
with discipline for filing any of the three grievances he
filed; I therefore shall recommend those portions of the
complaint so alleging be dismissed.
E. The Alleged Denial of Union Representation and
Levy of Discipline
It is PO policy and practice at Oakland that a letter
carrier must secure authorization from his supervisor
prior to working overtime; if the letter carrier becomes
aware he cannot complete his route within prescribed
times while out on deliveries, he or she is required to
telephone so the supervisor either may grant the required
authorization or dispatch assistance.
On December 8, Durkin arrived back at the Temescal
station and punched out at 4:12 p.m.; this was 42 minutes
after the prescribed time for completing his shift.14 He
neither advised Siller prior to leaving on his deliveries or
at any time while accomplishing his deliveries that he
was unable to complete his deliveries on time. 1 5 When
Siller accosted Durkin as he was heading for the door
and asked for an explanation, Durkin informed Siller he
was off the clock and failed to provide an answer. Siller
advised Durkin they would discuss the matter further in
the morning.
The following morning, Siller asked Durkin to accom
pany him to Golden's office. Durkin asked Siller if he
needed union representation. Siller replied no, it was
only a discussion. 16 On entering Golden's office, Siller
14 Durkm was pa1d for the overtime he worked at the applicable rate.
15 Siller's testimony to that effect was clear and unequivocal: Durkm,
on the other hand, gave no testimony on the subject on d’rect, and under
cross stated he "probably" told Siller before going out on delivenes he
needed help or overtime: Siller's testimony IS credited
10 Art. XVI of the PO-Umon agreement provides:
For minor offenses by an employee, management has a responsibihty
to diScuss such matters wuh the employee. Discussions of this type
shall be held in pnvate between the employee and the supervisor.
Such discussions are not considered discipline and are not grievable
Followmg such discussions, there IS no prohibition against the super
visor and/or the employee making a personal notation of the date
and uhject matter for thetr own personal record(s)
However, no
notation or other mformation pertaimng to such discu‘sion may be
Continued
86
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeated his request for an explanation, i.e., what hap
pened to require Durkin to work overtime the previous
afternoon without previously advising Siller he either
needed assistance or would have to work overtime to
complete his route. Durkin was evasive; he asked Siller
what he meant, stated he already had explained,17 stated
he did not want to discuss the matter further, said the
discussion was ridiculous, and called Siller a "sucker" as
he walked out of the office. 18
The PO suspended Durkin for 7 days without pay on
December 15 for his refusal to participate in the discus
sion, calling Siller a "sucker," and leaving the discussion
without permission.l9
While the Supreme Court has held it is violative of
Section 8(a)( l) of the Act to deny an employee's request
for union representation at an interview where the em
ployee reasonably believes he may be disciplined, 20 the
Court also has held that a union may waive such right
by contract, 21
and the representation right does not
apply where the employee fear is unreasonable.
cited as an element of a prior adverse record in any subsequent disci
plinary action against an employee, they may be, where relevant and
timely, relied upon to establish that employees have been made
aware of their obligations and responsibilities.
17 Apparently referring to a statement he made in the cour‘e of an ear
lier altercation with Siller over Durkin's refusal to work overtime on
Tuesdays and Thursdays at Siller's instruction; when Durkin prevailed on
Golden to overrule Siller's instruction on the ground he was attending
college classes those days and Siller was called into Golden's office and
informed of Golden's decision, Siller raised a question concerning why
Durkin was falling behind in his work and Durkin responded his route
was too long and his workload too heavy, no one was 100 percent per
fect.
18 These findings are based on the clear and unequivocal testimony of
Siller and partial corroboration by Durkin.
19 Durkin was on paid worktime during the period the discussion took
place.
20 NL.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975).
21 N.L.R.B. v. Magnavox Co., 415 U.S. 322 (1974).
In my judgment, Durkin was aware of the PO-Union
contract provision recited heretofore,22 was apprised by
Siller of its applicability to the December 9 conference,
was not reasonably apprehensive of discipline for partici
pation therein, and, in any event, the Union waived, by
the provision, any right to representation at the confer
ence Durkin otherwise may have had. It is further evi
dent Durkin was disciplined for his insubordinate con
duct during the interview,23 not for being late in return
ing from deliveries on December 8. 24
I therefore shall recommend dismissal of those por
tions of the complaint alleging that the PO violated the
Act by Siller's negative response to Durkin's December
9 request as to whether he needed union representation
at the December 9 discussion or by the PO's disciplining
of Durkin for his conduct at that discussion.
CONCLUSIONS Of LAW
I. At all pertinent times the Board had jurisdiction
over the matters raised in the two complaints under Sec
tion 1209 of the PRA.
2. At all times pertinent the PO was an employer and
the Union was a labor organization within the meaning
of Section 2 of the Act.
3. The General Counsel failed to establish by valid,
substantive evidence that the PO violated the Act by
virtue of the conduct alleged in the two complaints.
[Recommended Order for dismissal omitted from pub
lication.]
22 Siller's testimony is uncontradicted and is credited that he had sev
eral previous discussions with Durkin where the question of union repre
sentation was raised; his testimony is credtted.
23 Refusal to explain why he failed to request asSistance or overtime,
addressing an epithet to his supervisor and walking out of the meeting
without permission.
24 Durkin never rece1ved any d1sciphne for his December 8 failure to
request authorization to Y..·ork overtime or assistance and was paid in full
for the overtime worked