Postal Service

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1140 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Leroy Deramus.
Cases 7-CA-20549(P), 7-CA-21043(P), 7-CA-
21099(P), and 7-CA-21290(P)
27 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 5 August 1983 Administrative Law Judge
Joel A. Harmatz issued the attached decision.
Charging Party Leroy Deramus filed exceptions
and a supporting brief.
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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Leroy Deramus contends that the judge's interpretation of the evi-
dence and his credibility findings exhibit bias and prejudice. Upon careful
examination of the judge's decision and the entire record, we are satisfied
that these contentions are without merit. Further, the Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard by me in Detroit, Michigan, on
March 23 and 24, 1983, on an initial unfair labor practice
charge filed on April 15, 1982, and a second consolidated
complaint issued on November 30, 1982, alleging that the
Respondent violated Section 8(a)3) and (1) of the Act
by disparate application of certain restrictive work poli-
cies against its employee, Leroy Deramus. The complaint
alleged further that the Respondent also violated Section
8(a)(3) and (1) by denying Deramus permission to work
and representation by a union steward and by issuing
him written warnings and suspending him, all because he
engaged in union and other protected concerted activity.
In its duly filed answer the Respondent denies it commit-
ted any unfair labor practices. Following the close of the
hearing, a brief was filed on behalf of the Respondent,
and the General Counsel filed a statement.
Upon the entire record in this proceeding, including
my opportunity directly to observe the witnesses while
testifying and their demeanor, and upon consideration of
268 NLRB No. 163
the post-hearing submissions of counsel, it is hereby
found as follows.
FINDINGS OF FACT
1. JURISDICTION
The Respondent provides postal services for and
throughout the United States of America and operates
various facilities throughout the United States in the per-
formance of that function, including its General Mail Fa-
cility in Detroit, Michigan, the sole location involved in
this proceeding. The Board has jurisdiction over the Re-
spondent and this matter by virtue of Section 1209 of the
Postal Reorganization Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that National Post Office Mailhandlers, Watchmen, Mes-
sengers and Group Leaders Division of the Laborers'
International Union of North America, AFL-CIO, Local
307, herein called Local 307, is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
11I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In this proceeding, the General Counsel, in the main,
lays challenge to various acts of discipline meted out to
Leroy Deramus, a deposed president of Mailhandlers,
Local 307, within 5 months after his return to active em-
ployment.
By way of background, it is noted that Local 307 rep-
resents a segment of employees engaged in certain postal
operations throughout the State of Michigan. Deramus,
who began his employment with the Postal Service in
Atlanta, Georgia, in 1965, from the onset was active in
union affairs. In Atlanta, he had been a union steward
and a representative to the national convention. Em-
ployed by the Postal Service in Detroit, Michigan, since
1970, Deramus became a member of Local 307, and first
served as an official thereof in 1974 when assigned to the
Air Mail Facility (AMF). Between 1974 and 1979, he
served as steward and then chief steward at that facility.
Later, Deramus was transferred to the Direct Mail Facil-
ity (DMF) where, in 1978, he became a candidate for
president of Local 307. An election was held, with the
incumbent receiving a narrow majority. Deramus chal-
lenged that election, which was set aside by the United
States Department of Labor. In the ensuing rerun elec-
tion, Deramus was designated president of Local 307.
Prior to the expiration of his 3-year presidential term,
Deramus was forced out of office when Local 307 was
put under an emergency trusteeship by the National
Union.' For this reason, he returned to active payroll
status with the Postal Service on April 1, 1982.2 On his
I Deramus has challenged the validity of the imposition of the trustee-
ship with the U.S. Department of Labor, and also in a civil suit in the
United States District Court, Eastern District of Michigan.
2 Unless otherwise indicated all dates refer to 1982.
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POSTAL SERVICE
behalf, the General Counsel contends that through Octo-
ber 1982 Deramus was victimized by a series of discrimi-
natory acts founded on his union or other activity pro-
tected by the Act, including his filing of unfair labor
practice charges, EEO complaints and grievances, and
the assistance he provided in those areas to other em-
ployees.
The first of the unfair labor practice charges giving
rise to this proceeding was filed on April 15, little more
than 2 weeks after Deramus returned to work. This was
followed by a second, filed on August 12, a third on
August 26, and a fourth on October 12.
B. Concluding Findings
1. The tinted glasses policy
The complaint alleged that Deramus was a victim of
disparate application of the Respondent's policy concern-
ing the wearing of sunglasses during two distinct time
frames in April and August. In that connection, it ap-
pears that on October 1, 1981, the Postmaster published,
in writing, various regulations, including a safety-orient-
ed restriction, which provided as follows:
Sunglasses and other tinted glasses must not be
worn indoors, unless required for medical reasons-
then certification must be supplied.
When this restriction was promulgated, Deramus was
president of Local 307 and as such was not on active
payroll status. He admittedly was aware of the policy at
that time, claiming that he protested its issuance because
adopted by the Postmaster without consulting the Union.
Deramus contends that he has worn darkly tinted
glasses since 1963. He asserts that those worn at all times
since his reinstatement in April and, indeed, during the
course of the instant hearing were the very same glasses
issued him while he was in the Air Force in 1963. He
denies having had an eye examination at any time be-
tween 1963 and his return to work in 1982.
The complaint, as amended, alleges that John Banks, a
general supervisor,3 disparately applied the sunglasses
policy against Deramus on or about April 16. Deramus
was then assigned to the third tour, working from 6 p.m.
until 2:30 a.m. John Banks worked tour one with hours
from 10 p.m. until 6:45 a.m. He was not the immediate
supervisor of Deramus. However, it appears that Banks,
observing that Deramus was wearing tinted lenses while
working, inquired as to whether he had certification jus-
tifying his wearing such glasses. Deramus claims that he
responded that certification would be available in medi-
cal records he provided the post office in 1965. Banks
testified that Deramus told him to consult a military gen-
eral, in that the glasses worn by Deramus had been
issued to him while he served in the Army. Banks then
told Deramus that dark glasses were not to be worn on
the working floor unless there was a certification for
them and that they would have to be removed. Accord-
' The classification "general supervisor" entails no direct, immediate
supervisory responsibility with respect to rank-and-file employees. Lesser
supervisors report to the general supervisors.
ing to Banks, Deramus responded, "I told you to see the
General and talk to him about the certification."
Later that night, Banks, again having observed Dera-
mus wearing dark glasses while working, summoned him
to his office. Banks showed him a copy of the Postmas-
ter's order concerning the wearing of dark glasses. When
Banks inquired as to whether Deramus had read that
policy, Deramus characterized it as "garbage," pointing
out that he had protested that policy during his term as
Local 307's president because the Postmaster had failed
to consult with the Union prior to its promulgation.
Banks advised that the Postmaster was his boss and, as
general supervisor, it was his job to carry out the in-
structions, orders, and regulations issued by the latter.
Deramus angrily accused Banks of picking on him but
then calmed down, advising that documentation for the
dark glasses was available in the medical unit. Banks sug-
gested that Deramus get a copy, carry it with him on his
person at all times, as it was likely that other supervisors
would inquire. The conversation was concluded with
Deramus being informed by Banks that, if he wore the
glasses in Banks' unit again without documentation,
Banks would take the necessary corrective action. Dera-
mus at this juncture requested a union steward, and
Banks obliged him.4
About a week and a half later, Banks again observed
Deramus wearing the dark glasses in a work area. He
again intervened and again was referred by Deramus to
the Army general. Banks issued a direct order to Dera-
mus to remove the glasses. Deramus did so. Later that
evening, Banks observed Deramus in a break area, again
wearing the glasses. At this juncture, before confronting
Deramus, Banks attempted to obtain verification as to
whether Deramus was protected by a justification held
in the medical unit. After learning that there was none,
Banks arranged a meeting between Deramus and Jimmy
Compton, chief union steward. Compton, while object-
ing to being present during the interview, indicated that
he might some day be called on to represent Deramus on
a grievance. Nonetheless he remained on the plea of
Banks. In the course of this interview, Deramus again re-
ferred to the regulation on sunglasses as "garbage," ac-
cused Banks of being prejudiced against him, and
charged that Banks was among the group responsible for
his ouster from the union presidency. The meeting was
ended with Banks informing Deramus that he had been
afforded ample time and opportunity to comply with the
regulations. He threatened to take appropriate discipli-
nary action if Deramus appeared in his unit again wear-
ing dark glasses. Banks claimed he did not thereafter in
1982 observe Deramus in his area in violation of the
Postmaster's directive.6
4 On April 17, Deramus filed a grievance against Banks' attempt to en-
force the eyeglass policy. See O.C. Exh. 3. On August 21, this grievance
was withdrawn, shortly before Deramus filed unfair labor practice
charges against Local 307 on grounds that a union official had "displayed
arbitratiness [sic), discriminatory and bad faith attitutde [sic] in receiving,
investigation and the processing of grievances." See G.C. Exh. 6.
a The foregoing is based on the credited testimony of Banks. His ac-
count impressed as more comprehensive than that of Deramus and the
more probable. In any event, Deramus was regarded as a thoroughly un-
Continued
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The effort by Banks to secure Deramus' compliance
with the published directive of the Postmaster resulted in
no discipline. Nonetheless, the General Counsel claims
that the Respondent violated Section 8(a)(3) and (1) of
the Act, inasmuch as, "John Banks . . . maintained and
enforced the rule . . . selectively and disparately by only
applying it to the Charging Party because of his union
and protected concerted activities. However, in adopting
this stance, the General Counsel does not dispute the le-
gitimacy of the policy, as published in October 1981, nor
is it denied that Deramus knowingly, violated it.
The thrust of the General Counsel's position lies in its
effort to impute animus to Banks in connection with pro-
tected activity waged by Deramus and to couple such
evidence, with testimony to the effect that the eyeglass
rule was not universally enforced. Thus, it appears that
Banks was the subject of a sexual harassment charge in
1981 by a female employee. Deramus represented the
complainant. Although the matter was amicably re-
solved, according to Deramus, Banks was dissatisfied
with Deramus' handling of the adjustment and specifical-
ly protested to Deramus on several occasions thereafter.
According to Deramus, after the matter was resolved, he
prepared a letter which failed to exonerate Banks from
having engaged in sexual harassment, and Banks protest-
ed the absence of such a reference on two occasions, the
latest being in February 1982. Banks denied this, claim-
ing that the complaint was handled at a meeting in
which it was agreed between Deramus and Mary Curtis,
the representative of Banks in this matter, that the sexual
harassment charge was groundless. Banks asserts that he
never again discussed the matter with Deramus. I prefer
the testimony of Banks. My mistrust of Deramus has
been outlined previously. Relying on Banks' account, it
is concluded that Deramus handled the complaint fairly
and acted responsibly in a joint effort to determine the
underlying facts and, after having done so, concurred
that the charges were baseless. In the circumstances, no
appropriate foundation would lie for an assumption that
Banks' harbored resentment toward Deramus in conse-
quence of this incident.
As for the claim of disparate application, it is noted
that the GMF is manned by thousands of employees, all
of whom, when working indoors, would be subject to
the 1981 restriction on tinted glasses. Quite a few of
these employees wear dark glasses. 6 Yet, the General
Counsel produced only two employees to establish that
management condoned violations of the rule. The first,
Lonzo Bradford, testified that he regularly wore tinted
glasses to work, and no one ever questioned him. Brad-
ford worked the day shift from 7 a.m. to 3:30 p.m. and,
since October 1981, had never performed under the su-
pervision of Banks. Testimony by Bradford suggests that
reliable witness. He was argumentative, fenced with counsel, and
throughout exhibited a propensity to tailor facts as his interest in the pro-
ceeding might dictate. However, at the same time, it is apparent on the
face of Deramus' own testimony that following his reinstatement his
course on the job was provocative in nature and indicative of a need to
confront, rather than accept, the authority of management.
6 Bessie May Sheats, a witness for the General Counsel, testified to this
effect. She confessedly lacked knowledge that the others did or did not
submit certification or medical reasons so as to comply with the rule.
he frequently worked outdoors loading and unloading
trucks. The second witness, Bessie May Sheats, was as-
signed to the third shift, working 5 p.m. to 1:30 a.m.
under general supervision of Paul Stokes. The glasses
worn by Sheats were the multi-tint variety and were
lightly tinted and almost clear at the base of the lens. She
claims that subject to a single exception no one had ever
questioned her use of tinted glasses. That exception in-
volved General Supervisor Paul Stokes, who while the
instant proceeding was pending, asked to see her glasses,
stating, "I just want to check them out because I am in
hot water about dark glasses."7
The foregoing, in my opinion, is at best, indicative of
aberration, rather than abandonment of the policy against
the wearing of tinted glasses or that it had fallen into
disuse. In sum, I am convinced that it was the basic re-
sponsibility of Banks, and other supervisory personnel, to
enforce policies promulgated by the Postmaster and that
the fact that all representatives of management may not
have acted with equal vigilance as to each of the 4000
employees at the GMF, in no fashion diminished that ob-
ligation. The attempt by Banks to obtain compliance
from Deramus with that rule was temperate and rational.
In contrast, the conduct of Deramus was indefensible.
His wrangling disobedience was marked by evasive ref-
erences to nonexistent medical records and long-outdated
and irrelevant military experiences. His overall conduct
reflected a disdain for an unmistakably clear manifesta-
tion of supervisory authority. Protected conduct by an
employee does not serve, in these circumstances, to insu-
late him from complying with legitimate instructions
founded on published employment policy. In sum, the
effort by Banks to enforce the rule was not shown to
have been founded on considerations proscribed by Sec-
tion 8(a)(3) and (1) of the Act, and the allegation in this
respect shall be dismissed.
The complaint also attributes a like violation to Gener-
al Supervisor Paul Stokes in August. Prior thereto, I am
convinced that Deramus put aside his challenge to the
sunglasses policy and declined to wear them indoors.8
He at no time obtained the required certification. In
August, however, for reasons which do not appear clear
under the record, he elected again to wear the glasses in
violation of the Respondent's policy.
According to the testimony of Supervisor Stokes, on
August 10, Deramus reported for work wearing dark
glasses. Stokes inquired as to whether he had "a pre-
scription or any kind of medical substantiation to justify
... wearing dark glasses indoors." Deramus referred
him to the medical unit, but when Stokes checked he
was informed, as in the case of Banks, that there was no
such record in the health unit. Stokes then informed
7 Stokes acknowledged such a conversation with Sheats, and admitted
that he told her that they were having a problem with dark shaded glass-
es. With her permission, he examined her glasses, and determined that the
tint was sufficiently light to conform with the Respondent's policy. It
was the view of Stokes that the Respondent's policy was merely targeted
at glasses designed for wear in sunlight.
a Although the testimony of Deramus is susceptible to interpretation
that he wore them continuously between April and August, I did not be-
lieve that to have been the case and reject any such view of the evi-
dence.
1142
POSTAL SERVICE
Deramus that it would be necessary for him to remove
his glasses. Deramus responded that he would be more
of a hazard if he took the glasses off inasmuch as he
needed them to perform his work. For this reason,
Stokes elected to provide Deramus administrative leave
to allow him to obtain medical substantiation for wearing
the dark glasses indoors. To this end, Deramus conced-
edly was given 8 hours' leave with pay in order to come
into compliance with the Respondent's policy.
The account of Deramus stands as a self-expression of
his manipulative style and predilection for confrontation.
Notwithstanding his knowledge of the policy and his
previous encounter with Banks, he claims that Stokes
gave him the day off simply to obtain evidence that his
glasses "were prescription." More specifically, according
to the testimony of Deramus, Stokes first inquired as to
whether Deramus "has certification that these were pre-
scription glasses." Deramus claims to have referred
Stokes to his government driving permit which obvious-
ly would signify his use, though not necessarily a need
for, prescription lenses. Deramus claims that Stokes in-
sisted upon "a certification" of that fact and gave him a
day off to obtain it. 9
Deramus did go to an eye clinic on August I 11. How-
ever, he did not have an examination. That evening he
returned to work, and provided Stokes with a certificate
which stated as follows:
Mr. Deramus sunglasses are prescription glasses
from a 1977 record. His eyes were not examined at
that time. Prescription was taken from his glasses.1 0
As could be expected, Stokes informed Deramus that
this document was "administratively unacceptable" and
that he could not work. Deramus then indicated that he
was "tired of messing around with them," and requested
that Stokes put what he wanted in writing. At this junc-
ture, Operation Manager James Harris, Stokes' superior,
happened by and gave Deramus a written definition of
what was required, as follows:
Medical statement stating specifically that tinted or
prescription sunglasses must be worn indoors for
medical reasons. Medical statement must be signed
by doctor.
The foregoing is no more than a paraphrase of the ob-
ligation imposed on employees through the Respondent's
published policy. Deramus, as president of the union,
was aware of that policy when promulgated, and in
April he had been counseled concerning his need to
comply therewith by Supervisor Banks. Contrary to his
testimony, this precisely was what was asked of him by
Stokes on August 10. I am convinced that Deramus
knew full well what was expected of him and that it was
he who was giving management the runaround. In any
" The testimony of Deramus in this respect was inherently implausible.
It strikes as totally implausible that a supervisor would give an employee
a day off to obtain proof as to a matter that anyone could readily ascer-
tain simply by visual inspection of the glasses.
10 See G.C. Exh. 8. Obviously, this certification does not even signify
that Deramus had a need for prescription glasses. He concedes that prior
to August 20 he had not had an eye examination since 1963.
event, at this juncture, Deramus carried the game even
further. Though he had not had an eye examination for
20 years, he showed no interest in seeking a current eval-
uation of his visual needs. Instead, having been given the
written instruction by Harris, he inquired, "Is this exact-
ly what I must have?" Deramus then informed Harris
that if this is what was required he "would have to write
to get . . . records from the Air Force who issued . . .
the glasses . . . ." In response, Harris told Stokes to
clock Deramus out, thereby precluding him from work-
ing the shift on August 11. At this point, Deramus again
requested administrative leave. The request was denied
and Deramus was placed on leave without pay." On
August 12 and 13, Deramus neither called off "nor re-
ported for his scheduled shift. When he finally did
appear on August 14, he was cited for being out AWOL
on these latter dates. l2 Deramus was permitted to return
to work under the stipulation that he would not wear his
glasses while working indoors. It is clear from the record
that Deramus at no time prior to August 14 attempted to
obtain the certification necessary under the Respondent's
policy to permit his indoor use of dark glasses.
On August 17 Joseph Moses, the immediate supervisor
of Deramus, issued a letter of warning based on the lat-
ter's failure to report for duty with acceptable evidence
of need for the absences on August 12 and 13.13
The complaint, in addition to challenging Stokes' ap-
plication of the policy on August 10, also alleges that the
Respondent violated Section 8(aX3) and (1) by the Re-
spondent's denial of employment to Deramus on August
11, 12, and 13 and by on August 24 issuing the letter of
warning based on these absences. Contrary to the Gener-
al Counsel, I am convinced that none of these events was
provoked by considerations protected by the Act, but all
were founded exclusively on the reaction by Deramus to
efforts by Harris and Stokes to obtain compliance with
Respondent's tinted lens policy. I am convinced that
Deramus deliberately frustrated those efforts by falsely
creating the impression that he did not know what was
expected of him, and by injecting delay oriented road-
blocks, rather than obtaining an immediate medical ex-
amination which would avoid further confrontations
with supervision. 4 His absenteeism on August 12 and 13
1 See G.C. Exh. 10(a).
12 I did not believe the testimony of Deramus that on August II he
was told by Harris or Stokes that they would take care of his leave. It is
entirely illogical that they, in the face of Deramus' recalcitrance, would
have given him off indefinitely with pay. I am convinced that Deramus
must have been mindful that they would not have done so. It is clear,
however, that, since Deramus was instructed to report to the medical
unit that evening, Harris and Stokes did tell him that they would pay for
one-half hour, the time consumed by Deramus in that process.
Is See G.C. Exh. 10(b).
4 Deramus testified that, after leaving work on August I , he checked
with an Air Force reserve unit to find out what forms were required to
obtain his military medical records. This appears to be the only attempt
by Deramus to come into compliance with the Respondent's policy. He
at no time, prior to returning to work on August 14, attempted to obtain
a current medical certification as had been expressly requested. Later on
August 20, Deramus apparently succumbed and had his first eye examina-
tion in 20 years. In consequence, he received a document which, as mat-
ters would have it, was turned in to a supervisor, who unlike Banks,
Stokes and Harris, was not involved in the effort to secure Deramus'
Continued
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were by reason of his own mischief and a subject for
proper discipline, unrelated to any protected activity.15
The allegations that the Respondent thereby violated
Section 8(a)(3) and (1) of the Act are not substantiated
and shall be dismissed.
2. The denial of union representation
The complaint, apart from the Respondent's effort to
obtain compliance with its sunglass policy, endorses
other challenges by Deramus to the conduct of certain
supervisors. Thus, it is alleged that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act through various
supervisors including Paul Stokes', Fred Coleman's, and
Joseph Moses' refusal of the Charging Party's request for
union representation "pursuant to the applicable collec-
tive bargaining agreement . . . because of his persistent
union and/or concerted activities .... " All such deni-
als allegedly occurred between Thursday, April 29, and
Tuesday, May 4.
compliance with Respondent's policy on sunglasses. This document was
the last submitted by Deramus to the Respondent. It would not have ex-
empted Deramus from the scope of that restriction, for it simply provid-
ed as follows:
The above named gentleman had a complete visual analysis this
afternoon.
Deramus attempted to explain this submission, on recross-examination by
the Respondent's counsel, as having been prompted by direction of Post-
master Gene Cole. Deramus claims that after Harris gave him the writ-
ten, hardly ambiguous definition of what was required (See G.C. Exh. 7),
he, nonetheless, contacted the Postmaster for "clarification" of Harris'
statement as to "the eye glass policy." According to Deramus, Postmas-
ter Cole, who he described as "Mr. Harris' boss," simply stated that Der-
amus should "get an eye examination," and bring in evidence that he had
done so. It is difficult to imagine that this was the case. This episode
merely adds to already convincing evidence that Deramus was intent on
pursuing any diversion other than direct, reasonable effort to comply
with the Respondent's policy and the explicit direction of his superiors.
i5 On August 11, Postmaster Gene Cole and General Foreman John
Banks were notified that an internal investigation would be held on
August 17 concerning an EEO complaint previously filed by Deramus.
That complaint cited Postmaster Cole and Personnel Manager Ruben
Fowlkes, both Black, with race discrimination against Deramus, also
Black, in filling vacancies at the Air Mail Facility with whites. There is
no evidence that Harris, Stokes, or Moses was aware of this complaint or
that the discipline meted out based on the events of August 10, 11, 12,
and 13 was based on considerations other than the obstinate refusal of
Deramus to comply with company directives and supervisory instruc-
tions seeking such compliance. In this connection, also of concern is a
representation made to the Board on August 12, when Deramus filed
unfair labor practice charges. Those charges, in material part, set forth as
follows:
On or about August 10, 1982, the Charging Party was required to
secure a statement providing that he had to have prescription glasses
for his eyes and work. He secured that statement. At the time he had
been placed on administrative and not permitted to work 8/10. On
8/11/82, the Charging Party was not permitted to report to work
and no indication why was provided. Management's action constituted
harassment and retaliation for union and protected concerted actvi-
ties. The effect of said actions is to deprive the Charging Party of a
livelihood in order to provide for his family. [Emphasis added. See
G.C. Exh. l(c).]
Contrary to the interlineation in the above charge, G.C. Exh. 10(a), a
form signed by both Deramus and Stokes on August II. includes the no-
tation that Deramus was "sent home by postal management," because
management "refused to accept doctor's statement regarding eyeglasses."
I am convinced that Deramus was shown this document on August II1.
Indeed, on cross-examination, Deramus conceded that he knew he had
been sent home and not allowed to work because he had been "told" he
"couldn't come in and wear the glasses . . . without certification." It is
difficult to reconcile this admission with the representation appearing in
the aforementioned unfair labor practice charge.
In support of this allegation, Deramus testified that on
April 22 at a safety meeting conducted by Joe Moses, he
requested work gloves. Moses indicated that he would
have to look into the matter and check with Stokes. He
claims that on April 27, in the presence of Stokes, he in-
quired of Moses as to the work gloves. Moses indicated
that they were not available and that Stokes was han-
dling the matter. Stokes acknowledged that he would
check into it. The next day, April 28, Deramus claims
that he again inquired as to the work gloves. Stokes re-
sponded that they had not been obtained as yet and that
he would get back to Deramus. The next day, April 29,
Deramus again inquired of Stokes as to the gloves,
whereon he said he had none. At this juncture, Deramus
claims that he asked for a steward, and that Stokes said
nothing but simply walked away. Deramus went on to
testify that on May 4 he confronted Lois Lee, an individ-
ual described as a supervisor in the cancellation unit, and
requested her to get him a steward and the work gloves.
According to Deramus, she indicated that she would
check with Stokes. Later that day, Deramus claims to
have asked Stokes, "when was I going to get some
gloves and when could I see a steward." Stokes is al-
leged to have responded that "he would take care of my
problem . . . in the form of a letter of warning, suspen-
sion, or removal.""' Deramus testified that he eventually
got his work gloves in June, but was never provided a
steward.
Even were I to find that Stokes made no affirmative
effort to secure a union representative, no illegality
would inure on these presents. Stokes was the only su-
pervisor implicated by Deramus who was named in the
complaint. The General Counsel concedes that any right
of Deramus to union representation in this instance was
not founded on statutory guarantees in Section 7 of the
Act.17 Instead, it is the General Counsel's theory that a
right to union representation existed by virtue of the
terms of the contract between the Mailhandlers Union
and the Respondent, that said right was absolute, and
that denial thereof for discriminatory reasons was viola-
tive of Section 8(a)(3) and (1) of the Act in this instance.
Even if the Respondent acted on such a motivation, it is
plain that the General Counsel's premise that such a
right existed by virtue of contract has not been substanti-
ated by convincing proof. Firstly, it is difficult to believe
that management would be obliged immediately to seek
out a steward on request of an employee during working
time on each occasion that an employee disapproved
action by supervision. No provision of the contract is
cited which would tend to support such a right.' 8 On
the contrary, article 17 of the contract dealing with "rep-
resentation" strongly suggests that employees are not en-
'" I credit Stokes' denial that he ever made such a statement to Dera-
mus. I also credibly testified that on several occasions Deramus requested
a steward and was referred by Stokes to his immediate supervisor.
i" See, e.g., NLRB v. J. Weingarten, 420 U.S. 251 (1975).
Is The General Counsel in this respect points to the testimony of
Lonzo Bradford, who testified to the practice existing under collective-
bargaining agreements between the American Postal Workers Union and
the Postal Service. However, Bradford's testimony was negated when he
admitted that he could not state that the terms of this latter agreement
are identical to that of the Mailhandlers agreement.
1144
POSTAL SERVICE
titled to a steward on an unqualified basis simply because
they request one. Thus, the only pertinent provision is
article 17.3(c), which provides in material part as fol-
lows:
If an employee requests a steward or union repre-
sentative to be present during the course of an inter-
rogation by the Inspection Service, such request
will be granted.
The negative implication is that there is no contractual
obligation to provide a steward during working hours
with respect to other confrontations between employees
and supervisors. Quite plainly, the request by Deramus
for a steward had nothing to do with "interrogation" or
activity of the "Inspection Service." Beyond that other
contract language restricting the movement of stewards
further militates against the General Counsel's position
here. Thus, by virtue of section 17.3(a) and (b), stewards
are not entitled to leave their work areas, and move to
other work areas, or conduct investigations during work-
ing hours in connection with grievances on an absolute
basis. The terms of these subsections authorize the Em-
ployer to deny such permission to the stewards them-
selves, in these respects, where said denials are reason-
ably founded. No other provision of the contract confers
on employees a right to obtain union representation or
imposes an obligation on management to provide it
simply because an employee "feels" aggrieved.
In sum, it is concluded that neither practice nor con-
tract obligated management, during working hours, to
secure and arrange meetings between employee and
steward simply because an employee was dissatisfied
with a supervisor's conduct. Accordingly, as Deramus
was not entitled to impel supervision to put aside normal
duties during working time in order to accommodate his
request for union representation, the allegation that he
was discriminatorily denied any right founded on con-
tract, practice, or statute has not been substantiated and
the 8(a)(3) and (1) allegations based thereon shall be dis-
missed.
3. The submarine sandwich
The final allegation concerning alleged mistreatment of
Deramus relates to a 7-day suspension issued on October
5. The suspension was triggered by a confrontation be-
tween Deramus and Supervisor of Mails Cornelius
Malone on September 24. On that date, Deramus report-
ed for work early. He requested and obtained Malone's
permission to speak with an employee who was subject
to Malone's supervision and was then working. Having
spoken with the employee in question, Deramus left the
area. He then encountered a coworker, Eugene Tyler. I9
Deramus claims that after his conversation with Tyler he
went into the locker room, changed clothes, and then
went to a break area where he heated a submarine sand-
wich in a microwave oven. After this, Deramus left the
break area and resumed his conversation with Tyler.
'9 Tyler was a former colleague of Deramus, having served as admin-
istrative vice president of Local 307 He too was ousted when the trust-
eeship was imposed in the spring of 1982
While both were in a work area, Malone approached and
told Deramus not to eat his sandwich on the north dock.
Deramus denied that he had eaten from the sandwich.
Malone then left, according to Deramus, and came back
"a few minutes later" with Supervisor of Mails Theodore
Jones. Malone again told Deramus that he could not eat
the sandwich on the workroom floor. Deramus again
denied eating the sandwich. Jones then attempted to
speak to Deramus privately. According to Deramus,
Jones also stated that he could not eat on the dock. Der-
amus denied to Jones that he had eaten the sandwich.
Deramus explained that, in heating the sandwich, he had
erroneously pushed the wrong button on the microwave
oven and "had over heated the sandwich and . . . pulled
the wrapping back so that the sandwich would cool off
and . . . had it sitting on my note pad." Deramus testi-
fied that he did not start eating the sandwich until he left
the first floor work area.2 0
Malone testified that he observed Deramus in a work
area with a hero sandwich in his hand while he was en-
gaged in conversation with Tyler. Malone claims to have
actually observed Deramus eating the sandwich and indi-
cates that, when he told him that he could not do so and
would have to leave the dock with the sandwich, Dera-
mus indicated that he would leave when he completed
his conversation with Tyler. Malone corrected Deramus
advising him that he would have to leave immediately.
At this juncture, Deramus enforced his refusal to leave
by addressing Malone with a profanity. Accordingly,
Malone sought out Jones to witness his giving Deramus
a direct order. When Malone returned with Jones, Tyler
and Deramus were still engaged in a conversation in a
work area, whereon Malone directly ordered Deramus
to leave the area. Deramus again reacted, cursing
Malone. 2 1 According to Malone, he then walked off
while Jones attempted to communicate with Deramus,
who initially appeared unwilling to do so. 22
10 Tyler was called by the General Counsel as a corroborating witness.
Although he attempted to confirm that Deramus did not eat the sand-
wich at any time prior to the confrontations with Malone and Jones, his
testimony is not entirely consistent with that of Deramus. Thus, he testi-
fied that Deramus was holding the sandwich in his hand, rather than on a
notebook, a discrepancy significant when considered in the light of Dera-
mus' suggestion that the sandwich was too hot to eat. My suspicion was
hardly allayed by Tyler's response to questioning as to how he knew that
the sandwich was hot. For in response, Tyler explained that he could ob-
serve "steam" coming from it, adding that Deramus was holding the
sandwich with a napkin. My impression of Tyler's corroborating testimo-
ny was less than favorable, and I prefer the accounts of Jones and
Malone to the effect that the sandwich had been partially eaten.
a' Neither Jones nor Malone could recall the exact words used by
Deramus on the occasion in question and their professed recollection as
to what was said did not jibe. Nonetheless, as to the essential elements, I
believed Malone's testimony as to the first encounter as well as that of
Malone and Jones as to the second encounter, including the assertion that
Deramus responded by cursing Malone.
22 Tyler confirmed that it was not until Jones pleaded three times that
Deramus agreed to talk with Jones. a fact tending to confirm the deport-
ment of Deramus' as described by Malone and Jones All in all, the lat-
ter's account seemed far more probable when weighed against undisputed
fact. For, it is considered entirely unlikely, that Malone would have inter-
vened and attempted to correct Deramus had the latter not been eating
the sandwich in an area in which such activity was prohibited under es-
tablished policy. It will be recalled that Malone, shortly before, had
given Deramus permission to consult with another employee under his
Continued
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 5, a suspension notice dated September 28
was delivered to Deramus. Through that document, Der-
amus was notified that he would be suspended for 7 cal-
endar days and that the basis for the suspension was his
prior warnings of May 19 and August 17, as well as the
following:
On September 24, 1982, prior to your scheduled
. . . tour at approximately 5.45 p.m. you were ob-
served on the north dock eating a hero sandwich. I
told you that you could not remain on the work-
room floor eating. You stated that you would leave
as soon as you talked to Mr. Tyler and you contin-
ued down the aisle, eating the sandwich. I stopped
you a second time and informed you that you could
not eat on the workroom floor. You refused to
leave the floor. I then summoned another supervi-
sor, Mr. Ted Jones. In Mr. Jones' presence I gave
you a direct order to stop eating on the workroom
floor. You stated that you were not on the clock
and you did not give a fuck about what I had or-
dered you to do. Your actions disobeyed the safety
regulations and disobeyed a direct order.
The General Counsel contends that this warning and
suspension were provoked by Deramus' history of pro-
tected activity and particularly because Deramus was ac-
tively engaged in assisting a fellow employee with a
grievance and in the filing of an unfair labor practice
charge before the National Labor Relations Board
during the same time frame. 2 3 As indicated, however,
supervision on worktime and in a work area, an act which hardly is in
consonance with animus toward Deramus. It is also considered unlikely
that it would have been necessary to summon Jones had Deramus accept-
ed Malone's instruction. Indeed, the fact that Jones had difficulty himself
in communicating with Deramus confirms the Respondent's testimony
that Deramus was guilty of intemperate behavior on the occasion in ques-
tion.
2a Deramus testified that he assisted fellow employee Wayne Atkins in
the filing of unfair labor practice charges against the Union and the
Postal Service on September 28. See G.C. Exhs. 12(b) and 15. The
charges were based on the fact that a supervisor, Robert Sterrett, had
issued a letter of warning to Atkins for leaving the building without au-
thorization. There is no evidence that any representative of the Respond-
ent, prior to October 5, was aware of Deramus' involvement in the proc-
essing of these unfair labor practice charges. Although a notice of ap-
pearance form which bears his signature is dated October 4, nothing in
that document reveals that it pertained to the unfair labor practice
charges filed by Atkins, nor does it bear a time receipt stamp of the Na-
tional Labor Relations Board Regional Office. See G.C. Exhs. 16(a) and
(b). Furthermore, I did not believe the uncorroborated testimony of Der-
amus that a supervisor by the name of David Law observed him, togeth-
er with Atkins, writing out information in connection with the unfair
labor practice charge. Also discredited is testimony of Deramus that at
some undefined date after he assisted Atkins in the filing of the charge
the account of Malone and Jones as to what transpired
on September 24 has been credited substantially. Accord-
ingly, it is concluded that the suspension was based on
legitimately issued prior warnings and that the citation
on October 5 was based on deliberate disobedience and
abusive behavior toward supervision inherent in conduct
of Deramus on September 24. 24 Accordingly, I find that
the Respondent did not violate Section 8(aX3) and (1) of
the Act in this, or any other, respect herein.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent did not disparately apply its tinted
glass policy on April 16, 1982, and August 10, 1982;
deny employment on August 11, 12, and 13, 1982; issue a
written warning on August 24, 1982; issue a 7-day sus-
pension on October 16, 1982; deny a union representative
on April 29 and 30 and May 4, 1982; or otherwise dis-
criminate against Leroy Deramus because of his union or
protected activity, in violation of Section 8(a)(3) and (1)
of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER2 5
IT IS HEREBY ORDERED that the complaint herein be,
and hereby is, dismissed in its entirety.
Supervisor Sterrett, on two occasions, addressed Deramus, "How you
doing, post office lawyer?" Sterrett testified that some years ago when he
worked with Deramus other employees would refer to Deramus as the
Philadelphia lawyer of the "L- Belt" and that he, himself, would do so.
However, I credit Sterrett's denial that any such reference was made to
Deramus in connection with the Atkins' unfair labor practice charge. In
any event, I credit the testimony of Malone that he did not know that
Atkins had filed an unfair labor practice charge at the time of this inci-
dent. I also accept his testimony as well as that of Jones that neither was
mindful that Deramus was in any way involved in the Atkins-Sterrett in-
cident.
'4 Undue concern does not arise by virtue of the fact that the warning
was not delivered to Deramus until October 5. The Respondent's evi-
dence convinces that both Jones and Malone participated in a training
session requiring their absence from work between September 27 and Oc-
tober I.
'6 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 pur-
poses.
1146