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, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

United States Postal Service and Bobby Cline and American Postal Workers Union, Playground Area Local 5643. Cases 15–CA–17767, 15–CA–17818, 15–CA–17819, 15–CA–17884, 15–CA–17917, and 15–CA–17961

July 31, 2008

DECISION AND ORDER

By Chairman Schaumber and Members Liebman

On May 17, 2007, Administrative Law Judge Keltner W. Locke issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations 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 conclusions as modified and to adopt the recommended Order as modified2 and set forth in full below.3

The judge found, inter alia, that the Respondent violated Section 8(a)(1) of the Act by denying employee Bobby Cline his Weingarten right to union representation during an investigative interview. The Respondent excepts, citing due process grounds. We find merit in these exceptions.

On November 8, 2005, Supervisors Joel Ouellette and Lease Ginn met with Cline and Union President Bobby Pruett for an investigative interview. According to Cline, the following exchange took place. As the interview was about to start, Pruett asked the supervisors to explain its purpose. Ouellette told Pruett that although he could be present during the interview, he could not speak. Pruett protested, but Ouellette repeated that he would not allow Pruett to speak. Based on Cline’s testimony, the judge found that, through Ouellette, the Respondent violated Section 8(a)(1) by denying Cline his Weingarten right to union representation. Excepting, the Respondent argues that the judge erred in so finding, as the General Counsel neither alleged this theory in the complaint nor moved to amend the complaint to reflect such a violation.

Due process requires that a respondent have notice of the allegations against it so that it may present an appropriate defense. Typically, such notice is furnished by the allegations set forth in the complaint. However, “the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). The “determination of whether a matter has been fully litigated rests in part on whether . . . the respondent would have altered the conduct of its case at the hearing, had a specific allegation been made.” Id. at 335. Further, “[t]he presentation of evidence associated with an alleged claim . . . is insufficient to put the parties on notice that another, unalleged claim (for which that evidence might also be probative) is being litigated, especially where the two claims rely on different theories of liability.” Dilling Mechanical Contractors, 348 NLRB 98, 107 (2006).

Here, the unalleged Weingarten violation was not fully litigated. What transpired was precisely the scenario the Board found insufficient as a matter of due process in Dilling Mechanical Contractors, supra: evidence was introduced in association with an alleged claim based on one theory of liability, which the judge then relied on to find an unalleged claim based on a different theory of liability. When Cline offered the testimony upon which the judge relied to find the Weingarten violation, he was testifying in support of a complaint allegation that the Respondent, by Supervisors Ouelette and Ginn, had coercively interrogated Cline. The testimony was not thereafter mentioned or referred to for the duration of the hearing. Significantly, after Cline testified, the General Counsel twice amended the complaint. On neither occasion did he seek to add a Weingarten allegation. See International Baking Co. & Earthgrains, 348 NLRB 1133, 1134 (2006) (finding it significant, in concluding that an issue had not been fully litigated, that the General Counsel moved to amend the complaint in one respect, but failed to amend the complaint to allege the violation the judge found).

The Respondent also contends that had it been put on notice of a potential Weingarten violation, it may well have altered its litigation strategy. Again, Cline was testifying in support of an allegation of coercive interrogation. In defense of that allegation, the Respondent chose to call to the stand the manager who drafted the questions asked of Cline rather than Ouelette and Ginn, who conducted the interview. Had it known that it faced potential Weingarten liability, the Respondent might have called Ouellette and Ginn to testify as to their recollections of what was said. The Respondent also may have altered its conduct of the case by cross-examining Cline and Pruett on the Weingarten issue. But the Respondent had no reason to believe there was any such issue in the case.4

Accordingly, for the foregoing reasons, we reverse the judge’s finding that the Respondent violated Section 8(a)(1) by denying Cline his Weingarten right to union representation.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, United States Postal Service, Destin, Florida, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Coercively interrogating employees concerning their union or other protected activities.

(b) Placing an employee on emergency suspension because he engaged in union activities, filed unfair labor practice charges with the Board, testified in Board proceedings, and/or engaged in other protected concerted activities, or to discourage other employees from engaging in such activities.

(c) Requiring an employee to take a fitness-for-duty examination because he engaged in union activities, filed unfair labor practice charges with the Board, testified in Board proceedings, and/or engaged in other protected concerted activities, or to discourage other employees from engaging in such activities.

(d) Placing an employee on administrative leave because he engaged in union activities, filed unfair labor practice charges with the Board, testified in Board proceedings, and/or engaged in other protected concerted activities, or to discourage other employees from engaging in such activities.

(e) Disciplining, suspending, or otherwise discriminating against employees because they engaged in union activities, filed unfair labor practice charges with the Board, testified in Board proceedings, and/or engaged in other protected concerted activities, or to discourage other employees from engaging in such activities.

(f) Failing and refusing to bargain in good faith with the exclusive representative of its employees in a unit appropriate for collective bargaining by failing and refusing to furnish the Union, in a timely manner, information requested by the Union that is relevant to the Union’s representative duties and necessary for that purpose.

(g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, rescind the disciplinary warnings issued to Marcus Jackson on February 22, 2005, and to Bobby Cline on March 4, 2005, and the 14-day suspension issued to Bobby Cline on about March 13, 2006.

(b) Make Bobby Cline whole, with interest, for all losses he suffered as a result of his unlawful emergency suspension on September 2, 2005, and the Respondent’s failure thereafter to recall him, and of his unlawful 14-day suspension beginning April 1, 2006.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discipline of Marcus Jackson and Bobby Cline and the unlawful suspensions of Bobby Cline, and within 3 days thereafter notify them in writing that this has been done and that the disciplines and suspensions will not be used against them in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at its facility in Destin, Florida, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 15, 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 the facility involved in these proceedings, 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 its Destin, Florida facility at any time since February 22, 2005.

(f) 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.

Dated, Washington, D.C. July 31, 2008

Peter C. Schaumber, Chairman

Wilma B. Liebman, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated 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 coercively interrogate employees concerning their union or other protected activities.

We will not place any employee on emergency suspension because the employee engaged in activities protected by the Act, or to discourage employees from engaging in such activities.

We will not require any employee to undergo a fitness-for-duty examination because the employee engaged in activities protected by the Act, or to discourage employees from engaging in such activities.

We will not place any employee on administrative leave because the employee engaged in activities protected by the Act, or to discourage employees from engaging in such activities.

We will not discipline, suspend, or otherwise discriminate against any employee because the employee engaged in activities protected by the Act, or to discourage employees from engaging in such activities

We will not fail and refuse to bargain in good faith with American Postal Workers Union, Playground Area Local 5643 by failing to provide, in a timely manner, information the Union requested that is relevant to the Union’s performance of its representative duties and necessary for that purpose.

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 Act.

We will, within 14 days from the date of the Board’s Order, rescind the disciplinary warnings issued to Marcus Jackson on February 22, 2005, and to Bobby Cline on March 4, 2005, and the 14-day suspension issued to Bobby Cline on about March 13, 2006.

We will make Bobby Cline whole, with interest, for all losses he suffered as a result of our unlawful emergency suspension of him on September 2, 2005, and our failure thereafter to recall him, and of our unlawful 14-day suspension of him beginning April 1, 2006.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discipline of Marcus Jackson and Bobby Cline and the unlawful suspensions of Bobby Cline, and we will, within 3 days thereafter, notify them in writing that this has been done and that the disciplines and suspensions will not be used against them in any way.

United States Postal Service

Kevin McClue, Esq., for the General Counsel.

Sandra Walton Bowens, Esq., of Memphis, Tennessee, for the Respondent.

Mr. Michael A. Hughey, for the Charging Party.

DECISION

Statement of the Case

Keltner W. Locke, Administrative Law Judge. In this case, the General Counsel of the National Labor Relations Board (the Board) alleges that the United States Postal Service (Respondent) violated Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act (the Act). With certain exceptions, I conclude that the General Counsel has proven these allegations.

i. procedural history

This case began on July 15, 2005, when the American Postal Workers Union, Local 5643 filed the initial charge against Respondent in Case 15–CA–17767(P). On January 30, 2006, the Union amended this charge.

On September 16, 2005, Bobby Cline filed an unfair labor practice charge against Respondent in Case 15–CA–17818. Cline amended this charge on October 25, November 30, and December 12, 2005, and January 27, 2006.

On September 19, 2005, the Union filed an unfair labor practice charge against Respondent in Case 15–CA–17819. The Union amended this charge on January 30, 2006.

On December 1, 2005, Cline filed a charge against Respondent in Case 15–CA–17884(P). Cline amended this charge on January 26, 2006.

On January 27, 2006, Cline filed a charge against Respondent in Case 15–CA–17917(P). Cline amended this charge on March 2, 2006. On March 14, 2006, Cline filed a charge against Respondent in Case 15–CA–17961(P).

On February 17, 2006, the Regional Director for Region 15 issued an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing in Cases 15–CA–17818(P), 15–CA–17819(P), and 15–CA–17884(P). In doing so, the Regional Director acted for and on behalf of the General Counsel of the Board, referred to below as the “General Counsel” or the “Government.” Respon-dent filed a timely answer.

On March 29, 2006, the Regional Director issued a Second Order Consolidating Cases, Second Consolidated Complaint and Notice of Hearing, which consolidated Case 15–CA–17767(P) with Cases 15–CA–17818(P), 15–CA–17819(P), and 15–CA–17884(P). Respondent filed a timely answer.

On April 11, 2006, the Regional Director issued a Third Order Consolidating Cases, Third Consolidated Complaint and Notice of Hearing, which consolidated Case 17–CA–17917 with the other four. Respondent filed a timely answer.

On May 15, 2006, the Regional Director issued a Fourth Order Consolidating Cases, Fourth Consolidated Complaint, and Notice of Hearing. Respondent filed a timely answer.

A hearing opened before me on June 26, 2006, in Destin, Florida. The parties presented evidence on June 26 through 29, and on July 19, 2006. Counsel presented oral argument on August 11, 2006.

At the beginning of the hearing, I granted the General Counsel’s motion to amend the complaint to add the allegations that Postmaster Paul McGinnis and Supervisor John Culgar were supervisors within the meaning of Section 2(11) of the Act. Respondent admitted these allegations.

The General Counsel further amended the complaint on June 29, 2006, by introduction of General Counsel’s Exhibit 54, “Amended Fourth Order Consolidating Cases, Amended Fourth Consolidated Complaint and Notice of Hearing.” (For brevity, I will refer to this document simply as the “complaint” or, where clarity requires, the “fourth amended complaint.”) This document memorialized the changes made by the oral amendment described in the last paragraph. It also added the allegation that Manager Marty Halverson was Respondent’s supervisor within the meaning of Section 2(11) of the Act.

General Counsel’s Exhibit 54 also amended complaint paragraph 20 by changing “a copy of the postal inspector’s notes regarding the investigation of an alleged threat” to “a copy of the postal inspector’s notes regarding the alleged threat made by Cline on September 2, 2005.” I conclude that the amendment did not change the meaning of complaint paragraph 20.

Respondent’s answer to the fourth amended complaint is in evidence as General Counsel’s Exhibit 55.

ii. deferral and collateral estoppel issues

A major issue in this case concerns Respondent’s suspending Cline indefinitely, without pay, by putting him on “emergency placement leave” on September 2, 2005. Respondent developed the “emergency placement” procedure to keep potentially violent employees away from postal facilities. The General Counsel contends that Respondent abused this procedure to retaliate against Cline for his union and protected activities, for filing charges, and for giving testimony in Board proceedings.

Cline filed a grievance concerning the emergency suspension and Arbitrator Charlotte Gold conducted a hearing on January 31, 2006. On February 10, 2006, she issued an award denying Cline’s grievance. The arbitrator found that Cline “made a statement that could be construed as threatening and clearly it was taken as such.” She wrote that, in the final analysis, “I cannot find that the Postal Service violated the National Agreement by taking the action it did.”

Respondent’s answer asserts that the Board should give “collateral estoppel effect to the fact finding in the prior arbitral decision upholding the emergency suspension.” Respondent, thus, requests something slightly different from the outright deferral contemplated by the Board in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).

The Spielberg doctrine concerns when the Board should be bound by the outcome of an arbitration, that is, by the arbitrator’s decision for or against the grievant. Here, however, Respondent only is urging that the Board adopt the arbitrator’s factual findings.

Well-established Board policies would preclude Spielberg deferral here. The present case includes an allegation that Respondent violated Section 8(a)(5) by failing and refusing to provide, in a timely manner, information requested by the Union which was relevant and necessary to its functions. The Board does not defer such cases to arbitration. New Island Hospital, 344 NLRB 198 (2005).

Additionally, the complaint alleges that Respondent violated Section 8(a)(4) by discriminating against an employee because he had filed charges or given testimony under the Act. To protect the integrity of employees’ statutory rights, the Board does not defer 8(a)(4) allegations to arbitration. Food & Commercial Workers Local 1776, 325 NLRB 908 (1998), citing Wabeek Country Club, 301 NLRB 694 fn. 1, 699 (1991).

Although the Respondent only urges that the Board adopt the factual findings of the arbitrator, the same policy reasons which preclude total deferral to the arbitral award also weigh against the application of collateral estoppel. Additionally, traditional estoppel principles also do not favor its application here.

Certainly, the parties here are not the same as in the arbitration, in which the General Counsel took no part. The issues also differ. The arbitral award mentions, in passing, that Cline filed eight “labor charges,” but the award says nothing to suggest that the arbitrator examined whether hostility to Cline’s protected activities motivated the decision to place him on emergency leave. Indeed, the award states that

The Union believes this to be a just cause issue. It argues, among other things, that Mr. Cline’s due process rights were violated because he was not given a predisciplinary interview prior to the Emergency Placement.

Thus, there is no indication that the parties litigated, or that the arbitrator considered, the statutory issues. From the arbitral award, it also appears unlikely that the Union advanced, or the arbitrator considered, the General Counsel’s theory of the case.