United States Postal Service

360 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD United States Postal Service and Sedalia, Mo. Local, American Postal Workers Union, AFL- CIO. Case 17-CA-11135(P)- 30 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 February 1983 Administrative LaW Judge -Michael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs' and has decided to affirm the judge's rulings, findings, and conclusions- only to the extent consistent with this Decision and Order. 2 ' - The judge, found that' the Respondent violated Section 8(a)(5) by unilaterally reducing rest breaks for certain clerical employees from 15 to 10 min- utes without notifying and bargaining with the Union. The Respondent has excepted to this find- ing and for the reasons set forth below we dismiss this allegation of the complaint. - The Respondent operates a postal facility at Se- dalia, Missouri. Its clerical employees • work on three shifts (hereinafter called Tours) and at all times material herein have been represented by the American Postal Workers Union or its Sedalia, Mo. Local.3 ' ' The Respondent has requested oral argument The request is denied as the record, exceptions , and briefs adequately present the issues and the positions of the parties , The American Postal Workers Union has filed a motion to intervene in this proceeding The Respondent opposes the motion and argues that there is no rule authorizing intervention before the Board We grant the Postal Workers' motion to intervene We have further considered the statements made by the Postal Workers in connection with its motion to intervene, the Respondent 's supplemental brief in response to these state- ments, and the Postal Workers' reply to the Respondent's supplemental brief In so doing we find no merit,in the Respondent 's objections filed with respect to the Postal Workers ' reply brief and we deny the Re- spondent's motion for leave to file a further supplemental brief Furthermore, the General Counsel has filed a motion to strike appendi- ces 1, 2, and 3 of the Respondent 's brief Appendices 1 and 2 are copies of dismissal letters signed by the Regional Directors for Regions 9 and 5, respectively Appendix 3 is an order granting a motion to intervene in a proceeding before Region 21 The General Counsel argues that the docu- ments were never offered at hearing nor admitted into evidence and that it has not had an opportunity to cross-examine witnesses with respect to the documents No purpose is served by granting the General Counsel's motion and we shall therefore deny it 2 In the absence of exceptions we adopt the judge's conclusions that the Respondent violated Sec 8(a)(1) of the Act by its supervisor Chap- man making various threats to employees 3 The complaint alleges and the Respondent 's answer admits that the Sedalia, Mo Local is the collective-bargaining representative of the cleri- cal employees However, for the first time in its exceptions before the Board, the Respondent contends that the American Postal Workers Union itself, and not the local, is the exclusive bargaining representative Since at least 1959 the Respondent's policy has been to permit its clerical employees-two 10- minute rest breaks during each of the three Tours. Begin- ning in 1973, notification of this policy was posted by the Respondent in the former breakroom on the second' floor of the facility and later in June 1981 posted in the present breakroom on' the first floor. The sign stated: "'Please- Limit Rest. Breaks to 10 Minutes." The terms of this rest break policy were never set ' forth in the collective-bargaining agree- ments applicable during this period. The record indicates that clerical employees who worked on Tours I and II followed this policy, but that the regular clerical employees on Tour III did not. According to the credited testimony of eight clerical employees who work on Tour III, the practice for the past 6 to 10 years on this Tour has been to take two -15-minute rest-breaks. Seven of the employees acknowledged that at various times they had seen the.posted signs limiting rest breaks to 10 minutes in both the former and present break- rooms.- However, the employees testified that nei- ther their present -Tour III supervisor Dale Stuver nor his predecessor Max Cassing disciplined them for taking the extended rest breaks. One of the em- ployees also stated that the 10-minute limitations were 'enforced only' when the volume of mail was heavy or when outside postal officials visited the facility. - Although Supervisor Stuver testified to the effect that since - assuming his position in 1978 on Tour III he had never reprimanded the employees for taking the extended breaks, there is evidence that the Respondent on several occasions attempted to enforce the 10-minute break rule uniformly. On 19 December 1974 Supervisor Cassing enforced the rule on' Tour III employees and they complied. As a result of Cassing's action the Union filed, a griev- ance asserting that the past practice was 15-minute rest breaks. The grievance was denied by the Re- spondent- through step 3 of the contract grievance procedure and was not pursued to arbitration. The employees continued to abide by the 10- minute break rule but returned to the 15-minute practice within 1- or 2 months. In 1979 Supervisor Stuver advised Tour III employees during a meeting that the 10-minute rule would be strictly enforced. Stuver's action was a direct result of instructions by his superior, Postmaster Frank Chapman. The employees abided by this directive for about a week and again returned to the 15-minute practice. of the clerical employees In view of the basis for our dismissal of the complaint's 8(a)(5 ) allegations as set forth below, we find it unnecessary to pass on the merits of this exception and the Respondent's related argu-' " ment that bargaining authority on this issue has not been delegated to the local 275 NLRB No. 57 POSTAL SERVICE On 6 July 19824 Loberta DuPatz, who was serv- ing as a temporary supervisor 5 on Tour III as a substitute for Stuver, was directed by Chapman to enforce the 10-minute rest break. The specific inci- dent which precipitated this directive was that on a prior workday the mail volume had been heavy on Tour III and had not been processed before the end of the Tour. DuPatz 'attributed this failure in part to Tour III employees having taken 15-minute rest breaks that day. The credited testimony clearly indicates that in the meeting at which DuPatz in- formed Tour III clerical employees that the 10- minute rest breaks would-be strictly enforced, she also said that if the mail were light she did not care how long a break employees took. For several days the employees observed DuPatz' directive but re- sumed their 15-minute rest breaks when Stuver re- turned. However, on 26 July DuPatz again re- placed Stuver and enforced the .10-minute rule. There is no indication that at times she made ad- herence to the rule contingent on a heavy volume of mail. Thereafter, the Union filed a grievance as- serting that the 15-minute rest breaks had always been tolerated by the Respondent. Again the griev- ance was denied by the Respondent through step 3 of the grievance procedure and the Union did not file for arbitration.6 In his decision the judge found that the past practice for clerical employees on Tour III was to take 15-minute rest breaks, and that the Respondent knew of this practice and tolerated it. Although the judge noted the Respondent's 1974 and 1979 en- forcement of the 10-minute rule, he,also noted that in both instances the enforcements were short lived and that employees soon returned to the prior 15- minute standard. Based on these findings the judge concluded that the Respondent had a duty to give notice to and bargain with the Union concerning the limitation on employee rest breaks. Contrary to the judge, we do not agree with the determination that the Respondent violated Section 8(a)(5) by uniformly applying its established gener- al rest break policy.' Here the evidence is clear that all employees were aware of the Respondent's policy'on rest breaks and that employees on Tours I and II complied. Seven of the employees on Tour III acknowledged that they had seen the signs lim- 4 All dates are in 1982 unless otherwise indicated 5A temporary supervisor is an employee who is periodically designated to replace a permanent supervisor for periods ranging from a single day to several weeks When the permanent supervisor returns the employee resumes his normal duties 6 No party has requested that this proceeding be deferred to the grievance/arbitration procedure ' 7 In light of the undisputed testimony that 'DuPatz on 6 July did not attempt to restrict 15-minute rest breaks on light mail days, it appears that the uniform application of the 10-minute rest break policy did not occur until 26 July '361 iting rest breaks to 10 minutes in both the former and present breakrooms. Further, the Respondent attempted to enforce -this rule on Tour III employ- ees in 1974 and 1979. Although we `note that the employees were never disciplined for disregarding the rule and taking the extended' breaks, we consid- er this partial breach of an otherwise uniformly ap- plied work rule inadequate basis to' bar the Re- spondent from again applying the rule in a uniform manner to all its clerical employees. Accordingly, we shall dismiss this allegation of the complaint. The judge also found that the Respondent violat- ed Section 8(a)(1) when temporary supervisor DuPatz threatened to file a lawsuit against the Union. We agree- with ,the Respondent's exception to this finding and for the reasons set forth below we dismiss this allegation of the complaint. In. 1980, DuPatz transferred to Sedalia from a postal facility in Phoenix, Arizona. In addition to her, regular clerical duties, she served as temporary supervisor on Tour III and performed administra- tive work for Postmaster Chapman during the day and evening Tours. In March the Union filed grievances with the Respondent asserting that DuPatz was receiving preferential treatment in job assignments and work hours. Thereafter, on 5 April, while DuPatz was acting as a temporary, supervisor, she met privately at the facility with Robert Smith who was president .of ' the Union for the State of Missouri. According to the testimony by Smith, DuPatz stated that there were "too many grievances being filed" against her, that the Union 'was trying to block her in at- taining her goals, and that she felt the Union was harassing her. Smith further testified that DuPatz stated that her husband had retained an attorney in Phoenix, Arizona, and she was forwarding informa- tion on the grievances filed to him, and that the at- torney instructed her that they would wait for the correct moment when the Union made a mistake or said the wrong word at which time they would file an action in civil court against the Union. DuPatz further stated that it would not be a "petty local union," but that she would. file suit against a na- tional union whose headquarters were in Washing- ton, D.C. Smith replied that the Union was only responding to its membership who believed that she was receiving preferential treatment. ' Unlike the judge, we do not hold the Respond- ent accountable for DuPatz' remarks. Here DuPatz' remarks, while acting as a. temporary low- level supervisor, concerned the filing of a civil law- suit on her own personal behalf and cannot be con- strued to involve any threatened retaliation by the Respondent. The cases relied on by the judge in- volving threats by an employer -or, union are thus 362 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD inapposite. In the absence of any knowledge by the Respondent, of these statements or any additional circumstance which would make them. attributable to the Respondent, we do, not find that such a statement by DuPatz is unlawful. In this regard, we particularly note that the threat of the lawsuit did not involve a form of retaliation by DuPatz within the framework of her supervisory responsibilities. Accordingly, we shall dismiss this allegation- of the complaint." - - - ORDER The National Labor Relations Board orders that the Respondent, United States Postal Service, Se- dalia, Missouri, its officers, agents, successors, and assigns, shall ' 1. Cease and desist-from. (a) Making.coercive or threatening statements to employees such as threatening more onerous work- ing- conditions or loss of promotional opportunity, or by threatening loss of an employee's position, in order to discourage' support for or activities on behalf•of the Union. .(b) In any like or related manner interfering with, , restraining, or coercing employees in-the-ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. - -(a) Post at U.S. Postal Office in Sedelia, Missou- ri, copies -of the attached notice marked "Appen- dix.-9 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representa- tive,- shall be'posted by the_Respondent' immediate- ly 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 Respondent to ensure that the notices are not altered, defaced, -or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of - this Order what steps the Respondent has taken to comply. MEMBER DENNIS, concurring in part and dissent- ing in part. ,B In view of the basis of our dismissal of this allegation, we fmd it un- necessary to consider the Respondent 's contention that DuPatz' -threats of a lawsuit were justified as based on practices she believed unlawful under Title VII of the Civil' Rights Act, or the impact of Bill Johnson's Restau- rants v NLRB, 103 S Ct. 216 (1983), on'such a threat of lawsuit 9 If this Order is enforced by a Judgment of a. United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " I would find that the Respondent knowingly tol- erated 15-minute rest breaks on Tour III for many years, thereby elevating Tour III 15-minute breaks to a term of employment that the Respondent could not unilaterally change. I therefore agree with the judge that the Respondent's unilateral change in Tour III rest breaks without affording the Union an opportunity to bargain violated Sec- tion 8(a)(5). I agree that the Respondent did not violate Sec- tion 8(a)(1) by threatening to file a lawsuit against the Union: Loberta_DuPatz, while acting as a tem- porary supervisor, told Union President Smith that there were "too many grievances being filed against her as an employee." The record shows (and the statement supports) that DuPatz was not complaining about grievances against her in her su- pervisory capacity, but rather grievances against the Respondent based on its alleged preferential treatment of her in her employee capacity. Under these peculiar circumstances, I find that DuPatz was speaking only for herself and that the state- -meni is not attributable to the Respondent. 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. WE WILL NOT make coercive or threatening statements to - employees such as threatening more onerous working conditions or loss of promotional opportunity, such as threatening an employee with loss of his position, in order to discourage support for or activities on behalf of the Union. 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. ' UNITED STATES POSTAL SERVICE DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Sedalia, Missouri, on November 2, 3, and '16,1 pursuant to a complaint issued All dates refer to 1982 unless otherwise indicated POSTAL SERVICE by the Regional Director for Region 17 of the National Labor Relations Board on September 20,' and which is, based on a charge filed by Sedalia, Mo. Local, American Postal Workers Union , AFL-CIO (Union) on August 5.• The complaint alleges that United States Postal Service (Respondent) has engaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). ' Issues - 1. Whether Respondent violated Section 8(a)(5) of the Act by unilaterally reducing employees' two daily rest breaks from 15 to 10 minutes. 2. Whether Respondent violated Section 8(a)(1) of the Act when its supervisors and agents made certain alleged threats to employees because said employees were en- gaging in protected concerted activities:, - (a) Imposition of more onerous working conditions and loss of promotional opportunity. • - (b) Elimination of an employee's job. - (c) Filing a lawsuit against the Union. All parties were given full opportunity to' participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to.argue orally, and-to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.2 On the entire record of the case, and from my obser-. vation of the witnesses and their demeanor, I make the following FINDINGS OF' FACT 1. RESPONDENT'S BUSINESS Respondent provides postal- services for the 'United States of America and operates a facility in Sedalia, -Mis- souri. Respondent admits, and I find, that the Board has jurisdiction over Respondent and the allegations con- tained in the complaint by virtue of Section 1209 of the Postal Reform Act of 1970, 39 U.S.C. §101, et seq: H. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Sedalia, Mo. Local American Postal Workers Union , AFL-CIO is I a labor - organization within the meaning of Section 2(5) of the Act. 2 The General Counsel has filed a motion to strike Respondent',s ap; pendices I and 2 appended to its brief on the grounds that said docu- ments-were never offered at hearing nor admitted into evidence and that the General Counsel has not had an opportunity to cross-examine wit- nesses with respect to these documents Respondent objects to-the motion of the General Counsel and claims that it is merely complying with my order which in substance requested a copy of anything which regulated breaks Appendix 1 is described by Respondent as a document considered by the parties to be part of the National Agreement executed July 21, 1978 Appendix 2 is a PS Form 4855, which regulates the daily oper- ations of a custodian, including breaks I grant the General Counsel's motion to strike At p 104 of the record, I requested as an appendix only bona fide Federal regulations which the parties might assume would be in a law library Further, the documents are otherwise not properly present- ed for my consideration See Geary Ford, 261 NLRB 1149 fn 1 (1982), S. Freedman Electric, 256 NLRB 432 fn 1 (1981) III. THE ALLEGED UNFAIR LABOR PRACTICES - 363 A. The Facts For the last several years, the asserted policy of the U.S. Post Office at Sedalia, Missouri, has been that all nonsupervisory employees are entitled to two 10-minute rest breaks every tour (shift) worked. This policy has been' stated to new employees when they are newly, hired, and it has been reflected in signs posted in the former breakroom on the second floor of the post office and in -the present breakroom on the first level.3 More- over, Respondent has presented Postmaster Frank Chap- man and a former officer-in-charge of the Sedalia Post Office Gleen Procter,4 as well as other current postal su- pervisors to testify that such a policy exists. I find that said policy of two 10-minute breaks exists, is publicized, is known to employees, is generally enforced, and is ap- parently observed by the majority of Respondent's em- ployees at Sedalia. I further find that an exception to this-policy exists for certain of Respondent's inside clerical employees who work on Tour III. This shift begins around noon-there is some slight • variation for different employees-and ends around 9 p.m. The General Counsel presented no fewer than eight witnesses who testified that an-informal past practice -developed over the past several years by which these individuals, with tacit supervisory approval or at least acquiescence, took two 15-minute break peri- ods. each and.every day. Since 1978, the supervisor for Tour III has been Dale Stuver, a witness called by Re- spondent. He did not seriously contest the testimony of the General Counsel's witnesses that 15-minute breaks were -tolerated.5, Occasional exceptions to this practice 2 These signs read , "Please Limit Rest Breaks to 10 Minutes " From time to time, these signs fell from the wall and were partially obscured by office equipment and similar objects However, I find that all wit- nesses called by the General Counsel' were aware of the message con- tained on these signs and first learned of the- message when the signs were posted several years ago 4 Procter temporarily replaced Chapman while , the latter attended,,a training session between April and July 1981 6 Indeed, a portion of Stuver's testimony on cross-examination' is re- vealing - Q I believe you testified that since the Sedalia Postal Service came under Columbia, you all started enforcing this 10-minute break rule, is that correct? A I believe it was June Q Was it at that tune that you began enforcing the 10-minute breaks? -` A Yes Q Prior to that time, had you enforced the 10-minute break rule? A Not real strict Q Part of that time had employees pretty generally taken about a 15-minute break') A Sometimes Q Prior to June of 1982, the fact that these employees took a 15- minute break didn't really bother you, did it, as long as they got their work dohe9 A No, it didn't Q So you' wouldn't go and reprimand an employee for taking a 15-nunute break if he was getting his work done , isn't that correct? A No, I don't guess I did ' Q You never reprimanded any of the Tour III employees regard- ing taking a longer than 10-minute break, did you? A No Continued 364 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD occurred when, a postal inspector or vistor from outside the local post office was on the premises, or when the mail was exceptionally heavy. Then Stuver passed the word to take only 10-minute breaks and the employees complied. After the visitor left, or after the mail returned to normal, it was back to business as usual and 15-minute breaks were the order of the day. The origins of the 15-minute break existing outside the formal structure of the post office are obscure. There was some suggestion that it developed when the break- room was on the second floor, requiring about 2 minutes to , reach it. Apparently, employees started their break not upon leaving the worksite, but upon arrival at the breakroom. Basically, the practice evolved because Stuver and his, predecessor on Tour III. tolerated. it. Stuver testified that he had been ordered by postal super- visors at St. Joe, Missouri, which had responsibility. until May or June for the operation at Sedalia, "to back off from" strict rule enforcement on his tour because his subordinates were all members of the Union, and most were present or former union officers or stewards. While Stuver claimed to-have received this information from Chapman, who never addressed this point in his testimo- ny, and while admitting that rest break enforcement was never specifically mentioned, Stuver testified that he had no real choice but to acquiesce in the longer breaks lest strict enforcement antagonize the Union. It is unneces-' sary to discuss further the origins of the two 15- minute rest breaks on Tour III because how the practice came to be is not relevant to the issue presented for decision.6 However, it would be helpful to look at- three local postal supervisors all senior to Stuver to determine what they knew about the past practice of 15-minute breaks and when they knew it. Stuver's immediate supervisor is Max Cassing; superin- tendent of postal operations and 23-year veteran of the postal service, all in Sedalia. Since 1968, he has held a variety of supervisory positions in the local post office, one of which was the supervisor position now held by Stuver. Presently, he is the second highest ranking postal official at Sedalia. -He testified that for the past 10 years the policy at Sedalia has been 10-minute breaks . Later in his testimony, he further, testified that about 95 percent of the employees observed this standard. (Tr: 686) The 5 percent, all on Tour III, were reported to Cassing by Stuver, and the former, like the latter, decided for what- Q But it had been your experience that the employees , at least on Tour III, had been taking more than 10-minute breaks for some time, isn't that true9 A True [Tr pp 665-667] a In May or June, supervision ' of the Sedalia Post Office was trans- ferred from St. Joe to Columbia, Missouri According to Stuver, this change set the stage for strict enforcement of the 10-minute break-rule, because Columbia allegedly would permit the local post office more au- tonomy and more authority to treat union officials like other employees Contrary to Stuver, I find that the change in supervision had nothing whatsoever to do with bringing this rest break matter to issue Rather, it was the assignment of temporary supervisor Loberta (Lu) DuPatz to re- place Stuver temporarily which caused the issue to arse' I will recite the facts below ever reason to acquiesce in the noncompliance by most of the Tour III employees.7. Another witness for Respondent was Procter, men- tioned above. Like the other supervisors, he learned soon after his arrival that certain employees were taking ex- tended breaks. He mentioned it. to Stuver, who agreed that extended breaks were being taken Procter then or- dered Cassing to order Stuver to enforce the 10-minute breaks. After Procter's order was passed down the chain of command, the employees on Tour III ignored it and continued to take their usual 15-minute breaks. (Tr. 280.) Procter further testified that he was not too concerned with the noncompliance because he believed that once the breakroom was moved downstairs, in early June 1981, the problem would cease. Procter left Sedalia in early July 1981. I find that the employees in question continued taking 15-minute breaks and Stuver continued ' not to enforce the 10-minute breaktime.: Finally, Proc- ter's brief presence at the Sedalia Post Office did not affect the past practice of 15-minute breaks in any sub- stantial manner. Next, I look to the testimony of Postmaster Frank Chapman, who came to Sedalia as postmaster in 1978. Shortly after his arrival, he learned that the regular clerks on Tour III were taking 15-minute breaks. Indeed, a temporary supervisors named Leonard Hall made re- ports to Chapman that the clerks on_ Tour III were taking 15-minute breaks. A witness for the General Counsel, Hall testified that before he was designated a temporary and occasional supervisor, he worked on Tour III and took 15-minute breaks like the other clerks on that tour. After completing his assignment as a tem- porary supervisor, he returned to his clerk's job and re- sumed taking 15-minute breaks. Not surprisingly, when he attempted to enforce the 10-minute official policy on Tour III, he met with little or no success. Like Stuver, Chapman attributed his lack of action against employees to,their status as union officials. None of the employees was ever disciplined for taking extended breaks and no supervisor, including Stuver, was ever disciplined specifi- cally for this reason. However, Chapman did claim that both Cassing and Stuver were rated' down on annual evaluations in part for their failure to deal with this problem. In 1974, while,Cassing was Tour III supervisor, he at- tempted 'to change the 15-minute breaks to 10 minutes. He also attempted to change the practice of four persons going on break at the same time and directed that only two go at the same-time. The Union filed a grievance on these two matters which was denied at every step through step 3. (R. Exhs. 3a-3k.) The Union did not take the matter to arbitration. According to Robert. Smith, a witness for the General Counsel, and grievant in 1974, the matter,was not taken to arbitration because it effec- ' Cassmg's lack of action is not surprising since like Stuver, he tolerat- ed 15-minute breaks when he was Tour III supervisor, immediately before Stuver 8 A temporary supervisor is sometimes called a 204B supervisor, mean- ing an employee from the ranks who is periodically designated a supervi- sor to replace permanent supervisors for periods of time ranging from a single. day to.several weeks Upon return of the. permanent supervisor, the 204B returns to his or her prior job in the ranks POSTAL SERVICE Lively became moot. That is;-,either due to a change of supervisors or some other reason which the witness could not recall, the Tour III employees returned to the 15-minute break after losing the grievance, and no one attempted to enforce the 10-minute rule. Accordingly, pursuing the grievance became unnecessary. Smith is currently union president for the entire State of Missouri. In 1974, he held an office with the local union in Sedalia. In July 1980, DuPatz transferred to Sedalia Post Office after several years of postal experience in other cities, the last one of which was in Phoenix, Arizona. At Sedalia, DuPatz was designated a part-time flexible clerk. From time to time, part of her duties were to substitute' as a temporary supervisor for Stuver and others who were unavailable for beef periods of time. On Tour III, she became aware that Smith, Robert Creed, another witness at hearing, and other employees were taking 15- minute breaks. At first she said nothing about' this, even though Stuver had warned her that his subordinates were inclined to extend the normal break period and had to be watched closely. About July 6, a heavy mail day, four trays of mail were not processed before the tour ended and these had to be carried over to the next day. DuPatz, then replac- ing Stuver as supervisor, attributed this.failure to com- plete the work to several unnecessary trips by employees to the bathroom and, most of all, to the rest breaks in- volving an-extra 10 minutes for each employee in her unit. After discussing the matter with Chapman, she held a meeting with employees and told them that some mail had been delayed the' preceding day and why, in her opinion, this had occurred.9 DuPatz also told employees that from that point on the 10-minute rest break would be strictly enforced, and that employee trips to the wash- room would be monitored.io Several of the witnesses called-by the General Counsel testified that DuPatz went on to say that if the mail was light, she did not care how long a break that employee took. However, if the mail was heavy, then she wanted no more than 10-minute' breaks taken. DuPatz strongly denied making these statements. While resolution of this credibility matter is not crucial to the issue, I believe the General Counsel's witnesses. It was the alleged heavy mail which brought the issue -of rest breaks to a head. Moreover, DuPatz must have known that Stuver was not enforcing the 10-minute rest break policy: Accord- ingly, it is likely she made the statement so as not to an- tagonize Tour III employees too greatly. - For the next few days, all employees -under DuPatz took only about 10-minute breaks. Then Stuver returned and so did the 15-minute break policy. - At the end of July, DuPatz returned to Tour III as it temporary supervisor. Again the employees took the 9 On cross-examination, DuPatz testified that July 6 had been eiicep- tionally warm and that both the fans and the air-conditioner were not working It is unnecessary to find whether the mail was delayed for these reasons and the resultant loss of productivity or because the employees were on break longer than DuPatz thought was proper or simply because the mail was inordinately heavy i° As a result of this meeting, Union Steward Ed Lyles filed a gnev- ance contending that DuPatz should have held individual rather than a mass meeting (R Exh 10c) This gnevance was later dropped 365 usual 15-minute, breaks. This time- she spoke to several employees individually: Smith and - -other witnesses George Brady and Kenneth Wallen. All admitted, in re- sponse to DuPatz' questions, that they were aware that they had taken 15-minute breaks and that no one had made the decision for them.- Rather, each had made the decision for himself. Later, the same employees were called before Cassing, asked the same questions and gave the same answers.. DuPatz then gave all Tour III- em- ployees direct orders to take 10-minute breaks in the, future. At this point, Robert Creed filed a grievance dated July 29, contending that a 15-minute • break was always tolerated. (R. Exh. 10j.) This grievance was proc- essed through step 3 where it was denied on October 1. (R. Exhs. 1, 2, lOg-10j.) The matter did not go to arbi- tration. .B. Conclusions and Findings 1. The unilateral change The General Counsel presented overwhelming evi- dence that, for the past several ' years, the practice of Tour III employees at the Sedalia Post Office was to take 15-minute breaks twice a day. -I further find that the present postmaster, Chapman; his temporary replace- ment, Procter; the prior postmaster, Sutton; and the present and past immediate Tour III Supervisors Stuver and-Cassing all knew of this practice and all tolerated it. Except for Stuver, all supervisors who testified seem to maintain a fiction that the continuous practice of 15- minute breaks did not exist. To be sure, over the years, there were, isolated and short-lived attempts to stamp out the extended breaks. As noted above, in 1974 Cassing at- tempted briefly to enforce the 10-minute standard. Even though the Union lost its grievance, the 15-minute rest break returned within a month or two. In 1979, another attempt was made by StuverI to restrict rest-breaks. This occurred when certain' employees began to take, more than 15 minutes. (Tr p. 666.) Stuver demanded that em- ployees return to the 10-minute break. This new policy lasted for only a few. days. Then employees returned to the 15-minute standard 'which Stuver tolerated. (R. Exh. 16.) . In light of 'the above history of the 15-minute rest break at the Sedalia Post Office, f find that Respondent had a duty to give timely notice of the proposed change in Tour III'rest breaks-and, on request, bargain with the Union. i i An employer is required by Sections 8(a)(5) and 8(d) of the Act to bargain with the employee representative over subjects encompassed within the general categories of wages, hours,' and other terms and conditions of em- ployment. There! can 'be little question that,a change in rest break policy is a matter affecting hours and other terms and conditions' of employment. i 2 Further, 'al- NLRB NLRB v Williamsburg Steel Products Co., 369 U S 736 (1962); Fibre- board Paper Products Corp Y. NLRB,-379 U S' 203 (1964) 12 Production Plated Plastics, 254 NLRB 560 (1981) See also Union Savings & Trust Co, 242 NLRB 176, 177-178 (1979), affd 643 F 2d 1249 (6th Cir. 1981), Cosmo Graphics, 217 NLRB 1061, 1066 (1975) 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though the rest break policy in the instant case does not derive from the express terms of the collective-bargain- ing agreement, the past practice of 15-minute breaks ele- vates it to term of employment not susceptible to unilat- eral' change. 13 In -this case, I find that Respondent was required to' give timely notice, but did not do so, prior to the unilat-, eral change made by DuPatz while she was a temporary- s6pervisor.14 The lack of notice is not surprising since, Respondent has-contended in this case that rest breaks were a privilege, not a right, and that they could be al- tered by Respondent at any time, for any reason. Fur- ther, Respondent claims that over the years only 10- minute rest breaks have been permitted. Accordingly, to give notice to- the Union in this case of a change from a 15-minute to a 10-minute rest break would be a tacit ad- mission that Respondent's contentions were not valid. Because no timely notice of the unilateral change in the rest break was given to the Union, nor did the Union otherwise have knowledge, the Union was under no duty to, demand bargaining. In the alternative, I find for two reasons that such a demand would have been futile: first, as noted above, Respondent had alway claimed that the length, indeed the existence of rest breaks, was not a bar- gainable issue;, second, the Union was faced with a fait accompli. 1-5 - If the Union did have a duty to demand bargaining, I find that the Union's grievance filed about July 29. to protest the direct order of DuPatz given on July 26 was sufficient to put .Respondent on notice that the Union de- sired to bargain on the rest break issue. i 6 With respect to this grievaice, Respondent claims that it was untimely' and that - a grievance should have' been filed after DuPatz' mass meeting of July 7. I can agree. The past practice of the Sedalia Post Office indicated that any crackdown on alleged rest break abuse was always tem- porary, Moreover, DuPatz was replacing Stuver on a temporary basis. It was reasonable for the Union to feel that with Stuver's return would likely come the usual re- laxed -standard'of 15=minute rest breaks. The employees on Tour III all knew this-and decided it was unnecessary to protest a rule which would likely last only so long as DuPatz was replacing Stuver. Indeed, the record shows that Stuver returned shortly after July 7 and with the de- parture of DuPatz went the.10-minute rest break. ' Having found that Respondent had a duty'to bargain with 'the Union, over the issue of length of rest breaks and that said issues are mandatory subjects of bargaining, I turn next to consider Respondent's argument that the collective-bargaining agreements in this case provide a defense to the unfair labor practice charge. This claim must be rejected. First, Respondent contends that because the collective- bargaining agreements, national (R. Exh. 15) and local 12 Peerless Food Products, 236 NLRB 161 (1978) 14 1 date the unilateral change from July 26 when DuPatz gave direct order to Creed and the other employees who testified 15 See Geriatrics. Inc, 242 NLRB 798 (1979) Compare Talbert Mfg, 264 NLRB 1051' (1982), cited by'Respondent, where the Board found adequate notice given to the Union In Talbert, the Union failed to act diligently to demand ,bargaining..Here no such notice was given 16 Triangle Appliance & Furniture Mart, 265 NLRB 1473 (1982) (R. Exh. 12) are silent with respect to` length of rest breaks, the Union has waived its right to bargain on this subject. However, while a statutory right can be waived by the Union, said waiver must be clear and unmistak- able. Mere silence in the bargaining agreement does not meet the test.17 The Board has also held that a waiver will not be lightly inferred but must be clearly evidenced either by the terms of the parties' collective-bargaining agreement or in the nature' of the prior contract proceed- ing.18 I find in this case that there is nothing in the bar- gaining ''agreement indicating' clearly and unmistakably that the -Union intended to waive its right to bargain on the issue at hand, nor does any other valid evidence sup- port this contention. - The Employer's management rights article, article 3, p. 4 (R. Exh. 15) of the current collective-bargaining agree- ment does not affect my conclusion that no union waiver exists. This article reads as follows:l s - ARTICLE 3 MANAGEMENT RIGHTS ' The Employer shall have the exclusive right, sub- ject to the provisions of this Agreement and consist- ent with applicable laws and regulations: A. To direct employees of the Employer in the performance of official duties: B. To hire, promote, transfer, assign, and retain employees in positions within the Postal Service and to suspend, demote, ,discharge, or take other disciplinary action against such employees: C. To, maintain the efficiency of the operations entrusted to it: D. To determine the methods, means, and per- sonnel by which such operations are to be conduct- ed: • E. To prescribe a uniform dress to be worn by letter carriers and other designated employees: and F. To take whatever actions may be necessary to carry out its mission in emergency situations, i.e., an unforeseen circumstance or a combination of cir- cumstances which calls for immediate action in a situation which is not expected to be of a recurring -nature. • . The language quoted above is -clearly insufficient to show a clear and unmistakable waiver. It does not men- ' tion- rest breaks at all, much less give management the unfettered right to change the length of rest breaks at will.20, . - Moreover, Respondent failed to introduce any extrin- sic evidence of waiver. Accordingly, there is no evi- dence to show that, in negotiating this clause, the parties 17 Timken Roller Bearing Co." v. NLRB, 325 F.2d 746, 751 (6th Cir 1963) " 18 Southern Florida Hotel & Motel, 245 NLRB 561, 567-568 (1979) 19 Since p 5 of the agreement is missing, I am unable to tell for certain whether the management-rights article is complete 20 Latex Industries, 252 NLRB 855; 858 (1980), cf Weltronic Co v NLRB, 419,F 2d 1120 (6th Cir 1967), cert denied 398 U S 938 (1970) POSTAL SERVICE even discussed the possibility that management had a unilateral right to change the length of rest breaks. _ Finally, I again look to the contract; -article 5, p. 6, which reads as follows: ` PROHIBITION OF UNILATERAL ACTION The Employer will not take any actions affecting wages, hours, and other terms and conditions of em- ployment as defined in Section 8(d) of the National Labor Relations Act which violate the terms of this Agreement or are otherwise inconsistent with its obligations under law. This provision is a ' specific restraint on Respondent's action here since I have found above that the length of the rest break is a matter contained within Section 8(d) of the Act. Article 5 of the contract is more persuasive than the management-rights article to show that- there was no waiver by the Union in this case. In sum, after examining not only the relevant language of the contract quoted above, but in addition, the past practice of the parties, the bargaining history, and the parties' adminis- tration of their agreement, I find no waiver by the Union of their right to bargain on the length of the rest breaks. I' do find; after considering all relevant issues and argu- ment, that by making a unilateral change in employee rest breaks, Respondent has violated Section 8(a)(5) of - - the Act. 21 2. Imposition of more onerous working conditions ' - and loss of promotional opportunity In April Leonard Hall was performing his duties as an employee of Respondent. He was not then acting as a temporary supervisor, but was acting as - a safety and health representative.22 In that position, Hall was re- ,sponsible to work for safe working conditions, report any hazards to his' immediate supervisor, and to partici- pate in quarterly health and safety meetings with man- agement . An employee named Joyce Thompson, who did not testify, complained to Hall that certain plastic trays used for sorting mail had become broken. The nor- mally rounded edges contained sharp, jagged edges which had scratched Thompson's arm. Hall agreed that the trays were unsafe and notified Stuver of the problem. Stuver agreed with Hall that a hazard existed. Then Hall placed a red tag on the trays indicating they were unsafe 21 In La Mousse, Inc, 259 NLRB 37 (1981), the Board approved the holding of an administrative law judge that an employer 's unilateral change in the employees' two daily rest breaks from 10 to 15 minutes was not a violation of the Act The rationale of the holding was that the uni- lateral change was not sufficiently material , substantial , or significant Neither party has cited La Mousse, Inc, and Respondent does not claim that the unilateral change at issue in this case was not material, substan- tial, nor significant While it seems to me that a one-third percent change increase or decrease in rest breaks is material , substantial, and material, I am, of course, bound by this case,'if it applies However, La Mousse, Inc, can be distinguished because here the employer attempted to reduce the breaktime by one-third and the effect'on employees is much more severe I find that the reduction here is material, substantial, and significant 22 This position is a union-sponsored position by which Hall's name was submitted to management If management approves as it did for Hall, he is placed on a safety and health committee as an employee representa- tive ' 367 and then placed the trays on the side while substitutes were used. The following day, Hall was called to Chapman's office and Stuver accompanied him there. Before the conversation began, Chapman asked Stuver to leave. Up to this point, the facts are essentially undisputed. Howev- er, there is a disagreement as to what occurred next. Ac- cording to Hall, Chapman accused him of nitpicking and being influenced by, that bunch out there-apparently re- ferring to the other employees on Tour III. When Hall attempted to defend his actions and pointed out that he had checked with Stuver, Chapman warned that if Hall continued to nitpick on safety, Chapman could take the safety handbook, out on the work floor and make it so rough that no'one could stand it. Then Chapman asked Hall how far Hall desired to go in the Postal Service. When Hall answered that he had gone as far as he thought he could, Chapman replied that under the new supervisory authority at Columbia, Missouri, new oppor- tunities for postmasters and officers in charge (OICs) would be opening up.'- Hall was advised to think about it. Chapman admitted the meeting with Hall and asking Stuver to leave. He also admitted using the term "nit- picking" and discussing Hall's future with him. While de- nying that he intended to be critical of Hall or that he discussed Hall's promotability, Chapman did testify that other methods could have been better used to deal with the problems of broken trays. For example, the trays could have been just thrown away. (Tr. 450-451.) Else- where* in his testimony, Chapman testified that the proper procedure for finding equipment unsafe was to report it to Stuver or rill out a hazard form and turn the broken item over to Stuver. (Tr. 448, 524.) It is not difficult to credit Hall's account of the con- versation. Chapman's account is.evasive and inconsistent. Moreover, Chapman's order to Stuver to leave the room before talking to Hall makes Chapman's account suspect. However, it should be noted that the differences between Hall's and Chapman's accounts are not great. While it is not clear what Chapman's objection was to Hall's proce- dure, a preponderance of the evidence indicates that Hall was' being disciplined for exercising his Section 7 rights. That is, in admitting to using the term "nitpicking," Chapman did `not mean that Hall should have thrown the trays away or used a different procedure. Rather, Chap- man was suggesting that the safety hazards should have been ignored This is a fair interpretation of Hall's ac- count of the conversation which I have credited and no other interpretation is probable. I find, therefore, that Chapman's implicit threats to Hall regarding more oner- ous working conditions and loss of promotional opportu- nity violated Section 8(a)(1) of the Act.23 To support my conclusion above, I' note that Hall was engaging in protected concerted activity in responding to the complaints of Thompson.24 That' is, if Hall had not 23 Respondent contends in his brief, p 38, that Chapman's remarks were friendly and no reasonable person would feel that his rights were being affected This claim, even if true, is irrelevant to an 8(a)(1) viola- tion which requires that an objective standard be used By this standard, Chapman's remarks to Hall were coercive - 24 Cf Transport Service Co, 263 NLRB 910 (1982), compare Comet Fast Freight, 262 NLRB 430 (1982) 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acted as he had, he, may have been injured himself. Moreover, there is no credible evidence that Hall did not -follow proper procedures.25 3. Elimination of an employee's job The first witness called by the General Counsel was Robert Creed, an employee at the Sedalia Post Office for about 12 years, and currently president of the Union. For the past 8 years, Creed's job on Tour III has been as a self-service postal unit technician (SSPC) which means that Creed replenishes stamp vending and currency change machines and does limited maintenance on these same machines. In addition, Creed works as a distribu- tion clerk. On'August 4, Creed met with Chapman in the latter's office and discussed a grievance which Creed had previously filed.' Basically, the grievance was in two parts and concerned an employee substituting for Creed as SPPC technician. Creed objected first to the substitute not having a witness present when money was being re- moved from the machines pursuant to usual security pro- cedures followed by Creed. Creed also claimed in the grievance that the employee was not paid at the higher rate of pay which Creed received for doing this work. At the meeting of August 4, Chapman agreed to the .first part of the grievance but denied the second part on the grounds that the few minutes involved for the substi- tute to do Creed's work did not warrant higher pay. As Creed persisted in his argument on this point, Chapman allegedly said, "Maybe I should look into the possibility of not having an SSPC technician in the Sedalia office." Since Creed was the only employee at Sedalia assigned to duties as an SSPC technician, he interpreted Chap- man's remark as a threat to abolish his job. Accordingly, he promptly incorporated the alleged threat into the grievance and proceeded to step 3. (R. Exhs. 6a-h.) . Chapman denied making the statement in question, but I credit Creed. Not only did Creed promptly incorporate the statement into the grievance process at step 3, dated August 14 (R. Exhs. 6b-e.), but the resemblance of Chapman's statement here to the statement he made to Hall, discussed above, is, striking. Basically, I found Creed to be a more credible witness on this point. Respondent's first defense, that the statement was never made, has been rejected above. Next, Respondent argues that, because the grievance was settled, the instant allegation incorporated into the.gnevance at step 3 was also settled and the Board should defer to this settlement. This contention must be rejected. It is true that on August 18, management `agreed to both of the original matters alleged at step 1. (R. Exh. 6h.) However, no mention was made in the final decision of Chapman's August 4 statement to Creed. No arbitration ever oc- curred. Assuming, without finding, that, in proper cir- cumstances, the Board would defer to nonarbitration pri- 25 I find that Hall's conduct was also protected because he was the Union's representative on the health and safety committee and engaging in protected union activities While acting pursuant to his duties in a rea- sonable, good-faith way, Hall was coerced in the exercise of his rights protected by Sec 7 of the Act Cf General Motors Corp, 218 NLRB 472, 477 (1975), enfd 535 F 2d 1246 (3d Cir. 1976), NLRB v South Central Bell Telephone Co, 688 F 2d 345, 354 (5th Cir 1982) vate settlements like that present here,26 I find that since the record does not show that the threat was ever con- sidered, not to. mention remedied, the deferral doctrine would not apply to this case.27 On the merits of the issue, I find that Respondent vio- lated Section 8(a)(1) of the Act by Chapman's making the statement in question to Creed. Employees have the right pursuant to Section 7 of the Act to file grievances and make reasonable arguments in support of them to management. Here there is no contention that Creed, the grievant, acted improperly. Moreover, even if the griev- ance at issue lacked merit, the filing is still protected absent bad faith by the grievant.28 Since Creed's filing of the grievance was protected activity, it follows that he should not have been coerced in the exercise of his rights to file the grievance and argue in favor of it. The state- ment made by Chapman clearly conveys to Creed that his job could be in jeopardy. It makes no difference that Chapman lacked power to affect directly Creed's job tenure. By any objective standard, the statement made by a postmaster to a subordinate violates the Act. I so find. 4. Filing a lawsuit against the Union In the summer of 1980, DuPatz transferred from the Phoenix to Sedalia Post Office. The relocation occurred at her request due to her husband's health problems. Shortly after her arrival, DuPatz was the subject of cer- tain grievances filed on behalf of the Union, claiming that she was receiving unearned preferences in working hours and job assignments. (R. Exhs. 11(a)-(gg).) This occurred during the spring of 1982. Pursuant to these disputes, the Union requested permission of Chapman to examine her timecards. DuPatz objected in writing to the turnover of her timecards on the grounds that she was being singled out for harassment by the Union. Appar- ently, Chapman turned over her timecards to the Union over her objection. On April 2, Creed wrote a letter to Chapman which reads as follows: Subject: Greivance [sic] To: Mr. F. D. Chapman Postmaster Sedalia, Mo. 65301 As outlined in Art. 15 of the National Agreement I am submitting the following additions and correc- tions to your written decision to greivance [sic].#2- Sed-06. The question of managements rights are not at issue here except for the fact that you are abusing those rights. The facts are this is the second em- ployee that you have worked in this manner. Both 26 A review of court and Board cases holding that the so-called defer- ral under the Spielberg-Collyer doctrine applies to private settlement agreements negotiated in good faith involving mutual concessions and benefits is contained in Schaefer v NLRB, 702 F 2d 57 (3d Cir 1983) 27 Because employee rights protected by Sec 7 of the Act are in- volved here, it is unlikely whether the Board would defer, even if the issue had gone to arbitration and been expressly considered by the arbi- trator 28 Wagner-Smith Co, 262 NLRB 999 fn 2 (1982) POSTAL SERVICE 369 of which have been female. The first did not have the qualifications you say Mrs. Dupatz has. Also if Mrs. Dupatz were not in this office there would be another female employee blessed with your favors and I might add it would most probably be one of the same employees that you are refusing to give a chance now. Regardless of how Mrs. Dupatz came to be in this office, the fact once again is that Mrs. Dupatz is on the rolls in the Sedalia, Mo. Post Office as a level (5) distribution clerk. Also as Postmaster you are not authorized a secretary. If you were you could hire one for level (4) four rather than level (5) five pay. The Male PTF you refer to replaces the Post Office Accountant on one of his two days off. His other day off being on Sunday so he needs no re- placement there. Therefore this is one day per week, except for leave. The rest of the week he works as a distribution clerk on all tours. As was pointed out in the step 2 hearing Mrs. Dupatz has never worked as a distribution clerk on tour one since being trans- fered [sic] into this office. Mrs. Dupatz's 204b time is irrelevant to this greivance [sic]. That time is worked by her, by choice. Her clerical time which is the subject of the greivance [sic] only covers one tour as shown by her time cards. Even if her 204b time were relevant to this greivance [sic] she has only worked three (3) days on tour one in the one year and eight months that she has been in this office. You say my request exceeds good business prac- tice policies. The fact once again is you [sic] special treatment of Mrs. Dupatz effects [sic] the morale of the other employees. They feel that you have decid- ed that they do not matter. They believe all that matters to management in this office is one employ-, ee, namely Mrs. Dupatz. /s/ R. E. Creed President [R. Exh. 11(i)] On April 5, while the disputes between the Union and DuPatz were raging, DuPatz was working as a tempo- rary supervisor. She sought out Robert Smith, then the president of the Union for the entire State of Missouri, and asked him to meet with her privately in the locker room. This was about 2 p.m. There is some conflict be- tween the parties as to what was said at this point. Ac- cording to Smith, Dupatz stated that too many griev-' ances were being filed against her and that she did not like it. She added that the Union was trying to keep her from reaching her attained goals that she had set in the postal service. Smith replied that no grievances were filed against her personally, but only against alleged vio- lations of the contract. Then DuPatz stated that the Union was harassing her by the number of grievances being filed and she added that her husband had retained a lawyer in Phoenix, Arizona, and she was forwarding information regarding the grievances to him. The attor- ney told her to wait for the Union to make a mistake and the attorney would file an action against the national union in Washington, D.C. The conversation concluded by Smith explaining that he could not prevent her from filing a civil suit, but that, in filing the grievances, the Union was only responding to the wishes of its members who felt she was receiving preferential treatment. According to DuPatz, she asked Smith if he was aware that Creed was writing a letter to the postmaster using her name. Smith replied that there was nothing personal about this, but that Creed was trying to accom- plish something and that was his way of doing it. Then DuPatz stated, "I think it would be best for Creed to find some other way to do it without using my name, be- cause if my rights are infringed upon, I will get an attor- ney to take care of it-to take care of my rights." While DuPatz denied ever mentioning the possibility of filing a lawsuit to Smith, she admitted having consulted by tele- phone with a California attorney named Hilton, because the Union was asking for her timecards and asking about her job assignments. Respondent argues that even if I find that a threat was made-as I do-DuPatz was not acting as an agent of the postal service. (Br. 39.) I reject this argument and find that DuPatz, was a temporary supervisor when she made the threat to Smith. As such, her conduct is imput- ed to Respondent. Respondent also contends (Br. 39, 40-41) that DuPatz' conduct was protected activity under Title 7 of the Civil Rights Act. No Board decisions are cited for this propo- sition. I note that in neither the version of events provid- ed by Smith nor by DuPatz is there a claim of sex dis- crimination. Moreover, DuPatz never attempted to file a complaint with the EEOC. While I express no legal opinion about Creed's letter of April 2, other than to find it was unnecessarily inflammatory and poorly written, I am confident that by itself or when considered with other evidence in the case, it provides no defense to the charge at issue here., ` In Bell & Howell Co., 230 NLRB 420 (1977), affd. 598 F.2d 136 (D.C. Cir. 1979), cert. denied 442 U.S. 942 (1979), the employer attempted to defend an unfair labor practice, charge of failing to bargain with a union by claiming that said union discriminates against women. The Board rejected this asserted defense as basically ir- relevant to the question whether the employer refused and failed to recognize and bargain with the certified representative of its employees as their exclusive bargain- ing representative.29 The Board also noted that any-em- ployees claiming that a union has discriminated against them has a remedy with the Equal Employment Oppor- tunity Commission. As noted above, DuPatz never at- tempted to file charges with the EEOC. Further, DuPatz, though a temporary supervisor at the time of the remark made to Smith, could have filed charges with the Board claiming that the Union was attempting to dis- criminate 'against her.30 There is no evidence that she did this. I turn now to find on the basis of Clyde Taylor Co., 127 NLRB 103 (1960), that Respondent violated Section 8(a)(1) of the Act because of the statements made by 29 See also Handy Andy, Inc, 228 NLRB 447 (1977) 30 Bell & Howell Co, supra, 230 NLRB at 422, 423 fn 19 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DuPatz to Smith The making of a threat by an employ- er to resort to civil courts as a tactic calculated to re- strain employees in the exercise of rights guaranteed by the Act is unlawful .3 i In this case, it is clear that the Union has a protected right to file grievances. No evi- dence of bad faith is apparent. Under the credited facts, her threats to file a lawsuit are clearly meant to coerce the Union in the exercise of its protected rights to file grievances.3 2 CONCLUSIONS OF LAW 1. The Respondent, U.S. Postal Service, is now, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of. the Act. 2. The Union, Sedalia, Mo. Local, American Postal Workers Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act: All employees in the bargaining unit for which [American Postal Workers Union, AFL-CIO-Postal Clerks] has been recognized and certified at the Na- tional level as set forth in Article 1 of the collec- tive-bargaining agreement effective July 21, 1981, through July 20, 1984. 4. At all times material to this case, the Union has been the exclusive collective-bargaining representative of the employees described in paragraph 3 above for pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. Respondent-has violated Section 8(a)(5)-and-(l) of the Act by unilaterally, without. prior notice to or con- sultation with the Union, imposing on the employees in Tour III, which employees are part of the unit described in paragraph 3, two 10-minute rest breaks each workday when said employees had previously.been allowed two 15-minute rest breaks each workday. 6. Respondent has violated Section 8(a)(1) of the Act by committing the following acts because employees 31 Electrical Workers IBEW Local 11 (John G. Kelley), 258 NLRB 374 (1981) s2 In light of'the facts relating to this issue, it may be more than pure coincidence that DuPatz decided in July to reduce the breaks of Tour III employees, many of whom were union officials, to 10 minutes When the'' facts of DuPatz' relationship with the Union are considered as a whole, there is a strong element of retaliation implicated in the unilateral change were engaged in union or other protected concerted ac- tivities; and the result of which was to coerce employees in the exercise of their rights protected by Section 7 of the Act: (a) By its supervisor, Chapman, threatening to impose more onerous working conditions on em- ployees and threatening an employee with the loss of promotional opportunity. (b) By its supervisor, Chapman, threatening to eliminate the job of an employee. (c) By its supervisor, DuPatz, -threatening to file a lawsuit against the Union. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended -that Re- spondent cease and desist therefrom and take certain af- firmative action necessary to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its Tour III rest breaks from 15 minutes to 10 minutes and having also found that, Respondent violated Section 8(a)(1) of the Act by its supervisors threatening employees with more onerous working conditions and the loss of promo- tional opportunities, with the loss of an 'employee's posi- tion and with a lawsuit against the Union because em- ployees were engaged in union or other protected con- certed activities, it will be recommended that the 10- minute rest break policy for Tour III employees be re- scinded and withdrawn. It will also be recommended"that Respondent restore the status quo which existed at the time of its unlawful actions by reinstating the 15-minute rest break for Tour III employees except when the mails are heavy or when outside visitors or inspectors are present as determined in good faith by the immediate supervisor of Tour III em- ployees. It will be further recommended that Respondent be ordered to expunge from its records any reference to -Tour III employees taking rest breaks for 15 minutes or less.33 [Recommended Order omitted from publication.] as Sterling Sugars, 261 NLRB 472 (1982).