Postal Service

National Labor Relations Board - Board Decisions

May 24, 1984

270 N.L.R.B. 896 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Latrisa Joy Man-
nion. Cases 27-CA-8127-P and 27-CA-
8318-P
24 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 23 November 1983 Administrative Law
Judge Harold A. Kennedy issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions and an answering 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United States Postal Service, Grand
Junction, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph l(a).
"(a) Discriminatorily reprimanding employees
for leaving their work stations."
2. Insert the following as paragraph l(c).
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminatorily reprimand our
employees for leaving their work stations.
WE WILL NOT suspend, or otherwise discriminate
against, employees for filing charges with the Na-
tional Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make Latrisa Joy Mannion whole for
any loss she may have suffered as a result of her
January 1983 suspension, with interest.
WE WILL expunge and remove from our files
and records any reference to the January 1983 sus-
pension issued to Latrisa Joy Mannion.
UNITED STATES POSTAL SERVICE
DECISION
INTRODUCTION
HAROLD A. KENNEDY, Administrative Law Judge.
These cases are before me pursuant to an order of the
Regional Director for Region 27 of the National Labor
Relations Board consolidating two cases which allege
violation of the National Labor Relations Act by the Re-
spondent, United States Postal Service (Postal Service or
Service). Latrisa Joy Mannion (Mannion), an employee
of the Service at its Grand Junction, Colorado Post
Office, is the Charging Party in both cases. Mannion
filed the charges in Case 27-CA-8127-P on October 28,
1982, and the charge in Case 27-CA-8318-P on March
24, 1983. She alleged violation of her Weingarten rights
by Respondent in both charge cases. She complained of
a suspension issued in July 1982 (not challenged in the
complaint) and other alleged violations.
A consolidated complaint was issued on May 4, 1983,
by the Regional Director for Region 27 alleging viola-
tion of Section 8(a)(1), (3), and (4). By answer filed on
May 20, 1983, Respondent admitted jurisdiction and
other allegations but denied violating the Act as alleged
in paragraphs VI through XV.' The allegations of the
consolidated complaint were tried before me on July 19
and 20 in Grand Junction, Colorado.
STATEMENT OF THE CASE
Charging Party Mannion, an employee of the Grand
Junction, Colorado Post Office, was involved in an acci-
dent on July 1, 1982, while driving her car on a rural
route. 2 She reported the accident immediately and a
Postal Service official, T. J. Carrico, went to the scene,
as did her husband (a clerk also employed by Respond-
ent), and a Colorado state patrol officer. She was given a
citation alleging careless driving and was later found
guilty by a state court (which finding, however, was on
appeal at the time of the trial herein).3 The Postal Serv-
I Previously, on December 21, 1982, the Regional Director had issued
a complaint in Case 21-CA-8127-P alleging violation of Sec 8(aXI), but
it was superseded on issuance of the consolidated complaint.
5 All dates refer to 1982 unless otherwise stated.
s Mannion said she was also cited for failing to show proof of insur-
ance but the patrol officer did not indicate he charged her with such vio-
lation.
270 NLRB No. 131
896
POSTAL SERVICE
ice issued Mannion a 14-day suspension, but it was later
reduced to a 10-day suspension.
On December 24, when roads in the Grand Junction
area were covered with snow and ice, Mannion's car slid
into a "paper box" (presumably a box used for delivery
of newspapers) after making a stop on her rural route.
There was no damage to her car or the box (although a
nail was pushed back in by hand), and she immediately
informed a member of the family which owned the box.
On December 27 Postal Official Carrico, who investigat-
ed the July I accident, learned of the December 24 inci-
dent and confronted Mannion, seeking to question her
about not reporting the incident as being an "accident"
reportable under Postal Service rules and regulations.
Mannion became upset and requested a representative
and then sick leave. She was allowed to go home on ad-
ministrative leave with her husband (who was not work-
ing that day), but there was discussion between her hus-
band and the postal official as the Mannions left the Post
Office. Reference was made during such discussion to
the charge filed by Mannion (in Case 27-CA-8127-P)
with the NLRB.
On the morning of the following day, December 28,
Postal Official Carrico again sought to discuss the De-
cember 24 incident with Mannion. Later that same morn-
ing Mannion went to the office where Carrico was
working, bringing along with her another employee as a
witness, to obtain the telephone number of a representa-
tive. Carrico ordered Mannion and her fellow employee
to return to their work stations on the basis they had no
permission to leave their work area.
Later, on December 29, Carrico did hold an investiga-
tive interview with Mannion and a union representative
at which time Mannion completed accident forms and
answered questions. On January 6, 1983, she was notified
that the Postal Service was removing her from the Serv-
ice and that she was to leave the building. She was later
reinstated without backpay and returned to work on
May 12, 1983.
The General Counsel contends that the Weingarten
rights of Mannion were violated by Postal Official Car-
rico on July 1 when he investigated Mannion's accident
of that date and again in late December when he under-
took to investigate the December 24 incident. The Janu-
ary 6, 1983 suspension also allegedly violated the Act.
The consolidated complaint specifically alleges:
a. About December 27, Respondent, acting by and
through Carrico, stated it was "chicken shit" of an em-
ployee to file charges with the National Labor Relations
Board (par. VI(a)).
b. About December 29, Respondent, acting by and
through Carrico, reprimanded an employee for leaving
the employee's work station when she asked her supervi-
sor for the telephone number of a union steward located
in a different city (par. VI(b)).
c. About July I and December 27, Respondent, acting
by and through Carrico, denied the request of its em-
ployee, Mannion, to be represented by the Union during
an interview which said employee had reasonable cause
to believe would result in disciplinary action; said inter-
views were conducted, notwithstanding the denial of
such employee's requests for representation (pars. VII
and VIII).
d. About January 6, 1983, Respondent suspended Man-
nion and has since failed and refused to reinstate her be-
cause of her "membership in and activities on behalf of
the Union, and because she filed charges under the Act"
(pars. IX and X).
The acts described in paragraphs (a), (b), and (c)
above are alleged to constitute violations of Section
8(a)(l). The conduct described in paragraph (d) is al-
leged to constitute violations of Section 8(aXl), (3), and
(4).
It is undisputed that the Postal Service reinstated Man-
nion in the spring of 1983 without backpay and that she
returned to work on May 12, 1983. Thus, with respect to
the 1983 suspension, it is necessary only to determine
whether such suspension was contrary to the Act. As in-
dicated above, the Postal Service admits jurisdiction (as-
serted pursuant to Sec. 1209 of the Postal Reorganization
Act, 39 U.S. 101 et seq.) and a number of their allega-
tions, including the following:
a. That at all times material the following persons
were supervisors and agents as those terms are defined in
the Act and held the positions as indicated: Phillip
Fessler-supervisor, delivery and collection; Brian S.
Cornelius-MSC director, E & LR; and Dan Garrison-
postmaster.
b. That at all times material T. J. Carrico is and has
been an agent as defined in the Act while holding posi-
tions as accident investigator and superintendent, collec-
tion and delivery.
c. The Rural Letter Carriers Association, at all times
material, is and has been a labor organization within the
meaning of the Act.
I. THE EVIDENCE
The 1981-1984 collective-bargaining agreement be-
tween the United States Postal Service and the National
Rural Letter Carriers' Association is in evidence as Re-
spondent's Exhibit 12. The grievance and arbitration pro-
cedure is set forth in article 15, the discipline procedure
is set forth in article 16, and representation procedures
are set forth in article 17.
Nine witnessess testified-four for the General Coun-
sel and five for Respondent Postal Service. One of the
witnesses, T. J. Carrico, was called by the General
Counsel and later testified for Respondent as a defense
witness. The General Counsel recalled two of its case-in-
chief witnesses, Charging Party Mannion and a fellow
employee, Charlotte Roth, to testify on rebuttal.
The testimony of the principal witnesses will be sum-
marized in detail.
Charging Party Latrisa Joy Mannion is a rural substi-
tute carrier who usually works in that position I day a
week. She has held that position since 1978. Since be-
coming a "senior substitute" she has also been called in
to work on other days during the week. 4
4 On cross-examination Mannion explained that she is the "sub of
record on Rural Route 4" which "works out of the Grand Junction
office and Whitewater office." The Grand Junction Post Office maintains
Continued
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mannion has been active in labor organization, includ-
ing the American Postal Workers Union (APWU) and its
auxiliary (APWUA). She has served as an officer and at-
tended state, regional, and national conventions as a dele-
gate. Mannion said she had lobbied Congress on behalf
of the APWU and APWUA. She organized a Solidarity
Day for striking city market workers in Grand Junction
and picketed on their behalf. Mannion's husband, Timo-
thy (Tim), is also a Service employee and is president of
the western Colorado area local of the APWU. She ex-
plained on cross-examination that she had dropped out of
the Rural Letter Carriers' Association because she had
"trouble getting my local steward [Frank Bailey] to rep-
resent me."
She testified that she had an accident on Thursday,
July 1, 1982, while driving her car on a rural route. She
"was coming down CS-2 Road," a dirt road, as it passes
through a rural area and saw a dog run in front of her
car. She described the event as follows:
I swerved, hit an embankment to avoid going off
the other side of the mountain or hitting the dog.
The next thing I remember is being outside my car
looking at the damage. Then I tried to get back into
my car and my car was locked, and the next thing I
remember after that is being up the road to the last
box I had just delivered, taking the mail out of the
mailbox instead of putting it in ....
Mannion's head hit against the windshield, causing it to
break. After she got out of the car, she discovered she
had left the keys in the ignition with the engine running.
She flagged a motorist who drove her to the Whitewater
Post Office where she telephoned the Grand Junction
Post Office. She spoke to Gene Letterhos, in the absence
of her then supervisor, Phil Fessler, and reported the ac-
cident. She asked that her husband, Timothy Mannion,
who was at work at the post office in Grand Junction,
be told of the accident so he could bring another set of
keys for the car to her. Letterhos told Mannion an acci-
dent investigator would be sent out.
T. J. Carrico, the "MSC" (Management Sectional
Center) accident investigator for the Service in Grand
Junction drove to the Whitewater Post Office where
Mannion was waiting. (Carrico at the time was also
acting branch manager of the Fruitvale Post Office
Branch in Grand Junction. Later he was named supervi-
sor of delivery and collection in Grand Junction and
became a supervisor of Mannion.) Timothy arrived at the
Whitewater Post Office shortly after Carrico, and the
three then proceeded in Carrico's car to the accident
scene. Mannion said she felt weak and dizzy while wait-
ing at the Whitewater Post Office and told Myrna Roy,
the Postmaster at the Whitewater Post Office, "several
times" that her head was "hurt really bad."
Mannion indicated she was feeling worse when she re-
turned to the accident scene. She said she could not
recall that Carrico ever inquired about her condition.
a branch office known as Fruitvale. She stated that as a senior substitute,
a status she said she had held for about a year and a half, she carries
auxiliary Route 11 out of Fruitvale "five days a week unless I get called
back into this office to carry Rural Route 4."
Her neck was getting stiff, she had trouble seeing, and
she felt sick to her stomach.
Carrico got out of his car on arriving at the accident
scene and began taking pictures and measurements. Man-
nion asked Carrico if she might receive a 2-week suspen-
sion as another postal employee (Charlotte Roth) had,
and he responded: "Probably at least a letter of warn-
ing."
Mannion testified that her husband then offered the
opinion to Carrico that she needed a union representa-
tive, but Carrico "kind of ignored" the remark. Timothy
Mannion repeated the comment, saying, "Ted, she needs
union representation if there's going to be disciplinary
action." Carrico's response, according to Mannion, was:
You're here by my good gtaces and if you don't
like it, you can shut up and walk home.
State Patrol Officer Tom Wulf arrived at the accident
scene shortly after the three Service employees did.
Mannion said Wulf and Carrico exchanged pleasantries
("about their families, their cats, their dogs") and was
"shocked" to know that Carrico was acquainted with the
officer. Carrico and Wulf together examined the car
tracks on the road and "compromised" on which were
made by Mannion's car. Wulf asked all three of the Serv-
ice employees to get in his patrol car, with Mannion
being directed to sit in front with him. Wulf began
asking questions of Mannion, such as the speed of her
car and the position of the dog. Wulf became "upset" at
her answers, she said. 5 According to Mannion, Wulf
asked Carrico to get out of the car when Mannion ex-
pressed concern that Carrico could use her answers
against her. Officer Wulf also requested Mannion's hus-
band to get out of the car while she undertook to write
out a statement. According to Mannion, Wulf told her he
would charge her with reckless driving unless she ex-
plained in clear detail what had happened. Wulf would
not allow her husband to help in preparing a statement,
and the patrolman declined her husband's offer to look
for dog tracks.
Wulf rejected Mannion's first written statement but ac-
cepted it after she "added a little more to it." Wulf told
Mannion he would talk to her "supervisor," referring to
Carrico, about issuing her a ticket. Thereafter Wulf
issued a citation which alleged careless driving and fail-
ure to show proof of insurance.
Whitewater Postmaster Roy came to the accident
scene and offered to finish up Mannion's route, but Car-
rico rejected the offer, saying: "No it's her route; she'll
finish it." With the help of her husband, who drove her
car, Mannion finished the route-involving the delivery
of mail to about 10 boxes. Mannion then went to the
Grand Junction Post Office to "case the mail" for the
carrier who would be working on the following day. She
said she "couldn't see the case right" and was sorting the
mail incorrectly. At the suggestion of her husband, she
5 Mannion said she explained she did not know the speed of her car as
she sat on the right side while delivering mail. The officer then "had us
drive up and down the road until I could tell him about how fast I was
going, and he took that," Mannion said.
898
POSTAL SERVICE
left the Post Office with permission of her supervisor
and, after picking up her children, went to the emergen-
cy room of the St. Mary's Hospital.s
Mannion stated that the hospital performed a "full
scan, x-rays, head examination" and observed her for 3
hours. She was given medication and instructed to go to
bed. The hospital record (G.C. Exh. 4) stated, in part:
"Impression is that of head injury with mild concussion
and probable cervical strain."
Mannion said she went to the Post Office on July 16
"on my own time" to fill out an accident report for Car-
rico. Her supervisor, Phil Fessler, told her at the time,
she said, that there should be no disciplinary action for
the accident.7 When she next reported for work on July
13, her next "normal work date," she saw a note on her
case advising her to see her acting supervisor Russ Cog-
burn. When she reported to Cogburn, she received a
letter dated July 8 (G.C. Exh. 5) that stated that she was
being given a 14-day suspension. She said she signed the
letter as requested by Cogburn who, she said, told her,
"Ted [Carrico] told me to do it."
Mannion said she grieved the 14-day suspension herself
and met with Carrico at step 1. He ultimately offered her
"a letter of warning," but she thought a "6 month letter"
was more appropriate. She requested that her "state
steward," Frank Jordan, appeal the matter to the next
step. While attending a labor convention away from
home, the grievance was settled by Jordan with a 10-day
suspension-a "complete shock" to her, she said.8
December 23 was the next date Mannion referred to in
her testimony. On that date she said she mentioned to
Carrico that a complaint had issued on the (first) charge
she had filed with the NLRB, suggesting that he "take it
like a man" and not personally. On the following day,
December 24, another incident occurred while delivering
mail on the rural route that gave rise to further problems
between Mannion and Carrico. Snow and ice were on
the road that day, she said. Her car "got stopped" at
265-32-1/2 Road and was "slipping" as she tried to pull
away after making a delivery at a box. A Mr. Kirkpat-
rick, who lived nearby, came to her aid. As she let up on
the accelerator her car slid back in to a newspaper box
that belonged to a Mr. Kellerby, postmaster of Whitney,
Colorado. Mannion got out of her car and observed that
a nail had come loose in Kellerby's newspaper box, but
Kirkpatrick "pounded" it back by hand. Kirkpatrick as-
sured Mannion that there was no damage to her car or
the newspaper box and told her:"Go on. Don't worry.
It's slick out and be careful." Mannion said she explained
that she would have "to tell Mr. Kellerby that this hap-
pened," and did so. Mrs. Kellerby, according to Man-
nion, responded: "Fine, don't worry about it, Merry
6 Mannion recalled that she could not recall the name of a longtime
friend whom she saw that day at the babysitter's or the name of her
friend's child.
I Fessler later testified that he did not recall making such remark.
e Carrico later corroborated Mannion's testimony concerning this
grievance. He said his notes indicated that he met with Mannion alone on
July 26 at step I. Mannion indicated she would accept a letter of warning
if it remained in her file for only 6 months. Carrico told her he said that
the letter must stay in her file for 2 years, the "customary" period.
Christmas .... have a nice day."9 Mannion finished
her route and returned to the Post Office. She said no
other person was there at the time and she went home.
Mannion reported for work on the following Monday,
December 27, and saw Carrico around midmorning.
Quoting from Mannion's direct examination:
About 10:30 Mr. Carrico walked up and he had a
clipboard, it looked like a camera, a bunch of pen-
cils, and everything in his hand, and he says, "Trisa,
did you have an accident?" I said, "No." He says,
"Are you sure you didn't have an accident?" I said,
"No, Ted, I didn't have an accident." I said, "If
you're going to talk to me about this, I think I need
a union representative." Ted was acting very
strange at the time. '
Mannion said Carrico was "aggressive" and repeated his
inquiry. He asked if she had a "minor accident." She
denied that she had a minor accident and indicated a
desire to have a representative "now" if he were going
to pursue the inquiry." I Carrico continued:
He said, "Okay." He said, "I know you had an acci-
dent. Dan and I have talked about it, and we've de-
cided it's a removal. It's an automatic removal to
leave the scene of an accident." And he walked
off.' 2
Mannion said the incident made her shake visibly, and
she was advised by coworkers that she was too upset to
carry a route. She decided that they were correct and
asked Carrico for permission to go home on sick leave.
He refused, Mannion said, but told her to go to the
s A letter allegedly written by Mrs. Kellerby concerning the incident
was rejected as hearsay.
10 Later on cross-examination, Mannion stated that on the morning of
Monday, December 27, Carrico "had been taking pictures of my car and
got the estimate." She identified on direct examination a letter dated Feb-
ruary 8, 1983, which she had obtained from a Grand Junction automobile
dealer. The letter, received as G.C. Exh. 7, reads in pertinent part:
On December 28, 1982, Mr. & Mrs. Mannion brought in their 1979
Pontiac to have some parts installed that were on order from a pre-
vious repair.
It was at that time, Mr. & Mrs. Mannion asked us to look over the
right side of their car for any other damage. We looked it over and
found no other damage of any kind on the right side of their car. At
that same time there was some items to be replaced from a previous
visit.
Mannion estimated the cost of repair of her automobile for damage re-
sulting from the July 1982 accident to be around $600.
" Mannion said she wanted a union representative, not an EEO repre-
sentative as the Postal Service had contended. Her affidavit stated that
she requested "anything and everything [Carrico] had relating to this in-
cident and requested the EEOC number."
12 Mannion maintained on cross-examination that on December 27
Carrico sought to question her without a union representative present.
She agreed that she told Carrico at that time that she had hit a newspa-
per box but added that there was no damage to her car or to the box.
She said she told Carrico at that time that she wanted Frank Jordan, who
was at the time in Pueblo, Colorado, to act as a union steward. She
agreed during cross-examination that Frank Bailey, a local steward, could
have been in the building at the time, but that she did not want him as a
representative as she had filed charges against him (and Frank Jordan as
well) with the NLRB. On redirect Mannion said on that Monday she
"didn't care" who represented her. She did not name any particular
person; she "wanted a union representative." She indicated she did not
know where Frank Bailey was at the time: "He was out on his route or
not even there. I don't know where he was."
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
breakroom, when she told him sick leave could not be
refused. He gave her some accident forms to fill out but
later told her, apparently before she completed the
forms, that she could either go to the doctor or go home
on sick leave if she went to the doctor.
Mannion said she and her husband went to the front of
the Post Office building to secure an appropriate medical
form before leaving. Carrico was there, and Mannion's
husband and Carrico had the following exchange:
And at that time Tim said, "I think this is really
chicken, Ted." And Ted says, "Yeah, just like those
NLRB charges, huh?"'3
Carrico "ordered us out of the building" at that point,
Mannion related, and she and her husband left. Mannion
had to return later, before seeing a doctor later in the
day because she had been given the wrong medical form
to give to the doctor. She saw Carrico again on that oc-
casion and she told Carrico, in response to his inquiry
about how she was feeling, that she was en route to the
doctor.
Mannion returned to work on the following day, De-
cember 28, so the regular carrier could have his day off,
even though the doctor had suggested she take the day
off. Carrico and Mannion had further discussion on that
day. At 8 a.m. Carrico approached Mannion and told her
that he and "Dan" needed to meet with her that morn-
ing. Mannion responded that she needed a union repre-
sentative and added, "Ted, I thought you'd learn from
the last charges .... " Carrico became "furious" and
walked toward her. Mannion said she was startled and
placed a tub between herself and Carrico. Carrico then
told her that she should be there on the following morn-
ing "with or without a union representative." He then
called another employee, Jane Williams, over and asked
her to witness the order that he had given to Mannion.
He then repeated in a "very loud" voice the following
direction: "I'm ordering you to be here at 8:00 a.m. with
or without your union representative."
Carrico walked away, but Mannion went to find Car-
rico shortly in order to obtain the telephone number of
her union representative, who she thought was located in
Glenwood, Colorado. She took with her a fellow em-
ployee and friend, Charlotte Roth, to act as a witness.
The two women went to the office of Harry Apple, su-
perintendent of delivery and collection, where Carrico
was at the time. The door of the office was open, and
Mannion commenced entry as she asked for the tele-
phone number of her "nearest representative." Carrico
became irate and furious, she said, and told her that she
"1 Mannion acknowledged on cross-examination, again, that it was her
husband who initiated the subject of filing charges with the Board on
December 27. She said her husband indicated to Carrico that "it was
really chicken shit . . . to be harassing" Mannion by "even considering
charges" against her. According to Mannion, Carrico responded, just
before ordering the two Mannions out of the Post Office building, by
stating "with a smile, 'Yeah, that's right. Just like the NLRB charges."'
Mannion had also stated on direct that she recalled that Carrico had
told her prior to the July 1982 accident, when he was involved in the
processing of a grievance filed by another employee, Dan Greathouse,
that: "People that file grievances cause trouble and make waves and get
it right back."
had no permission to be there and that she should have
knocked. Carrico then told Mannion she was to return to
her case and not leave there for the rest of the day for
any reason. Roth was also directed to return to her sta-
tion. Mannion was later told by another supervisor,
"Mary Munoz, the 204-B that day" that Carrico had
given instructions that Mannion was not to speak to Car-
rico further that day and to stay at her case.
A 2-1/2 hour meeting attended by Carrico, Mannion,
and Larry Garrison, described by Mannion as her "state
president from Glenwood," took place on December 29
at the Grand Junction Post Office. Mannion filled out
"papers on the accident" and was questioned by Carrico.
Mannion recalled that Carrico made the comment that if
the incident had involved Jeannie Sant (identified by
Mannion as a nonunion employee) "this would have been
over in 10 minutes." (On cross-examination, Mannion
said she had reached Garrison by telephoning him Tues-
day evening, December 28, possibly at his home in Car-
bondale, Colorado.)
On the afternoon of January 6, 1983, after Mannion
had returned from delivering mail on a route, Carrico
approached her and stated that he wanted to talk to her.
Mannion replied that if it concerned an accident she
wanted her union representative present. Carrico told
Mannion, she said, that "it's not a disciplinary action"
and "stomped off." He returned shortly, however, with a
letter (G.C. Exh. 6), and asked that she acknowledge its
receipt by signing for it. She read and signed it in his
presence and in the presence of his witness Jane Wil-
liams. The letter, dated January 5, 1983, bears the cap-
tion of "Notice of Proposed Removal," and reads in part
as follows:
This is advance written notice that it is proposed
to remove you from the Postal Service no sooner
than 14 days from the date of your receipt of this
letter.
This action is based on the following charge:
Failure to Follow Instructions
Specifically, on Friday, December 24, 1982, you
had a vehicle accident at 265 32-1/2 Road. Specific
instructions stated that "All accidents, either indus-
trial or vehicle, no matter how minor, must be im-
mediately reported to your supervisor. Failure to
report an accident immediately may result in disci-
plinary action." These instructions were issued to
all employees on October 7, 1982. You did not
follow these instructions.
The Post Office did not learn of the accident
until December 27, 1982. On that date when I at-
tempted to verify the incident with you, you initial-
ly denied any knowledge of it. Upon continued
questioning, you finally admitted the accident but
refused any further questions. You then filled out a
CA-l, Notice of Traumatic Injury, and requested
medical treatment.
Failure to immediately notify the Postal Service
at the scene of an accident impedes proper investi-
gation and raises the possibility of legal action
against the Service for damage, loss, and/or injury.
900
POSTAL SERVICE
Such flagrant disregard for rules and regulations
cannot and will not be tolerated.
In addition, the following elements of your past
record have been considered in proposing this
action.
1. You were issued a letter of Proposed Removal
Action on December 3, 1981 for Conduct Unbecom-
ing a Postal Employee while in the performance of
Official Duties and Falsification of an Official Docu-
ment. This proposed removal action was later re-
duced to a 14 calendar day suspension.
2. You were issued a 14 calendar day suspension
on July 8, 1982 for Failure to Operate a Motor Vehi-
cle in a Safe Manner. The 14 day suspension was
later reduced to 10 calendar days.
You have the right to file a grievance under the
Grievance & Arbitration Procedures contained in
Article XV of the National Rural Letter Carriers'
Agreement. 4
On cross-examination Mannion acknowledged that she
knew all accidents were to be reported and, accordingly,
reported the July 1982 accident. She did not make a
report on sliding into the Kellerby newspaper box on
December 24 because, she said:
I didn't feel it was an accident. I've hit mailboxes
before. The supervisors knew about it, and I was
told square it with the customer. It's a common
practice. Everybody hits mailboxes.
She identified Don McKelvey, who had retired around
1981, as a supervisor who had told her that it would be
sufficient to "square it" with the customer if she were to
bump a mailbox. 15 (On redirect she named Charlotte
Roth, who later testified, and five other employees who
had hit mailboxes without reporting the incidents.) Man-
nion said she was not aware prior to January 1983 of a
notice being on the bulletin board at the Grand Junction
Post Office advising that all accidents "no matter how
minor" are to be immediately reported to the employee's
supervisor.'6 Carrico showed her the notice, she said,
"those times."
14 Mannion was asked on cross-examination concerning conduct that
led to a 14-day suspension in December 1981 (handled by herself and set-
tled by her with Carrico without a grievance or any appeal being filed).
She explained that the discipline resulted from a "stupid" mistake: she al-
lowed a city carrier to become a passenger in her car for 2 or 3 hours
while she was delivering mail. She said she stopped and they talked prob-
ably for 45 minutes and that she incorrectly reported a 30-minute lunch
break stop instead of one for 45 minutes. She added that the way she had
been trained "we normally write 30 even if we stop for 15" minutes. She
conceded the error: "Honestly, it's not right. I don't do it anymore, and I
won't do it again."
Respondent later offered, through Carrico, a notice of proposed re-
moval action dated December 3, 1981, which asserts that Mannion had
indicated a 30-minute lunch period on November 23, 1981, but had actu-
ally been parked for approximately I hour and 15 minutes that day (R.
Exh. 3).
51 McKelvey later testified that he did not recall making such a state-
ment to Mannion.
Is The notice, a copy of which was received as R. Exh. 2, is dated
October 7, 1982, and was offered later through Carrico.
Timothy "Tim" Mannion, husband of the Charging
Party, has been a distribution clerk at the Grand Junc-
tion Post Office and an employee there for about 6-1/2
years. He said he had been a shop steward before becom-
ing president of the western Colorado area local of the
American Postal Workers Union.
Tim Mannion gave testimony corroborative of Latrisa
Mannion's account of events occurring on July 1 and
December 27. He stated that his wife called him on July
I and informed him of her accident and that she had re-
ported it to the Whitewater Postmaster. Mannion's su-
pervisor was not available at the time and Customers
Service Director Gene Letterhos was put on the line to
give her instructions.
According to Tim Mannion, Mannion asked Carrico at
the accident scene whether any discipline could result,
and he replied that "at least a letter of warning" was
possible. Tim Mannion said he advised Carrico of the
need for a union representative on two occasions. Car-
rico ignored Tim's first statement, but when it was re-
peated Carrico indicated Timothy could shut up or walk
back to town.
Timothy described his wife's condition at the accident
scene as "kind of spaced out." He said she complained of
a headache and being "sick to her stomach." Later on,
when he took her back to the Grand Junction Post
Office and, prior to leaving for the hospital, Timothy
said she staggered a bit as she walked and "wasn't really
coherent."
Timothy stated that the state patrol officer pressed his
wife for answers to questions in the presence of Carrico.
Finally, the patrol officer told Carrico to get out of the
car, but Carrico and the officer conferred thereafter.
Carrico caught up with Timothy and his wife as they
were finishing up Mannion's route and requested the
statement that Mannion had prepared for the patrol offi-
cer. Tim indicated that perhaps legal counsel should be
sought, whereupon Carrico issued a "direct order: give
me the statement right now."
Tim said he received a telephone call from his wife on
December 27. He was at home in bed, and Mannion was
speaking from the post office with a "shaking" voice.
Mannion told him, he said, that Carrico "was giving her
a bad time . . . implying that she had another accident
and he told her she was going to be fired u- -er this one."
Timothy's wife also told him that she was afraid to go
out on her route in her condition but that Carrico had
denied her sick leave. Timothy went to the breakroom
and talked with his wife. He said he told his wife that
she should fill out a CA-I form and "take COP for
day." Mannion asked Carrico for the CA-I form, and
Carrico supplied a form (the wrong form, as it turned
out, Timothy stated). The following exchanges took
place at this juncture. Timothy stated:
I told him when he was getting the form, I said,
"Ted, I really can't believe you're doing this." I
said, "This whole deal is chicken shit." He turned
around and smiled at me and said, "Just like filing
charges with the NLRB."
Q. Then what happened?
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Then my wife asked him, she said, "I'd like
any information you have regarding this incident
and copies of it and the number to the EEO offi-
cer." And he said, "If you're too sick to work,
you're too sick to get information." He said, "I
want you both out of the building now." So we left.
T. J. "Ted" Carrico was called as a witness by the
General Counsel and later by Respondent. Carrico said
he was the MSC accident investigator on July 1 when
asked by Gene Letterhos, MSC director of customer
services, to investigate an accident involving rural route
carrier Mannion.17 At the time, Carrico was also a su-
pervisor of delivery and collection under Harry Apple,
as well as acting manager of the Fruitvale Branch of the
Grand Junction Post Office.'s Phil Fessler, another su-
pervisor of delivery and collection, was supervisor of
Mannion at the time as Carrico was then assigned to the
Fruitvale Branch.
On being given the assignment by Letterhos, Carrico
said he left the Fruitvale Branch and proceeded to the
main office in Grand Junction to secure a camera and in-
vestigation kit. While at the main office he called Man-
nion at the Whitewater Post Office and, he thought, in-
quired about her condition as well as the condition of
her car. He advised her to telephone the Colorado State
Patrol. '
Carrico said he inquired of Mannion if she were
"okay" on arriving at the Whitewater Post Office; also,
he said, "I think we talked about the accident" while
waiting for Mannion's husband. When Timothy Mannion
arrived, the three proceeded to the accident scene, ac-
cording to Carrico, the Mannions "began filling out acci-
dent forms" and Carrico commenced a "standard" inves-
tigation-taking pictures and measuring skid marks. Car-
rico maintained that there was no request for a union
steward by either Mr. or Mrs. Mannion prior to the ar-
rival of State Patrol Officer Wulf.
Carrico said he had known Trooper Wulf for many
years but did not regard him as a close friend. Wulf took
charge of the investigation, Carrico said, but Carrico
agreed that he assisted in the investigation, comparing
measurements that each had taken. Wulf indicated to
Carrico, Carrico said, that Mannion's story did not hold
water. Carrico indicated in his testimony that he thought
it unlikely that a dog would be in the area which he de-
scribed as "desert."
Carrico acknolwedged that he was present in the state
patrol vehicle while Wulf questioned Mannion. Carrico
agreed that Mannion was upset and cried during the
questioning. He said he "voluntarily" got out of the
" Carrico explained that "MSC" stands for "Management Sectional
Center." He said the Management Sectional Center at Grand Junction in-
cludes 86 postmasters and that many post offices are all under the super-
vision of Dan Harrison, MSC manager at Grand Junction. Letterhos re-
ports to Garrison, and Harry Apple, superintendent of delivery and col-
lection, reports to Letterhos.
"1 Carrico said he had worked for the Postal Service in Grand Junc-
tion since 1969. He supervised Mannion when she was hired around De-
cember 1978. At the time of the hearing, he had been named Postmaster-
Elect of the Palisade, Colorado Post Office to become effective on
August 15, 1983.
1L Carrico indicated on cross-examination that he might have called
the State Patrol himself.
patrol car as she expressed fear of disciplinary action.
Carrico said he asked Wulf after the interview in the
patrol car was over whether any citation was being
issued. Wulf told him that two citations were being
issued-one for careless driving and another for failing
to have proof of insurance.
Carrico stated that he allowed Mannion to finish up
her route, using her car, with the help of her husband.
She had indicated, he said, that she would be able to do
so if accompanied by her husband. The Mannions were
able to use her car, he said, even though its windshield
and left quarter panel had been damaged.
Carrico identified General Counsel's Exhibit 5, dated
July 8, as the letter proposing a 14-day suspension of
Mannion in connection with her July 1 accident. A
grievance was filed and settled at step 2 (with Mannion
being given a 10-day suspension instead of one for 14
days), but, he noted, no grievance was filed alleging
denial of a steward on July 1. Carrico said he and Man-
nion met together at step I and were unable to resolve
the matter.
Carrico testified that a copy of the notice dated Octo-
ber 7 and received as Respondent's Exhibit 2 has been
posted continuously at the Grand Junction main post
office since on or about that date. The notice reads:
ALL EMPLOYEES
GRAND JUNCTION POST OFFICE
It is the policy of the Grand Junction Post Office
to insist that all assigned employees observe and
comply with all safety rules and regulations.
Employees who fail to follow safety rules and
regulations, regardless of whether or not an acci-
dent occurs, may be subject to disciplinary action
up to and including removal from the Postal Serv-
ice.
All accidents either industrial or vehicle, no
matter how minor, must be immediately reported to
your supervisor. Failure to report an accident im-
mediately may result in disciplinary action.
Carrico stated that there were other notices conveying
the same message posted at the post office.2 0
On December 27, a day when he was acting as super-
indent of delivery and collection in the absence of Harry
Apple, Carrico said he learned that Mannion had another
accident. Gary Morton, a postal clerk, reported to him
that on Christmas Eve "Mrs. Mannion had slid into a
paper box belonging to his father-in-law, Dale Kellerby."
Carrico went to the parking lot and inspected Mannion's
car. He said he observed that there was some chrome
loose on the front fender, "maybe a small scratch or dent
where something had been pushed in," and other damage
on the left front which he thought "was probably left
over from the previous accident." Carrico confronted
Mannion at her desk around 10 a.m. and asked if she had
had an accident on Christmas Eve. She denied that she
20 Carrico also referred to the rural carriers' handbook which advises
that all accidents, "regardless of the amount of damage, injury or
deaths," are to be reported on Form SF 91 before going off duty on the
day of the accident (R. Exh. 13).
902
POSTAL SERVICE
had, and Carrico inquired about the damage to her car.
Mannion replied that the damage resulted from the pre-
vious (July) accident and then added that her husband
had hit a deer. When Carrico asked whether she had hit
a box, Mannion admitted that she had, explaining that
there was no damage and that she had spoken to Mrs.
Kellerby about the incident. She claimed to be unaware
that there was any need to report a minor accident to the
Postal Service. It was at this point Carrico thought Man-
nion asked for a steward. Carrico then summoned an-
other carrier, Dorothy O'Brien, to act as a witness in
hearing him advise Mannion that she could call in a
lawyer or her steward. Carrico testified, "I think" Frank
Bailey was in the building that morning; also "I think I
said that Frank Bailey was available." Carrico referred
to "source pay document" (R. Exh. 6), which he said in-
dicated Bailey was on duty on December 27, 28, and 29
and was in the building until after 10 a.m. on each of
those days. According to Carrico, Mannion then indicat-
ed that she would not let Bailey represent her, and Car-
rico returned to his work in Apple's office. He returned
to Mannion's case in about 30 minutes to inquire further
about the accident. Carrico indicated some uncertainty
about what happened at this point, noting that he had
talked with her "so many times." He was not sure
whether on this occasion he gave her accident forms to
fill out with the help of a steward or whether this was
the occasion when she asked for an EEO telephone
number and a record of her past accidents. He thought
the latter occurred and that Mannion said she was not
ready to talk yet. He said he secured for her the EEO
number and asked the MSC safety officer to secure the
accident information that Mannion had requested.
Carrico said he spoke with Mannion later that day.
She had wanted to go home on sick leave instead of
making deliveries on her route. Carrico said he put her
on administrative leave and advised her to go to the
"swing room" while he sought advice from a superior-
Gene Letterhos, he thought. Mr. and Mrs. Mannion
came to the office shortly thereafter and asked for "an
accident log and things like that." He said he told Man-
nion if she were "too ill" to work she should go home.
As the Mannions were leaving, Timothy Mannion made
a comment to Carrico-
"Don't you think that's kind of chicken shit," or
something to that effect.
Carrico denied making any reply.
Carrico thought he next spoke to Mannion on Decem-
ber 28, the next workday, around 8 a.m. and asked her if
she were ready to discuss the accident. She indicated she
was not and an uncertainty when she would be. He then
told her, in the presence of another carrier, that she was
to be in Harry Apple's office on the following morning
at 8 o'clock with her representative. Carrico returned to
the office and within a few minutes Mannion and Char-
lotte Roth "barged in to the office, demanding that I put
that in writing." Carrico said he thought he did not re-
spond beyond saying he was busy and suggesting that
the two women return to the work station. Carrico said
he did not know what he did say "exactly" and conced-
ed that "it wasn't a pleasant conversation."
Carrico stated that on December 29 he met with Man-
nion and her "state president" steward, Larry Garrison,
who had traveled from Carbondale, Colorado, for the
event. Carrico said after some discussion Garrison ulti-
mately agreed that an "accident" did occur and directed
Mannion to complete the accident form which had been
given her.21 Carrico said that this was the first time he
got "any information about the accident" of December
24 from Mannion and it changed his "belief" about
whether there was any damage to her car. He then went
to visit Mrs. Kellerby who told him "she was not con-
cerned about the paper box."
Carrico said he had spoken to Postmaster Garrison on
December 27-when Carrico "believed" that Mannion's
car was damaged by "sliding into the mailbox" on De-
cember 24-about the possibility of an accident at Kel-
lerby's. Carrico said he realized on December 29 that his
"assumptions" concerning the damage to the front of
Mannion's car were incorrect. 22 He completed two
Postal Service accident forms (R. Exhs. 8 and 9) on De-
cember 30 and thereafter prepared and signed the notice
of proposed removal dated January 5 (G.C. Exh. 6). The
letter was submitted to Postmaster Garrison (through
Brian Cornelius, labor relations director) for signature as
the "MSC manager must sign off" under the collective-
bargaining agreement on the discharge of an employee.
Carrico said he handed the January 5 letter to Mannion
while she was at work at her case on January 6 and told
her she dwould be in pay status for 2 weeks. She signed
for it after indicating she was expecting it. She wanted to
finish casing up the mail, but he told her he preferred
that she leave the building. Mannion "fooled around,"
and Carrico walked over to the supervisor of the floor
on the clerk's side as he was certain she would contact
her husband. She came over to where her husband was
working and, seeing "the two of us watching," laid the
letter down on the machine in front of him and left.
Carrico said he met with Mannion and Frank Bailey,
the local steward for rural carriers, at step 1 in connec-
tion with the grievance filed protesting the proposed re-
moval action of January 5. Carrico denied the grievance,
and it was again denied at step 2 in a meeting between
Bailey and Brian Cornelius. Mannion was later reinstat-
ed, according to Carrico, at step 3 without backpay (R.
Exh. 11).
Carrico testified that he was aware of only one in-
stance in which a carrier had failed to report an acci-
dent. The Service had proposed removing him, but the
discipline was reduced (during the grievance procedure)
to a 14-day suspension. Carrico identified a summary
which lists vehicular accidents involving city and rural
21 Carrico said Mannion may have filled out part of the form at some
time prior to the meeting.
22 Carrico nevertheless considered Mannion to be at fault for causing
an accident on December 24. He said there were approximately 6 inches
of snow that day, and she should have had chains on her car.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carriers at the Grand Junction Post Office between July
1981 and May 1983.23
Carrico acknowledged when asked what constitutes an
accident that the term could be "a vague thing." The
General Counsel's attorney introduced through Carrico
an excerpt from Respondent's "Supervisor's Safety
Handbook" which defines "ACCIDENT" as follows
(G.C. Exh. 9, sec. 991):
An accident is an event which results from, or is in-
cident to, post operations and results in injury to
persons or damage to property regardless of who is
injured, ownership of property, cause, severity or
location of the accident.
Thomas Wulf, a Colorado state patrol officer since
1969, testified that he went to the scene of Mannion's
July 1 accident and spent over an hour investigating the
situation. Wulf said Mannion told him that she was not
hurt and that he observed no injury.
Wulf said he talked with Mannion while she, her hus-
band, and Carrico were seated in the patrol car. He said
Mannion's answer to questions he asked were so unclear
and evasive that he told her he had no alternative but to
cite her. She commenced to cry and indicated she was
afraid to speak in front of Carrico. Carrico then left the
vehicle voluntarily before Wulf could request it.
Mannion wrote out a statement, but Wulf found it un-
acceptable. Another statement was prepared, which was
signed by her, and Wulf accepted it. He said he may
have given it to Carrico so a copy could be made.
Wulf asserted that at no time in his presence did either
Mannion or her husband request a representative to be
present.
Wulf said he cited Mannion for careless driving and
made an official report on July 3 (R. Exh. 1).24 The case
was tried before Mesa County Judge Kilmer and Man-
nion was found guilty. Wulf said he had learned just
before his appearance in this matter that the traffic
charge had been appealed.
Charlotte Roth, who is employed at the Grand Junc-
tion Post Office as a city carrier and is an officer of the
National Association of Letter Carriers, testified on the
General Counsel's case-in-chief that she was asked to be
a witness-as a friend and not as a union representa-
tive-on two occasions on December 28.
On the first occasion Mannion asked Roth to witness
the fact that Mannion was turning in a "COP"-a job
'a The summary was prepared in response to a request of the General
Counsel's attorney who requested the information in an effort to show
that Mannion had been the object of disparate treatment. The summary,
received as R. Exh. 14, identifies the names of each employee involved, a
description of each accident, and the discipline imposed. Carrico identi-
fied Dan Greathouse, a full-time city carrier, as the employee who had
been previously disciplined for failing to report an accident. Greathouse
had backed into a private party's vehicle around April 1982 and caused
"slight" damage to a Service vehicle and to the private party's vehicle.
The General Counsel's attorney also obtained information concerning
more recent accidents involving Grand Junction Service employees. I am
not persuaded, however, that the record shows treatment of Mannion
was so disparate as to show unlawful discrimination. See R. Exh. 14,
G.C. Exh. 10; also Tr. 284-300; 306-312; and 467-472.
s4 Wulf listed certain factors (e.g., visibility, road conditions) as the
basis of issuing the citation. He said Carrico obtained a copy of his offi-
cial report.
injury form-to a supervisor. Marty Munoz, who took
the form from Mannion, was an acting supervisor and
told Roth she should return to her case as she was not at
the time "on Union form 1720" status.
Later Mannion asked Roth to accompany her to see
Carrico, who was at the time working in Harry Apple's
office with the door open. Mannion walked partially into
the office and asked for a steward's telephone number.
Carrico "got really upset" and "started yelling" about
"barging into his office." Carrico, who was Roth's regu-
lar supervisor at the time, sent Roth back to her case.
Thereafter, Munoz took Roth aside and told that he had
been yelled at by Carrico because she had left her case
that day. Munoz also told her, Roth said, that if she ever
left her case again without permission her state union
president would be advised that she was doing union
work unofficially and she would be given a letter of
warning. Roth said Carrico told her later in the day, as
the two passed each other, that she should not get her-
self in trouble over Mannion.
According to Roth, the treatment she received by Car-
rico and Munoz on December 28 represented a change
from past practice. She said employees had been free to
leave their work stations previously "for a few minutes"
without having to secure permission.
On rebuttal Roth testified concerning a 1981 accident
she had during her first 90 days of employment by the
Postal Service. She said the truck she was driving hit a
mailbox and tore it off the pole. She went ahead and fin-
ished the route because "the people saw me, so I figured
I didn't need to tell them." When she returned to the
Post Office the "VOMA"2 6 officer told her, laughingly:
"Next time you hit a mailbox like that, call in." Her su-
pervisor at the time said nothing to her about the acci-
dent. Roth said she would handle an accident differently
today; she would speak to the customer and report the
accident to her supervisor.
Roth said she had been disciplined by the Postal Serv-
ice on two different occasions. She received a warning
for leaving "accountables" on her desk and a 2-week sus-
pension for a rollaway accident.
Myrna Marie Roy testified that she had worked for the
Postal Service since 1976 and has been the Postmaster at
the Whitewater Post Office since May 1982. She reports
to Dan Garrison, the Postmaster at Grand Junction.
Roy testified that on July 1 Mannion came to the
Whitewater Post Office in the early afternoon and
picked up mail for delivery on her rural route. Mannion
returned around 3 p.m. that day and reported having an
accident. Roy recalled that Mannion had been crying
and had a lump on her temple. Mannion used the tele-
phone, and her husband and Carrico thereafter came to
Whitewater and the three then proceeded to the accident
scene. Roy closed the Whitewater Post Office at 5 p.m.
and proceeded down CS 2 Road. She met the Mannions
and then Carrico, who told her that the Mannions would
finish the route. Roy returned to her office, as did the
Mannions, and they talked briefly.
25 Carrico stated that VOMA stands for "vehicle operation mainte-
nance assistant."
904
POSTAL SERVICE
On a Thursday in January 1983 Mannion told Roy
while at the Whitewater Post Office that Mannion would
probably be getting some termination papers when she
returned downtown to the Grand Junction Post Office.
Mannion also stated at that time that "she was going to
get even with Ted" if it was the last thing she did. Roy
said she then told Mannion that Carrico had "stuck up
for her in an earlier incident." More recently, on the
Thursday prior to the trial of this matter, Mannion men-
tioned Carrico again. Mannion referred to the fact that
Carrico had been appointed postmaster at Palisade, Colo-
rado, a place where Mannion said he would "sit ... and
rot."
Phillip Fessler, who has worked for the Post Service
for over 20 years, testified that in July 1982 he super-
vised Mannion and prepared (G.C. Exh. 5) the July 8
disciplinary letter issued to her. Fessler said he had pre-
viously conferred with Carrico and reviewed Carrico's
notes and the Colorado state patrol's report concerning
Mannion's July accident. Fessler said he also met with
Mannion but did not discuss any discipline with her. He
stated that he left town on vacation on the evening of
July 8 and left it to Russ Cogburn, who would be work-
ing as a 204-B acting supervisor in his absence, "to take
care of the rest of the matter."
Fessler said he did not recall telling Mannion that he
thought her July accident did not warrant any discipine.
Fessler stated that Mannion was working I day a week
at the time, and he gave her a 14-day suspension so as to
impose on her the loss of pay for 2 days.
Donald McKelvey, a retired Postal Service employee,
testified that he was the "main supervisor" of Mannion
until around January 1981. He said he had a rural letter
carriers' manual issued to him and that a manual should
have also been at every rural carrier's desk. It was his
recollection that all accidents, including minor ones,
should be reported. He said, however, "I don't know
what you would consider a minor accident." He indicat-
ed he would not have told Mannion that it would have
been sufficient for her to settle a minor accident, like
bending a mailbox post, with a customer without also re-
porting it to her supervisor. He stated, however, that he
did not recall specifically discussing with Mannion the
reporting of accidents.
William Daniel "Dan" Harrison identified himself as
"Postmaster, Management Sectional Manager, Grand
Junction, Colorado." In that position he supervises 84
post offices located in western Colorado.
Harrison said he has been concerned with safety on a
"continuing basis" since he was appointed to his present
post on July 24, 1982. "Stand-up" safety talks are held
weekly, Harrison said. Safety is also a subject of Service
newsletter articles. On October 7, 1982, Harrison caused
the posting on official bulletin boards copies of Respond-
ent's Exhibit 2, the notice which advises "ALL EM-
PLOYEES" to report immediately "All accidents, either
industrial or vehicle, no matter how minor .... "
Copies of Respondent Exhibit 2 were also mailed to the
home of employees of the Postal Service in the Grand
Junction area, but Harrison was aware that some did not
receive copies by mail.
Garrison learned from Carrico on December 27 that a
rural carrier may have had an accident on December 24.
Garrison said he told Carrico to pursue the matter. Gar-
rison received an accident report around the end of the
month, and about January 5, 1983 signed General Coun-
sel Exhibit 6, the letter addressed to Mannion and pro-
posing her removal. Garrison asserted that it was he who
made the decision to terminate Mannion. Garrison testi-
fied, however, that the letter was prepared by Carrico
and that Garrison signed the letter without making any
changes.2 6 Garrison indicated that the discipline imposed
on Mannion was based on her failure to report an acci-
dent and the difficulty encountered in getting a report
with respect to it, not the accident itself. He said he uses
"personal judgment" in assessing discipline, noting that
some acts of misconduct (e.g., fighting, stealing) may call
for removal even if they are first offenses. Prior disci-
pline of an employee is also taken into account. In Man-
nion's case he said he took into account the fact that she
had been disciplined twice before within the previous 12
months. He thought she had sufficient notice of a duty to
report the December accident and that it appeared that
she was unwilling to abide by the rules and regulations
of the Postal Service.
Garrison identified the step 2 and 3 decisions (R. Exhs.
10 and 11, respectively) which were issued in connection
with the grievance filed on Mannion's behalf following
the issuance of her January 5, 1983 removal notice letter.
Garrison said the undated step 3 letter, which states that
Mannion's removal was unwarranted and that she is to
be restored to her position without backpay, was re-
ceived in his office on April 27.
Garrison said he became aware of Mannion's unfair
labor charge against the Grand Junction Post Office
shortly after it was filed in October 1982. He denied that
there was any connection between the charge and the
January 5, 1983 removal letter issued to Mannion. Said
Garrison: "I do not even recall the thought crossing my
mind that this is the person who has filed a NLRB
charge."
II. DISCUSSION AND CONCLUSIONS
A. The Weingarten Allegations
In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Su-
preme Court held that under Section 8(a)(1) of the Act
an employee who reasonably believes that an interview
will result in disciplinary action has the right, on request,
to be accompanied at the interview by a union represent-
ative. The complaint in the instant matter alleges that
Carrico denied Mannion's request for a union representa-
tive on July I and again on December 27.
The General Counsel indicates that the denial of Wein-
garten rights in July is more difficult, i.e., "harder," to
find than with respect to the December incident. The
record satisfies me that Mannion indeed reasonably be-
lieved that Carrico's questions on July I and in late De-
cember could well result in discipline. The difficulty
a2 Garrison stated that he discussed Mannion's discipline with certain
staff members but was uncertain with whom he spoke or just when.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the General Counsel's contention with respect to
Carrico's investigation of Mannion's accident on July I is
that Mannion never asked for a union representative.
The Supreme Court endorsed the Board's view that the
employee must request the presence of a representative
and "may forego his guaranteed right and, if he prefers,
participate in an interview unaccompanied by his union
representative." Although the complaint states that Re-
spondent denied "request of its employee, Mannion," the
record clearly shows that Mannion did not make a re-
quest for a union representative on July 6.27
The General Counsel's attorney argued at the hearing
that I should hold that Mannion's Weingarten rights had
been invoked "because of her physical and emotional
state she was unable to" ask for a representative herself.
The General Counsel reiterates the argument in her brief
but concedes that she has been "unable to provide a spe-
cific case on this rationale."
Mannion's predicament on July 1, when Carrico un-
dertook his investigation, arouses considerable sympathy.
Her head was hurting, she was sick to her stomach, and
she was dizzy. Carrico had to be aware that her physical
condition and mental state had been adversely affected to
an extent, and he knew that Mannion's husband wanted a
representative present. And patrolman Wulf proceeded
on his arrival to question her, pressing her to furnish a
statement that was turned over to Carrico. Still, I am
unable to find that Mannion was so incapacitated that
she did not know that she could request a representative.
She had been able to make her way to the Whitewater
Post Office after the accident and telephone the main
Post Office at Grand Junction for assistance.
Appalachian Power Co., 253 NLRB 931 (1980), cited by
Respondent, involved a factual situation somewhat analo-
gous to the investigation that Carrico undertook on July
1. There the Board held that a union steward, who had
been summoned by an employee to a superintendent's
office, where a disciplinary interview of the employee
and another person was to take place, could not invoke
the employee's Weingarten rights since the employee did
not "express a continued concern for union representa-
tion" by renewing his request or by insisting 'the steward
remain during the interview. The Appalachian Power case
is a stronger case for representation than Carrico's July 1
investigation. 28 Accordingly, I am constrained to find
that no Weingarten rights of Mannion were violated on
July 1.
Nor am I able to find that Carrico denied Mannion's
Weingarten rights on December 27. The record indicates
a7 I credit the testimony of the Mannions that Timothy Mannion re-
quested a union representative on July I over that of Carrico, who
denied that a request was made by either. The General Counsel's attor-
ney gave consideration to amending the complaint so as to allege that a
request was made for Mannion, but the General Counsel's problem with
respect to the July I investigation was a factual deficiency, not one of
pleading.
s8 And see Gulf States Mfg. Inc. v. NLRB, 704 F.2d 1390 (5th Cir.
1983), citing Lennox Industries v. NLRB, 637 F.2d 340 (5th Cir. 1981),
cert. denied 452 U.S. 963 (1981). Quoting from the court's opinion in
Lennox:
As long as one or more company officials are aware of the employ-
ee's desire and request for the presence of a union representative, a
single request will suffice for the multiple meetings which are part of
a "single interrelated epsiode," as here. [Emphasis added.]
that Carrico confronted Mannion that morning and
sought to question her about having an accident on De-
cember 24. She told Mannion that she had no accident
on December 24. I am persuaded that Carrico stopped
questioning her on December 27 when she advised him
that she wanted a representative present.
Carrico interviewed Mannion on December 29 with a
union steward present and was able to obtain the infor-
mation he wanted from her. No violation of Weingarten
rights occurred on that date or is alleged to have result-
ed from such interview.
Thus, it was not established that Mannion's Weingarten
rights were denied by the Postal Service on either July I
or December 27, 1982, and, therefore, the allegations of
paragraphs VII and VIII will be dismissed.
B. Other 8(a)(1) Allegations
The "chicken shit" statement which the complaint
avers as emanating from Carrico was not made by him
expressly. Both Mannions testified that Timothy Man-
nion on December 27 made a statement to the effect that
it was "chicken shit" for Carrico to be bothering the
Charging Party about a possible accident on December
24 and that Carrico responded, in effect, yes, "just like"
her going to the NLRB. 29 Carrico testified that Timothy
made the "chicken- shit" statement but denied that he
· made any response himself. I credit Mannion's testimony
that Carrico responded as the Mannions testified.
Carrico could certainly respond the way Mannion
claimed he did-at most only conveying the thought that
Timothy Mannion had stated in express terms in initiat-
ing the conversation-without violating the Act. Such a
statement by Carrico under the circumstances hardly
could be considered a threat or coercive in any way.
Paragraph VI(a) will be dismissed.3 0
Carrico's reprimand of Mannion about December 29
(actually December 28), for leaving her work station,
challenged in paragrah VI (b) of the complaint, was un-
lawful and will be proscribed. On December 28 Mannion
went to see Carrico, who was working that day in Harry
Apple's office, to obtain the telephone number of a rep-
resentative she wanted to be present at an interview on
the following morning. The evidence indicates Carrico
became quite upset when she entered the doorway with-
out knocking and then reprimanded her for leaving her
work station without first securing permission. Carrico
then sent Mannion and Charlotte Roth, who had accom-
panied Mannion, back to their work stations. Carrico fol-
lowed up his reprimand by instructing a temporary su-
pervisor Marty Munoz to inform Mannion to remain at
her case and not attempt to speak to Carrico that day.
I am persuaded that in reprimanding Mannion on this
occasion Carrico was acting in reprisal because Mannion
29 It is not absolutely clear what conduct of Carrico that Timothy
Mannion regarded as "chicken shit" on December 28. Carrico had sought
to question Mannion that day about a possible accident on December 24,
but he had also refused to allow her, at least at first, to go home on leave
following his attempt to question her. Timothy Mannion, in initiating the
conversation, was possibly upset at both actions of Carrico.
30 Carrico's comment was not without significance, however. As indi-
cated, infra, it provided insight as to Carrico's motivation in later recom-
mending Mannion's termination.
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POSTAL SERVICE
had declined to be interviewed without a representative
present. The reprimand was also discriminatory as the
past practice at the 'Grand Junction Post Office had
been, as Roth credibly testified, for employees to be able
to leave their work stations for brief periods without ex-
press permission of their supervisors. Cf. Keller Mfg. Co.,
237 NLRB 721 (1978), modified 106 LRRM 2546 (7th
Cir 1980), cited by the General Counsel.
C. Mannion's Suspension
The record persuades me that the charge Mannion
filed with the Board in October 1982 motivated Carrico's
January 1983 recommendation that she be disciplined for
the December 24 incident. I am not persuaded that Man-
nion's membership in the Union or any of her activities
on behalf of any union were in any way involved in the
decision to discipline her. I find, therefore, that Respond-
ent violated Section 8(aX4) in suspending Mannion in
January 1983 but not Section 8(a)(3).31
I am inclined to agree with the General Counsel's at-
torney that the December 24 incident did not involve a
reportable accident. More to the point, I find she be-
lieved reasonably that there was no duty on her part to
make a report to the Postal Service of the December 24
incident. An accident does not always occur whenever a
vehicle touches another object, and Respondent's notices
and regulations do not alter that fact. As previously
noted, "accident" is defined in Respondent's own super-
visor's safety handbook (G.C. Exh. 9) as follows:
An accident is an event which results from, or is in-
cident to, postal operations and results in injury to
persons or damage to property regardless of who is
injured, ownership of property, cause, severity or
location of the accident.
The December 24 incident, as shown by this record, in-
dicates that there was no accident even under Respond-
ent's rules. There was no injury to any person and no
damage to any property, real or personal. Further, no
Postal Service customer complained about the incident.
Carrico himself indicated that whether an accident has
occurred may be difficult to determine in some situations
as it can be "really a vague thing."
But whether the December 24 incident involved an ac-
cident or not under Respondent's rules and regulations is
not dispositive. I am persuaded that in recommending
disciplinary action against Mannion in January 1983 Car-
rico was motivated by the fact that Mannion had filed a
charge against him and the Service in October. The
record may not show that "a gleam" appeared in Carri-
co's eyes when he learned of the December 24 incident,
as the General Counsel's attorney argues, but it does per-
suade me that Carrico was desirous of repaying Mannion
for the trouble she had caused him, including the filing
of her charge against him in October 1982. He wa ready
to report almost immediately that Carrico's vehicle sus-
tained damage in the December 24 incident; after learn-
ing there was none he nevertheless recommended serve
31 I agree with Respondent that there is no credible evidence of
record of any union animus on the part of the Postal Service.
punishment-in the form of termination.sa Postmaster
Garrison adopted the recommendation of Carrico with-
out change as his own and made it the decision of the
Postal Service. The allegations of paragraphs IX and
XIII were sustained.
Based on the foregoing, I make the following
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent.
2. The Rural Letter Carriers Association is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. Through T. J. Carrico, Respondent violated Section
8(a)(1) of the Act by discriminatorily reprimanding
Latrisa Joy Mannion for leaving her work station with-
out permission.
4. Respondent suspended Latrisa Joy Mannion in Janu-
ary 1983 for filing a charge with the National Labor Re-
lations Board and thereby violated Section 8(a)(1) and
(4) of the Act.
5. No other violation of the Act was established.
REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of the Act, I find it necessary to
order Respondent to cease and desist therefrom and take
specific action designed to effectuate the policies of the
Act. I will recommend Respondent be ordered to make
Latrisa Joy Mannion whole for any loss of earnings suf-
fered by reason of the discriminatory suspension, with in-
terest. Backpay is to be computed in the manner set forth
in F W. Woolworth Co., 90 NLRB 289 (1950); Isis Plumb-
ing Co., 138 NLRB 716 (1962); and Florida Steel Corp.,
231 NLRB 651 (1977). I shall also recommend that Re-
spondent be ordered to expunge from its files and
records any reference to any discipline in connection
with the December 24, 1982 incident.
On the basis of the foregoing findings of fact and con-
clusions of law and on the entire record, I issue the fol-
lowing recommended33
ORDER
The Respondent, United States Postal Service, Grand
Junction, Colorado, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discriminatorily reprimanding employees for leav-
ing their work stations or in any like or related manner
interfering with, coercing, or restraining employees in
the exercise of the rights guaranteed in Section 7 of the
Act.
(b) Suspending, or otherwise discriminating against,
employees for filing charges with the National Labor
Relations Board.
a2 Mannion recalled during her direct testimony that on an occasion
prior to her July 1982 accident Carrico had indicated to her that employ-
ees who file grievances are troublemakers and "get it right back."
as 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.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Make Latrisa Joy Mannion whole for any loss in-
curred by her as a result of her unlawful suspension in
January 1983, any backpay to be paid her to be comput-
ed in the manner set forth in the remedy section of this
decision.
(b) Expunge and physically remove from its files and
records the January 1983 suspension issued to Latrisa
Joy Mannion and any reference thereto.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Grand Junction Post Office copies of the
attached notice marked "Appendix." s3 4 Copies of the
notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
34 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
908