Local Branch 4779, NALC (United States Postal Service)

National Labor Relations Board - Board Decisions

Jul 21, 2016

364 NLRB No. 57 (N.L.R.B. 2016)

364 NLRB No. 57
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Branch 4779, National Association of Letter Carriers,
(NALC), AFL–CIO (United States Postal Ser-
vice) and Valerie June Winiesdorffer
Branch 4779, National Association of Letter Carriers,
(NALC), AFL–CIO (United States Postal Ser-
vice) and Elizabeth Bossick. Cases 07–CB–
155726 and 07–CB–156115
July 21, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On March 2, 2016, Administrative Law Judge John T.
Giannopoulos issued the attached decision. The General
Counsel filed exceptions, a supporting brief, and a reply
brief, and the Respondent filed an 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 conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings.
In adopting the judge’s dismissal of the allegation that the Respond-
ent violated Sec. 8(b)(1)(A) of the Act, we rely on his finding that the
Union president’s text was not objectively threatening in the original
context. Even if employees Winiesdorffer and Bossick reasonably
could have found the forwarded text message to be threatening, there is
no evidence that Wilson, the employee who forwarded the message,
was an agent of the Respondent. Accordingly, Wilson’s conduct is not
attributable to the Respondent.
In addition, we do not rely on the judge’s speculation about why
Wilson forwarded that text message to Bossick.
Member McFerran, in agreeing to dismiss the 8(b)(1)(A) allegation,
relies only on the General Counsel’s failure to prove that employee
Wilson was an agent of the Respondent.
Dated, Washington, D.C. July 21, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Donna M. Nixon, Esq., for the General Counsel.
Rebecca A. Hayes, Esq. and 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 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, and after considering the briefs
filed by the General Counsel and the Union, I make the follow-
ing findings of fact and conclusions of law.2
JURISDICTION AND LABOR ORGANIZATION
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) pur-
suant to Section 1209 of the Postal Reorganization Act.

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.
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.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Facts
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,
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).
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 act-
ing 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 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 pro-
vided a chance for future advancement within the post office
(Tr. 19). Bossick had a good relationship with Postmaster
Taurence, and she was also close friends with Winiesdorffer
(Tr. 25–27).
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 occa-
sionally—but that Postmaster Taurence was using CCA’s on a
daily basis (Tr. 77–79).
As a result of the grievance, Bossick and Wilson were re-
lieved 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 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 regular-
ly and generally liked to laugh and joke with each other (Tr.
51–52). 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

3 All dates are in 2015.
4 A third letter carrier was also working as a 204(b) during the sum-
mer of 2015; however, he was on a detail at another facility in June
2015. (Tr. 18.)
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).
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 represented the imaginary words being spoken by
Postmaster Taurence, (Tr. 55–58, 89) much like a cartoon char-
acter’s words appear in a speech bubble.6
These texts, using Bearer as a caricature for Taurence, gen-
erally painted the Postmaster in a bad light—as a boss who
would pile on work for no reason or who thought that employ-
ees 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).
In another April 2015 group text message under the photo-
graph 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 regular-
ly complained his feet hurt due to plantar fasciitis, that Post-
master 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.)
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 per-
ceived belief that the letter carriers were fooling around instead
of working (Tr. 60–61, 90–91).
It is in this context that Willbanks sent a group text message

5 Paul Bearer (a play on pallbearer) was the stage name used by Wil-
liam Moody who died in 2013. Wrestling Manager Bearer wore a
black suit and cake-white face makeup. He had died-black hair, mous-
tache, and eyebrows, and carried around an urn of cremated ashes from
which he would conjure up supernatural powers for his primary cli-
ent—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 fic-
tional persona. United States v. Saccoccia, 58 F.3d 754, 776, n. 16 (1st
Cir. 1995) (court takes judicial notice that fictional character Juan Val-
dez is a prominent persona in coffee advertisements, “[c]lad in a serape
and sombrero and accompanied by his faithful donkey, Valdez regular-
ly 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 pic-
ture 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).
BRANCH 4779, NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL–CIO (POSTAL SERVICE) 3
on June 15 referencing Bossick that is the subject matter of the
threat allegations in the Complaint.
C. June 15 text message referencing Bossick
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 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 Un-
ion 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 any-
body but just wanted to get out of the Union. In fact, Bossick
was unhappy about the grievance outcome—and was dis-
pleased 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)
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). Em-
ployee 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, Post-
master Taurence was going to treat her like an ordinary letter
carrier and would “come after her” if she tried to use sick leave
(Tr. 91).
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.)
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).
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 Wil-
son. (Tr. 25) After a brief discussion, Bossick hung up and
forwarded the text to Winiesdorffer9 (Tr. 25–26). After reading

7 It is undisputed that “Beth” refers to Bossick.
8 Bossick explained that Postmaster Taurence had borrowed an em-
ployee from another office to be the new acting supervisor since herself
and Wilson had returned to their routes (Tr. 22). Apparently this un-
known individual is the person Wilson is referring to in his text mes-
sage.
9 Like Bossick, Winiesdorffer had never previously seen a photo-
graph of wrestling manager Paul Bearer (Tr. 43).
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 showed Postmaster Taurence the text (Tr.
30). She also contacted Pat Carroll, business agent for the na-
tional 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 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
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 em-
ployees as a threat based upon engaging in protected concerted
activity. Consolidated Bus Transit, Inc., 350 NLRB 1064,
1066 (2007), enfd. 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 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 re-
strain and coerce employees within the meaning of Section
8(b)(1)(A).” American Postal Workers Union, AFL–CIO, 328
NLRB 281, 282 (1999) (examining the context of the conversa-
tion, 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, Inter-
national Brotherhood of Electrical Workers, Local 6 (S.F. Elec.
Contractors), AFL–CIO, 318 NLRB 109, 109 (1995), enfd.
mem., 139 F.3d 906 (9th Cir. 1998) (assessing “all the circum-
stances in which the statement [was] made,” comment from a
hiring hall dispatcher to an applicant that “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).
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 circum-
stances surrounding Bossick’s receipt of the message, the ob-
jective 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.
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 Post-
master Taurence. Willbanks was predicting to his friends that,
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since Bossick was no longer an acting supervisor, Postmaster
Taurence would treat her like any other employee and would
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. Alt-
hough Wilson did not testify at trial, it appears from the context
in which the message was forwarded that Wilson was also up-
set with Willbanks and the Union over 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 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 repre-
sentative of the Union; thus, Wilson’s words cannot be attribut-
ed to Respondent. Price Brothers Co., 211 NLRB 822, 822–
823 (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 un-
ion as they had neither actual nor apparent authority to speak on
behalf of the union); SSC Corp., 317 NLRB 542, 546 (1995)

10 The General Counsel’s citation (Br. 8) to NLRB v. Homemaker
Shops 724 F.2d 535, 549–550 (6th Cir. 1984), does not warrant a dif-
ferent 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 refer-
enced 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.
(no violation where unidentified men threatened prounion em-
ployee 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 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 cir-
cumstances, including the context in which the text message
was originally sent by Willbanks and ultimately received by
Bossick, there is no violation.
Accordingly, I find that Respondent did not violate Section
8(b)(1)(A) as alleged, and I recommend dismissal of the com-
plaint.
CONCLUSIONS OF LAW
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 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 up-
on the entire record, I issue the following recommended11
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. March 2, 2016

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.