United States Postal Service

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United. States Postal Service and James H. Slaten. Case 10-CA-19973(P) 26 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On,12 July 1984 Administrative Law Judge Wil- liam N. Cates issued the attached decision. The Re- spdndent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, t and conclusions and to adopt the recommended Order as modified. The judge found that the Respondent violated Section 8(a)(1) by giving employee James H. Slaten a negative evaluation and- by refusing' to promote him to the position of supervisor. We agree, for the reasons stated by the judge, that the negative com- ments made by Slaten's supervisor Thomas E. Harris, in Harris' December 1983 evaluations of Slaten, were motivated by Slaten's protected con- certed activity in violation of Section 8(a)(1) of the Act.2 However, for the reasons stated below, we disagree with the judge that the Respondent's fail- ure to promote Slaten was unlawful. On 9 December 1983 Slaten applied for the posi- tion of supervisor in the computerized markup unit. In connection with Slaten's application, Harris pre- pared two evaluations. In the first one, Harris rec- ommended Slaten for the position but with certain reservations. In the second evaluation, entitled "Es- timate of Potential for Initial Level Supervisor Po- sition," Harris did not rate Slaten above "good" on demonstration of ability in any category listed on the evaluation form. Harris rated Slaten as having "some" demonstrated ability for human relations, but added that Slaten's "human relations skills should be developed more completely." Under the category of effective communication Harris rated Slaten as "Good" but added that Slaten was "not required to demonstrate" that particular ability. The judge found, and we agree, that Harris' stated reservations about Slaten on the evaluations were ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Chairman Dotson notes that the Respondent did not except to the protected concerted activity finding motivated by Slaten's previous protected concerted activity. 3 In January 1984, Slaten and 11 other applicants were interviewed for the supervisory position. The interviews were conducted by a promotion review panel composed of three managers, who evaluated the qualifications of all the applicants.4 After the selection by the panel of the top three candidates, an independent selecting official chose, from the three candidates, the person to be promoted.5 In making their selection, the panel evaluated each applicant in six specific areas6 and based the overall rating of each applicant on the applicant's experience, , the applicant's interview with the panel, and the supervisor's written comments. On 9 February Slaten was notified in writing that he was not among the three best qualified can- didates. Slaten telephoned the chairman of the panel, Andy Hodges, and asked why he was not selected. Hodges responded that it was because of his supervisor's evaluation. The judge concluded that based on Harris' eval- uations of Slaten, the Respondent did not promote Slaten. In reaching this conclusion the judge relied on the panel's emphasis on Harris' evaluations in its overall rating of Slaten,7 as well as Hodges' state- ment to Slaten that he was not chosen because of Harris' evaluation. Despite the fact that the panel considered the un- lawful evaluations Harris gave Slaten, we find that the Respondent has established that Slaten would not have been promoted even if Harris had fairly evaluated Slaten. Viewing the circumstances in this case in the light most favorable to Slaten, we assume that had Slaten received proper evaluations from Harris, the panel would have rated him as "highly qualified"8 and would- have selected him as one of the final candidates.9 However, we. find that even if Slaten 3 As fully set out in the judge's decision, Slaten had effectively pre- sented gnevances against the Respondent, all of which involved Harris' conduct as supervisor In response Harris made remarks to Slaten indicat- ing Harris' displeasure with Slaten's grievance activity 4 Supervisor Harris was not a member of the panel s The decision of the selecting official was reviewed by two other managers 8 The areas consisted of (1) knowledge of the work to be supervised, (2) effective communication, (3) decision making, (4) achievement and drive, (5) human relations, and (6) planning and scheduling Supervisory comments were listed first in the panel's rating of Slaten and one other applicant whereas they were listed last in the ratings given to the other applicants 8 The top three candidates selected by the panel received a final rating of highly qualified 8 These assumptions are not otherwise free from doubt In this regard, we note that even if Slaten had received proper evaluations from Harris, he might not have been selected by the panel All three candidates chosen by the panel in addition to being rated "highly qualified" had ex- perience in the computerized markup unit and were acting supervisors in that unit at the time of the panel's selection Thus, Slaten's total lack of Continued 275 NLRB No. 41 POSTAL SERVICE had been selected as a finalist by the panel, he would not have been promoted by. Respondent to the supervisory position. - The uncontradicted evidence discloses that Patri- cia Stroud, the person finally selected as supervi- sor, had superior qualifications to those of Slaten. Stroud had knowledge of the work to be per- formed, technical background in the processing and handling of "undeliverable as addressed" mail, as well as actual working experience in the unit to be supervised. She was one of the original employees of the computerized forwarding-unit in 1977 and had served as acting supervisor in the unit since 1979. In contrast, Slaten had no previous experi- ence or knowledge- of the technical work per- formed in the unit, and had not acted as supervisor of that unit's employees. Under these circum- stances, we find that the Respondent has demon= strated that it would not have promoted Slaten even if Slaten had received a proper evaluation. See Wright Line, 251 NLRB -1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); Transportation Management Corp., 462 U.S. 393 (1983). Accordingly, we dismiss this allegation of the complaint.' o ORDER The National Labor Relations Board adopts- the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United States Postal Services, Atlanta,-, Georgia, its officers, agents; successors, and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a) and substitute the fol- lowing. "(a) Giving to employees negative evaluations because they effectively presented grievances against the -Respondent and because they engaged in protected concerted activities with other em- ployees for the purpose of collective bargaining and other mutual aid and protection." 2. Delete paragraph 2(a) and substitute the fol- lowing. experience in that unit may have foreclosed his selection by the panel even with proper eialuations from Harris . 1s We shall therefore modify the recommended Order to delete the re- quirement that the Respondent promote and make whole Slaten We shall require the Respondent to fairly reevaluate him so that his personnel records accurately reflect his true rating at the time the unlawful evalua- tions were completed thereby giving him the benefit of the evaluations in connection with other personnel actions' 245 "(a) Reevaluate employee James H.; . Slate'n for promotion-to a supervisory position, and employ every reasonable' precaution to ensure that such re- evaluation is untainted by the events precipitating this proceeding." - ` 3. 'Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, concurring and dissenting in part. - I agree with my colleagues that the Respondent's negative evaluation of employee James H. Slaten because of his protected concerted activity violated Section 8(a)(1). However, I find the affirmative provisions of their Order inadequate to remedy the violation found. My colleagues' order the Respondent merely to reevaluate Slaten for promotion to a supervisory position. I would, however, also require the Re- spondent, after giving Slaten a fair evaluation, to retrace the steps of its supervisory evaluation proc- ess and refill the supervisory position. , In .deciding not to select Slaten as one of the top three candidates for, the supervisory position, it is undisputed, and my colleagues agree, that the pro- motion review panel relied at least in,part on the unlawful-evaluation of Slaten. In fact, the chairman of the -panel admitted to Slaten that he was not chosen because of the evaluation, and the panel's rating listed the tainted supervisory comments first in its overall rating of Slaten. While admitting that the panel's selection process was thus impugned by reliance on the unlawful evaluation, - my colleagues conclude that Slaten would not have been promoted even if he had re- ceived a proper evaluation. However, this conclu- sion is based on their assumption that the person chosen as supervisor would have been selected over Slaten regardless of Slaten's evaluation. % I am unwilling to make such an assumption. The truth of the matter is that we. simply do not know whether Slaten would have been selected if he had received a proper evaluation.' Given this uncer- tainty, the Respondent, who has violated the Act, must give Slaten a fair chance at the supervisory position. Only then can we be certain that the ef- fects of the unlawful evaluation have been fully erased. Accordingly, I dissent from my colleagues' order. - ' For this reason I agree with my colleagues that the General Counsel did not establish that the Respondent would have-promoted Slaten absent the negative evaluation 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX ' -NOTICE To EMPLOYEES POSTED BY ORDER OF THE, NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize - To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid. or'pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT give our employees negative eval- uations because they have effectively presented grievances against us, and because they have en- gaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. WE WILL NOT in any like or related manner interfere with, -restrain, or coerce you in the exer- cise of the rights guaranteed you by' Section 7 of the Act. - WE WILL reevaluate employee James H. Slaten for promotion to a supervisory position and employ every reasonable precaution to ensure such reevaluation is untainted by the events precipitating this proceeding. WE WILL notify James H. Slaten Jr. that we have removed from our files any reference to the negative evaluation given him in December 1983 and WE WILL likewise notify him in writing that we have done-so and that such will not be used against him in any way. - UNITED STATES POSTAL SERVICE DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This matter was tried before me on April 26, 1984,1 in Atlan- ta, Georgia. The hearing was held pursuant to a com- plaint and notice of hearing issued by the Regional Di- rector for Region 10 of the National Labor Relations Board (the Board) on March 12, and. is .. based on a charge which was filed by James H. 'Slaten Jr., an indi- vidual (Slaten), on February 1 Slaten amended the charge on March 7. The complaint in substance alleged the United States Postal Service (Respondent) gave Slaten 'a negative evaluation on December 12, 1983, and refused to promote him to a supervisory position in the central mark up unit on February 9, because he had ef- fectively presented grievances against Respondent, and because he engaged in protected concerted activities with other employees for the purpose of collective bar- gaining and other mutual aid and protection . The above actions of Respondent are alleged to have violated Sec- tion 8(a)(1) of the National Labor Relations Act (the Act). The issues herein were joined by Respondent's answer filed with the Board on March 23 , in which it denied the commission -of the alleged unfair labor prac- tices. On the entire record made in this proceeding, includ- ing my observation of each witness who testified herein, and-after due consideration of beefs filed by the General Counsel and counsel for the Respondent , I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent provides postal services for the United States of America and operates various facilities through- out the United States in the performance of that function including its Crown Road facility in Atlanta, Georgia, the only facility involved in this proceeding . The Board has jurisdiction over Respondent and this matter by virtue of Section 1209 of the Postal Reform Act of 1970. H. LABOR ORGANIZATION The complaint alleges, it is admitted, and I find Ameri- can Postal Workers Union is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues This case presents a number of questions -which have been thoroughly litigated . These questions or issues are generally summarized as follows: 1. Whether Slaten effectively presented grievances against the Respondent. - 2. Whether Slaten engaged in protected concerted ac- tivities with other employees for the purpose of collec- tive bargaining and other mutual aid and protection. 3. If the issues in items 1 and 2 are resolved that Slaten did effectively present grievances against Respondent and did engage , in protected concerted activities, did his activities adversely affect an evaluation given him in De- cember 1983. 4. If the issue in item 3 is resolved that Slaten's activi- ties did adversely affect his December 1983 evaluation, did Respondent rely on the evaluation in refusing to select him for promotion to a supervisory position in the central mark up unit. I All dates are 1984 unless otherwise indicated POSTAL SERVICE B. Facts and Credibility Resolutions It is necessary to review in some detail Slaten's griev- ance filing and related activities in order to ascertain if he in fact effectively presented grievances against the Respondent and/or engaged in- any concerted activity protected by the Act. Certain material facts are undisputed. I shall address necessary credibility resolutions whenever they arise in the recitation of facts. 1. Slaten's work history Slaten has been employed by Respondent for 12 years. Until January 1983, he was employed at the Riverdale Post Office, Riverdale, Georgia. Until he joined the American Postal Workers Union-in March 1983, Slaten, had been a member of the National Association of Letter Carriers and had served as chief steward for that Union at Respondent's Riverdale, Georgia Post Office. Slaten has not, held. any position in the American Postal Work- ers Union.2 Slaten currently is, and since January 1982 has been, one of five senior E-COM (electronic comput- er originated mail) operators3 at Respondent's Atlanta (Crown Road), Georgia location 4 Slaten is the only E- COM operator on his particular shift. At all times during his employment at the E-COM site, Slaten has been su- pervised by General Supervisor of Mails Thomas E. Harris Sr. (Harris).5 In order to receive the job he did as an E-COM opera- tor, Slaten had to bid for the position, be evaluated by a selection board, be recommended as one of the best- qualified, and be selected by a selecting official. Harris sat on the promotion board that selected Slaten as one of the best qualified -applicants for an E-COM operator po- sition. 2. Respondent's PASS program The Respondent for a period of time has had a PASS program-profile assessment system for initial level su- pervisors. The program exists for the purpose of allow- ing Respondent to select qualified volunteers to form it pool of employees from which promotions to initial level supervision can be made. Any employee interested in Re- spondent's PASS program must complete a work book, a portion of which is prepared by the employee's supervi- sor The employee is then given a PASS program rating 2 The collective-bargaining agreement referred to in the instant case is between the Respondent ind American Postal Workers Union, AFL- CIO and National Association of Letter Carriers, AFL-CIO It is the same agreement for both Unions with the exception of certain memoran- da of understanding pertaining to the American Postal Workers Union The agreement is effective from July 21 , 1981, to July 20, 1984 (Jt Exh' 1) 3 A senior E-COM operator processes telephonically received comput- er to computer mail, messages , and letters The operator processes the computer received correspondence into a printed copy which is cut, folded, inserted into an envelope , and placed in the mail stream as a letter 4 Respondent established 25 E-COM sites throughout the United States in 1972 One of those sites is the Crown Road facility in Atlanta, Geor- gia 5 The parties stipulated, the evidence establishes, and I find, that Harris is now, and at all times material herein has been, a supervisor and agent of Respondent within the meaning of Sec 2( 11) and (13) of the Act 247 by Respondent. Slaten applied for entry into the PASS program in 1982. On November 12, 1982, Harris pre- pared a "Supervisors' Recommendations"- form on Slaten in which he recommended Slaten for the PASS program without reservation. On the recommendation form, Harris stated Slaten had "great potential" and was "will- ing to learn" (G.C. Exh. 2). On March 3, 1983, Respond- ent awarded Slaten a rating of "excellent" on demonstra- tion of ability for the PASS program. 3. Slaten's grievance-filing activities Slaten testified' he commenced filing grievances at his Atlanta work ' location in December 1982. Slaten testified that he filed a grievance in December regarding the es- tablishment of an overtime-desired list because no such list was being maintained and it resulted in overtime being assigned without any regard to volunteering. Slaten stated that prior to filing the grievance, he spoke with Harris in the maintenance office at the E-COM site about the situation. No one else was present for their conversation other than Slaten and Harris . Slaten testi- fied he told Harris that (Slaten's) interpretation of the collective-bargaining agreements was that each pay loca- tion would have an overtime desired list posted and overtime would be assigned on the basis of seniority from the list of those volunteering.' According to Slaten, Harris told him the list did not apply to the E-COM site. Slaten testified he did not attend any meetings regarding this grievance. Harris testified the collective-bargaining agreement re- quired that any first-step grievance filed by Slaten since January 1982, whether reduced to writing or not, would have had to have been filed with him inasmuch as he was Slaten's immediate supervisor .8 Harris testified he has never met with, Slaten at a step-one grievance pres- entation and decision, nor has he ever met with Slaten at any stage in the grievance procedure. On cross-examina- tion, Harris acknowledged he had had conversations with Slaten wherein Slaten raised complaints regarding job duties and responsibilities of himself and other em- ployees. Harris testified he encouraged employees that felt something needed to be corrected, changed, or im- proved to bring such matters to his attention so correc- tions could be made. It is necessary to resolve whether Slaten had the con- versation with Harris he asserts he had'regarding the posting of an overtime desired list. After having very carefully observed both Slaten and Harris testify, I am persuaded Slaten had the conversation he testified about with Harris in' December 1982 regarding an overtime de- sired list.9 Harris did not specifically deny the conversa- The collective-bargaining agreement, Art • 8, "Hours of Work," secs 5(a), (b), and (c) deals with the subject of an "overtime desired" list (Jt Exh 1) ' Slaten asserted he was affected by the failure to post a volunteer overtime list because he was the second most senior employee but he was not being assigned any overtime 8 The collective-bargaining agreeement states that any grievance filed at the, first step must be filed with the employee's immediate supervisor (Jt Exh 1, art 15, "Grievance-Arbitration Procedure," sec 2) 9 I do not find what appears to be a conflict between Slaten's pretrial Board affidavit and his trial testimony regarding whether he was affected Continued 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion attributed to him by Slaten but only testified he had not met with Slaten regarding any presentation and deci- sion involving any grievance Harris did, however, ac- knowledge discussing with Slaten his and others job. duties and responsibilities. The difference between Harris' and Slaten's testimony may result from their dif- ferent interpretation of what constitutes a grievance. Whatever may have caused the conflict in their testimo- ny, whether it was a difference in interpretation of what constituted a grievance or whether their differences were deliberate, I credit Slaten's testimony and discredit Harris' where it is in conflict with Slaten's. Based on the above-credited facts, I am persuaded and find that Slaten's discussions with Harris in December 1982 constituted the raising of a grievance' by Slaten with Harris. The definition of a grievance contained in, the collective-bargaining agreement is as follows: A grievance is defined as a dispute, difference, dis= agreement or complaint between the parties related to wages, hours, and conditions of employment. A - grievance shall include, but is not limited to, the complaint of an employee or of the Unions which involves the interpretation, application of, or com-, pliance with the provisions of this Agreement or any local Memoranda of Understanding not in con- flict with this Agreement [Jt. Exfi 1, art 15, sec. 1]. Slaten testified he filed other grievances including one in January 1983 regarding the failure of Respondent to conduct weekly safety meetings. Slaten testified there was equipment at the E-COM site that had moving parts and because the employees had to wear neckties he con- sidered the situation to be dangerous Slaten also stated a certain piece of equipment in the E-COM site had warn- ings on it that it was not to be operated without covers; however, the back covers for that particular piece of equipment were missing. Slaten testified he discussed safety with Harris while they were alone in the mainte- nance office at the E-COM site. Slaten asked Harris to make the weekly safety notices available to the E-COM employees. Harris told Slaten the employees were on the distribution list for the publications. Slaten testified he did not attend any meetings on this grievance but stated that after he filed it, Respondent showed a safety-related film to the employees but had not given any other safety lectures since then. Harris did not specifically deny the conversation set forth above, but did testify, as elsewhere noted, that he never met with Slaten at any stage in the grievance pro- cedure. As I have previously indicated, I credit Slaten's testimony and, in doing -so, I find Slaten made a safety- related complaint to Harris in January 1983. Slaten testified he spoke with Harris in March 1983 re- garding his orally changing employees' schedules. Slaten stated he discussed changing of employees' schedules with Harris while the two of them were alone in the E- COM maintenance office. Slaten stated he specifically spoke with Harris about changes in employee Steve Tar- by the failure to have an overtime desired list to detract from Slaten's overall credibility I credit Slaten's trial testimony based on his superior demeanor pley's hours of work and filed a grievance on Tarpley's .behalf 10 Slaten testified. To the best of my knowledge I brought up the fact that this was not correct and being handled in the proper manner, Mr. Tarpley was due out of sched- ule pay, and Mr Harris more or less just ignored what I said. Harris, as noted at other places in this decision, stated he never met with Slaten at a step-one grievance presen- tation and discussion and that he, likewise, never met with Slaten at any stage in the grievance procedure. Harris stated on cross-examination that some of the topics Slaten brought to his attention or discussed with him thereafter became the subject of grievances, howev- er, he denied that was the case with the grievance per- taining to Tarpley. Harris testified, "There are. no records that indicate Mr Slaten had anything to do with the filing or participating in the filing or the resolution of [the Tarpley] grievance." Harris stated a grievance was filed by the Union in May 1983 involving out-of-schedule work assignments given to employee Tarpley. Harris testified he discussed the grievance with Union Representative Harrison. Harris testified he denied the grievance but stated his de- cision was reversed at step 2 in the grievance proce- dure. I' Harris testified Slaten was not affected by the outcome of the Tarpley grievance. In resolving the question of whether Slaten "filed a grievance" on behalf of Tarpley, I find initially that Slaten spoke to Harris about out-of-schedule pay for Tar- pley. I am persuaded Slaten viewed his conversation with Harris as constituting - a grievance on Tarpley's behalf. Slaten's views in this respect are supported by the definition of a grievance contained in the collective-bar- gaining agreement The fact that a written grievance (Jt.. Exh. 7) was thereafter filed by someone other than Slaten does not preclude the existence of a Tarpley grievance before it was reduced to written form. Indeed, Harris acknowledged Slaten had previously brought to his attention matters that became the subject of griev- ances. This acknowledgment tends to support Slaten's contention that he brought the Tarpley complaint to Harris' attention notwithstanding the absence of any written records on the matter. Any grievance must have its origin, whether discussed or not, at some point prior to it being reduced to writing. The grievance relating to Tarpley may well have had to have been reduced to writing because, as Slaten credibly testified, Harris "more or less just ignored" -what -he had to say about out-of-schedule pay for Tarpley. Slaten asserts the next grievance-related matter he dis- cussed with Harris involved employee Viola Murray. The evidence establishes a step I grievance involving Murray was filed on March 15, 1983, by Union Repre- sentative M. J. Mariah (Jt. Exh 6). The grievance in- 10 Tarpley at that time worked in the E-COM site where Slaten was employed I I The grievance was filed on May 19, 1983 It was filed and resolved as testified to by Harris (Jt Exh 7) . POSTAL SERVICE volved the procedure Harris was utilizing to fill tempo- rary assignments at the E-COM site.12 In the grievance the Union contended Harris had given unfair work as- signment advantages to a certain named employee over Murray. The Union contended Harris' decision on as- signments was arbitrary, capricious, and nonefficient. Harris denied the grievance at step 1 of the grievance procedure, and his decision was appealed to the next step. The grievance was again denied at a step 2 hearing held on April 14, and on May 15, 1983, the Union ap- pealed the step 2 denial of the grievance. Slaten testified he discussed Murray's grievance with her, however, he did not testify in narrative form about the conversation. Slaten asserts he also discussed Mur- ray's grievance with Harris in May 1983. Slaten spoke alone with Harris about the Murray grievance. Slaten testified: •I asked Mr. Harris to explain what I considered a discrepancy in the utilization of personnel. Mr. Harris told me I was meddling in his business, and that closed the conversation. Harris testified he did not meet with Slaten about the grievance related to work assignments for Murray. Harris acknowledged on cross-examination he may have discussed the subject matter of the Murray grievance with Slaten. Slaten testified his grievance activities were of concern to Harris. Slaten stated that in May 1983 while walking from Harris' office to the E-COM site, he and Harris dis- cussed disagreements they had had.13 Slaten testified Harris told him "[his] grievance activity was giving [him] a reputation as a trouble-maker and that it may affect [his] promotion opportunities later." Slaten testi- fied he told Harris, he "didn't start the trouble, if the violation wasn't there [he] couldn't file a grievance on it." Slaten testified that on the day that he spoke with Harris about the Murray situation, he also talked with Assistant Chief of Mail Processing (Atlanta MSC) Don- danville in Dondanville's office about that same situa- tion.14 According to Slaten, Dondanville stated: He' was aware of the problem, that he could not in- volve himself in the . . . day-to-day operation . . that was up to the operation manager Slaten testified, without contradiction, that after he spoke with Dondanville, he then spoke with Chief of Mail Processing (Atlanta MSC) Powers about the situa- tion. Slaten told Powers: •I explained what I conceived as a waste of Post Office- funds by improper utilization of employees, 12 In the grievance, the Union contended Harris had violated art 3, art 25, sec 4; and art 33, sec 2, of the collective-bargaining agreement 11 Slaten did not provide precise dates regarding conversations he had in May 1983 with certain of Respondent's representatives 14 The record transcript reflects the spelling of the assistant chief's name as Dondanville, however, It Exh 5 reflects the spelling of his name as Dunnsville I find it is not necessary to decide the correct spell- ing of the assistant chiefs name I 249 and Mr. Powers stated that he.was aware of it but it was out of his hands, he didn't have anything to do with that- operation. . After Slaten, spoke with the above -three management officials, he wrote a letter to Karen Uemoto, Director, Office of E-COM Operations, Washington, D.C. Por- tions of Slaten's June 6, 1983 letter to Uemoto are as fol- lows: It is with deep regret that I write this letter, but attempts to correct the problem at the local level have meet. with no results. I have tried,informal talks with, both Mr. Harris, E-COM site coordina- tor, and Mr. Powers, Director of Mail Processing. ;Grievances and EEO complaints have not corrected the problems. As a court of last resort, I am turning the prob- lem over to you Both you and I have a vested in- terest in the success of E-COM program. You as having overall responsibility, and I as-an operator. One of the measures that will be applied to E-COM to judge its success is cost versus income. Therefore it is the duty and responsibility of management and operators to insure that each site is operated in the most cost efficient 'manner. Unfortunately, that is not the case in the Atlanta site. Since the latter half of December 1982, Mr. Harris has been utilizing back-up J. J. Philpott, who's normal duty hours are 15:00-23:50, with off days Thur and Sun to cover temporary vacancy on tour two 06.00-14:50 with Fri and Sat as off days. This has resulted in paying J. J. Philpott forty hours out-of-schedule premium per week. When Ms. L. Murray, a trained back-up, with normal duty hours of 06:00-14:50 and off Sun and Mon is available. The utilization of Ms. L. Murray to cover this va- cancy would result in the saving of 24 hours of pre- mium pay per week. [Jt. Exh. 2.] The record reflects the grievance involving work, as- signments for Murray was resolved by mutual agreement on June 27, 1983. In the settlement, it was agreed that Murray. would be utilized as an E-COM systems opera- tor in accordance with article 25 of the collective-bar- gaining agreement. Slaten received a written reply dated July 22, 1983, from Regional Director of Employee and Labor Rela- tions David H. Chartes regarding the letter he had sent to Uemoto about work assignments given to Murray. The letter in pertinent part stated: Your letter dated June 6, 1983, to Ms Karen Uemoto, Director, Office of E-COM Operations, has been referred to me for response. In checking into this matter, a • member of my t staff was informed that your concern was the sub- ject of a grievance filed by Ms. Murray. Further, it is my understanding that the grievance was re- solved and Ms. Murray is now being utilized as a backup operator to cover vacancies on' the tour 2. [G.C. Exh. 7.] 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In resolving'the question of whether Slaten raised with Harris matters pertaining to.work assignments for and utilization of employee Murray, I note that Harris ac- knowledged he may have discussed the subject matter of the Murray grievance with Slaten. Slaten's testimony that he discussed Murray's situation with management officials- Powers and Dondanville was undenied on this record. Additionally, it .is an established fact that Slaten wrote Uemoto about specific concerns he had regarding the Murray situation. I am persuaded that Slaten was greatly concerned about the Murray situation, and as such, I am persuaded he raised his concerns not only with Powers, Dondanville, and Uemoto but also with Harris. -Accordingly, I find that although Slaten did not file the written grievance involving Murray, it is clear he attempted to resolve or at least discuss the Murray situa- tion with Harris 4. Slaten's application and evaluation for ad hoc EEO investigator After Slaten had raised a number of job-related com- plaints with Harris, he applied for the position of ad hoc EEO investigator on May 6, 1983 (G.C. Exh. 4). On May 9, 1983, Harris recommended Slaten for the EEO position, but he did so with reservations. Harris' written reservations were as follows: J. H. Slaten, Jr., has served satisfactory as an E- COM senior systems operator. He is aggressive and desires to do a job well. However, his human rela- tions and communications skills are not as highly -developed as his technical skills. [G.C. Exh. 4(b).] Slaten testified, without contradiction, that he asked Harris for a copy of his May evaluation, but Harris re- fused to provide him one. Slaten testified he obtained a copy of Harris' evaluation from Respondent's Memphis, Tennessee, regional office. Slaten was notified in 'writing on June 17, 1983, that he was not selected for an inter- view for the ad hoc EEO position. (G.C. Exh. 5.)' Slaten discussed the evaluation with Harris after he re- ceived a copy of it. Slaten asked Harris to explain the bad evaluation Harris told Slaten that in his professional opinion the evaluation was accurate. Slaten asked Harris to cite examples of his problems with human relations and communications Harris did not cite any examples to Slaten. Slaten also raised the matter of his evaluation with Chief of Mail Processing Powers. Powers told Slaten he had questioned Harris about the evaluation and had been assured by him it was accurate. Harris testified he evaluated Slaten for the ad hoc EEO investigator position with reservations but stated he could not; without seeing the evaluation, recall the exact reservations he had regarding Slaten's qualifications for the job. Harris stated Slaten's human relations and com- munications skills were not as highly developed as his technical skills. Harris testified he based his evaluation of Slaten on reports Slaten had turned in to him and on his general conversations with Slaten. i 5 Harris testified he 15 Respondent did not produce at trial any actual or typical reports Harris may have relied on subsequently learned Slaten had protested the evaluation he had given him for the ad -hoc EEO position by filing an EEQ complaint. Harris testified he met with the EEO counselor who investigated the situation involving Sla- ten's evaluation. Harris testified, he thereafter met with the investigator, the postmaster, and Slaten regarding the EEO complaint and it was settled along the lines that there would be :better channels of communication be- tween Slaten and himself. Harris testified he was not angry, disturbed at, or upset with Slaten because he filed - a complaint regarding his May 1983 evaluation. Harris testified, but I do not credit his testimony, that at the time he completed his evaluation of Slaten in May 1983, he was not aware of any grievances Slaten had filed, nor was he aware' of any other complaints Slaten had made The record evidence as a whole simply re- futes such assertions by Harris 5. The mid-summer conversation regarding' grievance filing Slaten testified Harris talked to him sometime between June and July 1983 about his grievance filing. According to Slaten, Harris told him-he "was racially motivated by [his] grievance filing, and stated [he] was,,lust attempting to get rid of him, to have him run -off, or to get him." Slaten told Harris he did not do it for that reason, that he just wanted the collective-bargaining agreement en- forced., According to Slaten, the conversation was "heated'-' and lasted approximately 45 minutes. I- credit Slaten's testimony regarding this conversation. 6. Further, grievance-filing activities by Slaten Slaten testified he filed two grievances in July 1983. According to Slaten, the first grievance concerned the failure of Harris to post a holiday volunteer list and a holiday work schedule Slaten stated he spoke to Harris in early July about a holiday volunteer list/work sched- ule before he filed a grievance on the matter. Slaten told Harris the contract called for a holiday volunteer list to be kept and a holiday work schedule to be maintained at each pay location, and operation. According to Slaten, Harris told him the work schedule was posted and that was what the employees would work Slaten testified the volunteer list/work schedule grievance was settled fa- vorable to the employees. Section Center Manager/Postmaster Carleton in a letter dated August 23, 1983, to Local Union President Williams stated: - - A step 2 hearing was held on August 16, 1983, concerning the grievance appeal identified above .. .. The grievance appeal alleged a violation of Article 11 of the National Agreement by claiming that for the holiday, July 4, 1983, E-COM Site Co- ordinator Harris failed to post a volunteer list af- fording those full -time and part-time regulars with the needed skills an opportunity to work We have reviewed your grievance contention and it is our decision that a holiday volunteer list will be posted in accordance with Article 11 of, the National Agreement . . . . [G]rievants who were POSTAL SERVICE required to work their -holiday or designated holi- day will be appropriately compensated . . . [T]his resolves the matter . [G.C. Exh. 8 ] I credit Staten's testimony. regarding his conversation with Harris related to the posting of a holiday volunteer list notwithstanding the fact Harris denied ever meeting with Slaten at any stage in the grievance procedure. The above-referenced letter from Carleton clearly acknowl- edges a grievance was filed, on the subject matter in question . Although Carleton's letter does not specifically indicate Slaten filed the grievance in question, I am nonetheless persuaded he did . No party to this proceed- ing saw fit to produce the actual grievance at the trial; nonetheless, the overall evidence supports Slaten's' asser- tion'that he filed the grievance in question in July 1983. Slaten , testified the second grievance he filed in July 1983 (Jt. Exh. 3) was. based on,the fact Harris denied him his request for 6 hours of emergency annual leave Slaten stated he attempted to discuss the denial of his leave re- quest with Harris on more than four occasions before he filed his grievance; however, on each occasion Harris told him his documentation for the leave was insufficient. Harris acknowledged Slaten contacted him in July 1983 concerning a-request for leave. Harris stated accept- able documentation was needed before emergency annual leave could be approved . Harris acknowledged he-did not approve Staten's leave request . Harris testified he met at step I on Staten 's grievance with Union Steward Mariah but did not meet with Slaten . The • record does not clearly establish that Staten's leave request grievance has been resolved , however, it was denied at the step 3 level Harris testified he was not upset that Slaten filed a grievance concerning his denial of leave for him Slaten testified, without contradiction, that he was di- rected to attend training in September 1983 in Phoenix, Arizona, on new software to be utilized in the E-COM system. Slaten asserts Harris verbally changed his work schedule and would not allow him to be paid for travel time to Phoenix . Slaten stated Harris told him he would be paid per diem but would not be paid for his time, trav- eling.. Slaten credibly testified that after he returned from Arizona, he filed a grievance on not being paid for travel time. Slaten stated the grievance had "not been com- pletely resolved as [he had] not been paid yet." Slaten testified Harris did not post designated holiday schedules in November 1983. Slaten stated his days off were Wednesday and Thursday and by contractual des- ignation, Tuesday was his holiday. Slaten testified, and for reasons outlined at .various places in this decision, I credit his testimony, that he tried to explain the principle of designated holiday schedules to Harris, but that Harris responded by telling him the holiday schedules were posted . Slaten testified he filed a grievance on this matter which grievance was resolved and he was paid 4 hours of additional pay for the Tuesday in question. 7. Staten's December 1983 application foi• a supervisor's position In November 1983, Respondent posted a vacancy an- nouncement for the position of supervisor ,. computerized 251 markup unit, EAS-15 (R. Exh . 4).16 On December 9, 1983, Slaten made written application for the position (Jt Exh. 4) ' In connection with Staten 's application , Harris prepared an evaluation of him on December 12, 1983 (Jt. Exh 4). Harris evaluated Slaten because he was Staten's immediate supervisor. Harris recommended Slaten for the supervisor position but with certain reservations. On December 14, 1983, Harris prepared a second evaluation of Slaten which was entitled, "Estimate of Potential for Initial Level Supervisor Position" (Jt. Exh. 5). In the second evaluation, Harris did not rate Slaten above "good" on demonstration of ability in any category listed on the evaluation form. Harris rated Slaten as having "some" demonstrated ability under human relations, but added a written notation that Staten 's "human relations skills should be developed more completely." Under the category of effective communication , Harris rated Slaten as "good" but entered a written notation that Slaten was not required to demonstrate" that particular ability. 'Harris testified that in making his evaluations of Slaten in December 1983, he did not consider the following: that Slaten had filed a complaint concerning his May 1983 evaluation, that Slaten had written Uemoto in June 1983, or that Slaten had filed a grievance concerning being denied emergency annual leave in July 1983.17 I shall discuss, infra, whether Harris' assertions set forth above withstand scrutiny. Interviews for the applicants who applied for the com- puterized markup unit supervisor 's position were held in January 1984. Slaten and 11 other applicants were sepa- rately interviewed for the supervisor 's position by a three-member promotion advisory panel . 18 Staten was not among the final three recommended to the selecting official by the promotion advisory panel . In making their selections, the promotion advisory panel evaluated each applicant in, six specific areas.19 The panel prepared a summary worksheet of all 12 applicants interviewed and assigned each a final rating. ,The panel utilized three cri- teria in making, their final ratings for the applicants The criteria utilized were. •(1) the applicant's experience; (2) the interview of the applicant; and (3) the supervisor's written comments contained in each applicant 's packet. Supervisor's comments were listed as the first basis for the panel's determination that Slaten and one other appli- cant were not qualified for the supervisor 's position 20 18 The computerized markup unit processes mail found to be undeli- verable as addressed 17 As noted elsewhere in this decision , Harris denied having been in' volved in any other grievance -related activities with Slaten k• 18 A typical promotion advisory panel is composed of three managers' who review the qualifications of all applicants and determine who will be granted an interview The panel then selects the top three candidates for the position and provides those individuals' names to a selecting official The selecting official may chose anyone of the three for any reason, 1 however, the selecting official may not chose anyone other than one of the three referred applicants 19 The six areas were ( 1) knowledge of the work to be supervised, (2) effective communication , (3) decisionmakmg . (4) achievement and drive, (5) human relations, and (6) planning and scheduling (R Exhs 18, 19, 20, and 21) 20 The panel's summary worksheet reflected a "no show" after one ap- plicant's name who did not appear to be interviewed by the panel The summary worksheet, likewise , reflected the words "not demonstrated" and "991" after another applicant The form on which an applicant sets forth his or her background is 991 (R Exh 22) 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor's comments were listed last as a basis for the ratings given all -other applicants. Slaten was notified in writing by Panel Chairman Andy Hodges on-February 9, that he was not among the three rated best qualified for the computerized markup supervisory, position (G.C Exh. 9). Slaten testified he telephoned Hodges on February 11, and asked him if he had made any mistakes in his interview before the panel so that he could correct any such errors in future inter- views. Slaten stated Hodges told that him he had not made any mistakes, that he had answered all questions correctly, and that his "mannerisms and attitude" were very good. Hodges told Slaten he could not find' any fault with his oral presentation. Slaten asked Hodges why he was not selected. as one of the best qualified and Hodges told-him it. was "[b]ecause of your evaluation. Hodges testified' he served on.the advisory panel that selected the three' best qualified applicants for the com- puterized markup supervisory position.21 Hodges stated there was no doubt in his mind that the panel chose the three top applicants for referral to the selecting official. Hodges acknowledged. the- panel had Slaten's supervi- sor's evaluation available to it -when .it made the selec- tions it did. Hodges testified his choice of the top three candidates would not have been any different even if Slaten's supervisor had recommended him without reser- vation. Hodges acknowledged on cross-examination that he had a conversation with Slaten in which' Slaten asked him how he did in his interview. Hodges asserts he told 'Slaten he thought he had a good interview and that he spoke exceptionally well. Hodges stated Slaten asked him if he was in the final package and' he told him-he did not have the authority to give out that information Hodges stated he did not- remember a conversation about Slaten being denied the position Hodges specifically stated he never, told Slaten his supervisor's evaluation kept him from ',being recommended-as one of the best qualified candidates for the supervisor's position. After carefully observing-•Slaten and- Hodges testify, I am' persuaded Slaten told the truth when he stated Hodges told him he was not selected as one of the best qualified' applicants because of his • evaluation Several ,factors convince me that my observations regarding Sla- ten's truthfulness are correct. Hodges' testimony on ma- terial matters regarding his conversation with Slaten dif- fered only with respect to whether he told Slaten he was not selected because of his supervisor's evaluation. Hodges was not absolutely certain what was said' in his conversation with Slaten. That uncertainty coupled with the fact that the summary sheet reflects that the first reason for not selecting' Slaten was his supervisor's eval- uation 'of him persuades me that Hodges passed that in- formation on to Slaten. I am persuaded Hodges' testimo- ny that his top three choices for the position would have been the same even if Slaten had been recommended without reservations is suspect and unbelievable. The po- sition announcement stated with emphasis (all uppercase letters) that the candidates would be evaluated on, among other things, their supervisor's appraisal. The first 21 Hodges is a manager of one of the Atlanta area post offices handwritten reason given on the summary sheet by the panel for the rating it gave Slaten was his supervisor's evaluation of him. I am, therefore, convinced the super- visor's evaluations of the applicants played a major, if not deciding role,' in the overall ratings given the appli- cants. The, documents 'referred to above, taken in con- junction with Slaten's - credited testimony regarding Hodges' stated reason for not selecting him as-one of the three best qualified applicants persuades me that Hodges' testimony that his top three choices would have been the same, cannot be credited .22. ; C. Analysis and Conclusions It is alleged in the complaint that Respondent gave Slaten a' negative evaluation in December, 1983 and re- fused to promote him to a supervisor's -position in the central markup unit in February because he effectively presented grievances against the Respondent and because he engaged in protected concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. - Respondent contends the credible' evidence does not support a finding that Slaten effectively presented griev- ances against Respondent or that he engaged in protect- ed concerted activities with other employees within the Board's definition of concerted activities set forth in Meyers Industries, 268 NLRB 493 (1984).23 Contrary to the contention of Respondent, the credible evidence clearly establishes 'Slaten raised a number of grievances with Harris after he came under • Harris' 'su- pervision iii the E-COM section. The -majority of the grievances raised by Slaten were attempts on his part to enforce the collective-bargaining agreement. Although Slaten did not reduce a number of the grievances he raised to writing and although he at times was not the employee who pursued 'the actual written grievances at step 1 - of the grievance procedure, he nonetheless at- tempted to raise a number of complaints with manage- ment that pertained to matters covered by the collective- bargaining agreement.24 - - Certain - of Slaten's complaints related to overtime scheduling,-' safety meetings, oral changes to employees' schedules, holiday schedules,, and leave time-matters clearly covered by the collective-bargaining agreement. 22 I am not unmindful of the testimony of Stone Mountain, Georgia, Superintendent of Postal Operations Ollie Greer's 'testimony that her choice of the three applicants. that were recommended would have been the same even if Slaten had been recommended without reservations For the reasons outlined above, I find such testimony is not supported by the overall record evidence Additionally, Greer readily acknowledged the supervisor's evaluations made up a part of the applicant's total package and that the evaluations were considered along with other factors by the panel - 23 The Board held in Meyers that in general to find an employee's ac- tivity to be "concerted" it must be engaged in with or on the authority of other employees and not solely by and on behalf of the individual em- ployee - - 24 The Supreme Court observed in NLRB Y City Disposal Systems, 104 S Ct 1505 (1984), that it is unlikely that there would be a bright line dis- tinction between an employee's initial statement to an employer that he believes a collective-bargaining right,is being violated and the filing of a formal grievance The Supreme Court also observed that such initial statements by an employee might serve as a natural prelude to and-effi- cient substitute for the filing of a formal grievance POSTAL SERVICE The Board held in Interboro Contractors, 157 NLRB 1295 (1966), that the activity of an individual in seeking to en- force a collective-bargaining ' agreement would be deemed concerted in the absence of any showing of actual concert since such conduct inures to the benefit of all employees. The Supreme Court gave its approval to the Interboro doctrine in City. Disposal Systems, supra The Supreme Court indicated in City Disposal Systems, that the-complaining employee need only have a reasona- ble and honest belief that a contractual right is being vio- lated and that his complaint or grievance be reasonably directed toward the enforcement of that right for his conduct to be concerted activity. In the instant case, it is clear Slaten presented griev- ances to the Respondent, and it is also clear his griev- ances were attempts by him, to enforce the collective- bargaining agreement. The evidence establishes Slaten had reasonable and honestly held beliefs that rights cov- ered by the collective-bargaining agreement were being violated by the Respondent. In a number of the matters initially raised by Slaten, his interpretation of the collec- tive-bargaining agreement prevailed.. Although' ,it is not necessary that the complaining employee be right in his complaints for his actions to be concerted activity pro- tected by the Act, the fact the individual was right sup- ports -the proposition he had a reasonable and honest belief that rights under the collective-bargaining agree- ment were being-violated I find Slaten's actions consti- tuted concerted activities on his part. Furthermore, there is no evidence to indicate or even suggest that Slaten conducted himself in any manner that would remove the protection of the Act from him. Therefore, I conclude and find Slaten's grievance activities were concerted ac- tivities protected by the Act. - In deciding whether Slaten's protected concerted ac- tivities had an adverse impact on his December 1983 evaluation, it is helpful to consider the evaluation he .was given in May 1983.when he applied for the ad hoc EEO investigator position and compare that evaluation to the recommendation given him in November 1982 for the PASS program 25 Slaten had been under Harris' supervi- sion for approximately 11 months' at the time Harris rated him for the PASS program.' The record does not reflect, any grievance. filing activities by Slaten during the January to November 1982 time frame. In his No- vember 1982 evaluation of Slaten for the PASS program, Harris rated him as having "great potential" and being "willing to learn." In December 1982, Slaten raised the first of a number of grievances with Harris. By the time Harris rated Slaten in May 1983 for the ad hoc EEO in- vestigator position. Slaten had raised contract-related grievances with Harris involving overtime, safety, and scheduling !Harris rated Slaten with reservations in his May 1983 evaluation of him Slaten had no disciplinary history and Harris gave no objective basis for his evalua- tion The only clearly demonstrated intervening factor between the November 1982 and May 1983 evaluations of Slaten was his grievance filing activities. In fact, 2s As noted elsewhere in this decision, the PASS program was de- signed for Respondent to select qualified volunteers to form a pool of employees from which initial-level supervisors could be selected 253 Harris told Slaten in May. 1983 that his grievance-filing was ' giving him the reputation of a troublemaker and might affect his opportunity for promotion. The fact that Slaten's grievance filing continued to. be of concern to Harris is demonstrated by the fact Harris told Slaten, in either June or July 1983, he thought he was racially mo- tivated in his grievance filing and was trying to get rid of him. On the basis of all of the above, I am persuaded the General Counsel has established a prima facie showing sufficient to support an inference that Slaten's protected activity was a motivating factor in the negative evalua- tion given him in December 1983 and in the failure to promote him to supervisor in the central markup unit in February 1984, Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Management Corp, 462 U.S. 393 (1983). Prior to Slaten's having filed grievances with Harris, he was rated by Harris as having "great poten- tial" for being a' supervisor. However, after Slaten com- menced filing grievances, and after he was told his griev- ance activity might affect his future potential for promo- tion, he was evaluated for a supervisor's position with reservations. The change in Harris' evaluation of Slaten's supervisory potential coincides with Slaten's grievance filing activities I am in agreement with the General Counsel that the record evidence as a whole demon- strates that Harris' motivation for evaluating Slaten with reservations resulted from Slaten's complaints, concerning collective-bargaining- agreement violations he contended Harris was engaging in. The record evidence, likewise, establishes the promotion advisory panel relied on the unlawfully motivated December 1983 negative evalua- tion given Slaten by Harris in rating him "not qualified" for the, computerized markup supervisory position A number of factors clearly establish the panel relied on the negative evaluation. Probably the most compelling evidence is the fact Chairperson Hodges told' Slaten he was not selected as one of the best qualified applicants because of the, evaluation given him by Harris. The pro- motion advisory panel's summary work sheet indicates the panel` relied on supervisors' comments in evaluating and rating the applicants. The posted job announcement indicated the supervisors' evaluations would form a part of the advisory panel's basis for selecting the best quali- fied applicants. It is not disputed that the panel members actually had the evaluations available to them at the time they made their choices. I find Respondent has not per- suasively demonstrated that it would not have promoted Slaten even in the absence of the protected conduct. Accordingly, I find that Respondent, by giving Slaten a negative evaluation-in December 1983 and by failing and refusing to promote him to a supervisor's position in the central markup unit in February 1984, violated Sec- tion 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent and this matter by virtue . of Section 1209 of the Postal Reform Act of 1970. 2. American Postal Workers Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By giving a negative evaluation to James H. Slaten Jr. in December 1983 and by failing and refusing to pro- mote him- to the position of supervisor in the central markup unit in February 1984 because he effectively pre- sented grievances against Respondent, - and because he engaged in protected concerted activities with other em- ployees for the purpose of collective bargaining and other mutual aid and, protection, Respondent violated Section 8(a)(1) of the Act. ' 4. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that Respondent promote James H. Slaten Jr. to the position of supervisor in the central markup unit, or, if that position no longer exists, to a substantial- ly equivalent position without prejudice to his seniority or other rights and privileges. It is also recommended that Respondent make James H. Slaten Jr. whole for any loss of pay which he may have suffered as a result of the unlawful failure to promote him to supervisor. Any backpay for Slaten and interest thereon shall be comput- ed in the .manner prescribed, in F. W. Woolworth -Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See `generally Isis-Plumbing Co., 138 NLRB 716 (1962). It is further recommended that Respondent expunge from its records the negative evaluation given James 'H. Slaten Jr. in December 1983, and that Re- spondent notify Slaten in writing that this has been done and that evidence of the unlawful negative evaluation, will not be used as a basis for future personnel action against him See Sterling Sugars, 261 NLRB 172 (1982). Finally, it is recommended that Respondent, be ordered to post the notice to employees attached hereto as an ap- pendix for 60 consecutive days in order that employees may be apprised of their rights under the .Act and Re- spondent's obligation to remedy its unfair labor practices. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- ed26 ORDER The Respondent, United States Postal Service, Atlan- ta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Giving its employees negative evaluations and re- fusing to promote them to supervisory positions because they effectively presented grievances against Respondent and because they engaged in protected concerted activi- ties with other employees for the purpose of collective bargaining and other mutual aid and protection. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act. (a) Promote James H. Slaten Jr. to supervisor in the central markup unit or, of that position no longer exists, to a substantially equivalent position without prejudice to his seniority "or other-rights and privileges, and make him whole for any loss. of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of this decision entitled "The Remedy." (b) Expunge from its files any reference to the Decem- ber 1983 negative evaluation, given James H. Slaten Jr. and notify him in writing this has been done and that evidence of the unlawful negative evaluation will not-be used as a basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its -agents for examination and copying, all pay- roll records,- social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at Crown Road, Atlanta, Georgia facility copies of ,the attached notice marked "Appendix."27 Copies of the notice, on forms provided by the.Regional Director for Region 10, after being signed by the Re- spondent's authorized representative, shall be. posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all. places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the "Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 26 If no exceptions are filed as provided by Sec 102 46 of the Board's 27 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations , the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses • al Labor Relations Board " -