NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
July 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On April 21, 2005, Administrative Law Judge Thomas M. Patton issued the attached decision. The Respondent and the General Counsel filed exceptions and a brief in support of their exceptions. The Respondent and the General Counsel filed answering briefs, and the Respondent filed a reply brief to the General Counsel’s answering brief.
The National Labor Relations Board has delegated 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,1 and conclusions2 only to the extent consistent with this Decision and Order.3
i. alleged unilateral changes in the application of
the Respondent’s work rules
A. The Rule Pertaining to Solicitation of Grievances on the Workroom Floor
On the morning of February 20, 2003,4 while the letter carriers at Highland Station were sorting the mail that they would deliver later that day, Supervisor Herman Lovato announced that carriers would be required to carry a “third bundle” of mail that would not be sorted before delivery. Some carriers began complaining that they should be permitted to presort the “third bundle,” and Union Steward Luis Chavez told Lovato that Lovato’s instruction violated the parties’ collective-bargaining agreement. Lovato informed Chavez that he disagreed and would not change his instruction. At that point, Chavez addressed the other letter carriers, who were sorting their mail, and stated that if anyone did not agree with carrying a “third bundle,” they should see their steward. Following Chavez announcement, many carriers left their sorting stations in order to ask Chavez what to do. Chavez instructed the carriers to give their supervisor a written request to see a steward, “as soon as possible.” It is undisputed that, as these events were taking place, Chavez had not asked for steward time.5 Further, it is undisputed that the employees who left their stations to seek the counsel of Chavez had not asked a supervisor for permission to stop work.
Immediately after these events, several of the Respondent’s managers met with Chavez and Union Steward Tina Segarra. At that meeting, Chavez was informed that he was disrupting work and that he was not to solicit grievances on the workroom floor.
The judge found that the Respondent did not violate Section 8(a)(5) and (1) by promulgating and enforcing a rule prohibiting union stewards from soliciting grievances on the workroom floor. We agree.
As noted by the judge, the Respondent’s rule at issue here pertains only to the activities of union stewards during their working time, and does not pertain to the stewards’ performance of union duties when they are “off the clock.” The well-established rule is that the promulgation and enforcement of a rule prohibiting union solicitation during working time is presumed to be valid, absent evidence that the rule was adopted for a discriminatory purpose. Our Way, 268 NLRB 394 (1983). We agree with the judge that the evidence in the instant case does not rebut this presumption.
Further, we agree with the judge that the General Counsel
has not established that the Respondent’s rule constituted a unilateral change
of an established past practice in violation of Section 8(a)(5) and (1). There is simply no evidence in the record to
support a finding that the Respondent had a well-established, longstanding
practice of allowing stewards to solicit grievances during working time on the
workroom floor.6 Instead, the record contains evidence to the
contrary. Union Steward Segarra
testified that she was aware of the rule before February 20, and the
We recognize that the record establishes that, at times, some supervisors made comments regarding the solicitation of grievances that did not clearly specify the circumstances under which the solicitation of grievances was prohibited. We agree with the judge, however, that under the circumstances of this case, “all concerned understood that the rule was limited to work time on the workroom floor.” 7
Accordingly, we adopt the judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by prohibiting stewards from soliciting grievances on the workroom floor during work time.8
B. The Respondent’s Rules Pertaining to “Stand
Up Meetings”
Prior to the events at issue, the Respondent had a practice
of holding “stand up meetings” with the mail carriers at Highland Station approximately
once a week. Stand up meetings were
called by management when it needed to convey information to the carriers,
including safety instructions. These
meetings took place on the workroom floor, occurred on paid time, and were scheduled
without consultation with the
On March 27, Supervisor Susan Tofoya conducted a stand up meeting. At the end of Tofoya’s remarks, Union Steward Tina Segarra asked for the opportunity to speak, and was recognized by Tofoya. Segarra made “extended remarks” focused on alleged contract violations by the Respondent, and refused to comply with Tofoya’s request that she conclude her remarks. Ultimately, Tofoya cut off Segarra and ended the meeting, which lasted approximately 27 minutes.
Later that same day, Manager Lorrel Grosse promulgated a
new rule pertaining to stand up meetings, providing that in the future, the
The judge found that the Respondent did not violate Section 8(a)(5) and (1) by promulgating the new rules pertaining to union stewards’ ability to participate during stand up meetings. The judge reasoned that the General Counsel did not establish that the Union had a protected right “to engage in the conduct addressed by the challenged rules” and, therefore, did not establish a violation of Section 8(a)(5) and (1). We agree with the judge that the General Counsel did not establish a violation of Section 8(a)(5) only in part, and we reverse in part.
An employer violates Section 8(a)(5) and (1) if it makes a
unilateral change in wages, hours, or other terms and conditions of employment
without first giving the Union notice and an opportunity to bargain. NLRB v.
Katz, 369
Here, we agree with the judge’s finding that the Respondent’s
promulgation of a rule prohibiting union stewards from using stand up meetings
to solicit grievances did not constitute an unlawful unilateral action. As the judge found, the Respondent’s established
past practice was that stand up meetings were wholly controlled by Respondent’s
management, without input from the Union regarding scheduling or topics to be
discussed. As a courtesy, the Respondent
had established a practice of allowing the union stewards to make brief announcements
on various topics. Prior to March 27,
however, the Union had never attempted to use stand up meetings to solicit
grievances, nor had the Respondent ever allowed the
We find, however, that the Respondent’s new rule did change the status quo insofar as the rule required union stewards to obtain preapproval of statements that they wished to make at stand up meetings. It is undisputed that, prior to March 27, union stewards had been permitted to speak at stand up meetings without having to obtain any managerial approval regarding the content of their planned announcement. It is also undisputed that the rule promulgated by the Respondent on March 27 changed this practice so that, in the future, union stewards would be required to obtain preapproval of any statements that they wished to make at stand up meetings, including all announcements that, under established practice, they had always been permitted to make without such prior approval. We find that this change of the status quo constituted a “material, substantial, and significant” change in the stewards’ ability to carry out their duties. See Flambeau Airmold Corp., 334 NLRB 165, 165 (2001).11 Accordingly, we find that Respondent’s promulgation of the March 27 rule requiring stewards to obtain preapproval for statements to be made at stand up meetings violated Section 8(a)(5) and (1) of the Act.12
ii.
allegations arising from the interactions
between supervisor mccann and steward gill
We next examine the three alleged violations pertaining to interactions between Supervisor Curtis McCann and letter carrier (and steward) Mike Gill during the period of mid-September to early October 2003. At that time, McCann, a former letter carrier, was participating in the Respondent’s supervisor training program, pursuant to which he worked as a supervisor at Highland Station and attended classroom training. From McCann’s first day as a supervisor at Highland Station, Gill made no effort to hide his contempt for and hostility toward him. As the judge found, “Gill’s conduct was consistent with a determined effort by him to undermine McCann’s efforts to become a supervisor.” Thus, the incidents at issue occurred in the context of the openly hostile relationship between McCann and Gill.
A. The September 30 Warning Letter Issued to Gill
The first incident arose in the context of a scheduling error. Prior to the events at issue, McCann’s superiors had directed him to limit letter carriers to 60 hours work in any week, and the carriers were aware of this limit. On September 12, McCann assigned Gill to a mail route and allotted him 6 hours to complete the route. At that time, however, Gill had already worked nearly 54 hours and had used nearly 2 hours of sick leave. Thus, by assigning Gill to a 6-hour route, McCann had erroneously assigned Gill to work that, if completed, would have put him over the 60-hour limit.
Gill left for his route without informing McCann that the assigned route would put him over the 60-hour limit. While he was out on his route, Gill realized that he was over the 60-hour limit, so he called McCann for instructions. According to credited testimony, McCann instructed Gill to “bring the mail back” without completing his route.
On September 30, McCann issued a warning letter to Gill, citing him for failing to follow directions, based on Gill’s failure to finish his route and his exceeding 60 hours for the week.
We agree with the judge that Respondent’s issuance of the warning letter to Gill violated Section 8(a)(3) and (1). In order to establish a violation under Section 8(a)(3) and (1) in accordance with our decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel must first prove, by a preponderance of the evidence, that the employee’s protected conduct was a motivating factor in the employer’s decision. See Manno Electric, Inc., 321 NLRB 278, 280 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (unpublished table decision). The General Counsel can meet this burden by proving the employee’s union activity, the employer’s knowledge of the union activity, and the employer’s animus against the employee’s protected conduct. Once this showing is made, the burden of persuasion “shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, 251 NLRB at 1089.
We find that the General Counsel carried his initial
burden of establishing discriminatory treatment here. Gill’s protected activity as a union steward,
and the Respondent’s knowledge thereof, is established and not disputed. We further find that the General Counsel has
sufficiently established antiunion animus on the part of the Respondent. This antiunion animus is demonstrated by
McCann’s unlawful refusal to provide the
We further agree with the judge that the Respondent’s explanation for the September 30 discipline, as set out in the disciplinary letter, was pretextual.15 The disciplinary letter states that the charge against Gill is a “failure to [f]ollow [i]nstructions,” and then indicates that Gill failed to follow instructions “to leave 4 relays for other carriers” and “to complete what was left of your route.” As the judge found, however, the credited record evidence establishes that McCann did not issue those instructions to Gill; rather, the credited evidence establishes McCann directed Gill to return to the station prior to completing his route, and that Gill followed that instruction.
Finally, we agree with the judge that, even if the reasons set forth in the disciplinary letter were not pretextual, the Respondent has failed to rebut the showing of discriminatory treatment made by the General Counsel. The Respondent has not established, by record evidence, that it would have taken the same action against Gill even if he had not engaged in protected activity.
For all of the reasons above, we affirm the judge’s finding that the Respondent’s issuance of the September 30 disciplinary letter to Gill violated Section 8(a)(3) and (1) of the Act.
B. McCann’s October 2 Threats to Gill
On October 2, Gill told McCann that he had an appointment with Union President Bill Prestien that day at the union office. McCann refused to grant Gill permission to leave work to meet with Prestien. Gill, however, had already received approval for the meeting from a different supervisor and had obtained a PS Form 7020 authorizing his trip to the union office. After consulting with labor relations, McCann allowed Gill to leave for the meeting with Prestien.
When Gill returned to the workroom floor following the meeting, he presented the PS Form 7020 to McCann, so that McCann could record his time away from work on the form. At that time, McCann told Gill that he was not going to allow Gill to go back to the union office again. McCann also told Gill, “I’m going to dock you for the time in which you spent over at the Union Hall.”
We agree with the judge that these statements by McCann constituted unlawful threats of reprisal based on Gill’s trip to the union office, in violation of Section 8(a)(1). Although we are mindful of the personal animosity between McCann and Gill,16 McCann’s statements were clearly and directly tied to Gill’s protected conduct, and would reasonably tend to interfere with Gill’s exercise of his protected Section 7 rights.17
C. The October 4 Placement of Gill on Off-Duty Status
On October 4, in his capacity as steward, Gill delivered a stack of information requests (“requests”) to McCann. McCann began reviewing the requests and asked Gill questions about some of them. McCann became irritated, and the exchanges between Gill and McCann became heated. Eventually, McCann stood up, said he had more important things to do, and took the requests to a management office. In so doing, he failed to provide Gill with a signed copy of the requests. Gill’s usual practice as steward was to obtain a signed copy of all requests submitted to Respondent, in order to have a record of the Respondent’s receipt of the requests.
Gill followed McCann into the office and picked the stack of requests off of a table, telling McCann that he was going to make copies of them. McCann said that he was not through with them, angrily asserted that he could not believe that Gill would take something off of his “desk,” and directed Gill to put the requests back on the table. Despite these directions, Gill walked out of the office with the requests and began copying them. Thereafter, McCann twice directed Gill to give him the requests, and Gill refused. McCann left.18 After speaking with the station manager about the incident, McCann placed Gill on off-duty status.
The judge found that Respondent violated Section 8(a)(3) and (1) by placing Gill on off-duty status. We disagree.
We agree with the judge that the General Counsel carried his initial burden of showing discriminatory treatment toward Gill. Unlike the judge, however, we find that the Respondent has satisfied its burden of establishing that it would have taken the same action against Gill, even absent Gill’s protected activity.
As the judge noted in his decision, the Respondent proffered evidence that it had placed another individual who had refused to follow McCann’s direct instructions on off-duty status. The judge rejected that evidence as “inapposite” on the grounds that the other employee was not performing steward duties at the time that he was disciplined. We disagree and find the evidence relevant. In carrying out his steward duties, Gill was repeatedly insubordinate to McCann, both by removing the documents from McCann’s table and by ignoring McCann’s direction to return the documents. The fact that Gill was engaging in steward duties at the time does not prevent the Respondent from taking the same action in response to Gill’s insubordination that it would have taken toward any other employee committing similar insubordinate acts. Guardian Ambulance Service, 228 NLRB 1127, 1131 (1977).
We agree that Gill was engaged in protected activity when he presented the information requests to the Respondent. However, that did not give him a license to engage in clearly insubordinate conduct. The past practice was that Gill would present the requests, McCann would sign them in due course, and McCann would return the signed documents to Gill for copying. In the instant matter, because of the sheer volume of documents and because McCann was busy with other matters, McCann took the documents for later signing. The documents were then in the possession of McCann. Gill removed them from McCann’s table and refused McCann’s order to return them. Those acts were insubordinate.
Union Fork & Hoe Co., 241 NLRB 907 (1979), cited by our dissenting colleague, is clearly distinguishable. In that case, the Board concluded that there should be no deferral to an arbitral award because the arbitrator set forth a standard that was clearly at odds with Board law. By contrast, in the instant case, there is no issue of deferral. Further, on the merits, the judge in Union Fork, affirmed by the Board, found that there was disparate treatment of the stewards. There are no such facts here.
Accordingly, we find that the Respondent has met its burden to establish that, even absent Gill’s protected conduct, it would have taken the same action against Gill in response to his insubordinate conduct. Therefore, we reverse the judge and find that the Respondent did not violate Section 8(a)(3) and (1) by placing Gill on off-duty status.19
ORDER
The National Labor Relations Board orders that the Respondent, United States Postal Service, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide National Association
of Letter Carriers, AFL–CIO, or a designated local union, with information that
is necessary for and relevant to the
(b) Failing and refusing to provide the Union, on request,
information that includes confidential medical information without first bargaining
in good faith for a mutually satisfactory confidentiality agreement, protective
order, or other procedure that will accommodate the
(c) Threatening to withhold permission for an employee to meet with a union officer that would otherwise be granted, in retaliation for the employee’s activity protected by Section 7 of the Act.
(d) Threatening to reduce the pay of any employee after the employee has met with a union officer on the clock with the permission of the Respondent, in retaliation for the employee’s activity protected by Section 7 of the Act.
(e) Issuing warning letters to employees or otherwise discriminating against
them because they have engaged in activities on behalf of
the
(f) Threatening to withhold the opportunity to work overtime in retaliation for an employee’s activity protected by Section 7 of the Act.
(g) Unilaterally changing the practice of allowing the President of Sunshine Branch 504, National Association of Letter Carriers, AFL–CIO, to work on paid union time at the Local’s office.
(h) In any like or related manner interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Promptly, upon request, furnish the Union with the
information found in this decision to have been unlawfully withheld from the
(b) Promptly, upon request, bargain with the Union in good faith for a mutually satisfactory confidentiality agreement, protective order, or other procedure that will accommodate the Union’s need for the previously requested information regarding the work restrictions for Carl (Carlo) Montano, while safeguarding it from unnecessary disclosure.
(c) Within 14 days from the date of this Order, remove from its personnel records any reference to the unlawful warning letters issued to employees Michael Gill and Karl Pecora, and within 3 days thereafter notify the employees in writing that this has been done and that the warning letters will not be used against them in any way.
(d) Within 14 days after service by the Region, post copies of the attached notice marked “Appendix”20 at Highland Station, Uptown Station, Airport Mail Facility, Main Office Carrier Annex, Vehicle Maintenance Facility, and Five Points Station. Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any of the affected facilities, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent in the closed facilities at any time since February 14, 2003.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not fail and refuse to furnish National Association of Letter Carriers, AFL–CIO, or its designated local unions, with information that is necessary for and relevant to the Union in the performance of its statutory representative duties as the exclusive bargaining representative of the nationwide collective-bargaining unit.
We will not fail or refuse to provide the Union, on request, information that includes confidential medical information without first bargaining in good faith for a mutually satisfactory confidentiality agreement, protective order, or other procedure that will accommodate the Union’s need for the requested information while safeguarding it from unnecessary disclosure.
We will not unilaterally promulgate and enforce a rule requiring stewards to obtain preapproval for statements made at “stand up meetings.”
We will not threaten to withhold permission for an employee to meet with a union officer that would otherwise be granted, in retaliation for the employee’s activity protected by Section 7 of the Act.
We will not threaten to reduce the pay of any employee after the employee has met with a union officer on the clock with our permission, in retaliation for the employee’s activity protected by Section 7 of the Act.
We
will not issue warning letters to employees or otherwise discriminate
against them because they have engaged in activities on behalf of the
We will not threaten to withhold employees’ opportunities to work overtime in retaliation for the employees’ activity protected by Section 7 of the Act.
We
will not unilaterally change the practice of allowing the President of
Sunshine Branch 504 to work on paid union time at the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act.
We
will promptly, upon request, furnish the Union with the information that
has been found to have been unlawfully withheld from the
We will promptly, upon request, bargain with the Union in good faith for a mutually satisfactory confidentiality agreement, protective order, or other procedure that will accommodate the Union’s need for the previously requested information regarding work restrictions for an employee, while safeguarding it from unnecessary disclosure.
We will remove any and all references in our personnel records to the unlawful warning letters issued to em-
ployees Michael Gill and Karl Pecora and notify them in writing that such has been done.
United
States Postal Service
Liza Walker-McBride, Esq., for the General Counsel.
Cynthia Estee, Esq. and Kimberly C. Blanton, Esq., of
David
Pratt and William J. Prestien, of
DECISION
Statement of the Case
Thomas M. Patton,
Administrative Law Judge. This case was tried in
The charges
were filed by National Association of Letter Carriers, Sunshine Branch 504, AFL–CIO.
The initial charge in Case 28–CA–18682(P)
was filed on April 23, 2003. The final
charge was filed in Case 28–CA–19269(P) on January 15, 2004.
The initial
complaint issued on July 31, 2003. The
final sixth consolidated complaint issued on February 19, 2004, and was extensively
amended during the hearing. The final
amended answer to the sixth consolidated complaint was filed with the
administrative law judge and served on March 25, 2004, and has been added to
and made a part of the record as GC Exhibit 1(xxx). The complaint alleges violations of Section
8(a)(1), (3), (4), and (5) of the Act. The
Respondent filed answers denying any violation of the Act.
Following the close of the hearing the General Counsel submitted
and moved to receive Joint Exhibit 5, which is consistent with an agreement of
the parties made during the hearing. The
motion is granted and the exhibit has been added to the record. Following the
close of the hearing the Respondent moved to add subpoena B-423473 to the
record. That motion is granted and the
exhibit has been added to the record as Respondent Exhibit 29.
On the entire
record,1 including my observation of the demeanor
of the witnesses and after considering the briefs and arguments of counsel, make the following findings of fact,2 conclusions of law and recommended order.
i. jurisdiction
The United
States Postal Service (the Respondent, the USPS, or the Postal Service)
provides postal services for the
ii. the labor organizations involved
The complaint
alleges, the answer admits and I conclude that the National Association of Letter
Carriers, AFL–CIO (the NALC) is a labor organization within the meaning of
Section 2(5) of the Act. The complaint
alleges, the answer admits and I conclude that Sunshine Branch 504 (herein
Branch 504 or the Local) is a labor organization within the meaning of Section
2(5) of the Act and a constituent NALC local. The NALC and the Local are referred to individually
and collectively as the
iii. the alleged unfair labor practices
A. The Collective-Bargaining Relationship
The record
evidence, the pleadings and reported Board decisions show that the NALC represents
a nationwide unit of USPS letter carriers. I conclude that the unit is appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the
Act and Chapter 12 of the PRA. The NALC
negotiates a national contract and designates affiliated local unions to
administer the contract at designated postal facilities. The most recent national contract (the
Agreement) is effective from November 21, 2001, through November 20, 2006. I conclude that based on Section 9(a) of the
Act and Chapter 12 of the PRA the NALC has been the exclusive collective-bargaining
representative of the contract unit (the unit) at all material times. The letter carriers in Albuquerque work at
USPS facilities including those known as Highland Station, Uptown Station,
Airport Mail Facility, Main Office Carrier Annex, Vehicle Maintenance Facility,
and Five Points Station and are members of the unit. Branch 504 is the designated NALC local union
responsible for administering the Agreement at those facilities.
B. Background
In February
2003,3 Manager Steven Hardin, manager of customer
service operations in Albuquerque assigned Supervisors Steve Manning and Herman
Lovato to work at Highland Station on temporary detail as a “recovery team.”4 Their assignment was to improve delivery
operations, including the elimination of time wasting practices.
C. Findings and Conclusions
1. February 3 and 12 denial of steward time
Complaint
paragraphs 7(e) and (f) allege that on February 3 and 12, Supervisor Patti
Manous did not grant steward time requested by Tina Segarra and thereby
violated Section 8(a)(1) and (5) of the Act.
As discussed
in detail infra, stewards have a contract right “to interview aggrieved employee(s),
supervisors and witnesses during working hours. Such requests shall not be unreasonably
denied.”
On Monday,
February 3, Segarra submitted a request for steward time to Manous that stated
she requested 40 minutes total steward time to take statements from five
employees. The form used for the
information request did not specify a grievance number and a box indicating “To
investigate a possible grievance” was checked.
Segarra
testified that the February 3 steward time request had not been granted and she
submitted a second request on Wednesday, February 12. The second request was addressed to Manous,
but was given to Supervisor Terry Hartsfield. The February 12 request was for 20 minutes
steward time with each of the five employees named in the February 3 request,
for a total of 100 minutes. The February
12 request states “2nd request, first copy attached.” The form specified a grievance number and a
box was checked indicating that request was to process a grievance. Segarra testified that the request was not
granted. The record does not show that the steward time request was explicitly
denied or was the subject of a grievance or any further discussion. The subsequent investigation and disposition
of the related grievance is not of record.
Supervisor
Manous was called as a witness by the General Counsel. She initially testified that she did grant Segarra
the steward time requested on February 3. She was then impeached with documentary evidence.
Manous had submitted a statement to the
Board on May 30, regarding the February 3 steward time request that stated the
steward time had been granted.5 Attached to the statement were time records of
employees that seemed to support her contention. Manous was then questioned about a different
steward time request by Segarra dated February 4, which asked for steward time
to interview the employees named in the February 3 steward time request. That request was addressed to Manous, but
received by Supervisor Susan Tofoya, who granted the requested time in a
handwritten note to Segarra on a copy of the request.
Manous seemed
surprised when she was questioned about the February 4 steward time request and
she conceded that the time records she submitted during the administrative
investigation may have reflected the time requested on February 4, rather than
the February 3 request. Manous observed,
“There were many, many of these types of requests from [Segarra] . . . .”
Segarra was
very active in performing her steward duties. Segarra filed many grievances and
regularly requested and used substantial amounts of paid steward time. It was not unusual for Segarra to spend most of the workweek on
steward time. The workweek began on Saturday. Sunday is not a workday. Segarra used the following paid steward time
during the 2 work weeks beginning February 1:
|
DATE |
HOURS |
DATE |
HOURS |
|
02/01 |
Off |
02/08 |
2/14 |
|
02/03 |
5.43 |
02/10 |
Off |
|
02/04 |
5.57 |
02/11 |
5.55 |
|
02/05 |
7.93 |
02/12 |
3.75 |
|
02/06 |
3.64 |
02/13 |
3.41 |
|
02/07 |
None |
02/14 |
7.71 |
Based on the
probabilities and Segarra’s credibly offered testimony on this issue, I conclude
that the steward time requested on February 3 and 12 was not granted. In reaching this conclusion I find that
Manous was mistaken in her testimony, but based on her demeanor and the
probabilities, I do not find that the evidence shows that she knowingly testified
falsely or that she intentionally disregarded the requests. It is not improbable that a steward time
request might be unintentionally overlooked. This conclusion is based on the numerous
steward time requests by Segarra and other union representatives reflected in
the record, as well as the number of requests by Segarra that is implicit in
the amount of steward time she used. Moreover,
the evidence does not show that there was a pattern or practice of the
Respondent ignoring steward time requests.
In view of the
foregoing, the evidence does not establish that the Respondent acted in bad
faith by not responding to the February 3 and 12 steward time requests. At most, there was a contract violation that
is not a per se violation. I conclude
that complaint paragraphs 7(e) and (f) have not been proven and I recommend
that they be dismissed.
2. February 20 restriction on soliciting grievances
Complaint
paragraph 5(a) alleges that on February 20, Supervisors Herman Lovato and Steve
Manning promulgated an overly-broad and discriminatory rule prohibiting stewards
from soliciting grievances on the workroom floor at Highland Station, in
violation of Section 8(a)(1) and (5) of the Act. The following is a composite of the most
credibly offered and probable testimony and the documentary evidence.
On the morning
of February 20, the letter carriers at Highland Station were sorting the mail
they would later deliver, a process called casing the mail. The carriers were working at their assigned
sorting cases in the same general area. Lovato
announced to all the carriers that they would also be carrying a “third bundle”
of Shoppers Guides. This
instruction meant that the Shoppers Guides would not be cased. Instead, the carriers would sort the Shoppers
Guides as they delivered the other mail. Some carriers expressed dissatisfaction to one
another that they would not be allowed to case the third bundle before they
left to deliver the mail. When Lovato
made the announcement regarding the third bundle he was standing near the
rework case, a location where he could address the carriers. Union Alternate Steward Luis Chavez was one of
the carriers who was casing mail. Chavez’
case was adjacent to the rework case. Chavez
expressed to Lovato his opinion that under the contract the Shoppers Guides
should be cased. Lovato told Chavez, in
substance, that the instruction stood and that the Shoppers Guides would
not be cased. Chavez then addressed the
other letter carriers who were working at sorting cases, stating that if anyone
did not agree with carrying a third bundle they should see their steward.6 Supervisor Steven Manning was standing about
20 feet away and heard Chavez’ remarks. Manning worked at Highland Station from
about February through April or May. Chavez
testified that carriers left their sorting cases and came over to him, asking
what they should do. Chavez told the
carriers that they needed to give their supervisor a written request in writing
to see a steward, “as soon as possible.”
Lovato told
Chavez that he wanted to talk with him in the office. Chavez walked to another
area of the facility where Steward Tina Segarra was located. Lovato followed Chavez and it was agreed that
Segarra could attend the meeting. Segarra
and Chavez conferred briefly before the meeting, although they did not have 5 minutes
that Chavez opined that they should have been allowed.7 Present at the meeting were Lovato, Chavez,
Manning, and Segarra. Manning asked
Chavez to repeat what he said and Chavez stated that he had told the carriers
that if anyone wanted to file a grievance on carrying a third bundle, they
should see a steward. Lovato then told
Chavez that he was disrupting work and that he was not to solicit grievances on
the workroom floor. Segarra protested
that the
Manning
described the February 20 meeting in a memo to Postmaster John Tuleja, but did
not describe the incident on the workroom floor. The memo notes that there had been a realignment
of management at
Manning
testified that Chavez created a disruption on the workroom floor, while the
General Counsel presented testimony that there was no disruption. The word “disruption” appears to have been used
by Manning as a synonym for “interruption.” Lovato, who was working at a different postal
facility at the time of the hearing, did not testify. The weight of the evidence that the carriers
were distracted from their work by the third bundle instruction and by Chavez’
urging them to file grievances. The
evidence does not show that the mail was delayed or overtime incurred because
of the incident.
Lorrel Grosse
was manager of customer services at Highland Station from January 2003 through
June. Grosse had instructed the
supervisors at Highland Station that stewards were not to be permitted to
solicit grievances from employees on the workroom floor. The record does not establish when the
The Joint
Contract Administration Manual (JCAM) is a joint Union-Employer manual to guide
the parties in the application of the Contract.8
The JCAM explicates a panoply of
contract-based rights for stewards. The
JCAM provides, in part:
When it is necessary for a steward to leave his/her work area to investigate and adjust grievances or to investigate a specific problem to determine whether to file a grievance, the steward shall request permission from the immediate supervisor and such request shall not be unreasonably denied.
. . . .
The steward . . . shall have the right to interview aggrieved employee(s), supervisors and witnesses during working hours. Such requests shall not be unreasonably denied.
. . . .
A steward may conduct a broad range of activities related
to the investigation and adjustment of grievances and of problems that may
become grievances. These activities
include . . . interviewing a potential grievant. . . . A steward has the right to conduct all such
activities on the clock . . . . [Emphasis
in original.] Supervisory permission to
engage in paid steward time is required, and must not be unreasonably denied. If management delays granting steward time,
the reasons for the delay must be explained and the steward must be told when
time will be available. Permission to leave the
steward’s work area and go to another work area is required, but cannot be unreasonably denied.
The Postal
Service has strict rules for accounting for employee time that require employees
to swipe their ID cards through an electronic timeclock and input their status
change when they move from one status to another. Whenever employees are not engaged in production,
they clock over to a nonproduction status.
When employees run out of work they clock over to standby time, which is
paid time, and remain at their duty stations.
When employees go on breaks, they clock over to breaktime and repeat the
process before returning to their duty stations. There is no contention and no evidence that
employees are permitted on the workroom floor when they are on break or clocked
out. In contrast, the evidence,
including the testimony of Station Manager Thomas Jack, shows that employees
who are clocked out of pay status are not allowed on the workroom floor. When
a steward has been given permission to perform steward duties on the clock, the
steward must clock over to steward time, a different pay status. Steward time requests are in writing and
describe the steward duties that will be performed. The testimony does not establish the pay
status of employees while they are interviewed by stewards who are on steward
time, but I infer that they clock over to a nonwork pay status. The record does not show where such interviews
are conducted at Highlands Station. The
At the time of
the events that preceded the meeting on February 20, Chavez had not asked for
steward time and the employees who sought his counsel had not asked a
supervisor for permission to stop work and see a steward.
All parties
acknowledge, and a preponderance of the testimony shows, that Chavez was acting
in an official steward capacity on the morning of February 20. When Segarra protested at the February 20
meeting that the Union was not being permitted to represent the letter carriers
at Highland Station, she implicitly took the position that Chavez had acted as
a representative of the