United States Postal Service

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Jack Owen. Case 14-CA-17011(P) - 24 May 1985 DECISION AND ORDER BY CHAIRMAN.DOTSON AND- MEMBERS HUNTER AND DENNIS On 25 September, 1984 Administrative Law Judge Lowell Goerlich issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has consid- ered the decision and the record in light,of the ex- ceptions and brief and has decided -to affirm the judge's rulings, findings, and `conclusions and to adopt the recommended Order. . - Contrary to our dissenting colleague, we agree with the judge that the Respondent's asserted justi- fications for employee Jack Owen's discharge were pretextual and find that Owen was discharged for his expressed intent to file a grievance, in violation of Section 8(a)(3) and (1) of the Act.' - The facts are uncontested and are more fully set forth in the judge's decision. Briefly,..Owen was a rural carrier relief employee, who worked for the Respondent at its Troy, Missouri Post Office from October 1981 until his discharge 17 September 1983.2 While a substantial number of customers complained about Owen, he was never suspended, nor did he ever receive a written reprimand. He did, however, participate in a number of discus- sions with his supervisors regarding customer com- plaints. In May, Postmaster Alan M. Staats told an em- ployee, in Owen's presence, that Owen's "job was in jeopardy" and "he could be terminated if his performance didn't improve." In June or July, Su- perintendent of Postal Operations Eugene Henry Schaefer Jr. discussed "quite a few" customer com- plaints with Owen and told him "discipline action could happen if this continued." Owen's subsequent improvement was short-lived; however, he was not again warned about his work performance. Owen wished to take off 7 September to take his wife to a physician and arranged for, a -substitute carrier to service his route. On 6 September, how- ever, Schaefer told Owen, that he would have to work the next day and Owen did so. On 10 September Owen told Schaefer in the presence of at least one other employee that he was angry that Schaefer prevented him from taking his wife to the -doctor on 7 September. During the discussion Owen also told Schaefer: "Well, I've never - filed a grievance before in my life but I intend to find out how." On Owen's next scheduled workday, 14 Septem- ber, he began experiencing back problems that per- sisted through 16 September. Under office practice, an employee need not notify a supervisor of an ab- sence lasting ' less than 'a week. Instead, the employ- ee may simply arrange for a substitute carrier to service the' route.3 Owen followed this practice on 14 and 15 September. , - - In addition to Owen's arranging for, a substitute carrier for Thursday, 15 September, Owen's wife called Schaefer. She told him Owen 'was sick and that they had obtained a substitute carrier. She also told him she was not sure whether Owen could work on Friday, 16 September. Owen did not work on Friday. Instead, he arranged for, a substi- tute carrier to service his route, again -:without call- ing Schaefer. According to Staats, he became concerned on Friday afternoon about - whether, Owen would work on Saturday. Another carrier, Deborah Stonebraker, had requested annual leave for Satur- day which created potential scheduling, difficulties. Staats _told Stonebraker she might not be permitted to take the day off, prompting Stonebraker to cry. Staats then gave Schaefer four options. Schaefer was to try to call Owen, terminate his employment, require Stonebraker to work, or find someone else to service Owen's route. Schaefer later learned that Stonebraker had attempted to contact Owen by telephone without success. Rather than exercise one of his other three options, Schaefer thereafter told Staats that he had decided to discharge Owen. Owen reported to work Saturday, 17 September. After Schaefer handed him a written termination notice, Owen asked for the reasons for his dis- charge. Schaefer told him: "Well, you didn't call in." Owen reminded Schaefer that Owen's wife had called him on Thursday. Schaefer denied re- ceiving the call. Owen then reminded Schaefer that company practice did not, at any rate, require him to call. Owen asked Schaefer' if there were any other reasons for his discharge. Schaefer replied: "Well, you made too many mistakes." 1 We do not, however, rely on the judge's finding, in sec III,B, par. 10, of his decision, that Owen's threat to file a grievance was an obvious affront to, and attack on, Supervisor Schaefer's integrity, insofar as that finding is based on Schaefer's having been a union member and his father a local union president - ' 2 All dates are 1983 3 The Respondent's posted attendance rule stated "Employees who anticipate being absent or tardy, except in an emergency , must properly notify their work location a minimum of one (1) hour prior to the begin- ning of their tour of duty " Kenneth Wells, a union representative, and Staats agreed, however, to follow instead the informal procedure described above 275 NLRB No. 74 POSTAL SERVICE 511= Member Hunter finds that Owen's failure to notify Schaefer of his intent to work on Saturday, as well as his poor work record, adequately justi- fies his discharge. Our colleague therefore does not find these reasons pretextual. The undisputed fact, however, is that employees were not required to notify their supervisor if they intended to be absent, but merely to find a substi- tute carrier to service their route. Owen obtained a substitute for his absences on the Wednesday, Thursday, and Friday preceding his,discharge. On Saturday, he reported for work. Thus, Schaefer had no rational reason to expect Owen to- notify him of Owen's intent to report to work-on Satur- day.4 -His claim that he discharged Owen for fail- ing to do so was therefore correctly found to be a pretext. The judge also correctly found to be pretextual Schaefer's claim that he `discharged Owen for his poor work record. Owen was not an exemplary employee. However, Schaefer last warned-.him in June or July to improve his work performance. While his performance thereafter improved only. briefly, Schaefer tolerated it until 17 September, Owen's first day of work following his expressed intent to file-a grievance to contest Schaefer's deci- sion to deny him a day off. As the judge properly concluded, there could not have been any perform- ance-related event during the' week preceding Owen's discharge that could have triggered Schae- fer's action, for Owen did not work that week. . Because the _ reasons Schaefer proffered for Owen's discharge are pretextual, there remains only one event that reasonably could have motivat- ed Schaefer to discharge Owen on 17 September- Owen's • 10 September . expressed intent to file - a grievance.5 - ORDER The National Labor Relations Board adopts'the recommended Order of the administrative- law judge and orders that the Respondent, United States Postal Service, Troy,_ Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. . MEMBER HUNTER, dissenting:- 4 That Owen was discharged for failing to call is also implausible under the Respondent's posted attendance rule, set forth supra at-fn''3 By requiring only 1 hour's advance notice of an employee 's-absence, the rule allows the employee's reporting status "to remain uncertain until'that time According to Schaefer, however, he decided Friday-afternoon that Owen's failure to notify him about his'Saturday 'shifC warranted' Oven's discharge Also, the rule on its face does not require Owen to notify Schaefer of his intent to work as opposed to an absence` 5 See Shattuck Denn Mining Corp v NLRB, 362 F 2d 466,-470 (9th Cir 1966) - 1 Contrary to my colleagues, I. would not, adopt the judge's finding that the Respondent violated Section 8(a)(3) of the Act by discharging employee Jack Owen. Rather, I find that the Respondent had valid business reasons for. discharging. Owen unre- lated to any union activity by Owen. . - The pertinent facts are not in dispute. Jack Owen began working for the Respondent in Octo- ber 1981 as a -rural carrier. Owen ' was the subject, of many customer complaints, which the Respond- ent discussed with,Owen, and both in May and in June or July 19831 the Respondent warned Owen that, if his performance did not- improve, he could be disciplined or discharged. , .Owen arranged with another carrier to take the day off on 7 -September, but on 6 September -the Respondent's superintendent Eugene Schaefer told Owen he would have to work the next day. On 10 .September, in a.conversation with Schaefer and an- other employee,-Owen expressed his dissatisfaction with Schaefer's refusal to let him take the day off and said, to Schaefer, "Well, - I've never filed, a grievance before in my. life but I intend to find out how."2 - On 14 September, Owen's--next working day after the 10 . September conversation, Owen was sick and arranged for another carrier to substitute for him. Owen did -not notify the Respondent of his illness until 15 September when Owen's'wife called Schaefer and -told him that, Owed-was sick and that another 'carrier-'would cover Owen's: route that day.. She told him that she Aid not know whether Owen would return to work the- next day.3 ' Owen did not return- to work on Friday, 16 Sep- tember,- nor did he or his wife call the^Respondent. Postmaster - Staats - therefore-- did not know on Friday whether Owen would work on Saturday, and this posed-a problem " because-one'of the regu- lar - carriers, Deborah -Stonebraker, -had asked "for, annual' leave on' Saturday. When Staats notified Stonebraker that if he did not hear from' Owen she might have to work the next day, she became very upset. Staats then -spoke ' with Schaefer," • and told him that he thought' they' were ' going `. "too far" with Owen, "and" that',Schaefer 'should decide -who should' 'cover` - tOwen's' route `- on (Saturday and whether' Oweri s'ii - ould 'be'`discharged;' Stonebraker 'attempted ' `without "success, " to 'teleplione ` Owen at I All dates are in 1983 unless otherwise noted --- - -- - ,l s Owen was a member 'bf the Missouri Rural Letter Carners' •Associa- •tion and apparently'had the-right to filePa •grievance over 'an alleged vio- lation of the national agreement Owen did not in fact file a grievance 3 The substitute carner- had received permission from Postmaster Alan Staats to carry Owen's route on 15 September because'he would be•in - .-° . overtime status "I)' 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his home and told Schaefer that Owen did not answer. - Later that day Schaefer told Staats he had decid- ed to discharge Owen, and,' when Owen arrived at work on 17 September, Schaefer called him into his office and discharged him. When Owen asked why, Schaefer responded , "Well, because you didn't call in." Owen asked if there were any other reasons, and Schaefer - said, "Well, you' made too many mistakes.", In finding that 'the Respondent discharged Owen because of his stated intention to file a grievance, the judge concluded that Owen engaged in no mis- conduct which would justify his discharge. The judge, however, simply ignored the fact that on Friday, 'when Schaefer made the decision to dis- charge Owen, - he had no idea whether 'Owen would work on Saturday or not 'and had no one to cover Owen's route in his absence. Thus, contrary to the judge's assertion, Owen's failure ' to notify the Respondent of his plans did create a significant problem for the Respondent . Similarly unjustified is the judge's assertion that, because Owen had made no arrangements for a - substitute on Saturday; it would -have been reasonable for the Respondent to have assumed that Owen would return to work on Saturday . The Respondent, having to provide cov- erage for Owen , who had neither called in nor been at home-when Stonebraker called , had no ob- ligation to take the chance that Owen would' work on Saturday. In sum, Owen's failure 'to notify the Respondent of whether he intended to work on Saturday, cou- pled with Owen's admitted - poor work perform- ance, provided the Respondent with adequate justi- fication for Owen's discharge, and it - is these rea- sons that the Respondent gave for discharging Owen . Thus, contrary to the judge, I do- not find these reasons pretextual. Further, Owen's 10 . September statement to Schaefer that he intended to file a grievance pro- vides little justification for Owen's discharge. The judge speculated that, because both Schaefer and his' father had been union members , Schaefer viewed Owen's statement that he intended to file a grievance as "an obvious affront 'to, and an attack on, his integrity." In the absence of any evidence that Schaefer was in any way upset -by the 'remark, such pure speculation provides no basis for finding a violation of Section 8(a)(3). For these reasons, I find that the Respondent es- tablished that it would have discharged Owen re- gardless of his stated intention to file a grievance, and accordingly I would dismiss the complaint. DECISION . STATEMENT OF, THE CASE LOWELL GOERLICH, Administrative Law, Judge The charge, filed by Jack Owen, an individual, on September 22, 1983, was served by certified mail on United States Postal Service (the Respondent) on the same date. The complaint and notice of hearing was issued on November 1, 1983. The complaint alleges that, in violation of Sec- tion 8(a)(1) and (3) of the-National Labor Relations Act (the Act), the Respondent discharged its employee Jack Owen on September 17, 1983. The Respondent filed a timely answer denying that it had engaged in, or was engaging in, the unfair labor practices alleged. This case came on for hearing in St. Louis, Missouri, on March 9 and April 10, 11, and 12, 1984.1_ All parties were afforded full opportunity to be heard, to call, exam- ine, and cross-examine witnesses, to argue orally on the record,' to' submit proposed findings of fact and conclu- sions, and to file briefs. All briefs have been carefully considered. On the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT, 1. THE BUSINESS OF THE RESPONDENT The Respondent provides postal services for the United States of America and operates various facilities throughout the United States in the performance of that function, including its facility in Troy, Missouri, the only facility involved in this proceeding. The Board has jurisdiction over the Respondent and this matter by virtue of Section 209 of the Act. II. THE LABOR ORGANIZATION INVOLVED National Rural Letter Carriers' Association (the 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 UNFAIR LABOR PRACTICES ALLEGED A. The Facts First: At all times material herein, Alan M. Staats was the postmaster and Eugene Henry Schaefer Jr. was the superintendent of postal operations of the Troy, Missouri Post Office. Jack Owen, the alleged discriminatee, was employed at the Troy Post Office as an RCR (rural car- rier relief)2 from October 1981 until September 17, 1983,-- I On July 10, 1984, on motion of'the Respondent, the record was re- opened and additional evidence was taken 2 The current agreement between the United States Postal Service and National Rural Letter Carriers" Association defines "Rural Carrier Relief' as follows Rural 'Carver Relief employees are those employees hired on or after July 21, 1981, to provide service on established regular rural routes in the absence of _a regular rural carrier, or to provide service on Continued POSTAL SERVICE 513 at which time he was discharged. At the time of his ter- mination, he was assigned to rural route 1 and worked Wednesday through Saturday from around 7:30 a.m. to around 3:30 p.m. ' The following incident occurred on September 10, 1983: Owen had arranged for the day off on September 7 in order to take his wife, Eva R. Owen,3 to a doctor in St. Louis. Owen had contacted Larry Buck, a substitute, to "carry" his route On September 6, 1983, Schaefer ap- proached Owen's case where he was sorting mail and told Owen that he would have to work the next day. Owen explained his reason for arranging to be away from his job, but to no avail. Thus, Owen worked on Wednesday, September 7.4 On September 10, in the presence of Carol Potter, an RCR, Owen mentioned to Schaefer that his wife was a "little mad" because he could not take her to the doctor on Wednesday last. Owen added, "So am I, because you changed my date right at the last minute." According to Owen, Schaefer "shrugged it off."' Carol Potter inter- posed in the conversation and asked, "I wonder why all of these schedule changes all of a sudden?" (A number of schedule changes had occurred recently.) She mused, "I wonder if the union could straighten this out?" Schaefer responded, "Well you RCRs can't do anything, you're not even in the union." Potter said, "Well why am I paying union dues for?" Owen then remarked, "Well, I've never filed a grievance before in my life but I intend to find out how."5 Potter corroborated the foregoing testimony of Owen, quoting Owen as saying, "I've never tried to file a griev- ance in my life, but I think I'm going to see how it's done." Potter testified that Buck was also present. Schaefer's version of the incident differed somewhat from that of Potter and of Owen. He testified that Owen asked why they had not commenced taking his union dues out of his paycheck. Schaefer responded that he did not think that Owen could belong to a union-because he was an RCR. He further testified that the word "grievance" was not mentioned in the foregoing conver- sation;6 however, he did-say that he had heard employ- ees discussing, scheduling grievances, e.g., he referred to "the fact that one R.C.R. was put onto another one to work and that'type of scheduling." Apparently, Schaefer had heard Owen mention such a grievance, for he testified, "It seems like I did, but I auxiliary rural routes This service may be as a leave replacement and/or covering a vacant regular route pending the selection of a - regular rural carrier to provide auxiliary assistance , or as an auxiliary route carver 3 Eva R Owen was a rural mail carver working out of the Troy Post Office, who, at the time, was on maternity leave 4 Schaefer remembered that Owen said that "he wasn't too happy with it That he wanted to take his wife to the doctor" and that "[Owen's] wife was a little mad because [Schaefer had] switch[ed] a day [Owen] was schedule[d] to be off and he had planned to go to the doctor with his wife " 5 The above-mentioned agreement provides, art 30, sec 4,E "Rural career relief employees shall have access to the gnevance 'procedure to appeal an alleged violation of the applicable provisions of Article 30 " The parties agreed that under this provision an RCR could not have grieved a discharge, but he could have grieved a schedule change 6 In answering a question in respect to Owen's grievance remark, Schaefer answered, "I don't recall if it was that day or not, he had said that-" at which point the Respondent's attorney cut him off don't know what party would have said it," referring to the comment: "I thinkwe-ought to file a grievance." He further testified, "Well, they were talking about filing a grievance possible [sic] filing one for. our switching of the carriers." On cross-examination Schaefer admitted that Owen and • Potter had a discussion in his presence about being "unhappy with schedule changes" and about the same general time spoke about filing grievances. Schaefer also admitted that he had said to Owen and Potter that he did not think they could file grievances and that Potter "possibly" could have said, "I don't know why I am paying union dues." - Because of the near admissions of Schaefer, the de- meanor of Owen and Potter and their corroboration, and in light of the record as a whole, I credit the testimony of Owen and Potter and find that Owen, in Schaefer's presence, did "create the unmistakable impression that he intended'.to proceed toward the filing of a grievance over the scheduling matter.7 The General Counsel contends that Owen was unlaw- fully discharged because he intended to file a grievance. Second: On September 14, 1983, Owen's next working day after the grievance remark, Owen was "flat on the couch" with a back problem. He "got ahold [sic] of [his] sub and had him to cover for [him]." Owen had fol- lowed the usual practice of notifying the substitute to work for him, for it had not been the practice to notify the supervisor of the expected absence unless it was for an extended' period of time, "say for a week or two."8 Eva Owen testified that, on Thursday, September 15, 1983, .she phoned the Troy Post Office9 and talked to Schaefer. She reported to him that Owen was sick and would not.be,able to come in to carry his route. She told Schaefer, "[W]e have contacted Larry Buck and he will carry today and I don't know whether Jack will be able to come in tomorrow or not, you know, we just have to wait and see how his back does." According to Schaefer, he had learned from Potter that Owen "wasn't in due to being ill." Owen returned to work on Saturday, September 17, 1983. Schaefer called him into his office alone10 and handed him a routing slip dated September 17, 1983, whereon was written, "On this date you are being noti- fied of your termination from-the Postal Service, effec- tive immediately." According to Owen, he asked Schaefer the reasons for his discharge. Schaefer replied, "Well, because you didn't call in." Owen countered, "[M]y wife called in." Schaefer responded, "No, she didn't." Owen reminded Schaefer it had not been the custom to ' call in. Owen The Respondent wants an inference to be drawn from the failure of Buck to be called as a witness The inference has been drawn and weighed Kenneth Wells, who had been a union representative, had cleared this practice with Staats Staats had-no phone and Schaefer had an unlist- ed number 9 The General Counsel offered into evidence Owen's phone bill, which disclosed that a call had been charged to Owen's number on September 15, 1983, at 6 30 am The called number was 528-4800, the Troy Post Office's number 10 Owen had asked for a witness, but his request was denied 514 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked if there were,: any -other reason ,and was told, "Well, you made too many mistakes." Owen had not been an; exemplary employee. He had received a substantial number of customer complaints and some compliments. Nevertheless, . Owen had never been suspended nor had he received a written reprimand. Customers' complaints against carriers were reported on Form 1627. It was the practice to discuss these com- plaints with the carrier's supervisor. Owen had 'been en- gaged in a number of these discussions. One such discus- sion was with Staats_in the fall of 1982. Wells also at- tended the meeting. According to'Owen, Staats told, him he must "cut -down" on his mistakes. Staats advised Owen to "finger" through the mail more carefully before putting it in the customers' boxes. In May 1983 (Owen thought it was Jurie-or July 1983) Staats brought to Owen's attention "a letter from a lady who had not signed,it.",Staats, Owen, and Wells were present at the discussion which followed. The discussion concerned an anonymous complaint dated May 10, 1983, addressed to' "Postmaster,, Main Post Office, St. Louis, Missouri," in which 'Owen was charged with "poor mail service" on route 1. (R. Exh 14.) The' complaint was forwarded to ' the postmaster at Troy, Missouri, by the "S.C.' Director, Customer Services." - Among other things, Staats replied to this' letter on May 20, 1983, "There have been misdelivery complaints on this' route, we have worked with the Carrier to improve his per- formance.The Carrier was brought into the Office on the receipt-of this letter and again cautioned. This Carri- er is an RCR-75, all it will 'take is a letter stating we wish to'terminate his employment for misdelivery of mail. I would rather not do this at this time." (R. Exh. 14.) Staats again reiterated that Owen "finger" the mail. Staats 'also asked Wells to help'Owen because "his job was in jeopardy," and "he could be terminated if his per- formance didn't improve." ,Owen responded that he would start fingering the"mail and improving his per- formance. At the time of the discussion, Staats had rated Owen as "very much worse" than the other rural carri- ers because his route received the most complaints. Staats ; testified that after the foregoing' discussion Owen's performance- improved, and that, in response to Owen's question, Staats had .told him that he-was `,`doing better." According to Staats, Owen's improvement, effort lasted about "a month or two.,, Owen further testified that in June or July 1983 Schae- fer discussed -customer, complaints. with him.- Schaefer told Owen that there were "quite a few telephone calls coming in on 'mistakes,"" and' warned Owen that "disci- pline action couldr,happen if this continued." According to` Owen,' after . this ' discussion he "cut - down"' on-, mis- takes: According to Schaefer, after Owen's warnings. his work improved, but. thereafter, 'the-;-"complaints and errors began to go back. to:,the `normal trend, and just -a lot of them. However, thereafter, up to the time of his discharge, ,Owen` was ,not again warned' tliat .there -was anything wrong with his work performance. Aside from the mistakes Owen made in deliveries to customers,'-her'also,' was'',prone`to discarding deliverable mail in the no obvious 'valtie" inailliox. According to Schaefer, after Owen's discharge he wrote in longhand the reasons for terminating Owen. The reasons were given in a memorandum to Staats pre- dated September 16, 1983, typed by Schaefer sometime on September 17, and given to Staats on the following Monday. t t The memorandum was not shown to Owen before his discharge. t 2 ii The memorandum reads as follows I deemed necessary the action to terminate Mr Jack Owen, RCR 75 on RR 1 for the following reasons I Evidenced by the records kept on Form 1627, Errors found in the "No Obvious Value Mail " Not only were "Address Correction" and ,"Return Postage Guaranteed " mail found in his mail consistent- ly, but more seriously, there were occasions of 2nd class mail to be pitched and 1st Class Mail Each occurrence was called to his atten- tion and the difference between classes of mail discussed , his attitude toward these mistakes were of a non-serious nature -2 One occasion of not forwarding (Hold Order) 1st Class as per Customers instructions, thereby delaying the mail of Earl Willhite beginning 3-28-83 until his vacation ended 3 Numerous complaints of misdelivery between Customers mail, both of similar names and very unlike names that were outright mis- takes."' 4 Complaints of not picking up mail with uncancelled stamps af- fixed and also with money left in box on envelopes and the flags were raised signaling Carrier to pick up 5 Forgot to get C 0 D tag signed and bring back for Clerk to issue a Money Order, he had to chase down tag next day, causing the possibility of an Insurance Claim against the Postal Service. 6 First Class mail was returned to Sender and it was good as ad- dressed, this happened on 8-2-82 7 Forgot key to NCBDU, brought mail back to P 0 with no in- tention of delivering to 12 units, said he had to pick up children at school I took Employee back to deliver as it was about 7 miles out and Employee wanted extra mileage compensation 8. On 2-12-83 Customer at Box 140B complained of 2 bills (1st Class-opened) and another piece of mail in ditch, this Employee car- ried 3 consecutive days prior " 9 -Complaints of leaving notices on parcels and/or accountable mail without trying delivery 10 Had people wanting to get a petition to' have him taken off route - II • Notified another Sub to replace him instead of Management, when he wanted to attend a funeral, the Sub knew he would be working into Overtime Status so he had to contact the Postmaster for permission at 9 30 P M at his residence - 12 Employee was off sick 2 days following funeral-no contact made to notify Management personally , was informed by RCR 75 on Rt 2, Carol Potter Knowing I would be short a-Carrier for Satur- day delivery, emergency switching of Employees was necessary to fill his vacant route At no time did he make an attempt to notify Management when he would return to work nor the reason why he wasn't present, we learned through a Sub that he was sick , An attempt was made to contact him while he was supposedly sick Friday, with no answer to the phone This apparent lack of in- serest or cooperation on part of Employee shows a definite negative attitude toward the Post Office and more importantly, its Customers - 13 All,the Employees have job instructions given occasionally .along with their weekly Safety Talks, so he was aware of all the aforementioned infractions and did not even heed the two Discus- sions in the Postmaster's Office on 5-11-83 and on 6-22-83 when even the Missouri Rural Carriers President, Mr Kenneth Wells, was present as the Postmaster informed them that this would be his last chance to prove that he could become a better Carrier - So, with all due respect toward the Carrier, he has been given too 'many chances to rectify his errors, his Customer relationship atti- tude, his bad Postal image he projects and therefore, I have no other choice but to terminate this Employee for the good of the Postal Service If you concur, I shall terminate him the next time he enters Troy Post Office -12 The memorandum appears to have been a postrationalization of Schaefer's action to cover his real motive POSTAL SERVICE According to Staats, on Wednesday night, September 14, 1983; Larry Buck visited him around 9:30- p.m. He told Staats that Owen had. called him and told him he was "down in the back" and would not be able to carry, his route the next day. Buck asked if it was all right for, him to carry the route since it would put him, in an over- time status. Staats gave his approval for Buck to carry the route. - According to Staats, Buck called Owen after he had - finished Owen's route on Thursday to ascertain whether- he was coming in on Friday. Owen responded that he was "still down in the back." Buck then worked on! Friday. At this point Staats had not heard from Owen as to whether he was going to work on Saturday, and. this created a problem because .a regular.rural carrier had asked for annual leave on that date. Staats had told the carrier, - Deborah Stonebraker, that if he did not hear from Owen she might not be allowed the leave, and "tears started rolling down her face." Thereupon Staats "got with" Schaefer and said that he thought that they were going too far with Owen. Staats said, "I'm-going to give you several options. One, get on the phone and try to call him. Two, terminate him." On cross-examination Staats indicated that, he had given Schaefer two addition- al options, i.e., "He could not13 deny leave to Debbie. Stonebraker" and he could "get, someone else to carry. route 1.1114 Staats testified that he gave Schaefer these', options because, "I-almost terminated Jack back in May or June: And Gene intervened and-stated I should give him another chance. So-Gene is' his supervisor, he's going to have to work for him, he's going to have to answer for him, I'm going to let him make the decision." Staats further testified that his intervention in the matter was provoked by the fact that Owen had not advised him that he would be-available for work on Saturday. After the options had been given to Schaefer, Schaefer returned to Staats and, according to Staats, said, "My de- - cision I think we've went'far enough and my decision is to terminate him." Staats responded, "[N]ow go back and make arrangements to get that route covered. Make sure you've got coverage on all your routes. Go back and tell `that lady with the fears in her eyes she can go. Get one of • those city Garners over there `cause they don't mind carrying it anyway in an emergency situation. And line it' up so you're lined up for tomorrow." Staats' testified that Schaefer had not reported to him that Owen had indicated that-he was going to try to find out how to file a grievance. ' Schaefer recalled that on Friday he asked Staats what should be done "because we didn't know whether the route would be covered or not for that Saturday ." Staats responded that "we could fire him or we could call Jack and see if he is coming in or either make an emergency 13 The word "not" is a typist's error - 14 According to Wells, Staats told him that he had given Schaefer four options "[O]ne of them 'was that you could fire Jack- 'Number two was that you can find an emergency, somebody in an emergency situation that would carry the route You can deny'Debbie Stonebraker her leave that's already been approved or you can call Jack and see what his status is And so Gene fired Jack " Wells further testified that Staats said, "[I]t's Gene's doing He fired him and if Gene wants to hire him back'I'll take him back - I won't object to it But if Gene says that he remains fired then I'm going to back him in that too " 515 situation and, switch somebody over - to that route." Schaefer testified he decided to terminate Owen at that point "[b]ecause I knew-that we would have to make an emergency situation there and do some switching with the routes."15 The foregoing occurred about 3:30 p.m. When Schaefer informed Owen of his discharge, he testified that he gave Owen these reasons: the situation Owen had put them in . on Saturday, misdeliveries, com- plaints from customers, and petitions of -people who wanted to get him off the route. Schaefer further testi- fied that it was "a very serious thing not having in- formed us personally to take and let us know that he would or would not be in." He added: "I don't know of any other factors that entered into it [Owen 's discharge] other than these forms16 !and the reprimands that he had and the 'fact that this • was kind of a big boo-boo you might say, and that's about it." Owen was a member of the National Rural Letter Car- riers' Association, a fact' which was known to manage- ment. Schaefer had been a member of the National Asso- ciation of Letter Carriers and was a member of the Na- tional Association of Postal Supervisors. Schaefer had held the office of building manager with the National Association of Letter Carriers. Offered in evidence by the Respondent were the pictures of the local officers of Branch No. 343, National Association of Letter Carriers. Among the, pictures was that of Eugene Schaefer, presi- dent, Schaefer's father.17 Evidence was also offered by the Respondent that Schaefer did not "like to see people get fired." Schaefer testified that in June,' Staats brought Owen in the office and "more or less insinuated that was going to be his last chance and he actually wanted to terminate him then." Schaefer, addressing -himself to Staats, said, "I do believe that we shouldn't fire him yet and just give him another chance." Testifying further, Schaefer said, "Because I liked Jack and I thought that he could improve and. so I did intercede for him.... I . . . kind of got choked up." Schaefer was' once directed to fire an employee who he believed should not have been, fired; he de- scribed his reaction thus: "Well, I felt jittery about it. My stomach hurt for a few days afterwards and . . . it turned me sour against the way the Postal System oper- ates to tell you the truth." Owen was the only employee Schaefer had fired except on the direction of higher au- thority. B. Conclusions and Reasons Therefor Under 'the collective-bargaining agreement between the Respondent and the Union, apparently the Respond- ent may discharge an RCR.employee for good cause, bad cause, or no-cause at all; however, the Respondent 15 Schaefer also testified that he "'had-already decided to terminate [Owen] at the time [he] talked to Mr Staats " , . . • - - 16 Form 1627 ",From this evidence the Respondent's counsel would derive the in- ference that Schaefer "grew up in a household where Union activities were respect for a persons [sic] rights to concert and protect his activities was ingrained in him to the point that it became habit. And that it makes it so unlikely that he would do the things that he was alleged to do, and so it's some evidence, that you can consider in determining his motiva- tion " . 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may not discharge an RCR employee because (as alleged here) he expresses the intention of filing a grievance under the collective-bargaining agreement . Cf. NLRB.v. Ogle Protection Service, 375 'F.2d 497 (6th Cii. 1967). See also Interboro Contractors, 157- NLRB 1295 (1966), and Meyers. Industries, -268 NLRB 493 (1984).18 Thus, if the "real motive" 19 of the Respondent in discharging Owen was that he expressed the intention of filing a grievance under the labor agreement, the- Respondent has violated Section 8(a)(3) of the Act. It has been further stated that. "[a] justifiable ground for dismissal is no defense if it is a pretext20 and not the moving cause." NLRB v. Solo Cup Co., 237 F.2d 521, 525 (8th Cir 1956). . The credible record reveals that the Respondent sum- marily discharged Owen without investigating the inci- dent which allegedly triggered his discharge .21 Indeed, he was given no opportunity to defend himself. This in itself is evidence of discrimination . See Norfolk Tallow Co., 154 NLRB 1052, 1059• (1965); Shell Oil Co. v. NLRB, 128. F.2d 206, 207 (5th Cir: 1942).22. Moreover, the Respondent offered-no plausible reason Owen was discharged without being allowed a witness or an oppor- tunity to explain the reason for the incident which alleg- edly triggered' his discharge.23 Nor did the Respondent explain why the discharge of Owen, would have helped resolve the scheduling problem which it thought it faced.24 Indeed, the "big boo-boo;" as Owen's conduct during the week of September 12, 1983, • was, designated. by Schaefer, does not withstand scrutiny25 as a reason for 18 "The submission of a grievance- based on the collective bargaining agreement cannot be the basis for discharge ". NLRB v Selwyn Shoe Mfg Corp, 428 F 2d 217, 221 (8th Cir 1970) 19 "[T]he 'real motive' of the employer in an alleged §8(a)(3) violation' is decisive " NLRB v Brown Food Store, 380 U S 278, 287 (1965) "It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test " Teamsters Local 357 v NLRB, 365 U S 667, 675 (1961) "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership It has long been es- tablished that a finding of violation under this section will normally turn on the employer's motivation " American Ship Building Co Y NLRB, 380 U S 300, 311 (1965) 20 "[A] finding of pretext necessarily means that the reasons advanced by the [Respondent] either did not exist or were not in fact replied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel" Limestone Apparel Corp, 255 NLRB 722 (1981) 21 The Respondent concedes in its brief, p. 12, that one of the reasons for Owen's discharge was "his failure to call in as to his-availability for Saturday, September 17 " - 22 It was said in United States Rubber Co. v NLRB , 384 F 2d 660, 662- 663 (5th Cir 1967) "Perhaps the most damning is the , fact that both .[em- ployees] were summarily discharged 'after reports of their misconduct without being given any opportunity to explain or give -their version of the incidents " b- 23 While . Owen, as an RCR carver, was not a beneficiary of art. 16,. sec 4 of the above-mentioned labor agreement, had'the'sect16n been used as a guideline , Owen would have -been entitled to "an advance written notice of the charges against [him] and [would have] remain[ed] either on the job or on the clock at the option of the Employer for a period of fourteen (14) days " (Jt, Exh 1) ; .: - 24 In fact, the Respondent actually faced no scheduling problem be- cause Owen returned to work ' • ' - '' i-- , 25 In NLRB v Griggs Equipment, 307 F 2d 275, 278 (5th Cir 1962),-the court said "[T]he inference drawn by the Board of discriminatory moti-- yation is sustained and is buttressed by the fact that the explanation [of- fered by the employer] of the layoffs' failed to stand under 'scrutiny " Also, in NLRB Y Dant, 207 F 2d 165, 167 (9th Cir 1953), -the court said Owen's discharge. Owen had followed past practice by obtaining a substitute for.his route on the days of his ab- sences, September 14, 15, and 16, 1982. While he re- turned to work on September 17, 1982, without notifying the Respondent he would-return to work on that day, he violated no ' rule for there was-no rule or practice which required such notification. Moreover, since Owen had made no arrangements for a substitute, it would have been reasonable for the Respondent to, have assumed that Owen would be present on his job. While Owen followed past practice, nevertheless, if the written, rule dated 'June 30, 1979, and entitled "At- tendance and Tardiness Policy'-' written by former Post- master Elmer J. Purk had still been in effect,' Owen would have been in substantial compliance with it, for the credited evidence establishes that a phone call was made from Owen's number to the' number listed in the above communication, 528-4800 on • September 15, -1983, at 6:30 a.m:; and that Eva Owen related to Schaefer that Owen was ill. Additionally, both Schaefer and Staats knew that Owen was absent for illness. Thus, Owen's "big boo-boo" was no "boo-boo" at a11, for the manner in which. he handled his absence and return to work vio- lated no current rule or practice. It is 'further significant that Owen could not have been discharged for' work-re- lated errors or customer complaints or other incidents which occurred during the week of September 12, 1983, because Owen did not work during this time. 'Schaefer had been apparently given four. options: (1) Call Owen (no plausible explanation was given for Schaefer's 'failure to call Owen), (2) deny Stonebraker her approved leave (Schaefer did not exercise this option); (3) get someone else to carry the route (this Schaefer did); and (4) fire Owen (this Schaefer did). No valid justification was-offered for the need for Schaefer to exercise both options. . Schaefer's discharge of Owen was an,uncharacteristic action and was at odds with the compassion and under- standing which he portrayed in his - testimony . Schaefer portrayed himself as a person who did not like to see people fired., He -related an experience in,which .he was called on to fire' an employee which resulted in his be- coming ".jittery"_ and his stomach hurting for a few days afterwards. Indeed, whenStaats had once mentioned ter- minating Owen, Schaefer "kind of got choked up." Thus, it seems wholly out of character for Schaefer, who had readily obtained a substitute for Owen and hence did not need his services on Saturday, to have discharged Owen either.,without trying to.phone him or without having discussed with him the alleged "boo-boo" or this "seri- ous thing" of "not having informed us personally to take and let us know, that -he would or would not be in," es- pecially since he knew he was absent for illness.26 Addi- "It is well settled that the inferences drawn by the ,Board are strength- ened by the fact that the explanation of the discharge offered by the re- spondent fails to stand under scrutiny " , - .26 Even a-restrictive construction of the rule did not require Owen to report that he was returning to work The rule so construed required Owen to call in a minimum of 1 hour before his,tour commenced to inform that he would be absent "Employees who anticipate being absent --- must properly notify their work location a minimum of-one (1) hour prior to the beginning of their tour of duty " (R Exh 8B) - POSTAL SERVICE tionally, Schaefer fired Owen on Friday afternoon when, under the rule, if still applicable, Owen did not need to report his absence until 1 hour before his work com- menced on Saturday. Hence, the fact that Owen did not report his status to the Respondent on Friday did not constitute a violation of the rule. Since the incident which was alleged to have triggered Owen's discharge was a permissible happening, and did not partake of any misconduct on Owen's- part, it must be concluded that Owen was discharged for some other reason, i.e., Owen's threat to file a grievance. (In this regard it is also significant that Schaefer had already de- cided to discharge Owen before Staats had given him the four options which seems incongruous ,since up to that point he had supported Owen's job tenure.) "If one can show that every other alternative except the fact sought to be proved is not true, you indirectly prove that fact' 'is true. By excluding every other reasona- ble hypothesis that fact is left standing alone as proved." NLRB v. Melrose Processing Co., 351 F.2d 693, 698•(8th Cir. 1965). "[W]hen every other plausible motive has been eliminated and the reasons advanced are not persua- _ sive, the union activity may well disclose the real motive behind the employer's ,action " Ames Ready-Mix Concrete v. NLRB, 411 F.2d 1159, 1161 (8th Cir. 1969), 'citing NLRB v: Melrose Processing Co.; above at 699. See also Marian Lewis, Inc, 270 NLRB 43 (1984). Schaefer con- cealed the "real reason" for Owen's discharge. Such a conclusion seems more evident in that Owen's work per- formance,was tolerated27 until-he expressed the intent to use the grievance procedure, and that Owen was dis- charged on the first day he reported to work after the grievance incident occurred and for the first alleged "boo-boo" he committed. The timing creates the infer- ence that the reason for discharge given was not the real reason.28 Examining the character of Schaefer further indicates a reason for ' his action. Schaefer, had been a union member; he apparently was proud of his father, as the president of a local union whose picture he brought into the courtroom; he was undoubtedly proud of his tour of duty as a supervisor and the fact that his behavior as a supervisor had resulted in no employee grievances. Hence' the threat to file a grievance was an obvious af- front to, and an attack on, his integrity. He wanted no grievance filed. Ergo, Owen, who expressed the inten- tion to file a grievance, was fired. Thus is explained what' the Respondent did not explain in the credible record: why Schaefer, a "choked up" advocate of Owen,• sud- '27 The fact that Owen was not an exemplary employee is'immatehal, for the "existence of justifiable grounds for discharge, however, of itself does not preclude the finding of an unfair labor. practice " McGraw- Edison v NLRB, 419 F 2d 67, 76 (8th Cir 1969) In NLRB v Central Power & Light Co, 425 F 2d 1318, 1322 (5th Cir • 1970), it was said "No doubt, cause existed for the discharge, and [the discharged hireling] was not a model employee Nonetheless, the existence of cause is not a defense to a discharge actually motivated by' anti-union purposes %' See also: Tra-Mar Communications, 265 NLRB 664, 665-666 (1982), JIB'In- dustries, 225 NLRB 162, 170 (1976), Marriott In-Flite Services, 224 NLRB 128, 129 (1976) 28 "Timing alone may suggest anti-union animus as a motivating factor in an employer's' action " NLRB Y Rain-Ware, 732 F 2d 1349, 1354 (7th Cir ' 1984) - 517 ' denly- became an unreconcilable' antagonist . In Heartland Food Warehouse, 256 NLRB 940 (1981), the Board said: The Administrative Law Judge was therefore cor- rect in finding that where, as here, the respondent's stated motives for discharge are discredited, it may be inferred that the true motive for discharge is an unlawful one which [the] -respondent seeks to dis- guise. - Schaefer offered no credible countervailing justification for his uncharacteristic action: The discharge of Owen cannot be reasonably explained on any basis other than that he was discharged for his expressed intention to file a grievance. Since the Respondent has not met its burden, I find that Owen would not have been discharged except that Schaefer harbored an animus against him because he ex- pressed the intention of filing a grievance against Schae- fer. Cf. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980). Accordingly, by discharging Owen on September 17, .1983, for expressing an intention of filing a grievance under the agreement between the Respondent and the' Union, the Respondent'violated Section 8(a)(1) and (3) of the Act. , . . CONCLUSIONS OF LAW . 1. - The Respondent is an employer over whom the Board has jurisdiction and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the mean- ing of Section 2(5)• of the Act. 3. By unlawfully discharging Jack Owen on September 17, 1983, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the "Act. - •- ' ' 4. The aforesaid unfair labor practices, are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. • REMEDY It having been 'found that the Respondent-has engaged in certain unfair .labor practices, it is recommended that it cease, and desist therefrom and take certain affirmative action designed to effectuate- the policies of the Act. It having been- found that the Respondent unlawfully' dis- charged'Jack Owen on ', September, 17, 1983, and -has since failed'-and refused ,to reinstate him in violation .of Section 8(a)(1) and (3), of the--Act, it is recommended that the Respondent remedy such unlawful conduct. In accordance ,with Board policy; - it is ,recommended that the Respondent offer„the-above-named employee imme- diate' and,-full 'reinstatement to his former position or, if such position nd longer exists", to •a'substanitally equiva- lent position, without, prejudice to. his seniority or other rights and privileges previously -enjoyed, dismissing_ if necessary any employee hired on or since the date of his discharge to fill said-;position, and make him whole for any loss of earnings: he may"have suffered biy reason•'of the Respondent's, acts' herein detailed; by_pay-ment to him 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of an offer of reinstatement, less net earnings during such-period, with interest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).2 a On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed30 ORDER The Respondent, United States Postal Service, Troy, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Discouraging union or concerted -activities of its employees or their membership in National Rural Letter Carriers' Association, or any other labor organization, by.- unlawfully; and discriminatorily discharging its employ- ees or discriminating against them in any manner with respect to their hire or :tenure of employment or any term or condition of employment in violation of Section 8(a)(3) and (1) of the Act. . (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations,Act to. engage in self-organization; to form, join, or assist any union; to bargain collectively through a representative of their own choosing; to act together for the purpose of collective bargaining or other mutual aid or protection; or to refrain from the- ex-ercise of any and all of these things. - 2. Take the following affirmative action which will ef- fectuate the policies of the Act. - - (a) Offer Jack Owen immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges previ- ously enjoyed, discharging, if necessary, any employee hired to replace him, and 'make him whole for any loss of pay he may have suffered by reason of the Respond- ent's unlawful discharge of him in accordance with the recommendations set forth in the section of this decision entitled "Remedy." - (b) 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. . (c) Expunge from its files any reference to the unlaw- ful discharge of Jack Owen and notify him in writing that this has been done and that evidence of this unlaw- ful action will not be used as a basis for future discipline against him. 29 See generally Isis Plumbing Co., 138 NLRB 716 (1962) so If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (d) Post at its Troy, Missouri Post Office copies of the attached notice marked "Appendix."31 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent 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. 31 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 " - 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 or- dered us to post and abide by this notice. WE WILL NOT discourage union or concerted activities of our employees or their membership in National Rural Letter Carriers' Association, or any other labor organiza- tion, by unlawfully and discriminatorily discharging our employees or discriminating against them in any manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act, which include the right to engage in self-organization; to form, join, or assist any labor organization; to bargain collectively through a bargaining agent chosen by them; to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection; or to refrain from any or all such activities. WE WILL offer Jack Owen, whom we unlawfully dis- charged on September 17, 1983, immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, dis- charging, if necessary, any employee hired to replace him; WE WILL restore his seniority and other rights and privileges previously enjoyed; and WE WILL make him whole for any loss of backpay to which he may be enti- tled together with interest. WE WILL expunge from our files any reference to the unlawful discharge of Jack Owen and notify him in writ- ing that this has been done and that evidence of this un- POSTAL SERVICE - - 519 lawful action will not be used as a basis for future disci - All our employees are free to become or remain, or re- pline against him. frain from becoming or remaining, members of a labor organization. UNITED STATES POSTAL SERVICE 6