U.S. Postal Service

8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD U.S. Postal Service and Thomas Lott. Case 27-CA- 9168-P 26 February 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 30 October 1986 Administrative Law Judge Joan Wieder issued the attached decision. The Charging Party filed 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 has decided to affirm the judge's rulings, fmdings,l and conclu- sions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings. We also find totally without meet the Charging Party's allegations of bias and prejudice on the part of the judge On our full consideration of the record and the decision, we perceive no evidence that the judge pre- judged the case, made prejudicial rulings, or demonstrated a bias against the Charging Party in her analysis or discussion of the evidence Member Babson, based on the particular facts here, adopts the judge's finding that employee Lott was not shown to have had a reasonable ex- pectation that his 18 March 1985 interview with Supervisor Martinez might have resulted in disciplinary action against him. In so doing, Member Babson considers it unnecessary to pass on the Board's holding in Postal Service, 256 NLRB 78 (1981), enf. denied in relevant part 689 F 2d 835 (9th Cir 1982), that the employee there had a reasonable belief that discipline might result from the interview because he finds that case is factually distinguishable from the present case. Barbara E. Young, Esq., for the General Counsel. Jesse L. Butler, for the Respondent. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was tried in Denver, Colorado, on 19 and 20 August 1986. The charge was filed on 18 March 1985 by Thomas Lott. The complaint, which issued 24 May 19851 and was amended at trial, alleges that the U.S. Postal Service (Respondent) violated Section 8(a)(1) and (4) of the National Labor Relations Act. Specifically, the complaint alleges Respondent, acting through admitted i All dates are in 1985, unless otherwise indicated Supervisor Ernest Martinez, called Lott a "cheap nigger lawyer"; threatened Lott with discharge, and denied Lott's request for union representation at a "disciplinary- investigatory" interview because Lott filed charges or gave testimony under the Act. Respondent filed an answer to the complaint denying the commission of the alleged unfair labor practices.2 On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following Preliminary Matters Respondent argues that the Board is barred from con- sidering the allegations contained in the complaint for some of the same matters were considered by a com- plaints examiner appointed by the Equal Employment Opportunity Commission. Respondent has an established equal opportunity complaint procedure that is directed to the informal adjustment of charges. If attempts at infor- mal adjustment fail, the matter is referred to the Equal Employment Opportunity Commission which holds a hearing. The hearing is conducted, as indicated above, by a complaints examiner. The complaints examiner rec- ommends a disposition to the Postal Service. The Re- spondent is free to accept or reject the complaints exam- iner's recommendation. If the Respondent denies the complaint, the employee can appeal the decision to the Equal Employment Opportunity Commission. The complaints examiner rendered a bench decision finding that Lott failed to bear his burden of proving his allegations that "because of his race, and color (black) because of prior EEO activity" he was disciplined by: the issuance of a letter of warning on 21 August 1984; a 7-day suspension about 13 September 1984; and other re- taliation allegedly visited on him for his activities in filing or pursuing EEO charges during October through December 1984. Respondent adopted the complaint ex- aminer's decision. Lott has appealed this adverse deci- sion. There is no indication when the appeal will be con- sidered by the Equal Employment Opportunity Commis- sion. The Postal Service's action of adopting the decision has not been shown to constitute a final decision. How- ever, even assuming arguendo that the complaints exam- iner was acting in a judicial capacity and that the parties had an adequate opportunity to litigate the issues and re- solve the issues before it,3 the Board is not collaterally estopped from considering the allegation of the com- plaint issued in the instant proceeding. I find that the criteria of Montana v. U.S., 440 U.S. 147, 153-154 (1979), have not been met. The instant complaint alleges that the violations occurred on 18 March 1985, a time period not considered by the com- plaints examiner; he did not consider the events of that day in reaching his decision. Although many of the mat- 2 Respondent admits in its answer that it meets one of the Board's ap- plicable jurisdictional standards and is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. Respondent also admits in its answer that the American Postal Workers Union is a labor organization within the meaning of Sec. 2(5) of the Act. 2 See Lightsey v. Harding, Dahm & Co., 623 F.2d 1219 (7th Cir. 1980), cert denied 449 U.S. 1077 (1981) 283 NLRB No. 1 POSTAL SERVICE ters considered in the EEO proceeding were raised in the instant case as background evidence, the key to reso- lution of this dispute, as admitted by the parties in their respective briefs, are the credibility determinations of what occurred on 18 March ; an event not considered in the EEO proceeding. Further, the operative law in the EEO proceeding was not shown to involve the same definitions, policies, and purposes as the NLRA. Accord- ingly, I conclude that collateral estoppel is not appropri- ate in these circumstances. See United Technologies Corp., 706 F.2d 1254 (2d Cir. 1983), and Plumbers Local 198 v. NLRB, 747 F.2d 326 (5th Cir. 1985). The record of the proceedings before the complaints examiner has been considered but it is not found to be dispositive of the issues herein. Respondent also argues that Lott's entry into a written resolution of EEO charges he filed regarding the events of 18 March preclude consideration of some if not all the allegations in the instant complaint . This position is found to be without merit. The agreement specifically and exclusively referred to Lott's pre-EEO complaint, not the charge filed with the Board. FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES Lott has worked for Respondent for more than 8 years as a janitor in the building services section. At the time here pertinent, he worked a tour or shift that ran from 7 a.m. to 3 :30 p.m. Lott's supervisor on tour 2 was Ernest Martinez. Another supervisor on this tour is Dan Servan- tez. These supervisors were assisted by line employees who act as temporary supervisors and are called 204(b) supervisors by Respondent. The 204(b) supervisors, as here pertinent, were Guinn Webb and Paul Mefford. Martinez' supervisors are Plant Manager Al Apuzzo and Superintendent Donna Mulkin. Lott worked under Martinez for approximately 5 years. The record in this proceeding indicates that com- mencing in late 1983, Lott commenced filing a series of EEO charges, grievances, and unfair labor practice charges against Respondent, and Respondent imposed a variety of disciplines against Lott. The General Counsel asserts that as a result of all the charges and complaints filed by Lott, Martinez became upset with him and in a meeting held on 18 March, Martinez called Lott a "cheap nigger lawyer," threatened him with discharge for his filing of the various charges and grievances, and denied his request for a union representative at a "disci- plinary-investigatory" interview. Respondent denies Mar- tinez made any racial slurs, threatened discharge, or that the meeting of 18 March was an investigatory interview. I find that the General Counsel has failed to show by a preponderance of the credible evidence that the alleged violations occurred. As indicated above, Lott filed a series of charges, grievances, and complaints. The initial filing mentioned in this case is Lott's filing of an EEO charge alleging that Martinez failed to take action against the employee that struck him. The EEO complaint or charge was not placed in evidence. The nature of the action taken against the employee who assertedly struck Lott was not 9 placed in evidence. The progressive disciplinary proce- dure used by Respondent requires Martinez to recom- mend discipline. The recommendation is then reviewed by Martinez' supervisor, Mulkin, who then refers it to Apuzzo. Mulkin and Apuzzo have the authority to decide if the recommended discipline is to go forward, needs additional basis, or is not imposed . This review procedure could have been the basis for the delay, if any, in the imposition of any discipline in the incident. The record fails to establish that any delay in disciplining the wrongdoer was caused by improper animus and/or motive. Lott received a letter of warning in January 1984 ap- parently for poor work performance. Lott filed an EEO complaint and it is undisputed that the resolution of the complaint resulted in the removal of the letter from his file. In March 1984 Lott received another warning letter for poor work performance and he again responded by filing an EEO complaint,' which resulted in the removal of the disciplinary letter from his file. I find these EEO charges and the resolutions of removal from Lott's per- sonnel file are not facts probative of wrongful motive. The basis for the decisions to remove the disciplinary let- ters was not placed in evidence and such action, standing alone, fails to establish by probative evidence that the warning letters were unlawfully based or would lead to later action which was violative ' of the Act. The resolu- tion of the EEO complaints may have included accom- modations that were indicative of good cause for the is- suance of the disciplines. Lott testified that he was denied a light-duty assign- ment after heart surgery that included a triple bypass, while a white employee, who broke his ' ankle on a golf course, was given a desk job. The General Counsel did not refute Respondent's evidence that its injury compen- sation office found Lott a light-duty assignment that comported with the limitations imposed, by Lott's physi- cian. The assignment was checked by a union steward at Lott's request and was found to meet these medical limi- tations. On 29 August 1984 another letter of warning for poor work performance was issued to Lott. The incident lead- ing to the issuance of the letter was that Lott had left a pile of rubbish in the middle of the floor in the area where he was assigned to work on 21 August. The area supervisor called Martinez to complain about what she considered to be a safety hazard. Martinez and Servantez went to investigate the complaint, consonant with estab- lished practice. Initially, they could not find Lott, but when he appeared, Martinez asked him where he had been. Lott asserts that "Mr. Martinez said he didn't give a damn about no nigger" like me or a nigger investigator. He was going to give me a letter of warning and a 14 day suspension and, sooner or later, he was going to get something to stick in my file." This uncorroborated' assertion is not credited based principally on Lott's demeanor. Lott did not appear to be trying to be candid and helpful during the proceeding. On the contrary, he had to be repeatedly instructed to respond to questions and not to volunteer information. Often Lott engaged in hyperbole and attempted to tailor 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his testimony to place his claims in a light most favorable to his cause rather than attempting to,be forthright. At times, he exhibited reticence in responding to questions that apparently were perceived as harmful to his case. This tendency to tailor testimony was demonstrated in Lott's preparation of a memorandum that he had two co- workers sign. The missive, dated 22- August 1984, states: "I witness Thomas Lott-Pl-3 sweeping the .3rd floor T.A. from 07:00-to 3:30 PM-8-22-84 EXC for lunch. I witness Martinez E. call Lott T. a nigger also say nigger inspec- tor." The two witnesses to the missive, David Herrera and Roscoe Dyle, testified convincingly that when they signed the document, the second sentence alleging the use of racial epithets was not on the document,, it was added after they signed. Herrera and Dyle testified credi- bly and convincingly; they were direct and appeared forthright. Martinez denied making these alleged racial slurs, and his testimony was 'corroborated by Servantez. This cor- roborated testimony is credited. Martinez testified that when he tried to talk to Lott, Lott turned his back to the supervisors and walked away. According to Martinez' unrefuted testimony, Lott often failed to respond to him by turning his back and walking away. As Lott was walking away, Martinez informed him, as Lott admitted, that he would be disciplined for "the incident. Lott filed another EEO complaint and a grievance over the inci- dent. The resolution of the matter was the issuance of a letter of warning rather than the suspension recommend- ed by Martinez. On ' 6 September, Webb, an acting' supervisor, gave Lott a 5-day suspension for poor work performance. The notice of disciplinary action stated: On September 6, 1984, you were assigned to clean' Special Delivery and Finance from 0715-1515. At approximately 0955 and 1300 I gave you specific instructions on performance of your assignment. However, at 1500, when I went back to check on your progress I noticed that the floors you were as- signed to do were either in the same condition as earlier noticed or not completed. When questioned about the above, you stated you could not read my mind on what I wanted 'you to do. Lott did not deny the accuracy of Webb 's charge, rather he asserted that Webb told him that if Martinez could not get him, Webb would. Lott filed a grievance, an EEO charge, and a charge with the Board over the matter. It appears the discipline was imposed. The Board did not -issue a complaint on this charge. The General Counsel failed to prove that Martinez knew Lott filed this charge. On .14 January Lott was again informed that he would be suspended for 14 days because of poor work perform- ance. Lott again filed a grievance and an EEO charge which resulted in the reduction of the discipline to a 7- day suspension. A notice of disciplinary action was issued to Lott on 11 March 1985. A 14-day suspension was imposed for not responding to a page while assigned duties to sweep a floor, when Martinez searched for Lott, he found him in a breakroom drinking milk at a time other than than Lott's authorized breaktime. When questioned, Lott re- fused to reply until exiting the room when Lott said he was on medication. On the same day, 22 February, Lott was observed smoking while working in clear sight of a no smoking sign, which Lott claimed he did not see. On 25 February Lott was again cited for smoking in a -no smoking area. Lott denied knowledge that, it was a no smoking area. In response to this discipline, Lott filed a grievance, an EEO charge, and a charge with the Board. The disci- pline was reduced to a warning letter. Lott claims he was again discriminated against on 18 March 1985. This claim is unsupported by the record., It appears that on 18 March, after commencing work, Lott asked Paul Mefford, an asserted acting supervisor, for 2 hours annual leave to go to the EEO office as well as the Board's Regional Office. Lott claims that Mefford gave him permission. The record failed- to clearly estab- lish that- Mefford was an acting supervisor on 18 March. On his return, Lott asserts: Martinez told me-he had an official discussion with me. He asked Mefford to leave the office... . At this time, Martinez told me, 'I'm getting sick and tired of you running around here to these different organizations. You act like a cheap nigger lawyer. You're going to the EEO Commission., You're going to the union. You're going to [Congresswom- an] Schroeder. You're going to all these different damn people. So,, you ain't going to nobody else. The post office hired, you to work and, goddamnit, I'm going to see that you work.' So I told him I didn't have to listen to this kind .of crap. I wanted a union representative or somebody in the office with me to hear this kind of stuff. He [Martinez] said `You ain't seeing nobody from here on out. You are not seeing no representative. Nobody. We've got you here to work and you're going to work and I'm going to see that you work or I'm going .to see that you-get fired. Lott subsequently testified, that Martinez said, "I was acting like a cheap nigger lawyer. He was sick of me going to the APWU [American- Postal Workers Union], the Equal Employment [Opportunity] Commission, and the National Labor Relations Board.:.. You' think your [sic] the smartest one in the Janitor's depart- ment.... I'm going to see that we get rid of you." Lott returned to work and later filed a grievance. In, addition to filing grievances in his disputes with Re- spondent, Lott filed charges with the Board, the Postal Service's EEO office, and contacted the National Asso- ciation for the Advancement of Colored People, Con- gresswoman Schroeder, Congressman Schafter, Senator Gary Hart, and the Division of Human Resources. Mefford testified that Lott informed him on 18 March that he had an appointment at the EEO office. Lott did not seek nor get, his permission to take annual leave. Mefford completed a leave form but did not indicate that the leave was approved. To ensure the propriety of the POSTAL SERVICE leavetaking, Mefford checked with Martinez. Martinez said he had not been informed of the leavetaking. Lott was paid for the 2 hours he was absent and was not dis- ciplined for his failure to request leave in a timely manner by informing supervisors before they made the daily assignments that he planned to take 2 hours ' leave. Employees are expected to give notice when taking leave as soon as possible to permit supervisors to take that fact into consideration when making the daily work assignments. Mefford refuted Lott's testimony that he spoke with him on his return to work. Martinez' testimo- ny that he had no knowledge Lott went to the Board's Regional Office to file a charge in credited based princi- pally on demeanor . Martinez testified in a manner be- speaking candor and appeared to be trying to testify ac- curately. Martinez denied Lott's allegations of wrongdoing. Martinez claims, credibly, that he observed Lott at the elevator on his return to work and asked him where he had been. Lott did not reply so Martinez directed Lott to follow him to the office. Lott initially refused to follow Martinez until he got representation . Martinez then informed Lott that he was going to conduct an offi- cial discussion that does not require witnesses . Article 16, section 2 of the applicable collective-bargaining agree- ment provides for private discussions on minor offenses between management and unit members.4 Martinez also told Lott that no disciplinary action would result from the meeting. Martinez then informed Lott that in order to meet his responsibilities in cleaning the building, he had to know when employees were going to be absent to permit the making of assignments in a manner that per- mits him to meet this charge. Lott did not reply other than to inquire if the discussion was finished and could he go. On 28 March Lott submitted an EEO complaint over the meeting that was settled on 11 April by the entry into the previously referenced agreement. The agreement provides for withdrawal of the EEO complaint by Lott, and Martinez agreed to make a written note every time he has an official discussion with Lott and to permit Lott to have representation during any other type of discus- sion. The agreement further provides that Lott and Mar- tinez agree that harassment and racial slurs are not to be tolerated. The record does not demonstrate that this agreement admits wrongdoing or requires' Martinez to curtail his supervision of Lott or any other employee. 4 Specifically, this section provides- For minor offenses by an employee, management has responsibility to discuss such matters with the employee Discussions of this type shall be held in private between the employee and the supervisor. Such discussions are not considered discipline and are not grievable Following such discussions, there is no prohibition against the super- visor and/or the employee making a personal notation of the date and subject matter for their own personal record(s). However, no notation or other information pertaining to such discussion shall be included in the employee's personnel folder. While such discussions may not be cited as an element for prior adverse action against an employee, they may be, where relevant and timely, relied upon to establish that employees have been made aware of their obligations and responsibilities. 11 Analysis and Conclusions I find that the General Counsel has not proved by a preponderance of the credible evidence that Respondent violated the Act in any regard and conclude that the complaint should be dismissed in its entirety. The allegation that Martinez called Lott a "cheap nigger lawyer" or used other racial epithets is clearly and convincingly disputed by Respondent's witnesses. Lott was the only witness that claimed the slurs were cast. Lott, as found above, was not a credible witness. The evidence also fails to prove that Martinez threatened Lott with discharge for filing charges and grievan ces with the National Labor Relations Board, the American Postal Workers Union, and the Postal Service's Equal Employment Opportunity office. The evidence also fails to establish that Respondent denied Lott's request for union representation at a "disci- plinary-investigatory" interview. It is undisputed that Lott requested a union representative and Lott admitted that, in response to this request, Martinez informed him that they were going to have a discussion . Martinez' tes- timony that he told Lott it would be an official discus- sion under the collectivebargaining agreement that would not, result in discipline was unrefuted. The neces- sary elements of proving a violation of the Act, as set forth in NLRB v. J.' Weingarten, 420 U.S. 251 (1975), is that the employee must request a union representative at an employer's investigatory interview„ which the em- ployee reasonably believes might result in disciplinary action against him. Lott was not shown to have held a reasonable expectation that the interview might have re- sulted in disciplinary action against him.5 As indicated 'above, I find that the General Counsel has failed to demonstrate with a preponderance of the credible evidence that Respondent threatened to disci- pline Lott because he filed charges, grievances, and/or complaints with the Board, the Union, and Respondent's Equal Employment Opportunity office. Although Lott grieved and filed charges over the various disciplines im- posed on him, as described above, he did not clearly and convincingly refute the validity of their imposition. He did leave a pile of trash on the floor and did not respond to his supervisors when questioned about the incident, rather, he turned his back and walked away. This insub- ordination was not shown to have been excused by any mitigating factors. On the contrary, such insubordination was a clear and established pattern of conduct engaged in by Lott. The General Counsel has failed to show by a prepon- derance of the credible evidence that Martinez or the other supervisors here involved knew that Lott filed a charge with the Board until after 18 March. There is no reasonable basis to conclude that any threat of discipline or other act was taken against Lott in response to his filing, a charge with the Board or because he engaged in 5 Based on this finding that Lott did not hold a reasonable expectation that the interview would result in discipline, I find it unnecessary to dis- cuss the possibility that the Union's agreement to the holding of such dis- cussions without the right to a union representative constituted a waiver of the employee's Weingarten rights Postal Service, 256 NLRB 78 (1981), enf. granted in part and denied in part 689 F.2d 835 (9th Cir. 1982). 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any other conduct protected by Section 8(a)(4) and (1) of the Act. In sum, the total lack of corroboration of Lott, who is found to be not credible, contrasted .to the credible deni- als of Respondent's witnesses, lead me to find that the General Counsel has failed to meet her burden of prov- ing by a preponderance of credible evidence that the al- leged violations have occurred and the complaint should be dismissed. CONCLUSIONS OF LAW 1. Respondent United States Postal Service is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. 2. American Postal Workers Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to show by a pre- ponderance of the credible evidence that Respondent committed any violation of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER It having been found and concluded the Respondent, U.S. Postal Service, has not engaged in unfair labor practices, the complaint is dismissed in its entirety. 6 If no exceptions are filed as provided by Sec. 102.46 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.