Nation'S Capital Area Local, American Postal Workers Union, Afl--Cio (United States Postal Service)

National Labor Relations Board - Board Decisions

Feb 27, 1986

278 N.L.R.B. 751 (N.L.R.B. 1986)

AMERICAN POSTAL WORKERS (POSTAL SERVICE)
Nation 's Capital Area Local, American Postal Work-
ers Union, AFL-CIO (United States Postal
Service) and Veola ,Jackson . Case 5-CB-
4930(P)
27 February 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 September 1985 Administrative Law
Judge Thomas E. Bracken issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions, a supporting brief, and an answering
brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(b)(1)(A) by removing employee Veola
Jackson from her position as a union steward be-
cause she had stated an intent to file an unfair labor
practice charge against the Respondent. Contrary
to the judge, we find that the General Counsel has
not established that Jackson's protected activity
was a motivating factor in the Respondent's deci-
sion,' and we shall dismiss the complaint.2
The Respondent represents employees at the
Employer's main facility in Washington, D.C., and
at other facilities in the local area. For several
years employee Jackson had served as a shop stew-
ard at step 1 of the parties' grievance procedure,
and in June 1984 the Respondent's president, Carl
Robinson, appointed her to serve as a steward at
step 2 as well.3 Conflicts arose between Jackson
and Robinson, and in August 1984 Jackson ap-
proached the Department of Labor with accusa-
tions that Robinson had engaged in improprieties
with the Respondent's finances. Jackson also raised
these accusations at various union meetings prior to
1985.4
i See Wright Line, 251 NLRB 1083 (1980)
We do not disturb the judge's finding that the General Counsel failed
to establish that the Respondent unlawfully threatened employees
i Step 2 stewards handle grievances at a higher level of the grievance
procedure
4 The judge discredited all the witnesses for both the General Counsel
and the Respondent However, he also made factual findings with respect
to the background of the crucial events in this case, even though testimo-
ny was the only basis for most of those findings. We shall not disturb the
judge's background findings, and we shall consider his credibility resolu-
tions only in connection with the crucial events in this case
751
The Respondent held an election of officers in
November 1984, and Jackson ran for financial sec-
retary with a slate of candidates opposed to a slate
headed by Robinson. All of the candidates on Rob-
inson's slate were elected, and in an appeal to the
Department of Labor and to the Respondent's elec-
tion committee, Jackson alleged that Robinson had
acted improperly during the campaign.5 In a tele-
phone conversation with Robinson on 4 January
1985,6 Jackson again alleged that Robinson had en-
gaged in financial improprieties, and Robinson
denied the allegation.
On 16 January Robinson removed Jackson from
her position as a step 2 steward, but retained her as
a steward at step 1. He testified that he removed
her from the step 2 position on the recommenda-
tion of the Respondent's vice president, Burke,
who had determined that it was necessary to elimi-
nate one steward position at that step. Robinson
testified that Jackson was selected for removal be-
cause she had the least seniority among the stew-
ards.
On 22 January Jackson called the National
Labor Relations Board and stated that she wanted
to file an unfair labor practice charge concerning
her removal from her step 2 position. The Board
mailed Jackson a charge form and a letter dated 22
January that set forth instructions for filing the
charge.
On 23 January Jackson made a telephone call to
Robinson. The substance of their conversation is in
dispute. Jackson testified that she asked Robinson,
inter alia, who had decided to remove her from her
step 2 position, and that Robinson replied that he
and Burke had made the decision because they
wanted to reduce the number of stewards at that
step. She then told him, "Well, I'm not gonna let it
be no surprise to you, I am going to file an unfair
labor practice. And also, you might be receiving a
subpoena from my lawyer." Robinson replied,
"Well, I run the union the way I want."
Employee Patricia Johnson, who testified that
she listened to the conversation on another line,
claims that when Jackson told Robinson of her
intent to file an unfair labor practice charge be-
cause of her removal from the step 2 steward posi-
tion, Robinson replied that he intended to remove
her from her remaining (step 1) steward position
because she was filing a charge.'
Robinson 'testified that after he explained to
Jackson that the Respondent had decided to reduce
the number of step 2 stewards and that she had
5 As the judge noted, the record does not establish the results of these
appeals
6 Unless otherwise specified, all dates hereinafter refer to 1985.
' Jackson denied that Robinson made this statement
278 NLRB No. 110
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been removed because she was the "junior" stew-
ard, Jackson said , "You will hear from my attor-
ney." His response was that Jackson should do
what she thought necessary , whereupon Jackson
asserted , "Well, you know what you can do for
me, you can suck out of your mother 's ass, bitch."$
Robinson denied that Jackson mentioned anything
about an unfair labor practice charge , and he testi-
fied that he did not tell Jackson that she would be
removed from her step 1 position.
That same day Robinson sent Jackson a letter in-
forming her that she had been removed from her
position as a step 1 steward , "as per our conversa-
tion" of 23 January . Robinson testified that he re-
moved her from that position because of the ob-
scene remark Jackson made to him in their tele-
phone conversation and because she lacked the dip-
lomatic qualities necessary to be a steward. The
complaint alleges that the Respondent violated
Section 8(b)(1)(A) by removing Jackson from her
step 1 position because she had stated an intent to
file an unfair labor practice charge against the Re-
spondent.9
The judge discredited all the witnesses for the
General Counsel and the Respondent . Relying on
demeanor, the judge concluded that all the wit-
nesses were untrustworthy and were simply advo-
cating the position of the political faction to which
they belonged . He also found that the testimony of
Robinson, Jackson, and Johnson was evasive, ver-
bose, and inconsistent . Nonetheless , the judge
found that the Respondent 's removal of Jackson
from her step 1 steward position was unlawfully
motivated . In doing so, the judge purported to rely
on documentary evidence , uncontradicted testimo-
ny,1 ° inherent probabilities , and inferences.
The judge, relying on certain facts and findings,
drew an inference that during the 23 January tele-
phone conversation Robinson acquired knowledge
of Jackson 's intent to file the charge." First, he
8 Two of the Respondent 's employees, Davis and Collins , testified that
immediately after the phone call Robinson informed them that Jackson
had made an obscene remark
9 The complaint does not allege that Jackson was unlawfully removed
from her step 2 position . The complaint also does not allege that Jackson
was removed from her step I position because of her political opposition
to Robinson.
10 The judge did not identify the author or authors of such testimony,
what the testimony was about , or which finding the testimony was sup-
posed to support
11 We do not agree with the General Counsel's contention that the
judge, in inferring such knowledge , in fact credited that part of the testi-
mony of Jackson and Johnson which indicated that Jackson did inform
Robinson of her intent to file the charge The judge stated in the strong-
est of terms that the witnesses' testimony was untrustworthy , and he ex-
pressly stated that he was drawing an inference of knowledge from the
circumstances He did not state, or imply , that he was crediting in part
the testimony of Jackson and Johnson . Thus, it is clear that he based his
inference of knowledge on something other than the testimony of these
two employees
found that the Board 's 22 January letter established
that Jackson did engage in protected activity by
discussing the charge with the Board. Next, he
noted that Jackson called Robinson the day after
she called the Board , and that her conversation
with Robinson was the only intervening event be-
tween Jackson 's removal as a step 2 steward on 16
January and her removal as a step 1 steward on 23
January. Finally, he found that during the 23 Janu-
ary conversation, Jackson had in her hand the
Board 's unfair labor practice charge form and the
accompanying letter of 22 January. Based on these
circumstances he found it "logical and natural"
that Jackson would inform "her perceived tormen-
tor, and long-time political enemy , of this punish-
ment that she was going to inflict on him."
The judge also concluded that the Respondent
harbored animus toward Jackson because she and
Robinson were hostile to each other . In addition,
he emphasized the speed with which the Respond-
ent acted to remove Jackson after the 23 January
phone call, and he found unconvincing the Re-
spondent's contention that Jackson was removed
for using obscene language . In this connection the
judge noted that Robinson admitted that he had
used obscenties at union meetings and had directed
obscenities to other union members . Accordingly,
the judge concluded that the Respondent violated
Section 8(b)(1)(A) by removing Jackson from her
step 1 steward position because she had stated an
intent to file an unfair labor practice charge against
the Respondent.
Contrary to the judge , we find that the General
Counsel has not established that the Respondent
had knowledge of Jackson's protected activity. At
the outset we emphasize that because of the judge's
credibility resolutions the record contains extreme-
ly limited evidence of the events leading to Jack-
son's removal on 23 January . We find that this lim-
ited evidence will not support an inference that
during their 23 January conversation Jackson in-
formed Robinson of her intent to file a charge.
First, the record does not support the judge's
fmding-on which he partly based his inference-
that during the 23 January phone call Jackson' had
in her hand the Board's unfair labor practice
charge form and the accompanying letter. The
record reveals no basis for concluding that Jackson
had these documents with her during the conversa-
tion . Neither Jackson nor Johnson testified that
Jackson had the documents with her at that time,
and the record does not establish that Jackson, had
received them in the mail before the telephone call.
Although the letter accompanying the charge is
dated 22 January , there is no evidence that Jackson
received the documents on 23 January . Even if we
AMERICAN -POSTAL WORKERS (POSTAL WORKERS) 753
were to assume that the documents were delivered
to Jackson sometime on 23 January, we would still
be unwilling to assume that she received them
prior to the time of the phone call. x 2 Consequent-
ly, the evidence fails to support a finding that Jack-
son possessed the Board documents when she
called Robinson, b 3 let alone a finding of knowl-
edge.
The remaining factors on which the judge relied
also are insufficient to support an inference that
during the 23 January phone call Jackson informed
Robinson that she intended to file a charge. As
noted above, the judge found that Jackson's call to
Robinson was the only intervening event between
her removal from her step 2 position on 16 January
and her removal from her step 1 position on 23
January. We find, however, that this circumstance
merely establishes that the phone call was Jack-
son's only opportunity, to inform Robinson of her
decision to file a charge. In the absence of other
evidence, this circumstance alone does not establish
that Jackson actually did so. 14
The judge also emphasized that Jackson called
Robinson the day after she called the Board. How-
ever, there is no evidence that the second call was
prompted by the first or that there was any other
connection between the two calls which would
tend to support an inference that Jackson informed
Robinson of her decision to File the charge. In the
absence of such evidence, we find little significance
in the proximity of the calls alone.
Finally," an inference of knowledge is not war-
ranted even when the evidence is considered in its
totality. In view of,the judge's credibility findings,
the record establishes only that Jackson called the
Board on 22 January, that she called Robinson on
23 January, and that her call-to Robinson was the
only intervening event between her first removal
on 16 January and her final removal on 23 January.
In the absence of other evidence, we find that the
record establishes nothing more than a series of un-
related events which at best raise suspicion con-
cerning the Respondent's motive. Cf. Albritton
Communications, 271 NLRB 201, 204 (1984) ("sus-
picious coincidence" between layoffs and union or-
12 Jackson testified that she called Robinson about 2:30 p in We find it
unnecessary to determine whether an inference of knowledge would have
been warranted if the record in fact had established that Jackson had the
documents with her at the time of the phone call
13 The judge's finding it "logical and natural" that Jackson would
have informed Robinson of her intent to file a charge cannot serve as a
substitute for this evidentiary void
I I In order to find, that this circumstance alone establishes knowledge,
we would have to assume at the outset that Jackson 's removal was un-
lawfully motivated. From that assumption we could then conclude that
during the phone call Jackson must have, informed Robinson of her deci-
sion to file the charge, because the phone call was Jackson's only oppor-
tunity to do so. There is no basis, however, to make such an assumption
in the circumstances of this case
ganizing campaign insufficient to 'show employer's
unlawful motive), enfd. 766 F.2d 812, 821-822 (3d
Cir. 1985). In these circumstances we are unwilling
to infer that at the time of Jackson's final removal
the Respondent was aware of her decision to file a
charge. Consequently, we find that the General
Counsel has not established that Jackson's protect-
ed activity was a motivating factor in the Respond-
ent's decision to remove her from her steward posi-
tion, and we shall dismiss the complaint. 1-5
ORDER
The complaint is dismissed.
15 As noted above, the judge found that the Respondent harbored
animus toward Jackson because Robinson and Jackson were hostile to
each other The judge also found that the Respondent gave an uncon-
vincing reason for removing Jackson from her step 1 position He further
noted the speed with which the Respondent acted following the 23 Janu-
ary phone call Such matters, of course, are relevant to the issue of
whether the Respondent acted with an unlawful motive. However, singly
or collectively they cannot establish a violation in the absence of evi-
dence that the Respondent had knowledge of Jackson's intent to file a
charge
Eric M. Fine, Esq., for the General Counsel.
Arthur M. Luby, 'Esq., and Penny Piker, Esq., (O'Donnell,
Schwartz & Anderson), of Washington, DC, for the Re-
spondent.
Veola Jackson, of Temple Hills, Maryland, pro se.
DECISION
STATEMENT OF THE CASE
THOMAS E, BRACKEN, Administrative Law Judge.
This case was tried at Washington, D.C., on 12 and 13
June 1985. The original charge was filed by Veola Jack-
son, an individual, on 12 February 1985,1 amended 15
April, and the complaint was issued 19 April. The com-
plaint alleges that the Respondent, Nation's Capital Area
Local, American Postal Workers Union, AFL-CIO (Re-
spondent or Union) violated Section 8(b)(1)(A) of the
National Labor Relations Act by removing Jackson from
her position as shop steward of Respondent, and by
threatening to have employees fired and/or removed as
union stewards, if they filed or assisted any employee in
filing an unfair labor practice charge with the National
Labor Relations Board against the Respondent. The Re-
spondent's answer duly denied the commission of any
unfair labor practices.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Union, I
make the following
I All dates are in 1985 unless otherwise indicated.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The United States Postal Service operates various fa-
cilities throughout the United States. The facility in-
volved in this proceeding is located in Washington, D.C.
The Board has jurisdiction over this matter by virtue of
section 1209 of the Postal Reorganization Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the Union admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years the Union has represented vari-
ous employees of the United States Postal Service
(USPS) at the main office in Washington, D.C., as well
as at several satellite offices. The instant case chiefly in-
volves employees who work in tour 1, which was the 10
p.m. to 6:30 a.m. shift. While the record does not dis-
close the total number of employees represented by the
Union, it was a very large Local Union, as aproximately
1100 employees worked on this tour.
The two dominant persons involved in this case are
Carl Robinson and the Charging Party, Veola Jackson.
In November 1983, Robinson was serving as the elected
vice president when the incumbent president, Sidney L.
Brooks, was elected national president of the American
Postal Workers Union. Brooks then appointed Robinson
to serve as president of the Local Union for the duration
of his term. Robinson had been an employee of USPS
since 1963, but on being appointed president of the
Union, he became a full-time employee of the Local.
Jackson was also a veteran employee of USPS having
been hired in 1969. She became a member of the Union
in the same year, and became an activist therein. In 1978
or 1979 she was appionted as shop steward step 1 by
Local Union President Brooks. She was elected to the
position of Local Union financial secretary for the period
of 1981 to 1984. In June 1984 she was appointed as a
shop steward step 2 by then Acting President Robinson.2
Matters did not go smoothly between Robinson and
Jackson and, in August 1984, she went to the Depart-
ment of Labor several times , accusing the president of fi-
nancial improprieties with the Union's money.3
In November 1984, as provided in the Union' s consti-
tution and bylaws, there was an election of officers, for
terms of 3 years. There were three slates of candidates
who ran active campaigns . Robinson headed the Work-
ers' slate, which among its candidates included John L.
Burke for executive vice president, Nancy Olumekor for
financial secretary, Viola Collins for assistant financial
secretary, and George McKiethen for director.
2 Step 2 stewards are capable of handling grievances at a level higher
than step 1 stewards
3 As of the date of the hearing no complaint had been filed by the
Labor Department against Robinson
Ronald Jones, who had been appointed in 1984 as the
acting vice president by Brooks, headed a second slate,
the New Real Action Team, and ran against Robinson
for the office of president. Jackson ran for the office of
financial secretary on Jones' slate . Other members of the
New Real Action Team included Patricia Johnson for
treasurer and Robert Lemieux. The third slate of candi-
dates was headed by Linda Coleman, but it plays no part
in this case.
Robinson's slate of candidates swept the major offices.
Jackson, who had opposed Robinson, filed an appeal to
the Union Election Committee in a nine-page letter dated
10 November 1984, challenging the results of the elec-
tion, with her chief complaint being directed at alleged
Robinson improprieties (G.C. Exh. 4). The record does
not disclose what action, if any, was taken by the Elec-
tion Committee to Jackson's appeal.4 At various union
meetings prior to 1985, Jackson had accused Robinson of
improper expenditures of union funds, and had actively
opposed him in several constitutional and contractual
issues.
B. The Events of 1985
On 4 January, Robinson telephoned Jackson at her
home and informed her that he wanted a grievance file
that she had.5 He also advised her that, because of the
election, he was going to have the office manager, Viola
Collins, turn over the Local Union's financial books to
Nancy Olumekor, the new financial secretary.6 Jackson
objected to this procedure and stated that there were
some people who owed money to the Union. She then
pointedly asked Robinson if he had paid money back to
the Union, which she had previously claimed he owed.
When Robinson replied that he did not owe the Union
anything, Jackson hung up.
By a letter dated 16 January, Robinson mailed to the
director of the employer's employee and labor relations
staff a three-page letter, captioned "Updated Shop Stew-
ards List" (G.C. Exh. 2). In this voluminous letter Rob-
inson set forth the names and titles of some 60 stewards
for tours I, II, and III. Among the eight persons named
as shop stewards for tour I was Veola Jackson, but she
was not named as a step 2 designee , as were three other
stewards. Robinson testified that he removed Jackson as
a step 2 designee as a result of a conference he had held
with Vice President Burke . According to the president,
Burke, who was in charge of step 2 grievances, wanted
to reduce the handlers of files at this level to three; so,
because Jackson had the least seniority as a step 2 desig-
nee, her name was removed . The remaining three step 2
designees, Jones, Lemieux, and Johnson, were all mem-
bers of the rival slate, The New Real Action Team.
4 The record also discloses that an appeal of the election results was
taken to the United States Department of Labor, but no results of such
appeal were placed in the record
5 Jackson had been off work since 12 December 1984 on a worker's
compensation claim . She returned to work on 28 January
6 Olumekor had defeated Johnson for the office of financial secretary
While the record does not disclose when Robinson and the new slate
took office, it was apparently in early January
AMERICAN POSTAL WORKERS (POSTAL WORKERS)
On 18 January, step 2 designee Johnson showed her
friend Jackson a copy of Robinson 's 16 January letter
that he had sent to the management of USPS Upon ex-
amining it , Jackson learned for the first time that she had
been decertified as a step 2 steward,' although she re-
mained a steward On Monday , 21 January , Jackson at-
tempted to call Robinson but was unable to reach him.
On the following day, 22 January , Jackson telephoned
the Washington Resident Office of Region 5 of the
NLRB and spoke to Board Agent Posner, advising him
that she wanted to file an unfair labor practice charge
against Robinson.
The Events of 23 January
On this date Jackson received a letter dated 22 Janu-
ary on the Region 5 Resident office letterhead , signed by
William D Miller, Acting Resident Officer (G C. Exh
5) The letter, in pertinent part, reads as follows-
Dear Ms. Jackson
Pursuant to your conversation with Board Agent
Posner, on January 22, 1985 , I am enclosing an
original and one copy of the charge form you re-
quested If you wish to file the charge , please sign
and date the original and return it to our Baltimore
Regional Office in the enclosed envelope . The copy
is for your records . Do not alter the charge , rather
any additions should be made on a separate sheet of
paper Also submit a statement of the facts you are re-
lying upon to support your charge together with any
documentation or supporting evidence. Your coopera-
tion and assistance in the investigation is required
Jackson testified that when she received the letter, it
had with it the original charge (G C Exh 1(a)), and
typed thereon was the following.
Since on or about January 18, 1985 , and at all
times thereafter , the above named labor organiza-
tion , by its officers, agents, representatives and
members, restrained and coerced the employees of
the United States Postal Service in the exercise of
the right, guaranteed in Section 7 of the Act by re-
moving Veola Jackson , a postal employee, as a Step
2 designee
Jackson testified that she called Robinson on 23 Janu-
ary around 2.30 p in ., from her friend Johnson's apart-
ment She further testified that she had Johnson listen in
on the phone conversation because "I wanted to have a
witness for Mr Robinson 's reasons for decertifying me
as a Step 2." Mary Boyd , the executive secretary and a
full-time employee of the Union, answered the phone
and, after Jackson asked if Robinson was in, Boyd re-
plied yes, and clicked the call over to the president. 8
When asked what happened next, Jacksbn replied:
7 The term "decertified" was not defined , but was used by various wit-
nesses to mean removed
8 Boyd testified that after she told Jackson that Robinson was in, Jack-
son said , "let me speak to the bitch " -
I
755
A Mr Robinson came on and I say , "Robbie, I
understand that I'm decertified as a step 2 desig -'
nee," he say "yes " I said , "Well, couldn't you tell
me why-shouldn't I have some kind of notification
prior to management know?" He said , "Well,
there 's a lot of changes gonna be done that you
might not like," and I asked him, I said , "Well if-
don't you think that I should have known?" And he
said , "Like I said , there 's a lot of changes that you
should have known ," and I said , "Well, who came
up with this idea," and he said , "Me and Mr John
Burke," the vice president And I said , "You all
came up with this idea to decertify me as a step 2?"
He said, "Yes, because we only want three shop
stewards step 2 on each tour " And I asked him,
"Well, I'm not gonna let it be no surprise to you, I
am going to file an unfair labor practice And also,
you might be receiving a subpoena from my
lawyer " And he stated , "Well, I run the union the
way I want " And I said , "You're right, right into
the ground," and I hung up the phone
On cross-examination Jackson admitted that Robinson
did not inform her during the phone call that he would
decertify her because she had filed an unfair labor prac-
tice charge. She did recall him saying, "You do what
you have to do and I'll do what I have to do " Jackson
denied using any foul language directed at Robinson
during this telephone conversation, and denied that she
made any reference to his mother during this conversa-
tion
Patricia Johnson, who had begun to work for USPS in
March 1983 was a tour 1 shop steward step 2 As previ-
ously noted she had run on the New Real Action Team
for the office of treasurer, and had lost Johnson, a wit-
ness for the General Counsel, testified that she had five
telephones in her house, and that she was present when
Jackson phoned Robinson from her home She testified
as follows-
A. Ms. Jackson asked me to listen on another
line, and when I got to the other line, I heard the
secretary, Mary Boyd, answer the phone Ms Jack-
son asked her how she was doing and so on, and
asked her could she speak to Robert . And she said
hold on . Then Robert came to the telephone and
Ms. Jackson asked him why-she called to ask him
why has she been decertified as a step 2 designee.
And general conversation came out of that
And Ms Jackson told Mr. Robinson something
about I know you will be sending him a subpoena
about some problems that arose earlier , and'that she
was going to file unfair labor practice against him
for decertifying And then there was some more
general conversation.
Q. Do you remember what, if anything,
Robinson said in response?
A. He said he was going to decertify her
Q Did he say why?
A. For filing a complaint against him
I
Mr
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson admitted that voices were raised during the
conversation, but denied that Jackson directed any foul
language to either Robinson or Boyd , or that she used
any language that referred to Robinson 's mother
Robinson also testified as to this telephone conversa-
tion of 23 January , but as can be expected, it was consid-
erably different from the versions given by Jackson and
Johnson The president described the conversation as fol-
lows.
Ms Jackson called in reference to her being re-
moved as a step 2 designee I explained the same
thing that I 've explained here today, that we had
decided to cut down the number of step 2 designees
that we had And at that time she was a junior step
2 designee and that for that reason we removed her
as a step 2 designee . At that time she was still a
steward . I didn't take her stewardship , just the step
2 designee position She said , "you just won 't quit"
She said , "you will hear from my attorney" I said,
"Ms Jackson , you do whatever you think is neces-
sary" She said, "well, you know what you can do
for me, you can suck out of you mother's ass,
bitch," and hung up.
Robinson further testified that the remark by
Jackson was "the last straw" and that he then de-
cided to remove Jackson as a shop steward. Rob-
inson also testified that he removed her as a stew-
ard because he did not think Jackson had the
qualities of a diplomat suitable to the job of a
steward , and that she could not work with him to
represent the employees 9
Robinson demed that Jackson made any reference to
the fact that she was going to file an unfair labor prac-
tice charge because of her removal . He also admitted
that he did not tell her that she was going to be decerti-
fied as a shop steward.
On the same day Robinson sent Jackson a letter which
tersely read as follows
As per our conversation on Jan 23 , 1985 you are
hereby Decertified as Shop Steward for the Na-
tion's Capital Area Local, APWU, AFL-CIO
The Respondent also produced several witnesses to
support Robinson 's claim that Jackson had directed the
foul remark to him regarding his mother. Viola Collins, a
full-time office employee of the Union, testified that she
was in the office on 23 January when Robinson received
the phone call from Jackson , and that following the call
Jackson had come upstairs to her office "looking way
off' or "strange." When she asked him what had hap-
pened , the president told her what Jackson had said to
him When asked what that was, she testified , "I don't
remember Something about your mother's ass or what-
° He recalled that in 1982 Jackson had had an "altercation" with an-
other shop steward in a room the Employer allowed the stewards to use
He claimed the Union lost the use of the room because of the altercation
Jackson admitted that she had been in a fistfight with another employee,
but denied that the Union had lost the use of the room because of this
incident
ever I don 't remember, you know , repeat it exactly but
he was pretty upset "
Alfred Davis also testified for Respondent as to this in-
cident Davis is a full-time appointed employee of the
Union who handles such matters as worker's compensa-
tion cases Davis admitted that he could be terminated
by Robinson at any time According to Davis he and
Robinson were sitting at Davis' desk in the back office
when Robinson took Jackson 's call Davis was not on an
extension and did not hear what Jackson said to Robin-
son However, after the telephone conversation ended,
Davis testified that Robinson had told him "that Ms
Jackson told him to suck out of his mother 's ass " When
asked if Robinson was upset , the witnesss replied,
"Slightly."
C. Credibility
In-Blue Flash Express, 109 NLRB 591 (1954), the Trial
Examiner, affirmed by the Board, found that each of the
witnesses in that case , the General Counsel's and the Re-
spondent's, appeared to be trustworthy, so far as his ob-
servation of their demeanor was concerned He also
found that no inherent or circumstantial inconsistency
was developed in any witnesses' testimony , and the com-
plaint was dismissed.
Unlike the witnesses in Blue Flash Express, I find that
the demeanor of each and every witness I observed in
the instant case amounted to untrustworthiness I re-
ceived the strong impression throughout the hearing that
all witnesses were strong advocates, trying to furmsh an-
swers that helped their political team , whether Robin-
son's Workers party, or Jackson 's New Real Action
Team, without regard to what the facts really were In
addition, the main actors , Robinson , Jackson, and John-
son, were evasive , verbose , and inconsistent witnesses I
have, therefore , found the testimony of both the wit-
nesses for the General Counsel and for the Respondent
to be unreliable and unconvincing.
However , there were certain documents received into
evidence, sufficient uncontradicted testimony , inherent
probabilities, and inferences that could be drawn so as to
arrive at a conclusion in this case
D Discussion and Conclusions
The General Counsel contends that the Respondent
violated Section 8(b)(1)(A) of the Act by removing Jack-
son from her position as a shop steward because she had
informed Robinson of her intent to file an unfair labor
practice charge with the Board against the Respondent.
The Respondent 's position, as stated in its brief, is that
Jackson was removed as a steward because she was
grossly insubordinate and disrespectful
Section 8(b)(1)(A) of the Act prohibits a union from
restraining or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act It is well set-
tled that a union may not coerce members in their right
to file charges with the Board . NLRB v Shipbuilders
Local 22 (US Lines), 391 U S 418 (1968)
The Board and courts have long held that motive for
an employer's action in cases of discharge is usually de-
terminative only by circumstantial evidence since direct
AMERICAN POSTAL WORKERS (POSTAL WORKERS)
evidence is rarely obtainable . Corrie Corp. of Charleston
v NLRB, 375 F 2d 149 (4th Cir . 1967) I find the frame-
work of this case to be similar to that of an alleged
8(a)(1) wrongful discharge case , where the motive for
the discharge is the paramount issue In order to find the
true, underlying motive for a discharge , the Board looks
to certain established factors - knowledge of protected ac-
tivity, animus, timing, and the validity of the reasons as-
serted for the discharge . Scott 's Wood Products, 242
NLRB 1193 (1979), Jenks Cartage Co , 219 NLRB 368
(1975). I now turn to these factors
The question of Robinson's knowledge that he knew
that Jackson was going to file a charge with the Board is
a close one . Acting Resident Officer Miller 's letter of 22
January to Jackson clearly establishes that on that-date
Jackson had talked to a Board agent about filing an
unfair labor practice charge because she had been re-
moved from her position as a step 2 designee. The
record is also clear that Jackson and Robinson engaged
in a heated telephone conversation on the following
afternoon However, what was actually said at that con-
versation is undetermined because of the lack of credibil-
ity of the witnesses The General Counsel contends that
Robinson had knowledge that Jackson was threatening
to file a charge because the only intervening event be-
tween the president 's 16 January termination of Jackson
as a step 2 designee , and his complete termination of her
as a shop steward on 23 January , was her 23 January
telephone conversation with the president I find merit in
the General Counsel 's position , and draw the inference
that the angry demoted steward did tell Robinson that
she was going to file a charge against him for demoting
her as a step 2 designee . During this conversation she
had in hand not only a letter from the Board , but also a
typed-m Government form that echoed her contention,
to the Board agent , that she had been restrained and co-
erced because the Respondent had removed her as a step
2 designee It would only be logical and natural that she
informed her perceived tormentor , and longtime political
enemy, of this punishment that she was going to inflict
on him
As to animus, there is no doubt but that Robinson and
Jackson were hostile to each other This is borne out by
Respondent's brief wherein it is admitted that Robinson
made no bones about the fact that he and Jackson did
not get along
The timing of Robinson 's total removal of Jackson as a
steward further supports a finding of an 8 (a)(1) violation.
As of 16 January , when Robinson notified USPS of the
Union's new shop steward list, he knew all of Jackson's
perceived faults Yet he still saw fit to retain her, and did
reappoint her as a tour 1 steward . While she would not
be able to handle step 2 grievances in this role, she was
still an official steward of the Union authorized to handle
step 1 grievances . However, the day after she talked to
the Board's resident agent about filing a charge against
Robinson , and the day of the heated conversation with
the president , she was summarily and totally removed as
a shop steward of the Union . The speed with which the
Respondent acted after the 23 January phone call is evi-
dence that it was Jackson 's threat to file an unfair labor
practice charge , not the alleged insubordinate and disre-
757
spectful conduct , which motivated Robinson . Tera Ad-
vanced Services Corp., 259 NLRB 949 (1980)
Finally it is well established that an unconvincing
reason for discipline or discharge tends to support the
General Counsel 's prima facie case and prove that the
real reason was unlawful . Scott 's Wood Products, supra,
Ethyl Products Co, 271 NLRB 272 (1984). The essence
of Robinson's reason for removing Jackson as steward
was that in the 23 January phone conversation she told
him, "Well , you know what you can do for me , you can
suck out of your mother 's ass, bitch " The president con-
tends that this was "the last straw ," and that he was so
offended and upset by this foul remark that he decided
to decertify her as a steward that very day.
Jackson, a large and powerful woman , who had in the
past engaged in a fistfight with another union member,
was no doubt capable of using the language ascribed to
her by Robinson . However , I need not resolve this credi-
bility issue , but will assume , for the sake of argument,
that she did so refer to Robinson 's mother Even if so, I
am unable to find that this would so upset the president
as to cause hun to decertify Jackson as a steward Robin-
son admitted that he cursed at union meetings and that
he called other members "motherfuckers " Certainly this
latter expression , which also refers to a person's mother
in a vile manner, is as foul as the language the president
attributed to Jackson I, therefore , find that Robinson's
reason for removing Jackson as a steward was pretex-
tual.
In view of the foregoing, the knowledge of the presi-
dent that Jackson intended to file an unfair labor practice
with the Board against the Respondent, the animus of
Robinson toward Jackson , the timing of Jackson's re-
moval as a shop steward, and finally Robinson's uncon-
vincing reason for decertifying Jackson as a shop stew-
ard, I find and conclude that Respondent decertified
Jackson because she had communicated to Robinson her
intent to file an unfair labor practice charge against the
Respondent with the Board , and Respondent thereby
violated Section 8(b)(1)(A) of the Act Auto Workers
Local 212 (Chrysler Corp.), 257 NLRB 637 (1981)
E The Events of February
The complaint also alleges a second specific incident
of violation of Section 8(b)(l)(A), wherein it states that
Oii or about February 14, 1985 , Respondent,
acting through Carl H Robinson, threatened to
have employees fired and/or removed as union
stewards, if they filed or assisted any employee in
filing an unfair labor practice charge with the
Board against Respondent
In support of this allegation the General Counsel pro-
duced the testimony of Jackson, Jones , Johnson, and
Robert Lemieux , all strong members of the New Real
Action Team.
On 8 February , Jackson signed the unfair labor prac-
tice form that had been sent to her as a result of her 22
January telephone conversation with the Board agent.
She thereafter mailed it to the Regional Office in Balti-
more, Maryland, and it was docketed by the Regional
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office on 12 February (G.C. Exh. 5).10 A copy of 'the
charge was mailed by the Regional Office to the Union's
office that same day-by certified mail.' The return-receipt
card was signed by Office Manager Collins, and clearly
shows that the charge was delivered to the union office
on 14 February.' 1
On the evening of this day, the Union' s general mem-
bership meeting was held in the union hall starting
around the usual time , 8 p.m. Jones, who had run for
president on the New Real Action Team, testified that
he attended this meeting, and that he remained in the
meeting room after the meeting ended. He further testi-
fied that after getting coffee in the adjacent kitchen, he
came into the meeting room, where Robinson ap-
proached him and "stated to me that if he found out that
any of the shop stewards were filing-representing for
unfair labor practices against him or the union that he
would fire them and they would no longer be shop stew-
ards." When Jones asked the president why he was
making this statement ,to him, Robinson replied that he
just wanted Jones to tell this to his people. - -
Patricia Johnson, the defeated candidate for treasurer,
and Robert Lemieux, the defeated candidate for, clerk
craft president, were also present in the meeting room
after the meeting, and testified that they heard the con-
versation between Robinson and Jones. Unsurprisingly,-
they corroborated Jones' testimony.
Robinson admitted that he attended the 14 February
union meeting, but testified that he did not recall having
any conversations with Jones following the meeting, or
during the meeting . Respondent also presented three wit-
nesses in support of the president's testimony of this
issue . All were members of Robinson's Workers team,
two being incumbent officers , and one a full-time em-
ployee of the Union. Vice President Burke testified that
he was present for the meeting and after its conclusion,
but that he could not recall that Robinson ever told any
members that they would be fired from their union posi-
tions if they filed, or encouraged someone to file, an
unfair labor practice charge against the Union. George
McKeithen, the successful president of the special deliv-
ery craft, testified that he also was present at the 14 Feb-
ruary union meeting. He also testified that he did not
10 As previously set forth, this charge alleged that the Union had re-
moved Jackson as a step 2 designee
11 Collins, while admitting it was her signature on the return receipt,
quibbled about whether she actually received the letter on that date This
type of testimony was typical of all witnesses who tried their utmost to
protect their political side
recall that Robinson either at the meeting or before or
after the meeting told any member that he or she would
be fired from their union position if they filed, or encour-
aged someone to file, an unfair labor practice charge.
Office Manager Collins testified that she also was present
at the union meeting, and that she remained after the
meeting was over. She further testified that she did- not
recall any conversation between Robinson ad Jones at
the meeting or following the meeting.
Because I do not credit the General Counsel's wit-
nesses, I find that the General Counsel had not proved
by a preponderance of the evidence this allegation of the
complaint. Accordingly, I shall recommend that this alle-
gation be dismissed.
CONCLUSIONS OF LAW
1. USPS is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By removing Veola Jackson from her position as a
shop steward of Respondent on 23 January 1985, because
she had communicated to Carl H. Robinson her intent to
file an unfair labor practice with the Board against Re-
spondent, the Respondent violated Section 8(b)(1)(A) of
the Act.
4. The General Counsel has failed to prove that the
Respondent threatened to have employees fired and/or
removed as union stewards if they filed or assisted any
employee in filing an unfair labor practice charge with
the Board against the Respondent.
REMEDY
Having found that the Respondent has engaged in a
certain unfair labor practice, I find it necessary to order
it to cease and desist and to take certain, affirmative
action designed to effectuate the purposes of the Act.
The Respondent having illegally decertified and re-
moved Veola Jackson from her position as a shop stew-
ard of tour 1 of the Union, shall reinstate her to her
former union steward position with full seniority rights
and benefits that are connected with that position, and
shall make her whole for the period prior to her rein-
statement for any losses of dues moneys and prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in Florida Steel Corp., 231 NLRB 651
(1977).
[Recommended Order omitted from publication.]