Nation'S Capital Area Local, American Postal Workers Union, Afl--Cio (United States Postal Service)

AMERICAN POSTAL WORKERS (POSTAL SERVICE) Nation's Capital Area Local, American Postal Work- ers Union, AFL-CIO (United States Postal Service) and Veola ,Jackson. Case 5-CB- 4930(P) 27 February 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 September 1985 Administrative Law Judge Thomas E. Bracken issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed cross- exceptions, a supporting brief, and an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(b)(1)(A) by removing employee Veola Jackson from her position as a union steward be- cause she had stated an intent to file an unfair labor practice charge against the Respondent. Contrary to the judge, we find that the General Counsel has not established that Jackson's protected activity was a motivating factor in the Respondent's deci- sion,' and we shall dismiss the complaint.2 The Respondent represents employees at the Employer's main facility in Washington, D.C., and at other facilities in the local area. For several years employee Jackson had served as a shop stew- ard at step 1 of the parties' grievance procedure, and in June 1984 the Respondent's president, Carl Robinson, appointed her to serve as a steward at step 2 as well.3 Conflicts arose between Jackson and Robinson, and in August 1984 Jackson ap- proached the Department of Labor with accusa- tions that Robinson had engaged in improprieties with the Respondent's finances. Jackson also raised these accusations at various union meetings prior to 1985.4 i See Wright Line, 251 NLRB 1083 (1980) We do not disturb the judge's finding that the General Counsel failed to establish that the Respondent unlawfully threatened employees i Step 2 stewards handle grievances at a higher level of the grievance procedure 4 The judge discredited all the witnesses for both the General Counsel and the Respondent However, he also made factual findings with respect to the background of the crucial events in this case, even though testimo- ny was the only basis for most of those findings. We shall not disturb the judge's background findings, and we shall consider his credibility resolu- tions only in connection with the crucial events in this case 751 The Respondent held an election of officers in November 1984, and Jackson ran for financial sec- retary with a slate of candidates opposed to a slate headed by Robinson. All of the candidates on Rob- inson's slate were elected, and in an appeal to the Department of Labor and to the Respondent's elec- tion committee, Jackson alleged that Robinson had acted improperly during the campaign.5 In a tele- phone conversation with Robinson on 4 January 1985,6 Jackson again alleged that Robinson had en- gaged in financial improprieties, and Robinson denied the allegation. On 16 January Robinson removed Jackson from her position as a step 2 steward, but retained her as a steward at step 1. He testified that he removed her from the step 2 position on the recommenda- tion of the Respondent's vice president, Burke, who had determined that it was necessary to elimi- nate one steward position at that step. Robinson testified that Jackson was selected for removal be- cause she had the least seniority among the stew- ards. On 22 January Jackson called the National Labor Relations Board and stated that she wanted to file an unfair labor practice charge concerning her removal from her step 2 position. The Board mailed Jackson a charge form and a letter dated 22 January that set forth instructions for filing the charge. On 23 January Jackson made a telephone call to Robinson. The substance of their conversation is in dispute. Jackson testified that she asked Robinson, inter alia, who had decided to remove her from her step 2 position, and that Robinson replied that he and Burke had made the decision because they wanted to reduce the number of stewards at that step. She then told him, "Well, I'm not gonna let it be no surprise to you, I am going to file an unfair labor practice. And also, you might be receiving a subpoena from my lawyer." Robinson replied, "Well, I run the union the way I want." Employee Patricia Johnson, who testified that she listened to the conversation on another line, claims that when Jackson told Robinson of her intent to file an unfair labor practice charge be- cause of her removal from the step 2 steward posi- tion, Robinson replied that he intended to remove her from her remaining (step 1) steward position because she was filing a charge.' Robinson 'testified that after he explained to Jackson that the Respondent had decided to reduce the number of step 2 stewards and that she had 5 As the judge noted, the record does not establish the results of these appeals 6 Unless otherwise specified, all dates hereinafter refer to 1985. ' Jackson denied that Robinson made this statement 278 NLRB No. 110 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been removed because she was the "junior" stew- ard, Jackson said, "You will hear from my attor- ney." His response was that Jackson should do what she thought necessary, whereupon Jackson asserted, "Well, you know what you can do for me, you can suck out of your mother 's ass, bitch."$ Robinson denied that Jackson mentioned anything about an unfair labor practice charge , and he testi- fied that he did not tell Jackson that she would be removed from her step 1 position. That same day Robinson sent Jackson a letter in- forming her that she had been removed from her position as a step 1 steward, "as per our conversa- tion" of 23 January. Robinson testified that he re- moved her from that position because of the ob- scene remark Jackson made to him in their tele- phone conversation and because she lacked the dip- lomatic qualities necessary to be a steward. The complaint alleges that the Respondent violated Section 8(b)(1)(A) by removing Jackson from her step 1 position because she had stated an intent to file an unfair labor practice charge against the Re- spondent.9 The judge discredited all the witnesses for the General Counsel and the Respondent. Relying on demeanor, the judge concluded that all the wit- nesses were untrustworthy and were simply advo- cating the position of the political faction to which they belonged. He also found that the testimony of Robinson, Jackson, and Johnson was evasive, ver- bose, and inconsistent. Nonetheless, the judge found that the Respondent 's removal of Jackson from her step 1 steward position was unlawfully motivated . In doing so, the judge purported to rely on documentary evidence , uncontradicted testimo- ny,1 ° inherent probabilities, and inferences. The judge, relying on certain facts and findings, drew an inference that during the 23 January tele- phone conversation Robinson acquired knowledge of Jackson's intent to file the charge." First, he 8 Two of the Respondent's employees, Davis and Collins, testified that immediately after the phone call Robinson informed them that Jackson had made an obscene remark 9 The complaint does not allege that Jackson was unlawfully removed from her step 2 position . The complaint also does not allege that Jackson was removed from her step I position because of her political opposition to Robinson. 10 The judge did not identify the author or authors of such testimony, what the testimony was about , or which finding the testimony was sup- posed to support 11 We do not agree with the General Counsel's contention that the judge, in inferring such knowledge, in fact credited that part of the testi- mony of Jackson and Johnson which indicated that Jackson did inform Robinson of her intent to file the charge The judge stated in the strong- est of terms that the witnesses' testimony was untrustworthy , and he ex- pressly stated that he was drawing an inference of knowledge from the circumstances He did not state, or imply, that he was crediting in part the testimony of Jackson and Johnson. Thus, it is clear that he based his inference of knowledge on something other than the testimony of these two employees found that the Board's 22 January letter established that Jackson did engage in protected activity by discussing the charge with the Board. Next, he noted that Jackson called Robinson the day after she called the Board, and that her conversation with Robinson was the only intervening event be- tween Jackson's removal as a step 2 steward on 16 January and her removal as a step 1 steward on 23 January. Finally, he found that during the 23 Janu- ary conversation, Jackson had in her hand the Board's unfair labor practice charge form and the accompanying letter of 22 January. Based on these circumstances he found it "logical and natural" that Jackson would inform "her perceived tormen- tor, and long-time political enemy, of this punish- ment that she was going to inflict on him." The judge also concluded that the Respondent harbored animus toward Jackson because she and Robinson were hostile to each other . In addition, he emphasized the speed with which the Respond- ent acted to remove Jackson after the 23 January phone call, and he found unconvincing the Re- spondent's contention that Jackson was removed for using obscene language . In this connection the judge noted that Robinson admitted that he had used obscenties at union meetings and had directed obscenities to other union members. Accordingly, the judge concluded that the Respondent violated Section 8(b)(1)(A) by removing Jackson from her step 1 steward position because she had stated an intent to file an unfair labor practice charge against the Respondent. Contrary to the judge, we find that the General Counsel has not established that the Respondent had knowledge of Jackson's protected activity. At the outset we emphasize that because of the judge's credibility resolutions the record contains extreme- ly limited evidence of the events leading to Jack- son's removal on 23 January . We find that this lim- ited evidence will not support an inference that during their 23 January conversation Jackson in- formed Robinson of her intent to file a charge. First, the record does not support the judge's fmding-on which he partly based his inference- that during the 23 January phone call Jackson' had in her hand the Board's unfair labor practice charge form and the accompanying letter. The record reveals no basis for concluding that Jackson had these documents with her during the conversa- tion. Neither Jackson nor Johnson testified that Jackson had the documents with her at that time, and the record does not establish that Jackson, had received them in the mail before the telephone call. Although the letter accompanying the charge is dated 22 January, there is no evidence that Jackson received the documents on 23 January . Even if we AMERICAN -POSTAL WORKERS (POSTAL WORKERS) 753 were to assume that the documents were delivered to Jackson sometime on 23 January, we would still be unwilling to assume that she received them prior to the time of the phone call. x 2 Consequent- ly, the evidence fails to support a finding that Jack- son possessed the Board documents when she called Robinson, b 3 let alone a finding of knowl- edge. The remaining factors on which the judge relied also are insufficient to support an inference that during the 23 January phone call Jackson informed Robinson that she intended to file a charge. As noted above, the judge found that Jackson's call to Robinson was the only intervening event between her removal from her step 2 position on 16 January and her removal from her step 1 position on 23 January. We find, however, that this circumstance merely establishes that the phone call was Jack- son's only opportunity, to inform Robinson of her decision to file a charge. In the absence of other evidence, this circumstance alone does not establish that Jackson actually did so. 14 The judge also emphasized that Jackson called Robinson the day after she called the Board. How- ever, there is no evidence that the second call was prompted by the first or that there was any other connection between the two calls which would tend to support an inference that Jackson informed Robinson of her decision to File the charge. In the absence of such evidence, we find little significance in the proximity of the calls alone. Finally," an inference of knowledge is not war- ranted even when the evidence is considered in its totality. In view of,the judge's credibility findings, the record establishes only that Jackson called the Board on 22 January, that she called Robinson on 23 January, and that her call-to Robinson was the only intervening event between her first removal on 16 January and her final removal on 23 January. In the absence of other evidence, we find that the record establishes nothing more than a series of un- related events which at best raise suspicion con- cerning the Respondent's motive. Cf. Albritton Communications, 271 NLRB 201, 204 (1984) ("sus- picious coincidence" between layoffs and union or- 12 Jackson testified that she called Robinson about 2:30 p in We find it unnecessary to determine whether an inference of knowledge would have been warranted if the record in fact had established that Jackson had the documents with her at the time of the phone call 13 The judge's finding it "logical and natural" that Jackson would have informed Robinson of her intent to file a charge cannot serve as a substitute for this evidentiary void I I In order to find, that this circumstance alone establishes knowledge, we would have to assume at the outset that Jackson 's removal was un- lawfully motivated. From that assumption we could then conclude that during the phone call Jackson must have, informed Robinson of her deci- sion to file the charge, because the phone call was Jackson's only oppor- tunity to do so. There is no basis, however, to make such an assumption in the circumstances of this case ganizing campaign insufficient to 'show employer's unlawful motive), enfd. 766 F.2d 812, 821-822 (3d Cir. 1985). In these circumstances we are unwilling to infer that at the time of Jackson's final removal the Respondent was aware of her decision to file a charge. Consequently, we find that the General Counsel has not established that Jackson's protect- ed activity was a motivating factor in the Respond- ent's decision to remove her from her steward posi- tion, and we shall dismiss the complaint. 1-5 ORDER The complaint is dismissed. 15 As noted above, the judge found that the Respondent harbored animus toward Jackson because Robinson and Jackson were hostile to each other The judge also found that the Respondent gave an uncon- vincing reason for removing Jackson from her step 1 position He further noted the speed with which the Respondent acted following the 23 Janu- ary phone call Such matters, of course, are relevant to the issue of whether the Respondent acted with an unlawful motive. However, singly or collectively they cannot establish a violation in the absence of evi- dence that the Respondent had knowledge of Jackson's intent to file a charge Eric M. Fine, Esq., for the General Counsel. Arthur M. Luby, 'Esq., and Penny Piker, Esq., (O'Donnell, Schwartz & Anderson), of Washington, DC, for the Re- spondent. Veola Jackson, of Temple Hills, Maryland, pro se. DECISION STATEMENT OF THE CASE THOMAS E, BRACKEN, Administrative Law Judge. This case was tried at Washington, D.C., on 12 and 13 June 1985. The original charge was filed by Veola Jack- son, an individual, on 12 February 1985,1 amended 15 April, and the complaint was issued 19 April. The com- plaint alleges that the Respondent, Nation's Capital Area Local, American Postal Workers Union, AFL-CIO (Re- spondent or Union) violated Section 8(b)(1)(A) of the National Labor Relations Act by removing Jackson from her position as shop steward of Respondent, and by threatening to have employees fired and/or removed as union stewards, if they filed or assisted any employee in filing an unfair labor practice charge with the National Labor Relations Board against the Respondent. The Re- spondent's answer duly denied the commission of any unfair labor practices. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Union, I make the following I All dates are in 1985 unless otherwise indicated. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION The United States Postal Service operates various fa- cilities throughout the United States. The facility in- volved in this proceeding is located in Washington, D.C. The Board has jurisdiction over this matter by virtue of section 1209 of the Postal Reorganization Act. II. THE LABOR ORGANIZATION The complaint alleges, the Union admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For a number of years the Union has represented vari- ous employees of the United States Postal Service (USPS) at the main office in Washington, D.C., as well as at several satellite offices. The instant case chiefly in- volves employees who work in tour 1, which was the 10 p.m. to 6:30 a.m. shift. While the record does not dis- close the total number of employees represented by the Union, it was a very large Local Union, as aproximately 1100 employees worked on this tour. The two dominant persons involved in this case are Carl Robinson and the Charging Party, Veola Jackson. In November 1983, Robinson was serving as the elected vice president when the incumbent president, Sidney L. Brooks, was elected national president of the American Postal Workers Union. Brooks then appointed Robinson to serve as president of the Local Union for the duration of his term. Robinson had been an employee of USPS since 1963, but on being appointed president of the Union, he became a full-time employee of the Local. Jackson was also a veteran employee of USPS having been hired in 1969. She became a member of the Union in the same year, and became an activist therein. In 1978 or 1979 she was appionted as shop steward step 1 by Local Union President Brooks. She was elected to the position of Local Union financial secretary for the period of 1981 to 1984. In June 1984 she was appointed as a shop steward step 2 by then Acting President Robinson.2 Matters did not go smoothly between Robinson and Jackson and, in August 1984, she went to the Depart- ment of Labor several times, accusing the president of fi- nancial improprieties with the Union's money.3 In November 1984, as provided in the Union' s consti- tution and bylaws, there was an election of officers, for terms of 3 years. There were three slates of candidates who ran active campaigns. Robinson headed the Work- ers' slate, which among its candidates included John L. Burke for executive vice president, Nancy Olumekor for financial secretary, Viola Collins for assistant financial secretary, and George McKiethen for director. 2 Step 2 stewards are capable of handling grievances at a level higher than step 1 stewards 3 As of the date of the hearing no complaint had been filed by the Labor Department against Robinson Ronald Jones, who had been appointed in 1984 as the acting vice president by Brooks, headed a second slate, the New Real Action Team, and ran against Robinson for the office of president. Jackson ran for the office of financial secretary on Jones' slate. Other members of the New Real Action Team included Patricia Johnson for treasurer and Robert Lemieux. The third slate of candi- dates was headed by Linda Coleman, but it plays no part in this case. Robinson's slate of candidates swept the major offices. Jackson, who had opposed Robinson, filed an appeal to the Union Election Committee in a nine-page letter dated 10 November 1984, challenging the results of the elec- tion, with her chief complaint being directed at alleged Robinson improprieties (G.C. Exh. 4). The record does not disclose what action, if any, was taken by the Elec- tion Committee to Jackson's appeal.4 At various union meetings prior to 1985, Jackson had accused Robinson of improper expenditures of union funds, and had actively opposed him in several constitutional and contractual issues. B. The Events of 1985 On 4 January, Robinson telephoned Jackson at her home and informed her that he wanted a grievance file that she had.5 He also advised her that, because of the election, he was going to have the office manager, Viola Collins, turn over the Local Union's financial books to Nancy Olumekor, the new financial secretary.6 Jackson objected to this procedure and stated that there were some people who owed money to the Union. She then pointedly asked Robinson if he had paid money back to the Union, which she had previously claimed he owed. When Robinson replied that he did not owe the Union anything, Jackson hung up. By a letter dated 16 January, Robinson mailed to the director of the employer's employee and labor relations staff a three-page letter, captioned "Updated Shop Stew- ards List" (G.C. Exh. 2). In this voluminous letter Rob- inson set forth the names and titles of some 60 stewards for tours I, II, and III. Among the eight persons named as shop stewards for tour I was Veola Jackson, but she was not named as a step 2 designee , as were three other stewards. Robinson testified that he removed Jackson as a step 2 designee as a result of a conference he had held with Vice President Burke . According to the president, Burke, who was in charge of step 2 grievances, wanted to reduce the handlers of files at this level to three; so, because Jackson had the least seniority as a step 2 desig- nee, her name was removed. The remaining three step 2 designees, Jones, Lemieux, and Johnson, were all mem- bers of the rival slate, The New Real Action Team. 4 The record also discloses that an appeal of the election results was taken to the United States Department of Labor, but no results of such appeal were placed in the record 5 Jackson had been off work since 12 December 1984 on a worker's compensation claim. She returned to work on 28 January 6 Olumekor had defeated Johnson for the office of financial secretary While the record does not disclose when Robinson and the new slate took office, it was apparently in early January AMERICAN POSTAL WORKERS (POSTAL WORKERS) On 18 January, step 2 designee Johnson showed her friend Jackson a copy of Robinson 's 16 January letter that he had sent to the management of USPS Upon ex- amining it, Jackson learned for the first time that she had been decertified as a step 2 steward,' although she re- mained a steward On Monday, 21 January, Jackson at- tempted to call Robinson but was unable to reach him. On the following day, 22 January , Jackson telephoned the Washington Resident Office of Region 5 of the NLRB and spoke to Board Agent Posner, advising him that she wanted to file an unfair labor practice charge against Robinson. The Events of 23 January On this date Jackson received a letter dated 22 Janu- ary on the Region 5 Resident office letterhead , signed by William D Miller, Acting Resident Officer (G C. Exh 5) The letter, in pertinent part, reads as follows- Dear Ms. Jackson Pursuant to your conversation with Board Agent Posner, on January 22, 1985, I am enclosing an original and one copy of the charge form you re- quested If you wish to file the charge , please sign and date the original and return it to our Baltimore Regional Office in the enclosed envelope . The copy is for your records. Do not alter the charge, rather any additions should be made on a separate sheet of paper Also submit a statement of the facts you are re- lying upon to support your charge together with any documentation or supporting evidence. Your coopera- tion and assistance in the investigation is required Jackson testified that when she received the letter, it had with it the original charge (G C Exh 1(a)), and typed thereon was the following. Since on or about January 18, 1985 , and at all times thereafter, the above named labor organiza- tion, by its officers, agents, representatives and members, restrained and coerced the employees of the United States Postal Service in the exercise of the right, guaranteed in Section 7 of the Act by re- moving Veola Jackson, a postal employee, as a Step 2 designee Jackson testified that she called Robinson on 23 Janu- ary around 2.30 p in., from her friend Johnson's apart- ment She further testified that she had Johnson listen in on the phone conversation because "I wanted to have a witness for Mr Robinson's reasons for decertifying me as a Step 2." Mary Boyd, the executive secretary and a full-time employee of the Union, answered the phone and, after Jackson asked if Robinson was in, Boyd re- plied yes, and clicked the call over to the president. 8 When asked what happened next, Jacksbn replied: 7 The term "decertified" was not defined, but was used by various wit- nesses to mean removed 8 Boyd testified that after she told Jackson that Robinson was in, Jack- son said, "let me speak to the bitch " - I 755 A Mr Robinson came on and I say, "Robbie, I understand that I'm decertified as a step 2 desig -' nee," he say "yes " I said, "Well, couldn't you tell me why-shouldn't I have some kind of notification prior to management know?" He said, "Well, there's a lot of changes gonna be done that you might not like," and I asked him, I said, "Well if- don't you think that I should have known?" And he said, "Like I said, there's a lot of changes that you should have known," and I said, "Well, who came up with this idea," and he said, "Me and Mr John Burke," the vice president And I said, "You all came up with this idea to decertify me as a step 2?" He said, "Yes, because we only want three shop stewards step 2 on each tour " And I asked him, "Well, I'm not gonna let it be no surprise to you, I am going to file an unfair labor practice And also, you might be receiving a subpoena from my lawyer " And he stated, "Well, I run the union the way I want " And I said, "You're right, right into the ground," and I hung up the phone On cross-examination Jackson admitted that Robinson did not inform her during the phone call that he would decertify her because she had filed an unfair labor prac- tice charge. She did recall him saying, "You do what you have to do and I'll do what I have to do " Jackson denied using any foul language directed at Robinson during this telephone conversation, and denied that she made any reference to his mother during this conversa- tion Patricia Johnson, who had begun to work for USPS in March 1983 was a tour 1 shop steward step 2 As previ- ously noted she had run on the New Real Action Team for the office of treasurer, and had lost Johnson, a wit- ness for the General Counsel, testified that she had five telephones in her house, and that she was present when Jackson phoned Robinson from her home She testified as follows- A. Ms. Jackson asked me to listen on another line, and when I got to the other line, I heard the secretary, Mary Boyd, answer the phone Ms Jack- son asked her how she was doing and so on, and asked her could she speak to Robert . And she said hold on. Then Robert came to the telephone and Ms. Jackson asked him why-she called to ask him why has she been decertified as a step 2 designee. And general conversation came out of that And Ms Jackson told Mr. Robinson something about I know you will be sending him a subpoena about some problems that arose earlier , and'that she was going to file unfair labor practice against him for decertifying And then there was some more general conversation. Q. Do you remember what, if anything, Robinson said in response? A. He said he was going to decertify her Q Did he say why? A. For filing a complaint against him I Mr 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson admitted that voices were raised during the conversation, but denied that Jackson directed any foul language to either Robinson or Boyd, or that she used any language that referred to Robinson 's mother Robinson also testified as to this telephone conversa- tion of 23 January, but as can be expected, it was consid- erably different from the versions given by Jackson and Johnson The president described the conversation as fol- lows. Ms Jackson called in reference to her being re- moved as a step 2 designee I explained the same thing that I've explained here today, that we had decided to cut down the number of step 2 designees that we had And at that time she was a junior step 2 designee and that for that reason we removed her as a step 2 designee . At that time she was still a steward. I didn't take her stewardship, just the step 2 designee position She said, "you just won't quit" She said, "you will hear from my attorney" I said, "Ms Jackson, you do whatever you think is neces- sary" She said, "well, you know what you can do for me, you can suck out of you mother's ass, bitch," and hung up. Robinson further testified that the remark by Jackson was "the last straw" and that he then de- cided to remove Jackson as a shop steward. Rob- inson also testified that he removed her as a stew- ard because he did not think Jackson had the qualities of a diplomat suitable to the job of a steward, and that she could not work with him to represent the employees 9 Robinson demed that Jackson made any reference to the fact that she was going to file an unfair labor prac- tice charge because of her removal. He also admitted that he did not tell her that she was going to be decerti- fied as a shop steward. On the same day Robinson sent Jackson a letter which tersely read as follows As per our conversation on Jan 23 , 1985 you are hereby Decertified as Shop Steward for the Na- tion's Capital Area Local, APWU, AFL-CIO The Respondent also produced several witnesses to support Robinson's claim that Jackson had directed the foul remark to him regarding his mother. Viola Collins, a full-time office employee of the Union, testified that she was in the office on 23 January when Robinson received the phone call from Jackson, and that following the call Jackson had come upstairs to her office "looking way off' or "strange." When she asked him what had hap- pened, the president told her what Jackson had said to him When asked what that was, she testified, "I don't remember Something about your mother's ass or what- ° He recalled that in 1982 Jackson had had an "altercation" with an- other shop steward in a room the Employer allowed the stewards to use He claimed the Union lost the use of the room because of the altercation Jackson admitted that she had been in a fistfight with another employee, but denied that the Union had lost the use of the room because of this incident ever I don't remember, you know, repeat it exactly but he was pretty upset " Alfred Davis also testified for Respondent as to this in- cident Davis is a full-time appointed employee of the Union who handles such matters as worker's compensa- tion cases Davis admitted that he could be terminated by Robinson at any time According to Davis he and Robinson were sitting at Davis' desk in the back office when Robinson took Jackson's call Davis was not on an extension and did not hear what Jackson said to Robin- son However, after the telephone conversation ended, Davis testified that Robinson had told him "that Ms Jackson told him to suck out of his mother's ass " When asked if Robinson was upset , the witnesss replied, "Slightly." C. Credibility In-Blue Flash Express, 109 NLRB 591 (1954), the Trial Examiner, affirmed by the Board, found that each of the witnesses in that case, the General Counsel's and the Re- spondent's, appeared to be trustworthy, so far as his ob- servation of their demeanor was concerned He also found that no inherent or circumstantial inconsistency was developed in any witnesses' testimony, and the com- plaint was dismissed. Unlike the witnesses in Blue Flash Express, I find that the demeanor of each and every witness I observed in the instant case amounted to untrustworthiness I re- ceived the strong impression throughout the hearing that all witnesses were strong advocates, trying to furmsh an- swers that helped their political team , whether Robin- son's Workers party, or Jackson's New Real Action Team, without regard to what the facts really were In addition, the main actors, Robinson, Jackson, and John- son, were evasive, verbose, and inconsistent witnesses I have, therefore, found the testimony of both the wit- nesses for the General Counsel and for the Respondent to be unreliable and unconvincing. However, there were certain documents received into evidence, sufficient uncontradicted testimony, inherent probabilities, and inferences that could be drawn so as to arrive at a conclusion in this case D Discussion and Conclusions The General Counsel contends that the Respondent violated Section 8(b)(1)(A) of the Act by removing Jack- son from her position as a shop steward because she had informed Robinson of her intent to file an unfair labor practice charge with the Board against the Respondent. The Respondent's position, as stated in its brief, is that Jackson was removed as a steward because she was grossly insubordinate and disrespectful Section 8(b)(1)(A) of the Act prohibits a union from restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act It is well set- tled that a union may not coerce members in their right to file charges with the Board . NLRB v Shipbuilders Local 22 (US Lines), 391 U S 418 (1968) The Board and courts have long held that motive for an employer's action in cases of discharge is usually de- terminative only by circumstantial evidence since direct AMERICAN POSTAL WORKERS (POSTAL WORKERS) evidence is rarely obtainable. Corrie Corp. of Charleston v NLRB, 375 F 2d 149 (4th Cir. 1967) I find the frame- work of this case to be similar to that of an alleged 8(a)(1) wrongful discharge case, where the motive for the discharge is the paramount issue In order to find the true, underlying motive for a discharge , the Board looks to certain established factors- knowledge of protected ac- tivity, animus, timing, and the validity of the reasons as- serted for the discharge . Scott's Wood Products, 242 NLRB 1193 (1979), Jenks Cartage Co , 219 NLRB 368 (1975). I now turn to these factors The question of Robinson's knowledge that he knew that Jackson was going to file a charge with the Board is a close one. Acting Resident Officer Miller's letter of 22 January to Jackson clearly establishes that on that-date Jackson had talked to a Board agent about filing an unfair labor practice charge because she had been re- moved from her position as a step 2 designee. The record is also clear that Jackson and Robinson engaged in a heated telephone conversation on the following afternoon However, what was actually said at that con- versation is undetermined because of the lack of credibil- ity of the witnesses The General Counsel contends that Robinson had knowledge that Jackson was threatening to file a charge because the only intervening event be- tween the president's 16 January termination of Jackson as a step 2 designee, and his complete termination of her as a shop steward on 23 January, was her 23 January telephone conversation with the president I find merit in the General Counsel's position, and draw the inference that the angry demoted steward did tell Robinson that she was going to file a charge against him for demoting her as a step 2 designee. During this conversation she had in hand not only a letter from the Board , but also a typed-m Government form that echoed her contention, to the Board agent, that she had been restrained and co- erced because the Respondent had removed her as a step 2 designee It would only be logical and natural that she informed her perceived tormentor, and longtime political enemy, of this punishment that she was going to inflict on him As to animus, there is no doubt but that Robinson and Jackson were hostile to each other This is borne out by Respondent's brief wherein it is admitted that Robinson made no bones about the fact that he and Jackson did not get along The timing of Robinson's total removal of Jackson as a steward further supports a finding of an 8 (a)(1) violation. As of 16 January, when Robinson notified USPS of the Union's new shop steward list, he knew all of Jackson's perceived faults Yet he still saw fit to retain her, and did reappoint her as a tour 1 steward . While she would not be able to handle step 2 grievances in this role, she was still an official steward of the Union authorized to handle step 1 grievances. However, the day after she talked to the Board's resident agent about filing a charge against Robinson, and the day of the heated conversation with the president, she was summarily and totally removed as a shop steward of the Union. The speed with which the Respondent acted after the 23 January phone call is evi- dence that it was Jackson's threat to file an unfair labor practice charge, not the alleged insubordinate and disre- 757 spectful conduct, which motivated Robinson . Tera Ad- vanced Services Corp., 259 NLRB 949 (1980) Finally it is well established that an unconvincing reason for discipline or discharge tends to support the General Counsel's prima facie case and prove that the real reason was unlawful. Scott's Wood Products, supra, Ethyl Products Co, 271 NLRB 272 (1984). The essence of Robinson's reason for removing Jackson as steward was that in the 23 January phone conversation she told him, "Well, you know what you can do for me , you can suck out of your mother's ass, bitch " The president con- tends that this was "the last straw ," and that he was so offended and upset by this foul remark that he decided to decertify her as a steward that very day. Jackson, a large and powerful woman , who had in the past engaged in a fistfight with another union member, was no doubt capable of using the language ascribed to her by Robinson. However, I need not resolve this credi- bility issue, but will assume, for the sake of argument, that she did so refer to Robinson's mother Even if so, I am unable to find that this would so upset the president as to cause hun to decertify Jackson as a steward Robin- son admitted that he cursed at union meetings and that he called other members "motherfuckers " Certainly this latter expression, which also refers to a person's mother in a vile manner, is as foul as the language the president attributed to Jackson I, therefore , find that Robinson's reason for removing Jackson as a steward was pretex- tual. In view of the foregoing, the knowledge of the presi- dent that Jackson intended to file an unfair labor practice with the Board against the Respondent, the animus of Robinson toward Jackson , the timing of Jackson's re- moval as a shop steward, and finally Robinson's uncon- vincing reason for decertifying Jackson as a shop stew- ard, I find and conclude that Respondent decertified Jackson because she had communicated to Robinson her intent to file an unfair labor practice charge against the Respondent with the Board, and Respondent thereby violated Section 8(b)(1)(A) of the Act Auto Workers Local 212 (Chrysler Corp.), 257 NLRB 637 (1981) E The Events of February The complaint also alleges a second specific incident of violation of Section 8(b)(l)(A), wherein it states that Oii or about February 14, 1985, Respondent, acting through Carl H Robinson, threatened to have employees fired and/or removed as union stewards, if they filed or assisted any employee in filing an unfair labor practice charge with the Board against Respondent In support of this allegation the General Counsel pro- duced the testimony of Jackson, Jones, Johnson, and Robert Lemieux, all strong members of the New Real Action Team. On 8 February, Jackson signed the unfair labor prac- tice form that had been sent to her as a result of her 22 January telephone conversation with the Board agent. She thereafter mailed it to the Regional Office in Balti- more, Maryland, and it was docketed by the Regional 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Office on 12 February (G.C. Exh. 5).10 A copy of 'the charge was mailed by the Regional Office to the Union's office that same day-by certified mail.' The return-receipt card was signed by Office Manager Collins, and clearly shows that the charge was delivered to the union office on 14 February.' 1 On the evening of this day, the Union's general mem- bership meeting was held in the union hall starting around the usual time, 8 p.m. Jones, who had run for president on the New Real Action Team, testified that he attended this meeting, and that he remained in the meeting room after the meeting ended. He further testi- fied that after getting coffee in the adjacent kitchen, he came into the meeting room, where Robinson ap- proached him and "stated to me that if he found out that any of the shop stewards were filing-representing for unfair labor practices against him or the union that he would fire them and they would no longer be shop stew- ards." When Jones asked the president why he was making this statement ,to him, Robinson replied that he just wanted Jones to tell this to his people. - - Patricia Johnson, the defeated candidate for treasurer, and Robert Lemieux, the defeated candidate for, clerk craft president, were also present in the meeting room after the meeting, and testified that they heard the con- versation between Robinson and Jones. Unsurprisingly,- they corroborated Jones' testimony. Robinson admitted that he attended the 14 February union meeting, but testified that he did not recall having any conversations with Jones following the meeting, or during the meeting. Respondent also presented three wit- nesses in support of the president's testimony of this issue. All were members of Robinson's Workers team, two being incumbent officers , and one a full-time em- ployee of the Union. Vice President Burke testified that he was present for the meeting and after its conclusion, but that he could not recall that Robinson ever told any members that they would be fired from their union posi- tions if they filed, or encouraged someone to file, an unfair labor practice charge against the Union. George McKeithen, the successful president of the special deliv- ery craft, testified that he also was present at the 14 Feb- ruary union meeting. He also testified that he did not 10 As previously set forth, this charge alleged that the Union had re- moved Jackson as a step 2 designee 11 Collins, while admitting it was her signature on the return receipt, quibbled about whether she actually received the letter on that date This type of testimony was typical of all witnesses who tried their utmost to protect their political side recall that Robinson either at the meeting or before or after the meeting told any member that he or she would be fired from their union position if they filed, or encour- aged someone to file, an unfair labor practice charge. Office Manager Collins testified that she also was present at the union meeting, and that she remained after the meeting was over. She further testified that she did- not recall any conversation between Robinson ad Jones at the meeting or following the meeting. Because I do not credit the General Counsel's wit- nesses, I find that the General Counsel had not proved by a preponderance of the evidence this allegation of the complaint. Accordingly, I shall recommend that this alle- gation be dismissed. CONCLUSIONS OF LAW 1. USPS is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By removing Veola Jackson from her position as a shop steward of Respondent on 23 January 1985, because she had communicated to Carl H. Robinson her intent to file an unfair labor practice with the Board against Re- spondent, the Respondent violated Section 8(b)(1)(A) of the Act. 4. The General Counsel has failed to prove that the Respondent threatened to have employees fired and/or removed as union stewards if they filed or assisted any employee in filing an unfair labor practice charge with the Board against the Respondent. REMEDY Having found that the Respondent has engaged in a certain unfair labor practice, I find it necessary to order it to cease and desist and to take certain, affirmative action designed to effectuate the purposes of the Act. The Respondent having illegally decertified and re- moved Veola Jackson from her position as a shop stew- ard of tour 1 of the Union, shall reinstate her to her former union steward position with full seniority rights and benefits that are connected with that position, and shall make her whole for the period prior to her rein- statement for any losses of dues moneys and prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter- est as computed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]