Local Branch 4779, NALC (United States Postal Service)

National Labor Relations Board - Administrative Judge Opinions

Mar 2, 2016

07-CB-155726 (N.L.R.B. Mar. 2, 2016)

JD(NY)-07-16
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BRANCH 4779, NATIONAL ASSOCIATION
OF LETTER CARRIERS (NALC), AFL–CIO
(UNITED STATES POSTAL SERVICE)
And Case 07–CB–155726
VALERIE JUNE WINIESDORFFER, an Individual
And Case 07–CB–156115
ELIZABETH BOSSICK, an Individual
Donna M. Nixon, Esq.
for the General Counsel
Rebecca A. Hayes, Esq.
Peter D. DeChaira, Esq.
Cohen Weiss & Simon, LLP
for the Respondent
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. Branch 4779, National Association
of Letter Carriers (NALC), AFL–CIO (“Respondent” or “Union”) is accused of violating Section
8(b)(1)(A) of the National Labor Relations Act (“Act”)1 by threatening employees with physical
harm and/or threatening to refuse to represent employees because they requested to resign from

1 Sec. 8(b)(1)(A) of the Act, 29 U.S.C. §158(b)(1)(A), states, in part, that it shall be an unfair labor practice for a
labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in Sec. 7, i.e.,
the right to self-organization, to form, join, or assist labor organizations and to engage in other concerted activities
for mutual aid or protection and to refrain from any or all such activities.
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the Union or opposed grievances raised by the Union. This case was tried in Detroit, Michigan
on January 6, 2016, pursuant to an October 26, 2015, consolidated complaint (“Complaint”)
issued by the Regional Director for Region 7 on behalf of the General Counsel.
Based upon the entire record, including my observation of the demeanor of the witnesses, 5
and after considering the briefs filed by the General Counsel and the Union, I make the following
findings of fact and conclusions of law.2
Jurisdiction and Labor Organization
10
The Respondent admits that it is a labor organization within the meaning of Section 2(5)
of the Act, and that the Board has jurisdiction over the United States Postal Service (USPS)
pursuant to Section 1209 of the Postal Reorganization Act.
Facts15
A. Background
The Union represents letter carriers working out of the Allan Park, Michigan post office.
(Tr. 49–50) Mark Taurence is the Postmaster in Allan Park (Tr. 25, 55). For the past 10 years,20
Robert Willbanks has been the Union president; he has also worked as a letter carrier in Allan
Park for 25 years (Tr. 49–50). The Charging Party Valerie June Winiesdorffer (Winiesdorffer),
has worked as a letter carrier in Allan Park for 28 years (Tr. 40). Winiesdorffer has an admitted
dislike for Willbanks’s reign as Union president and over the years has filed various internal
union charges against him; she testified that she would like to see him “gone” (Tr. 46–47).25
The charging party Elizabeth Bossick has worked as a letter carrier in Allan Park since
2013 (Tr. 16). During the summer of 2015,3 Bossick worked a significant part of the time as an
acting supervisor—known in Postal Service jargon as a “204(b).” (Tr. 16) Bossick estimated that
she spent “almost the whole summer” of 2015 working as an acting supervisor. (Tr. 16) Alan 30
Wilson, another letter carrier in Allan Park and a friend of Willbanks, worked alongside Bossick
as a 204(b) during part of 20154 (Tr. 18, 21, 51).
Bossick enjoyed working as an acting supervisor, as it gave her the opportunity to learn
how to supervise others and provided a chance for future advancement within the post office (Tr. 35
19). Bossick had a good relationship with Postmaster Taurence, and she was also close friends
with Winiesdorffer (Tr. 25–27).

2 There is little dispute regarding the facts of this case. However, when necessary, credibility resolutions have been
made based upon a review of the entire record and all exhibits in this proceeding. Witness demeanor was primarily
considered in making credibility resolutions. I also considered the inherent probability of the testimony and whether
such testimony was in conflict with credited testimony or documentary evidence. Testimony contrary to my findings
has been discredited.
3 All dates are in 2015.
4 A third letter carrier was also working as a 204(b) during the summer of 2015; however, he was on a detail at
another facility in June 2015. (Tr. 18)
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3
At some point, the Allan Park post office started using City Carrier Assistants (CCA’s)
from Taylor, Michigan on a daily basis to assist with delivering the mail. Some Union members
were upset at this practice, as it was reducing their ability to get overtime, and they were
demanding the Union take action. Accordingly, the Union filed a grievance over the use of
CCA’s, arguing that the contract only allowed their use occasionally—but that Postmaster 5
Taurence was using CCA’s on a daily basis (Tr. 77–79).
As a result of the grievance, Bossick and Wilson were relieved of their 204(b) duties for a
period of time and were put back on their routes as letter carriers (Tr. 79). Postmaster Taurence
met with both, informing them that starting Monday, June 15, they would return to their letter 10
carrier routes because of the grievance filed by the Union over the use of CCA’s (Tr. 18–19).
B. Text messages between Willbanks and his friends
Willbanks and Wilson were close friends, having known each other for 21 years (Tr. 51).
They spoke and texted regularly and generally liked to laugh and joke with each other (Tr. 51–15
52). The two were also long-time friends with Kris Shaw and Mark Tocco, who also worked as
letter carriers in Allan Park (Tr. 52). The four friends would talk or text daily, sending group
text-messages amongst themselves, many times joking with each other (Tr. 52; R. Exh. 1–7).
Shaw was often the butt of their jokes—however, they also joked about other coworkers (Tr. 59,
75; 92 R. Exh. 2, 7).20
At some point, the four friends started using a photograph of professional wrestling
manager “Paul Bearer” in their text-messages, as a caricature representing Postmaster Taurence5
(Tr. 54–55, 88; R. Exh. 1–5). This was an “inside joke” amongst the four friends. (Tr. 84)
Whenever they sent a text message with the photo of Paul Bearer, the words in the text message 25
represented the imaginary words being spoken by Postmaster Taurence, (Tr. 55–58, 89) much
like a cartoon character’s words appear in a speech bubble.6
These texts, using Bearer as a caricature for Taurence, generally painted the Postmaster
in a bad light—as a boss who would pile on work for no reason or who thought that employees 30
were lazy. Thus, in one April 2015 group text message, under the picture of Paul Bearer, Wilson
wrote to his friends “Terry. Have Shaw pivot tomorrow no matter what the mail volume is.” (R.
Exh. 4). Willbanks explained this text as a fictional instruction from Postmaster Taurence, to
their front line supervisor named Terry, to have Shaw carry a heavier load of mail (“pivot”) on
his route—but still complete the route in 8 hours. (Tr. 62) 35

5 Paul Bearer (a play on pallbearer) was the stage name used by William Moody who died in 2013. Wrestling
manager Bearer wore a black suit and cake-white face makeup. He had died-black hair, moustache, and eyebrows,
and carried around an urn of cremated ashes from which he would -conjure up supernatural powers for his primary
client—the 6’10” wrestler known as the Undertaker. See http://www.nytimes.com/2013/03/12/arts/television/
william-moody-58-pro-wrestlings-paul-bearer-dies.html (last accessed on February 29, 2016). Pursuant to Fed. R.
Evid. 201 I take judicial notice of this fictional persona. United States v. Saccoccia, 58 F.3d 754, 776, n.16 (1st Cir.
1995) (court takes judicial notice that fictional character Juan Valdez is a prominent persona in coffee
advertisements, “[c]lad in a serape and sombrero and accompanied by his faithful donkey, Valdez regularly appears
in supermarkets and private kitchens to remind consumers of the virtues of Columbian coffee”).
6 Bearer wasn’t the only caricature they used. The group used a picture of a child actor to represent one of their
coworkers who frequently used sick leave and was often in trouble at work (Tr. 92; R. 7).
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In another April 2015 group text message under the photograph of Paul Bearer,
Willbanks texted the group saying “I bet Shaw was done by 3. I got something for him next
inspection. Plantar Fasciitis or not!” (R. Exh. 2) Both Willbanks and Tocco testified this text was
meant to tease Shaw, who regularly complained his feet hurt due to plantar fasciitis, that 5
Postmaster Taurence would give him extra mail to complete on his route after the next inspection
(Tr. 58, 90).
In a May 2015 group text message under the picture of Paul Bearer, Kris Shaw wrote
“These GPS scanners will finally prove what thieving scumbags you carriers are.” (R. Exh. 3) 10
Again, both Willbanks and Tocco explained that this text was a joke—this time referencing the
use of GPS scanners to follow the letter carriers throughout the day and the Postmaster’s
perceived belief that the letter carriers were fooling around instead of working (Tr. 60–61, 90–
91).
15
It is in this context that Willbanks sent a group text message on June 15 referencing
Bossick that is the subject matter of the threat allegations in the Complaint.
C. June 15 text message referencing Bossick
20
On Friday June 12, Bossick was working as a 204(b) and was the closing supervisor for
the office. Along with his regular mail route, that day Willbanks had been assigned some extra
mail to deliver—servicing Bossick’s usual route. After Willbanks finished for the day, he ran
into Bossick in the back area of the post office. He told Bossick that a customer had asked about
her, and that he told the customer Bossick would return to her route on Monday. Bossick told 25
Willbanks that she missed her customers and was happy to go back to her route. She then asked
Willbanks how she could get out of the Union. Willbanks gave her information on withdrawing
from the Union and then told her that she should be mad at Postmaster Taurence, and not him,
about being relieved of her duties as a 204(b). Bossick told Willbanks that she was not mad at
anybody but just wanted to get out of the Union. In fact, Bossick was unhappy about the 30
grievance outcome—and was displeased that she was being temporarily relieved of her duties as
an acting supervisor (Tr. 17–20; 50–51).
Around mid-day on Monday June 15, the first day Bossick and Wilson were back on their
routes, Willbanks sent a group text message to his three friends (Wilson, Shaw, and Tocco) 35
under the picture of Paul Bearer saying: “Beth, you are one major illness or injury. From being in
my dog-house. [sic] You see how petty I am. I will come after you too.”7 (GC. 4). Employee
Mark Tocco credibly testified that when he received the text, he interpreted it to mean that,
because Bossick was no longer a supervisor and was now back to carrying mail, Postmaster
Taurence was going to treat her like an ordinary letter carrier and would “come after her” if she 40
tried to use sick leave (Tr. 91).

7 It is undisputed that “Beth” refers to Bossick.
JD(NY)-07-16
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Just before receiving Willbanks’s June 15 text, Wilson had texted Bossick saying “I met
the new 204B before I left. Lol [Laugh out loud].”8 (GC. 3) Then, unbeknownst to Willbanks,
Wilson forwarded to Bossick a screenshot of Willbanks’s text saying “I am forwarding a text
from Willi he [sic] just sent me.” The screenshot contains the photograph of Paul Bearer with the
words of the text underneath. (GC. 3)5
At the time she received Wilson’s text, Bossick did not know who the individual was in
the photograph (Tr. 38). Later that day, Bossick learned from her husband that it was a picture of
wrestling manager Paul Bearer (Tr. 29, 38).
10
After receiving the text, Bossick called Winiesdorffer who was home on her day off (Tr.
25). Bossick told Winiesdorffer that she would not believe the text she just received from
Wilson. (Tr. 25) After a brief discussion, Bossick hung up and forwarded the text to
Winiesdorffer9 (Tr. 25–26). After reading the text, Winiesdorffer immediately called Bossick,
telling her “this is a threat; you need to take it to the Postmaster.” (Tr. 26). The next day Bossick 15
showed Postmaster Taurence the text (Tr. 30). She also contacted Pat Carroll, business agent for
the national union, and forwarded the text to him (Tr. 32–33). Later, Carroll telephoned Bossick
telling her that he had spoken to Willbanks about the text message. Carroll explained that the text
was not meant for Bossick to see, that Willbanks was sorry and should not have acted that way,
and that the text was “schoolyard play.” (Tr. 34–35). Bossick was dissatisfied with Carroll’s 20
explanation. So too, it appears, was Winiesdorffer, who filed the original charge in this matter
July 8, 2015. (GC. 1(a)). Bossick filed her charge over the text message on July 16, 2015. (GC.
1(e)).
Analysis
25
The test used to establish whether a union representative’s statement violates Section
8(b)(1)(A) of the Act is objective —whether the statement can reasonably be interpreted by
employees as a threat based upon engaging in protected concerted activity. Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1066 (2007), enf’d, 577 F.3d 467 (2nd Cir. 2009) (objective
standard used to analyze an 8(b)(1)(A) threat). What the union agent subjectively intended by the 30
comment and the subjective state of mind of any employee who heard or read the statement is
not determinative. United Steel Workers of America Local 1397, AFL–CIO (United Steel Corp.),
240 NLRB 848, 849 (1979). Moreover, the statement itself cannot be viewed in a vacuum, but
must be viewed in “context in order to determine if under all the circumstances it would have a
tendency to restrain and coerce employees within the meaning of Section 8(b)(1)(A).” American 35
Postal Workers Union, AFL–CIO, 328 NLRB 281, 282 (1999) (examining the context of the
conversation, the Board found a violation where union representatives twice asked an employee,
who sought assistance with filing a grievance, whether she was a union member); See also, Intl.
Brotherhood. of Electrical Workers, Local 6 (S.F. Elec. Contractors), AFL–CIO, 318 NLRB
109, 109 (1995), enf’d mem., 139 F.3d 906 (9th Cir. 1998) (assessing “all the circumstances in 40
which the statement [was] made,” comment from a hiring hall dispatcher to an applicant that

8
Bossick explained that Postmaster Taurence had borrowed an employee from another office to be the new acting
supervisor since herself and Wilson had returned to their routes (Tr. 22). Apparently this unknown individual is the
person Wilson is referring to in his text message.
9 Like Bossick, Winiesdorffer had never previously seen a photograph of wrestling manager Paul Bearer (Tr. 43).
JD(NY)-07-16
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“you will be killed” if the applicant’s unfair labor practice charge led to “class action” litigation
was a metaphorical prediction of a resounding defeat for a possible class action court case, and
not a threat of adverse consequences, physical or otherwise, particularly where there were no
overt moves by the dispatcher that would be consistent with an actual threat to kill the applicant).
5
Here, the June 15 text message cannot be divorced from the context by which it was sent
from Willbanks to his friends and then forwarded from Wilson to Bossick. Under the
circumstances surrounding Bossick’s receipt of the message, the objective facts do not support a
finding that the Union unlawfully threatened Bossick with physical harm or threatened to refuse
to represent her, as alleged in the Complaint.10
Significantly, Willbanks did not send the text message to Bossick; he sent it to his three
friends who knew the words in the text message referenced a hypothetical statement by
Postmaster Taurence. Willbanks was predicting to his friends that, since Bossick was no longer
an acting supervisor, Postmaster Taurence would treat her like any other employee and would 15
target her for reprisals if she became injured or sick.
Thereafter, it was Wilson, without Willbanks’s knowledge, who forwarded a screen-shot
of the message to Bossick. Although Wilson did not testify at trial, it appears from the context in
which the message was forwarded that Wilson was also upset with Willbanks and the Union over 20
the outcome of the CCA grievance. He was trying to paint Willbanks in a bad light—implying to
Bossick that the words in the text message were Willbanks’ and not the hypothetical words of
Postmaster Taurence. However, Wilson knew otherwise.10
The objective meaning of the text message cannot change simply because a screen-shot 25
of the message was forwarded by Wilson to Bossick without explanation. Cf. ManorCare of
Kingston PA, LLC, 360 NLRB No. 93 slip op. at 1 (2014). Moreover, even if the meaning of the
text message did change when it was forwarded by Wilson, it becomes the equivalent of Wilson
telling Bossick that Union President Willbanks is going to target her. However, Wilson is neither
an agent nor a representative of the Union; thus, Wilson’s words cannot be attributed to 30
Respondent. Price Brothers Co., 211 NLRB 822, 822–23 (1974) (union not responsible for
statement made by an individual who initiated a false rumor that the union had voted to kill a
worker expressing antiunion views as there was no evidence that the threat was attributable to
the union); Mastec North America, Inc., 356 NLRB 809, 809 (2011) (statements made by
individual employees were not attributable to the union as they had neither actual nor apparent 35
authority to speak on behalf of the union); SSC Corp., 317 NLRB 542, 546 (1995) (no violation
where unidentified men threatened pro-union employee with bodily harm and property damage if
he testified at Board hearing where the evidence did not show the individuals making the threat
were agents of the employer). The fact that Bossick or Winiesdorffer misinterpreted the original
text and subjectively believed the Union was threatening Bossick in the text message is not 40

10 The General Counsel’s citation (Br. 8) to NLRB v. Homemaker Shops 724 F.2d 535, 549–50 (6th Cir. 1984) does
not warrant a different finding. In Homemaker Shops, the court noted that the “mere existence of friendly relations
between a supervisor and an employee does not preclude a finding” of a violation. Id. at 550. Here, because Wilson,
Tocco, and Shaw knew the words in the text message referenced conjectural words from Postmaster Taurence—
there is no threat in violation of 8(b)(1)(A). For the same reason, the General Counsel’s citation (Br. 8) to Masters,
Mates & Pilots (Marine Transport), 301 NLRB 526, 532 (1991) is unavailing.
JD(NY)-07-16
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controlling; the subjective state of mind of the hearer/reader is irrelevant. See, e.g., G. H. Hess,
Inc., 82 NLRB 463 fn. 3 (1949); Masonic Homes of California, 258 NLRB 41, 41 fn. 4 (1981);
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 963 (2004). As such, considering all the
circumstances, including the context in which the text message was originally sent by Willbanks
and ultimately received by Bossick, there is no violation.5
Accordingly, I find that Respondent did not violate Section 8(b)(1)(A) as alleged, and I
recommend dismissal of the complaint.
CONCLUSIONS OF LAW10
1. The United States Postal Service is an employer subject to the Board’s jurisdiction under
Section 1209 of the Postal Reorganization Act, 39 U.S.C. § 101 et. seq.
2. Branch 4779, National Association of Letter Carriers (NALC), AFL–CIO, is a labor 15
organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act as alleged in the Complaint.
On these findings of fact, conclusions of law, and based upon the entire record, I issue the 20
following recommended11
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. March 2, 201625
_________________________
John T. Giannopoulos
Administrative Law Judge30

11 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 purposes.