Postal Service

National Labor Relations Board - Board Decisions

Apr 30, 1991

302 N.L.R.B. 701 (N.L.R.B. 1991)

701
302 NLRB No. 105
POSTAL SERVICE
1 Although the complaint alleged that Branch 193 and the Union separately
violated Sec. 8(b)(1)(A), in her findings and conclusions of law, the judge ap-
peared to treat the national organization and the local as the same entity. The
Union has excepted to this aspect of the judge’s reasoning. We find merit in
the Union’s exception and will analyze separately the facts relating to the alle-
gations that Branch 193 and the Union refused to supply employees with in-
formation.
2 The Postal Service has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 The judge’s decision describes the anniversary date and the maintenance
of records of that date in greater detail. Briefly, the judge found that prior to
May 1987, the dated form 1187 was destroyed by the PDC once the date had
been entered into the computer and a record of the date was not forwarded
to the Union, the branch of the Union, or the employing installation.
4 All subsequent dates are in 1987.
5 It is unclear whether Silvia knew that the proper procedure was to submit
the form 1188s to the postmaster. At one point in his testimony, Silvia stated
that he did not submit the forms to Cicala because of concerns about whether
Cicala would be efficient in processing them; he later stated that he thought
that the forms were to be sent directly to the PDC.
United States Postal Service and Frank J. Silvia
National Association of Letter Carriers, Branch No.
193 and Frank J. Silvia
National Association of Letter Carriers and Frank
Silvia. Cases 32–CA–9189(P), 32–CB–2785, and
32–CB–2820
April 30, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 30, 1988, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent Postal Service and the Respondent
National Association of Letter Carriers (the Union)1
filed exceptions and supporting briefs; the General
Counsel filed an answering brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this deci-
sion.
1. The judge found that the Postal Service violated
Section 8(a)(1) and the Union and Branch 193 violated
Section 8(b)(1)(A) by failing to provide employees, on
request, with the anniversary dates of their authoriza-
tions for deduction of union dues. We disagree.
The facts, as found by the judge or as
uncontroverted in the record, follow. The Postal Serv-
ice and the Union were at all relevant times parties to
a national agreement that did not require unit employ-
ees to join the Union but did require the Postal Service
to check off dues for union members who had author-
ized checkoff. The Union, in turn, required all mem-
bers to sign a form 1187 authorizing checkoff, which
was filed with the Postal Service. An 1187 authoriza-
tion is irrevocable for successive 1-year periods unless
revoked by the member between the 20th day and the
10th day before the member’s ‘‘anniversary date,’’ the
date stamped on the form 1187 by the Postal Service’s
regional Postal Data Center (PDC) at the time of re-
ceipt.3 To revoke the 1187 checkoff authorization, an
employee must fill out form 1188, obtainable through
the Postal Service, and submit it to the postmaster (or
equivalent) at the facility where he or she works. The
postmaster then signs and dates the form 1188 and it
is forwarded to the PDC. If the PDC receives the form
1188 within the window period, it processes the em-
ployee’s revocation. If the PDC receives the revocation
outside the window period, it returns it to the post-
master together with the anniversary date. The events
giving rise to the instant allegations were set in motion
in February 1987,4 when eight unit employees at the
Milpitas, California post office, including Silvia,
Camacho, and Marley, met to discuss concerns about
the Postal Service’s Employee Involvement Program
(EIP). The employees placed a letter in the facility
suggestion box urging that the EIP be discontinued and
invited Milpitas Postmaster Cicala to meet with them.
Cicala initially agreed to a meeting but changed his
mind when he discovered that many employees wished
to attend. On May 27, Marley, Camacho, and another
employee collaborated on another note suggesting that
the EIP be discontinued. Camacho initialed the note,
which was placed in the suggestion box.
Employee meetings critical of the EIP and the
Union’s involvement in it continued. At the May 21
meeting, all employees present signed a letter of res-
ignation from the Union and completed, individually,
form 1188s, revoking their checkoff authorizations.
Silvia collected the forms and mailed them as a group
to the Minneapolis PDC about June 9.5 In due course,
the data center sent the unprocessed form 1188s to Ci-
cala for processing. Cicala testified that when he re-
ceived the forms he realized that many of the forms
would not be timely if he resubmitted them, so he
asked Branch 193 President Cortese for the resignees’
anniversary dates. Cortese replied that he did not have
access to the dates. Cicala then called the PDC in San
Jose, which instructed him to reproduce form 1188,
which had been revised on May 28, from the postal
service bulletin so that the employees could resubmit
their revocations. Cicala returned the 1188s to the em-
ployees, with a note reading in part: ‘‘The attached SF
1188 and instructions on the proper procedure are re-
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Sec. 913.51 (Voluntary Revocations) of Postal Bulletin 21621 outlines the
procedure for revoking 1187-checkoff authorizations.
7 Silvia sent Cortese a certified letter asking for the anniversary dates.
Cortese refused to accept the letter. The General Counsel has not alleged that
Cortese’s failure to respond to Silvia’s letter contributed to an unlawful pattern
of conduct.
turned to you for compliance with Postal Bulletin
21621 dated 5/28/87.’’6
After he got his form 1188 back from Cicala, Silvia
asked him for a revised form 1188 and for the anniver-
sary dates of all the resignees. Cicala told Silvia that
he did not have the anniversary dates or the revised
forms, that he did not know when he would get the
forms, and that Silvia should see the Union for the
dates. Later that day Silvia received a revised form
1188. Marley similarly sought his anniversary date un-
successfully from his supervisors and other manage-
ment officials. In response, Cicala told him that he had
checked his personnel file and it did not contain the
date. Marley also asked for and later received a revised
form 1188.
The judge found that Cicala unlawfully withheld
from unit employees information regarding the proper
procedure for obtaining the anniversary dates. The
judge, in finding that Cicala could have provided the
employees with the dates, cited testimony by Personnel
Assistant Medlin of the San Jose personnel office that
clerks in that office will inform callers of anniversary
dates over the telephone. The judge also pointed to Ci-
cala’s failure to tell employees, when he returned the
form 1188s, the proper procedure for processing them.
We disagree with the judge’s analysis. Assuming the
Postal Service had a duty to provide employees with
such information, we find that the General Counsel has
not established that Cicala breached such a duty. In
our view, the General Counsel has failed to show that
Cicala had access to the dates or that he knew or
should have known that employees could get the dates
simply by telephoning San Jose. In fact, as noted
above, the record contains uncontradicted evidence,
and the judge found, that the Milpitas facility’s files
did not contain the anniversary dates. Further, while
we do not doubt Personnel Assistant Medlin’s state-
ment that she answers telephone requests for the dates,
we cannot infer from her testimony that the Postal
Service has established such a policy, or even that the
other clerks at the San Jose facility consistently di-
vulge such information over the telephone. Thus, we
find no evidence that Cicala knew or should have
known of a ‘‘short-cut’’ for getting the dates and with-
held it from employees. Further, we find that the Gen-
eral Counsel failed to demonstrate that Cicala withheld
the information he did have for any meaningful length
of time from any employee who requested it. In this
regard, Marley and Silvia both testified that they asked
Cicala for the revised form and that he stated that he
did not have one. Both testified, however, that they re-
ceived a copy of the form the same day. Cicala’s testi-
mony that he put the form on Silvia’s desk is
uncontroverted. Finally, we observe, contrary to the
judge, that Cicala’s note accompanying the returned
form 1188s did give employees the information nec-
essary to process the revocation, as it referred them to
the appropriate postal bulletin. Accordingly, we dis-
miss this allegation of the complaint.
2. The complaint further alleged, and the judge
found, that both Branch 193 and the Union violated
Section 8(b)(1)(A) by failing to provide employees
with information about their anniversary dates. Again,
we disagree and dismiss these allegations.
As set forth by the judge and further developed in
uncontroverted testimony, in early June, some weeks
after Cortese had been informed of the resignations,
Marley twice informed Cortese that he and others who
had resigned from the Union were having problems
processing the form 1188s and asked if Cortese could
supply the anniversary dates. Cortese stated that he did
not have the dates and told Marley that the proper pro-
cedure was to file the 1188 with the Milpitas post of-
fice, which would forward the form to the Postal Serv-
ice, which in turn would either process the form or
supply the date.7 The judge reasoned that Cortese
knew or should have known of the ‘‘short-cut’’ proce-
dure for learning the anniversary dates outlined by
Medlin, and that his failure to disclose this information
had the effect of misleading employees. As in the case
of Postmaster Cicala, we find no basis for concluding
that Cortese either knew or should be charged with
knowing about any other method of obtaining anniver-
sary dates than the one he described to Marley.
With regard to the Union, on June 28 Silvia wrote
the Union’s headquarters in Washington, D.C., seeking
the anniversary dates for all those who had resigned
from the Union and citing the appropriate postal bul-
letin. The Union’s treasurer responded by informing
Silvia that it had referred the matter to a regional
union office. In that regard, Dale Hart, assistant admin-
istrator for the Union’s San Francisco region, testified
without contradiction that Silvia’s letter was forwarded
to him and that he had concluded after reading the let-
ter and discussing the matter with Cortese that the
problem, for all practical purposes, had been resolved,
as the letter referred explicitly to the postal regulation
describing the procedure for revoking the checkoff au-
thorization. We do not find unreasonable either the
Union’s response to Silvia’s letter or Hart’s investiga-
tion of the matter and conclusion that the problem had
been solved. Hart ascertained correctly that the em-
ployees had all the information at NALC’s disposal.
Thus, we do not find that the Union withheld informa-
tion from employees and we do not find that the
Union’s handling of Silvia’s request coerced employ-
703POSTAL SERVICE
8 The record also indicates that Cicala was not carrying out Postal Service
policy in this respect, as he testified without contradiction that he was cau-
tioned by postal service management not to hesitate to permit 204B’s to dis-
cipline unit employees.
ees in the exercise of the Section 7 right to revoke
checkoff authorizations. Thus, we dismiss the
8(b)(1)(A) allegations against Branch 193 and the
Union.
3. The complaint also alleges, and the judge found,
that the Postal Service violated Section 8(a)(1), (2),
and (3) of the Act by continuing to withhold and remit
dues from the resignees’ paychecks after they resigned
from the Union. The complaint additionally alleges,
and the judge found, that the Union and Branch 193
have violated Section 8(b)(1)(A) of the Act by con-
tinuing to accept union membership dues withheld
from employees’ paychecks after they resigned from
the Union. We reverse.
In Postal Service, 302 NLRB 332 (1991), the Board
reconsidered the effect of an employee’s resignation
from union membership of his dues-checkoff author-
ization under the Postal Reorganization Act (PRA).
Relying on the ‘‘plain meaning of the irrevocability
provision’’ of Section 1205(a) of the PRA, and using
legislative history and prior governing authority for
guidance, the Board concluded that, unlike Section 302
of the Labor Management Relations Act, the PRA re-
quires a period of checkoff irrevocability. The Board
determined that Section 1205 requires the Postal Serv-
ice to honor a checkoff authorization’s irrevocability
period if it is not for more than a year, notwithstanding
the employee’s resignation from union membership
during that period. Accordingly, it is not a violation of
an employee’s Section 7 rights for the Postal Service
or labor organizations representing postal employees to
continue to give postresignation effect to a dues-check-
off authorization if the checkoff revocation is not made
within the prescribed time periods for revocation, and
if the irrevocability period is not more than a year.
Accordingly, we find that the Respondents did not
violate the Act as alleged.
4. The judge also found that the Postal Service vio-
lated Section 8(a)(3) and (1) by removing Camacho
from the 204B training program in retaliation for en-
gaging in protected concerted activities. The Postal
Service excepts, arguing that by virtue of his participa-
tion in that program, Camacho was a statutory super-
visor. The Postal Service argues that the Board has es-
tablished that individuals in the 204B training program
are supervisors who have ‘‘the same authority as per-
manent supervisors and can discipline employees and
adjust grievances on behalf of the Postal Service.’’
Letter Carriers, 240 NLRB 519, 519 (1979); see also
Postal Service, 275 NLRB 360 (1985). We find merit
in this exception and we dismiss the allegation.
The 204B program is an on-the-job training program
in which unit employees substitute for supervisors
under the guidance of a regular supervisor. Employees
in the 204B program are paid at the supervisory rate
and punch a separate timeclock when performing 204B
duties. The record discloses that 204B trainees do the
mail count, assign help for carriers not willing to work
overtime, compute each carrier’s projected return time,
and assign carriers to work overtime when necessary.
Although 204B program trainees have the authority to
discipline unit employees, the trainees at the Milpitas
facility have not done so as Cicala did not require
them to discipline employees until late in the 204B
program, because he considers that the most difficult
aspect of the job.8 In all other respects, however, the
record indicates that 204B trainees at Milpitas perform
all the tasks of permanent supervisors.
In the spring of 1987 Cicala encouraged Camacho to
apply for the 204B program. Camacho was accepted
and began work as a 204B trainee about April 16. He
received a favorable evaluation of his 204B work in
mid-May. On June 1 Cicala dismissed Camacho from
the program on learning that Camacho had signed the
suggestion, described above, that the EIP be disbanded.
Cicala told Camacho that his participation in the sug-
gestion that a management program be discontinued
indicated that Camacho could not be loyal to manage-
ment.
The judge rejected Cicala’s testimony that he re-
moved Camacho from the program because he was
dissatisfied with his performance and concluded that
removing Camacho from the program violated Section
8(a)(3) and (1). She rejected the Postal Service’s argu-
ments that 204B trainees are statutory supervisors. She
found that the duties of the 204B trainees are routine
and do not require independent judgment and that
there was no evidence that these employees had the
authority to discipline other employees or to adjust
their grievances. In our view, the Postal Service has
demonstrated that the 204Bs at Milpitas, no less than
the 204Bs at other installations, have been invested by
the Postal Service with the authority to discipline em-
ployees and adjust their grievances. We find that the
evidence adduced by the General Counsel that Cicala
did not require the 204B trainees to discipline employ-
ees at the early stages of their training is not sufficient
to distinguish this case from Letter Carriers, supra, in
which the Board held that 204B trainees are super-
visors. Thus, ‘‘[o]nce [an employee] becomes a tem-
porary supervisor, he is no longer an ‘employee’ with-
in the meaning of Sec. 2(3) of the Act.’’ 240 NLRB
519, 523 fn. 18. Accordingly, Cicala’s action of dis-
missing Camacho from the program does not constitute
restraint or coercion of employees in violation of Sec-
tion 8(a)(3), as Camacho at that point had lost the pro-
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 We do, however, agree with the judge that the Postal Service violated Sec.
8(a)(1) by coercively interrogating employee Gibson about his and others’
union or protected concerted activities, in connection with Gibson’s efforts to
join the program. In this regard, we note that the interrogation of Gibson oc-
curred before he entered the program. Thus, he was still an ‘‘employee’’ under
Sec. 2(3) at the time.
10 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
tection of the Act.9 Accordingly, we dismiss this alle-
gation of the complaint.
AMENDED CONCLUSIONS OF LAW
1. The United States Postal Service is subject to the
jurisdiction of the National Labor Relations Board by
virtue of 39 U.S.C. § 1209 (a).
2. The National Association of Letter Carriers and
National Association of Letter Carriers, Branch 193 are
labor organizations within the meaning of Section 2(5)
of the Act.
3. By interrogating employee Lumont Gibson con-
cerning union or other protected concerted activities,
the Postal Service has violated Section 8(a)(1) of the
Act.
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Milpitas,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
union or other protected concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Milpitas, California, copies
of the attached notice marked ‘‘Appendix.’’10 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate you concerning
your union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
UNITED STATES POSTAL SERVICE
Karen Clopton, Esq. and Charles Pernal, Esq., for the Gen-
eral Counsel.
Arline Tyler, Esq., of San Bruno, California, for Respondent
Postal Service.
Devon Lee Miller, Esq., of Washington, D.C., for Respond-
ent Union.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was heard before me in Oakland, California, on April
26 and 27, 1988. The original charge in Case 32–CA–
9119(P) was filed by Frank J. Silvia, an individual (Silvia),
and served on Respondent United States Postal Service
(Postal Service) on September 25, 1987, and a first amended
charge in Case 32–CA–9189(P) was filed by Silvia on No-
vember 6, 1987, and served on the Postal Service on Novem-
ber 9, 1987. The charge in Case 32–CB–2785 was filed by
Silvia and served on National Association of Letter Carriers,
Branch No. 193 (Branch 193) on September 3, 1987. The
charge in Case 32–CB–2820 was filed by Silvia and served
on National Association of Letter Carriers (NALC), on Octo-
ber 26, 1987. The amended consolidated complaint, which
issued on February 19, 1988, alleges that the Postal Service
has violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act), and that Branch 193 and NALC
have violated Section 8(b)(1)(A) of the Act.
The basic issues herein are:
(1) Whether the Postal Service violated Section 8(a)(1)
and (3) of the Act by removing Anthony Camacho from the
204B program because of his protected concerted activity.
(2) Whether the Postal Service violated Section 8(a)(1)
and (2) of the Act by deducting, and remitting to the Union,
union dues after employees had resigned from the Union.
(3) Whether the Postal Service violated Section 8(a)(1) of
the Act by interrogating an employee and by refusing to pro-
vide employees, upon their request, with the anniversary
dates of their authorizations for deduction of union dues.
(4) Whether NALC and Branch 193 (collectively called
the Union), violated Section 8(b)(1)(A) by accepting union
membership dues withheld by the Postal Service from em-
705POSTAL SERVICE
1 Currently the Form 1187 is kept in the employee’s personnel folder for
2 years.
2 Currently these anniversary date are made available to the Union.
3 There is no evidence that employees were informed of this procedure.
Prior to then, this information could only be obtained from the Postal Data
Center.
ploye’s pay notwithstanding the employees’ resignation from
membership in Branch 193, and by failing and refusing to
provide employees, upon their requesy with the anniversary
dates of their authorizations for deduction of union dues.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Postal Service provides postal services for the United
States of America and operates various facilities throughout
the United States in the performance of that function, includ-
ing a facility in Milpitas, California, which is the only facil-
ity involved in this proceeding. The Board has jurisdiction
over Respondent Postal Service by virtue of the provisions
of Chapter 12, Section 1209, of the Postal Reorganization
Act, 39 U.S.C. Section 101 (PRA).
II. LABOR ORGANIZATION
The complaint alleges, Respondents admit, and I find that
NALC and Branch 193, each is now, and has been at all
times material herein, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Procedure for Authorization and Revocation of
Payroll Deduction for Union Dues
The Postal Service and are NALC parties to a 3-year col-
lective-bargaining agreement which expires in 1990 and cov-
ers, inter alia, employees at the Milpitas post office. The
Milpitas post office is in the jurisdiction of Branch 193. The
contract does not require employees to become members of
the Union, however, it does require that the Postal Service
deduct, and remit to the Union, union dues from the pay of
employees who are members of the Union and have signed
an authorization for deduction of union dues, which shall be
irrevocable for a period of not more than 1 year. The con-
tract also provides the language to be used in such authoriza-
tion.
As a condition of membership, the Union requires each
applicant for membership to sign a Form 1187, Authorization
for Deduction of Dues, which provides, inter alia:
AUTHORIZATION FOR DEDUCTION OF DUES
. . . .
I hereby assign to the National Association of Letter
Carriers, AFL–CIO from any salary or wages earned or
to be earned by me as your employee (in my present
or any future employment by you) such regular and
periodic membership dues as the union may certify as
due and owing from me, as may be established from
time to time by said Union. I authorize and direct you
to deduct such amounts from my pay and to remit same
to said Union at such times and in such manner as may
be agreed upon between you and the Union at any time
while this authorization is in effect, which includes a
$8.00 yearly subscription for the Postal Record as part
of the membership dues.
This assignment, authorization and direction shall be
irrevocable for a period of one (1) year from the date
of delivery hereof to you, and I agree and direct that
this assignment, authorization and direction shall be
automatically renewed, an shall be irrevocable for
succesive periods of one (1) year, unless written notice
is given by me to you and the Union not more than
twenty (20) days and not less than ten (10) days prior
to the expiration of each period of one (1) year.
The form also has a space for notation of date of delivery
to employer. This date of delivery is commonly referred to
as the anniversary date.
The Form 1187 is signed by the new member in quadruple
and given to a Branch 193 representative. According to An-
thony Cortese, president of Branch 193, the financial sec-
retary of Branch 193 makes an unofficial notation of the date
of delivery to the employer for the sole purpose of moni-
toring whether the new member’s dues deductions are remit-
ted to the Union in a timely fashion. Thereafter, the original
of the Form 1187 is delivered to the Postal Service personnel
office by either the financial secretary or Cortese. The date
of delivery notation made by the financial secretary does not
always correspond with the actual delivery date. The second
copy is sent by the secretary of Branch 193 to NALC na-
tional headquarters. The third copy is kept by Branch 193
and the fourth copy is sent to the member with a copy of
the Branch 193 bylaws and other materials.
When the Form 1187 is delivered to the Postal Service’s
local DDE-DR office (Distributed Data Entry/Distributed Re-
porting), which functions as a personnel office, it is machine
date-stamped. That date is the member’s official anniversary
date. Prior to May 1987, once DDE-DR entered the informa-
tion from the Form 1187 into the computer and verified it,
the Postal Service destroyed its copy of the form. However,
since May 1987, DDE-DR sends the original of a Form 1187
to the installation where the member is employed for filing
in the employee’s personnel file.1 The Branch also destroys
its copy of the Form 1187 once the membership is processed
through the NALC headquarters. NALC headquarters de-
stroys its copies of the Form 1187 after 3 years. During the
period of time relevant herein, the Postal Service never noti-
fied the Union of a member’s anniversary date.2
As set forth above, the authorization for dues deduction
can only be revoked during a window period of not more
than 20 days and not less than 10 days prior to a member’s
anniversary date. If an employee wishes to revoke his/her
dues deduction authorization, he/she must obtain a copy of
Form 1188, ‘‘Cancellation of Payroll Deductions For Labor
Organization Dues,’’ from the Postal Service and submit the
signed form to the head of the installation at which he/she
works. Also, the employee, according to Postal Service as-
sistant Patty Medlin, must send a copy of the signed form
to NALC headquarters. For the past 3 years, employees have
been able to obtain their anniversary dates by telephoning the
DDE-DR office.3 Also, if a member submits a Form 1188
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Silvia had been a branch president, branch vice president, and union stew-
ard.
5 The account of these meetings is from the uncontradicted testimony of
Gerald Marley, which I credit.
outside of the appropriate window period, the form is re-
turned to the employee with a notation of the employee’s an-
niversary date and instructions that the form can be resub-
mitted within 10 to 20 days of that date.
B. The Resignations from the Union
On February 19, 1987, eight employees from the Milpitas
Post Office met after work to discuss some of their concerns
with regard to working conditions. The principal concerns
discussed in this and subsequent meetings were the Employ-
ment Involvement Program (EI), and the perceived lack of
representation by the Union. Among those present at the
meeting were Anthony Camacho, Frank Silvia, and Gerald
Marley. During the course of this meeting the employees
signed a letter, the body of which reads:
I suggest due to repeated failure to address meaningful
issues, and the lack of majority support, that we, the
employees of the Milpitas post office and members of
the Carrier Union, reject and discontinue the EI pro-
gram in its entirety. I urge at least a public vote to con-
firm or deny this suggestion.
Each of the eight employees signed the letter, and it was
placed in the EI suggestion box. The employees at this meet-
ing also decided to invite Postmaster Vincent Cicala to meet
with them to discuss various problems.
On the following morning, Silvia told Cicala that a group
of employees would like to meet with them to discuss certain
events that had occurred in the preceding weeks. Cicala
agreed, but said the meeting could not be held on the clock.
He suggested meeting at a pizza place and promised to buy
the beer. Silvia agreed and said he would relay the informa-
tion to the group.
At a meeting held the following day, the group of employ-
ees accepted Cicala’s suggestion that they meet in pizza par-
lor. Silvia arranged a room at the Round Table Pizza Parlor
in Milpitas and posted signs announcing the meeting. How-
ever, when Silvia told Cicala he had arranged a meeting to
be held later that week, Cicala said he understood that a lot
of employees had expressed an interest in the meeting and
he would not meet in a town hall atmosphere. Silvia said
fine, there would not be a meeting. Cicala then accused
Silvia of being responsible for the suggestion to disband the
EI program. He said the suggestion was rresponsible and
demonstrated that only management was supporting the pro-
gram not the employees.
Cicala further said Silvia had been very pushy, in his past
dealings as a union officer,4 that he liked Silvia but did not
like what he stood for and what he did. Cicala said he was
aware Silvia felt that Cicala and Branch 193 President An-
thony Cortese worked together too closely. He said it did not
matter what Silvia thought, that he would continue that rela-
tionship as long as it provided him the results he desired. Ci-
cala further said the EI program was very important to the
Postal Service and would remain in effect regardless of what
employees thought and despite whether Silvia liked it.
Another employee meeting was held on March 12. Ap-
proximately 26 employees were present. They discussed the
attitude of management, the working conditions during the
past month, the inspection and audit the facility had recently
undergone, and individual grievances. Three main problem
areas were identified—Cicala’s poor attitude, lack of rep-
resentation by the Union, and the EI program which they felt
did not meet its goals and objectives and did not provide
them with any channel of communication. A majority of the
employees present favored signing a letter suggesting that the
EI program be disbanded or that a vote be held in this re-
gard. However, one employee persuaded them they should
try the program for 60 days, participate in the process by
submitting suggestions and, if they did not receive an ade-
quate response, they could take later action with regard to at-
tempting to disband the program.
Another meeting was held on April 16. Approximately 24
employees attended. The same issues were discussed as had
been discussed in the previous meetings. They also discussed
the fact that the Union had not responded to a letter from
the group which was sent following the March 12 meeting.
Another meeting was held on May 21. Thirty-six clerks
and letter carriers from the Milpitas facility were present. By
that time, Cortese had responded to the group’s March 12
letter. They discussed that response, and a statement prepared
by employee Gerald Marley in response thereto. Cortese’s
letter intimated that the problems at the facility centered
around Silvia rather than the employees. Marley’s proposed
response essentially defended Silvia. During the course of
that meeting, the employees decided to resign from the
Union, and all of the employees present signed a resignation
dated May 21, 1987, which reads:
The following members of Branch 193, NALC, ef-
fective this date resign as members of this union
A full dues return is requested for any periods prior
to revocation of dues withholding through the Data
Center.
Each employee also filled out a Form 1188 at that meeting.
Marley collected the Form 1188s and assembled them into
a package for mailing to the Postal Data Center in Min-
neapolis, Minnesota.5
On March 27 Marley, Camacho, and employee Eldefonso
Roldan presented the resignation petition to Cortese at a
Branch 193 executive board meeting. According to Marley,
Cortese looked at the resignation petition and handed it to
Vice President Dan Laughin. Laughi asked, ‘‘What can we
do to settle these problems?’’ and some general discussion
ensued. Marley then asked Cortese if he was going to accept
the petition and honor the date on the petition for the pur-
pose of dues refunds to the member who signed it. Cortese
said the Union would honor that date. He further said, ‘‘We
don’t need your damn dues and we don’t need you and if
you want out, you are out.’’ He again said he fully intended
to refund dues as of the date on the petition.
Cortese admits that on May 21 he agreed that he would
honor the resignations. He also admits he saw the second
sentence of the resignation petition which reads: ‘‘The full
dues return is requested for any periods prior to revocation
of the dues withholding through the Data Center.’’ Accord-
ing to him, when Marley handed him the petition he said,
‘‘Hey, if that’s what you guys want, you’re gone.’’ He ad-
707POSTAL SERVICE
6 Cortese admits that he received copies of the 1188s with a letter stating
that the Form 1188s had been forwarded to Minneapolis.
mits he may have said, ‘‘If you want to be a scab, you’re
going to be a scab.’’
After the meeting, Marley, Camacho, and Roldan went to
Marley’s house to discuss the events of the evening. They
also discussed the EI program and drafted another suggestion
which was written by Roldan. Marley suggested that
Camacho sign it, and Camacho placed the initials ‘‘A.J.’’ at
the bottom of the page, referring to his first and middle
name, Anthony John.
C. The Attempted Revocation of the Authorizations for
Payroll Deduction of Union Dues
On about June 9 Silvia sent 30 signed copies of Form
1188, the Postal Service’s dues-checkoff revocation form to
the Postal Service Data Center in Minneapolis, Minnesota,
with copies to Branch 193.6 The forms were returned by the
Minneapolis Data enter to Cicala in his capacity as installa-
tion head. According to him, when he received the 30 Form
1188s from the Data Center, he realized that all of them ob-
viously would not fall within the window period so that,
even upon resubmission on the revised form, some of the
forms would ultimately be returned He therefore called
Cortese and asked if he could supply the anniversary dates.
Cortese said he did not have the dates. He then called the
Personnel Office (DDE-DR) in San Jose and was told they
could not comply with his request for a computer printout
showing the anniversary dates. He was also advised that the
revised Form 1188 should be reproduced fram the Postal
Bulletin so that each employee, who wished to do so, could
resubmit a revised Form 1188 and, as each form was re-
ceived, the DDE-DR office would process it.
On June 18, Cicala returned to each employee his signed
Form 1188 with a note stating, ‘‘The attached SF 1188 and
instructions on the proper procedure are returned to you for
compliance with Postal Bulletin 21621 dated 5/28/87. You or
your representative should submit the proper form.’’ There-
after, Silvia secured, from his supervisor Kathy Sheehan, a
copy of the referenced postal bulletin which provides at para-
graph 913.5.51(b):
b. An employee using the revised SF 1187 described
in 913.412 may only cancel by submitting written no-
tice (Form 1188) to the installation head and via cer-
tified mail to the organization’s national office not
more than 20 days and not less than 10 days prior to
the anniversary date (date of the delivery to employer).
Form 1188 must be date stamped upon receipt. It is this
date that will be used to determine if the cancellation
request was received in accordance with the above re-
quirements. Example: Assume an anniversary date of
December 1. The employee signs and dates Form 1188
on November 10 and certifies that Copy 3 of the form
has been sent to the organization’s national office by
certified mail. To comply with the 20/10 day require-
ment specified above, the employing office must re-
ceive and date-stamp part B of the form between No-
vember 11 and November 21. If the DDE/DR site re-
ceives all three copies of Form 1188 the entire form is
returned to the employee with the reason(s) noted. The
20/10 day rule is a requirement of the revised SF 187,
which can be waived only by the union.
Nothing in that section, or in the bulletin, mentions the pro-
cedure described to Cicala that if the forms were submitted
outside of the window period they would be returned to the
employee with a notation showing the employee’s anniver-
sary date. Cicala admits that he has not given any employee
at the Milpitas facility his/her anniversary date.
On June 18 Silvia asked Cicala for copies of the revised
Form 1188. Cicala said he did not have the revised forms
and did not know when he would be able to obtain them.
Silvia asked Cicala if he had the anniversary dates. Cicala
said, ‘‘I don’t have that information.’’ Silvia asked Cicala if
he would attempt to secure the information. Cicala said,
‘‘That information is not in your files. I don’t have that in-
formation.’’ Silvia asked Cicala to check with his superiors
over at the personnel office. Cicala replied, ‘‘See your
union.’’ However, later that day when Silvia returned to the
facility from his street duties, a photocopy of the Form. 1188
in the postal bulletin was on his desk. He does not know
who put it there. The postal bulletin was effective May 28.
Marley testified that when his Form 1188 was returned to
him, he asked a floor supervisor, either Mark Polk or Joe
Haruchi, for his anniversary date, stating that he needed it in
order to resign from the Union. Within 1 or 2 days, after he
had received no information, he went to Manny Cisneros,
who is second in command at the Milpitas facility, told him
he wanted to resign from the Union and had requested his
anniversary date from his floor supervisor but had not been
provided with it. Marley asked if there was anything
Cisneros could do. Cisneros said he would get back to him.
Thereafter, Cicala approached Marley and said, I understand
you have requested your anniversary date. Marley agreed that
he had. Cicala said, ‘‘I looked in your personnel file and it
is not there.’’ Marley said that seemed strange, that he
thought the Postal Service was required to keep the anniver-
sary date in the personnel file. Cicala said he knew nothing
about any such rule and walked away.
Marley testified that he also requested his anniversary date
from Cicala and asked Cicala for a revised Form 1188. He
was given a photocopy of the form in the postal bulletin. Ac-
cording to Marley, the postal bulletin mentioned a multicopy
form with copies to go to various places and the reproduction
that was given to him was only one page. So when Cicala
gave the photocopy to Silia, Silvia said, ‘‘What good is this
to me? It’s only one page, and it’s a photographic replica of
something or other.’’ He later received a Form 1188 that was
not a photocopy. He does not recall from what source he re-
ceived it but testified that it came neither from the Union nor
from the Postal Service.
Marley further testified that, shortly after his Form 1188
was returned to him, he telephoned Cortese and left a mes-
sage for Cortese to call him. When Cortese returned the call,
Marley said certain members in the Milpitas facility were
having a lot of problems with the Form 1188 in trying to re-
sign from the Union and that they needed their anniversary
dates. He then asked if Cortese could supply them with those
dates. Cortese said, ‘‘I’m sorry, but we don’t have them.’’
Marley said, ‘‘I find that awfully strange.’’ Marley then
asked if Cortese still planned to refund dues to the resignees
as of the date of the resignation petition. Cortese said, ‘‘No.
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Cortese never received the June 28 letter as he refused to accept it from
the Postal Service because he ‘‘felt that this letter was just going to be another
response letter that I had to respond to and I didn’t want to get into a letter
writing campaign.’’
8 Apparently, the letter had been referred to Hart to check out.
9 Keeping track of when a carrier leaves so as to determine when he will
return.
There is something you have to understand. When it comes
to dues, there is local and national dues and the local gets
a very small percentage of what the actual dues are in the
first place. If you guys have screwed up on your 1188s it’s
nobody’s problem but your own and you are just going to
have to go through channels.’’ Marley said, ‘‘I think that’s
a bad attitude for a union president to be taking.’’
According to Cortese, about 10 days later he received a
phone call from Marley, who indicated he was representing
a group of employees. When Cortese returned Marley’s tele-
phone call, Marley said all of the Form 1188s had been re-
turned to the resignees. Marley asked what they were sup-
posed to do to get out of the Union, that they had not met
their anniversary dates and the Postal Service would not pro-
vide them with these dates. Cortese said obviously, if the
Postal Service said they were not meeting the anniversary
dates, the Postal Service must have information as to what
the dates were. He then informed Marley that the proper pro-
cedure was to file the Form 1188 at the Milpitas Post Office
which would forward it to the San Jose DDE-DR; and, if it
was submitted outside the window period, it would be re-
turned with the anniversary date written on it. Marley asked
if Branch 193 had the anniversary dates. Cortese said they
did not, that the Postal Service had them. Marley asked when
the deducted union dues would be refunded to them. Cortese
said it was national policy that if a Form 1188 was submitted
within the proper window period, deduction of union dues
would stop. Cortese also testified that a signed Form 1188
is considered as a resignation from the Union.
On June 28 Silvia sent a letter to Richard O’Connell, sec-
retary-treasurer of NALC, describing some of the difficulties
the resignees had with Branch 193 and with the EI program.
The letter further stated that the situation had reached the
point where approximately 30 members had elected to termi-
nate membership in the Union but that both the Union and
the Postal Service had refused to furnish those members with
the correct anniversary dates to be used for the Form 1188s.
Silvia requested that O’Connell provide such dates. Attached
to this letter was a list of employees headed, ‘‘The following
members have elected to terminate membership in the
NALC.’’ The parties stipulated that this constituted the list
of employees for whom Silvia was requesting anniversary
dates. By letter dated July 9, O’Connell informed Silvia that
his letter had been transmitted to William Young, a union
representative in NALC’s San Francisco region, so he could
investigate the matter and be of assistance in helping to re-
solve any problems encountered by the membership. How-
ever, according to Silvia, he never received a response to his
request for anniversary dates.
On June 28, Silvia also wrote a letter to Cortese in which
he requested the correct anniversary dates for the resignees.7
He made no further attempts to obtain the resignees’ anniver-
sary dates from Branch 193. According to Silvia, neither Re-
spondent Union nor Respondent Postal Service furnished an-
niversary dates to the resignees. However, NALC supplied
these dates to a Board agent on or about November 10.
Cortese testified that, to his knowledge, no other employ-
ees have had difficulty either learning their anniversary dates
or in processing the Form 1188. He contends that, if it had
come to his attention that the problem was continuing, he
would have made some telephone calls and filed a grievance
so he could get the employees’ anniversary dates for them.
He admits Cicala asked him if he had the anniversary dates
and that he told Cicala he did not have them but the Data
Center did.
Cortese also testified that NALC Representative Dale Hart
told him he had received a copy of a letter sent by a group
of Milpitas employees to Richard O’Connell stating they
were going to resign from the Union.8 Cortese told Hart he
had a problem with the Milpitas employees but this was not
the real reason they were resigning. Also, Cortese thinks he
told Hart he had spoken to Cicala regarding anniversary
dates and may have told him that he had instructed Marley
as to the proper procedure for submitting a Form 1188. Later
Cortese learned that Hart was referring to the letter the group
of employees had sent him and his response to them. There-
after, according to Cortese, dues deductions for certain em-
ployees ceased so he thought the employee attempts to re-
voke their dues-deduction authorization had been resolved.
Silvia admits he considers himself fairly knowledgeable as
to Postal Service regulations and with regard to the collec-
tive-bargaining agreement. According to him, he did not sub-
mit the Form 1188s to Cicala in accord with Postal Service
regulation because it was the opinion of the employees at the
meetings that submitting the forms to Cicala would delay
matters since he had been providing roadblocks to whatever
the employees attempted to accomplish. Silvia claims he was
not aware that the forms should have been submitted to Ci-
cala. According to him, he thought the requirement was that
they be submitted to a Data Center.
Silvia resubmitted a Form 1188 in October in accordance
with an estimate of his anniversary date determined by re-
viewing his pay stubs. The form was processed and returned
to him by the San Jose personnel office with a notation that
the correct anniversary date was September 29. Marley sub-
mitted a revised Form 1188 which was processed approxi-
mately a month prior to the hearing herein. At least three
other resignees canceled their dues deduction, prior to No-
vember, by following the procedure described by Cortese and
Cicala. However, several of the resignees did not resubmit
Form 1188s even though their anniversary dates fell between
the date the Union provided the Board agent with a list of
anniversary dates and the date of the hearing herein.
D. The Removal of Camacho from the 204B Program
There are about 83 employees at the Milpitas Post Office,
including approximately 55 or 58 carriers. In June there were
approximately 47 or 48 carriers. There are two floor super-
visors, Mark Polk and Kathy Sheehan. Employees in the
204B program, an on-the-job employee training program for
prospective supervisors, substitute for regular supervisors but
always work with another regular supervisor. There are no
written guidelines describing this program nor any formal
training. The 204B trainee counts mail, inputs that data into
the computer, completes forms such as late leaving reports9
709POSTAL SERVICE
10 The collective-bargaining agreement provides that when the need for
overtime arises in the letter carrier craft, employees with the necessary skills
on the overtime list will be selected from that list. In all other crafts, employ-
ees are selected for overtime on a rotating basis in order of their seniority.
and assigns overtime.10 They also receive training as to safe-
ty rules. None of the 204B trainees at the Milpitas facility
discipline other employees. They are paid at the lowest su-
pervisory wage level for the actual time they spend per-
forming 204B duties.
Sometime in April, Cicala told Camacho that Supervisor
Kathy Sheehan had informed him Camacho was interesed in
becoming a 204B trainee. Camacho said he had not filled out
an application because there did not appear to be a need for
another 204B trainee. Cicala advised him to fill out an appli-
cation anyway because the office was growing, and they
could always use another 204B trainee. Camacho asked what
kind of person Cicala was looking for in a 204B trainee. Ci-
cala referred to Joe Haruchi as an example. He stated that
Haruchi is a fine carrier who doesn’t speak up, stays out of
the limelight, does his job and does not make waves. Cicala
further stated that he considered the 204B trainee position as
the most difficult position in the office because one day you
are a foreman, the next day you are a carrier, and it is very
difficult for some people to balance the two.
Camacho asked, ‘‘How do you learn to be a 204B?’’ Ci-
cala said, ‘‘It’s an ongoing process. You learn as you go
along.’’ He said that Camacho would be assigned to one of
the foremen who would teach him the routine. Cicala asked
if Camacho would have any problem having a discussion
with someone or writing them up. Camacho said no, because
he had previous management experience. Cicala then gave an
example and asked Camacho how he would handle it.
Camacho explained how he would handle the situation. Ci-
cala asked if Camacho was still interested in entering the
204B program. Camacho said yes. Cicala handed him the ap-
plication, told him to fill it out, and return it on the following
day.
Cicala testified that he asked Camacho into the office and
asked why he had not applied for a 204B position. Camacho
said he did not believe they needed another 204B trainee. Ci-
cala suggested that this was his concern and what he was
asking Camacho was if he was interested in it. Cicala said
he should fill out a form if he was and, at some point during
the conversation, gave him the form. They discussed the du-
ties of a 204B trainee and Cicala gave an example of how
Haruchi handled being a 204B trainee. They had some dis-
cussion as to discipline.
According to Camacho he began working as a 204B train-
ee on April 16 or 17. He actually worked as a 204B trainee
on Mondays and Wednesdays. Monday was Sheehan’s day
off and Wednesdays was Polk’s day off. In mid-May
Camacho requested an evaluation. The evaluation took place
in Cicala’s office. Cicala, Sheehan, and Camacho were
present. Sheehan said Camacho had done an excellent job,
that he was grasping the job very easily and she had no trou-
ble with him as a 204B trainee. Cicala said Camacho was
doing a good job and asked if Camacho was satisfied with
that. Camacho said he would like to do a lot more on the
floor if he could. Cicala asked what he meant by that.
Camacho said he would like to handle some of the respon-
sibilities by himself. He then asked Sheehan if he could
count the mail by himself while she was doing something
else. They said that could possibly be arranged. Sheehan
said, ‘‘All you have to do is ask me.’’ Camacho said, ‘‘Okay
that’s what we’ll do next time.’’ Camacho also said he
would like to know more about scheduling. Cicala said he
would have Sheehan arrange that.
However, Camacho did not thereafter count the mail by
himself. According to him, the only duties that he performed
by himself was the Form 1813 which is adding the number
of street hours it takes a carrier to deliver the mail, checking
waste mail, checking to see if mail had been missorted, and
totalling up the footage from the throw back case as given
to him by a clerk. He also added up timecards, did the mile-
age and handled phone calls and customer complaints at the
clerks’ windows. He assigned overtime only once when
Sheehan was off and Polk went to a meeting. This was in
late April. Another duty he performed by himself was to go
around one-half of the room and get a return time and a
leaving time from each carrier and note it on a form. There
was a supervisor present except for the one time when it was
Sheehan’s day off and Polk went to a meeting. Polk and
Sheehan worked the same shift. In the assignment of over-
time, he checked with the carriers who do not wish to work
overtime to find out if they have any overtime that day. If
they do, the overtime has to be given to another carrier. First
it is given to a part-time flexible—a permanent carrier who
is guaranteed up to 30 hours, If there still exists a need for
someone to work overtime, it is assigned to persons on the
overtime list.
About June 1 Camacho was summoned to Cicala’s office.
Cicala asked Camacho whether he was ‘‘A.J.’’ Camacho said
yes. Cicala showed him the second suggestion to disband the
EI program signed ‘‘A.J.’’ and asked if Cannacho wrote it.
Camacho said he was aware of its contents. Cicala said,
‘‘You know I thought you were a fairly intelligent person.
When I first saw your signature on the first EI suggestion
to drop EI, I just dismissed it. When I saw your signature
on this suggestion, I believe I gave you too much credit. I
don’t think you are as smart as I give you credit.’’ Cicala
further said ‘‘You may be a team player when it comes to
basketball, but when it comes to the postal service, you are
not a team player.’’ He then said he would have to release
Camacho from the 204B program because there was a lot of
confidential information on management’s side. Camacho
thanked Cicala for giving him the opportunity and left.
The suggestion signed ‘‘A.J.’’ reads,
EI IS DISCRIMINATORY. ALL DECISIONS MADE BY THE
COMMITTEE AFFECT THE ENTIRE EMPLOYEE POPU-
LATION. TO BE IN THE EI ONE HAS TO BE A UNION
MEMBER, HOWEVER EI STANDS FOR EMPLOYEE IN-
VOLVEMENT not UNION EMPLOYEE INVOLVEMENT. ALL
DECISIONS AFFECT CLERKS AND NONUNION MEMBERS
AND that ACTION IS BIASE [SIC]. SINCE CLERKS AN NON-
MEMBERS ARE AFFECTED THEY SHOULD BE ABLE TO SIT
IN AND VOTE/VOICE THEIR POSITION, IF NOT THE EI HAS
TO BE disbanded OR CHANGED/OR ALL DECISIONS AF-
FECT ONLY TO UNION MEMBERS.
A.J.
Cicala testified that when this suggestion was read at the
EI work team meeting no one recognized the signature so it
was passed over to him. He looked at it and identified the
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 According to Gibson, he was referring to the meetings attended by the
carriers where they discussed the problems within the post office, and he is
unaware of any meetings attended by postal employees for any other purpose.
signature initials as those of Camacho. There was some dis-
belief among the work team members that Camacho had
signed the suggestion since, during the critique period in an
EI meeting 2 or 3 weeks earlier, Camacho had expressed his
thoughts as to how well the meeting went, what great energy
the team had, and that they were really accomplishing things.
According to Cicala, the work team then asked him to verify
the initials since he was the one who as sure it was
Camacho’s signature. They also expressed some concern
about Camacho being on the work team if he had in fact
made that suggestion.
Therefore, according to Cicala, when he met with
Camacho he asked if that was his signature. Camacho said
yes. Cicala said the work team would have a problem work-
ing with Camacho as a work team member and also told him
he was not going to be able to use him as a 204B trainee
because, as far as he was concerned, EI was a managerial
program and Camacho did not represent what a manager
should be representing at this time. When questioned during
his testimony as to why Camacho could not be a 204B and
still state that he wanted to disband the EI program, Cicala
said, ‘‘I do not believe you can support management and
work on the work room floor on a daily basis or an intermit-
tent basis, whatever it is, and supervise people. When you
supervise people you also have to be an example. You have
to show what you stand for.’’ Cicala further said he did not
think one could represent management on one day and return
to being a craft employee the next day and be against what
management is doing. Cicala admits that Camacho was re-
moved from the 204B position because he signed the ‘‘A.J.’’
suggestion. He also testified that some of Camacho’s work
performance was a ‘‘side factor’’ in the decision. However,
he did not specify what was unsatisfactory about Camacho’s
work, and he admits that he never told Camacho or anyone
else that Camacho’s work performance was a factor in his
removal from the 204B program.
E. The Interrogation of Lumont Gibson
Lumont Gibson testified that in mid-May he had a con-
versation with Cicala in his office. Cicala said he understood
Gibson wanted to participate in the 204B program, and stated
that 204B trainee probably had one of the most difficult jobs
in the post office because one day you are concentrating on
management problems and the following day you have to
concentrate on the problems on your route. He said there was
no proper training for the position, that it was all on-the-job
training. Cicala suggested that Gibson ‘‘keep an eye on’’
Haruchi, an employee in the 204B program, stating that Gib-
son could learn a lot just by observing him. He said Haruchi
was a quiet person who keeps to himself, minds his own
business, lets things go in one ear and out the other, and
‘‘does not let distractions bother him like same of these guys
going to these meetings.’’
Cicala then said, according to Gibson, ‘‘I do not know if
you have been to any.’’ Gibson said, ‘‘I’ve been to a cou-
ple.’’ Cicala said, ‘‘Well, curiosity never hurts.’’11 Cicala
said the post office was expanding, that they were going to
need three supervisors and two 204B trainees. He said he did
not know exactly when Gibson would start in the 204B pro-
gram, that he would have to get together with Sheehan re-
garding a starting date. He then discussed the various oppor-
tunities that would be available to Gibson. Gibson testified
that during the first week of July, Sheehan announced to em-
ployees that Gibson and Farmer would be the 204B trainees.
However, he did not actually start in the program until some-
time in November.
According to Gibson, he next spoke to Cicala in October
in his office. Cicala said, ‘‘It’s been brought to my attention
that you are one of three people that have filed a charge
against me.’’ He also mentioned something about the Union
and Cicala not permitting Gibson to become a 204B trainee.
Gibson did not admit filing a charge, but did mention not
having the opportunity to be in the 204B program Cicala
said, ‘‘I received this paper, I saw your name on it and I
didn’t want to say anything until I talked with you. I wanted
to make it clear that you have not talked to him personally
about this matter.’’ Gibson said he had not. Cicala asked if
Gibson knew anything about the charges. Gibson said he did
not.
Cicala asked if Gibson he talked to Sheehan about work-
ing the floor. Gibson said he had spoken to Sheehan in the
early part of September and she told him he would be on
the floor the week of September 25 but that did not happen.
When he asked why, Sheehan said they were shorthanded
and besides she was on vacation that week and could not
give him the training he would need to start. Gibson told Ci-
cala that was not true, that Sheehan was at work that week
because Polk was on vacation and Cisneros was still out.
Cicala agreed that Sheehan was at work that particular
week. He again asked Gibson if he knew anything about the
charges. Gibson said no. Cicala asked if Gibson knew how
his name got on the paper. Gibson said no. Cicala said,
‘‘Well, do not worry, I will talk to Sheehan in the morning,
and you will be on the floor.’’ Again Cicala asked if Gibson
knew anything about the charges. Gibson said, ‘‘The only
thing I did was talk to a lady about me not becoming a
204B.’’ Cicala leaned over and said, ‘‘I’m looking in your
eyes and I can tell you do not know anything about this.’’
Gibson said, ‘‘No, I do not.’’ Cicala said, ‘‘Do not worry.
You will be on the floor. I will have a talk with Sheehan
in the morning.’’
Gibson did start participating in the 204B program in No-
vember. According to him, his duties in the program are to
count the mail in the morning. The count is then put in the
computer so a determination can be made as to how many
feet of mail will be going out that day. One route can take
out 12 feet of mail, while another can handle 14 feet and an-
other, 20 feet. As a 204B, he also assigns help for carriers
that are not on the overtime list—those that have requested
to work only 8 hours. If it appears they are going to go be-
yond 8 hours, help is assigned to the route so they can get
back to the post office within the 8 hours. There are also car-
riers on the overtime list. The supervisors and 204Bs go
around each morning and obtain a commitment from the car-
riers, as to the time they think they are going to leave the
office to start their route. Using that time and the time re-
quired to do the route, a scheduled return time is computed.
The Postal Service attempts to have carriers off the street
after 4 o’clock. If they see that a carrier is going to go be-
yond the 4 p.m. time, help will be assigned to get them back
711POSTAL SERVICE
by 4 p.m. So first a determination is made as to what carriers
need help. The first people assigned help are the part-time
employees and then they just try to get carriers back in as
soon as possible. A first priority is that people who are not
on the overtime list do not work over 8 hours. Gibson testi-
fied that he does not actually select who works overtime. If
someone on the overtime list comes in early, he will ask that
carrier to help someone else. However, he admits if two car-
riers who are both on the overtime list return early, he se-
lects one to assign to help on another route and sends the
other home. In this situation, he makes the decision as to
which one to send home.
According to Gibson, he has never disciplined anyone
since he has been in the 204B program. The 204B trainees
substitute when a supervisor is off duty. Gibson testified that
he may work a day and then there can be a period of 1 to
3 weeks before he is on the floor again as a 204B trainee.
When he is on the floor, he always works with one of the
other supervisors, Sheehan or Polk. If he has questions, he
can go to them. When he works as a 204B trainee, he re-
ceives a supervisor’s pay, and he clocks in on a different
timecard than the one he uses when he performs his regular
job.
Cicala admits that he met with Gibson in mid-May be-
cause he was seeking employees to enter the 204B program
and Sheehan had mentioned Gibson as a possibility. Gibson
came to Cicala’s office. Cicala described, very roughly, the
duties under the 204B program and gave as an example how
Haruchi handles a very difficult job. He denies that he told
Gibson to be like Haruchi but admits that he told him
Haruchi has a difficult job where he supervises one day and
goes back to being a craft employee the next day and ad-
vised him to observe Haruchi because he was not having any
problems with the transition. He told Gibson there were
many things going on in the post office and that he would
expect Gibson to ignore some things that were going on and
concentrate on learning what he had to learn as a supervisor
because it was very complex.
When questioned, at the hearing herein, as to what he was
referring with regard to ‘‘things going on,’’ Cicala said there
were some meetings going on and different activities in the
post office, and he wanted Gibson to concentrate on learning
his position. According to him he did not tell Gibson not to
attend these meetings nor did ask him whether he had at-
tended any of the meetings. The rest of his discussion with
Gibson was with regard to the general 204B program.
Cicala denies that he asked Gibson anything about
charges. According to him, he had been instructed by Mar-
guerite Breault, a paralegal specialist with the Postal Service,
as to what he should and should not say. When Breault in-
formed him that one of the allegations in the charge was that
Gibson had been removed from the 204B program, he asked
Breault if he could speak with Gibson, since he knew that
Gibson had not been removed from the program. Breault said
he would, but should not refer to the unfair labor practice
charges. According to him, he called Gibson into the office
on October 19 and said he was aware that Gibson was one
of three people who were unhappy at not being used as a
204B trainee but did not mention the unfair labor practice
charges. Gibson said he had gone to someone. Cicala said,
‘‘I am not interested in who you went to. I’m not asking
that. What I am trying to do here is open up a communica-
tion line and explain to you why you have not been used.’’
Cicala further said they were reaching a point where they
were going to use Gibson; that Christmas vacations were
coming up and they had to train someone else. Cicala asked
if Sheehan had ever explained to Gibson why he was not
being used as a 204B trainee. Gibson said no. Cicala asked
if he ever asked Shelehan to be used or wh he was not being
used as a 204B trainee. Gibson said no. Cicala said there as
a communication problem between Gibson and Sheehan and
that he thought Gibson knew why he was not being used. He
then told Gibson that he would be going on the floor very
shortly and that Cicala would talk to Sheehan regarding start-
ing his training.
IV. CONCLUSIONS
A. The Refusal to Inform Employees as to Their
Anniversary Dates
The complaint alleges that the Union and the Postal Serv-
ice have violated Section 8(b)(1)(A) and Section 8(a)(1) re-
spectively by refusing to inform employees of the anniver-
sary date of their authorization for deduction of union dues.
The Union’s duty in this regard is clear. Thus, it is well es-
tablished that a union’s duty of fair representation includes
‘‘an obligation to deal fairly with an employee’s request for
information’’ in matters affecting the employee’s employ-
ment. Operating Engineers (Associated General Contrac-
tors), 226 NLRB 587 (1976).
It is also well established that checkoff authorizations are
matters affecting employment and that a union breaches its
duty of fair representation when it fails or refuses to give a
employee information needed to revoke a dues-checkoff au-
thorization. Hughes Aircraft Co., 164 NLRB 76 (1967); Elec-
trical Workers Local 66 (Houston Lighting Co.), 262 NLRB
483 (1982).
The Union contends that the facts do not support this alle-
gation of the complaint. Basically, the Union argues that nei-
ther the NALC nor Branch 193 had the resignees’ anniver-
sary dates in their possession nor did they have cortrol over
this information. Further, the Union argues, its fiduciary obli-
gation does not extend to obtaining information for members
which is not in its possession or to situations where the
Union has not misled the employees or refused to tell the
employees how to obtain the information at issue; cf. Penin-
sula Shipbuilders’ Assn. (Newport News Shipbuilding) v.
NLRB, 663 F.2d 488 (4th Cir. 1981); NLRB v. Teamsters
Local 282, 116 LRRM 3292 (2d Cir. 1984); or to informa-
tion which the employee could readily obtain without the
Union’s assistance.
I find this argument somewhat disingenuous. The record
establishes that an employee could obtain his/her anniversary
date either by the rather simple and quick procedure of tele-
phoning the Postal Service personnel office or by the more
involved and time-consuming procedure of actually submit-
ting a Form 1188 and having it returned with a notation as
to the anniversary date. I find it incredible that Cortese did
not know of the telephone procedure. Certainly he should
have known. Yet, he only informed Marley of the more
nvolved procedure. In view of the very short window period
for revocation of the dues-deduction authorization, I find this
to be a serious omission akin to misleading employees as to
the needed information. In this regard, I note that later when
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Union also urges that this issue be held in abeyance until the Board
issues its decision on remand in that case.
the Union was desirous of obtaining this information, it did
so apparently without difficulty.
In all the circumstances, I find that Respondent Union vio-
lated Section 8(b)(1)(A) by failing and refusing to provide
employees with information as to their anniversary dates or
with complete information as to the procedures they can fol-
low to obtain the information for themselves.
As to the Postal Service, the General Counsel argues that,
by withholding information as to anniversary dates, the Post-
al Service effectively precluded the exercise of the employ-
ees’ Section 7 right to revoke dues-deduction authorizations.
The Postal Service argues that Cicala gave the resignees
what he believed to be the proper procedure and thus, did
not in fact refuse to provide anniversary dates to the re-
signees. In support thereof, it points to Cicala’s attempt to
revoke his own dues-deduction authorization from the Na-
tional League of Postmasters which was returned to him be-
cause it was submitted outside the window period.
I do not credit Cicala’s uncorroborated testimony that he
attempted to secure the anniversary dates from the personnel
office. In this regard, I note that Personnel Assistant Patty
Medlin testified that the personnel office could have pro-
vided Cicala with the anniversary dates if he had requested
them to do so. I further note that Cicla did not communicate
to any of the resignees, either orally or in the notes he at-
tached to the Form 1188s which he returned to them, the in-
formation he claims he received as to the ‘‘only’’ procedure
for obtaining an employee’s anniversary date. In the cir-
cumstances, I conclude that Cicala deliberately withheld from
the employees information, solely within the possession of
the Postal Service, as to their anniversary dates. I further find
that such conduct effectively precluded, or delayed, the exer-
cise of the resignees’ Section 7 right to revoke their dues-
deduction authorizations. Accordingly, I find that Respondent
Postal Service thereby violated Section 8(a)(1) of the Act.
B. The Deduction of Union Dues from the Pay of
Employees after Their Resignation from the Union
The complaint alleges that the Postal Service unlawfully
assisted the Union by continuing to deduct and remit union
membership dues after employees had resigned from the
Union, and the Union violated Section 8(b)(1)(A) of the Act
by accepting membership dues deducted from the pay of em-
ployees who have resigned from the Union. The Postal Serv-
ice contends that its actions are not violative of the Act since
the withholding of union dues is mandated by the PRA, 39
U.S.C. Section 1205, and its collective-bargaining agreement
with NALC. Further, the Postal Service argues, the issue of
revocation of union dues authorization is not appropriately
before me since the Board’s rationale on an identical issue
was unanimously rejected by the Sixth Circuit (Postal Serv-
ice, 833 F.2d 1495 (1987), and NLRB v. American Postal
Workers Union, 837 F.2d 476 (1988)). Also, the same issue
is presently pending before the Board on remand from the
Ninth Circuit (NLRB v. Postal Service, 827 F.2d 548
(1987)).12
I find no merit in this latter argument. I am bound by the
decisions of the Board. If Respondent feels that the court’s
decisions are better reasoned than the Board’s decisions in
those cases, its recourse is to file exceptions to my decision
in this matter. As to the alleged mandate of the PRA, the
Board has concluded that the PRA does not mandate that
checkoff authorizations are irrevocable per se for 1 year irre-
spective of the nature of the contractual obligation under-
taken by the employee and that the applicable provisions of
the PRA are not inconsistent with well-established Board
principles regarding the revocation of dues-checkoff author-
ization by operation of law on effective resignation from
union membership. Postal Service, 279 NLRB 40 (1986).
As set forth above, the Board has recently had occasion
to consider the question of whether resignation from union
membership revoked an almost identical dues deduction au-
thorization as a matter of law. Postal Service, supra. In that
case, the Board cited Machinists Local 2045 (Eagle Signal),
268 NLRB 635, 637 (1983), in which it reiterated the well-
settled rule of law applicable to this issue:
It is established Board law that a dues-checkoff au-
thorization, or wage assignment as it is called in this
case, is a contract between an employee and his em-
ployer and that a resignation of union membership ordi-
narily does not revoke a checkoff authorization. How-
ever, a resignation will, by operation of law, revoke a
checkoff authorization, even absent a revocation re-
quest, where the authorization itself makes paymemt of
dues a quid pro quo for union membership. This is so
whether or not the resignation is made during the pe-
riod for revocation set forth in the authorization itself.
[Footnotes omitted.]
The Board concluded that the necessary linkage of pay-
ment of union dues to union membership is established by
the following language in the authorization:
I hereby assign to [union] from any salary or wages
earned or to be earned by me as your employee (in my
present or any future employment by you) such regular
and periodic membership dues as the union may certify
as due and owing from me, as may be established from
time to time by said union. (Emphasis added by the
Board.)
The above language is identical to that in the authorization
here. Accordingly, I find that the authorizations for deduction
of union dues signed by the resignees provide for the pay-
ment of union dues as a quid pro quo for union membership
and not for other financial obligations, such as ‘‘financial
core’’ payments in lieu of membership. Thus when the re-
signees resigned their union membership, the financial obli-
gation underlying the execution of the authorization, i.e., the
agreement to have membership dues assigned to the Union,
ceased to exist for purposes of dues checkoff.’’ Accordingly,
their dues-deduction authorizations were revoked by oper-
ation of law when they resigned their union membership.
Further, even assuming arguendo that the authorizations
continued, once the resignees resigned from union member-
ship, they owed no union dues and thus, under the provision
of the authorizations, the Postal Service was not authorized
to make a deduction of any amount from their pay. See,
Member Johansen’s comment in Postal Service, supra at fn.
5. See also Distillery Workers Local 80 (Capitol Husting
Co.), 235 NLRB 1264 (1978).
713POSTAL SERVICE
Accordingly, I find that the Postal Service violated Section
8(a)(1) and (2) by continuing to deduct, and remit to the
Union, union dues from the pay of the resignees after they
had resigned from the Union. Postal Service, supra. I further
find that by accepting membership dues deducted from the
pay of employees after they had resigned from union mem-
bership, Respondent Union has violated Section 8(b)(1)(A) of
the Act.
C. The Removal of Camacho from the 204B Program
The Postal Service contends that, regardless of the motiva-
tion, the removal of Camacho from the 204B program was
not violative of the Act because 204B trainees are super-
visors within the meaning of the Act. In support thereof, the
Postal Service relies on Postal Service, 275 NLRB 360
(1985), and Letter Carriers, 240 NLRB 519 (1979), where
the Board found 204B trainees to be supervisors. In Letter
Carriers, supra, the Board found that rank-and-file employ-
ees assigned as temporary supervisors under a 204(B) detail
have the same authority as permanent supervisors and can
discipline employees and adjust grievances on behalf of the
Postal Service.
Here, the 204B trainees admittedly do not discipline em-
ployees, and there is no evidence in the record to establish
that they have authority to adjust grievances. Further, their
actual duties appear to be of a routine nature, which do not
require independent judgment. I therefore find that Camacho
is not a supervisor within the meaning of Section 2(11) of
the Act.
I do not credit Cicala’s testimony that Camacho’s work
performance was a factor in his decision to remove Camacho
from the 204B program. He never specified what was unsat-
isfactory in Camacho’s work performance, and the only rea-
son he gave Camacho was the EI suggestion. In these cir-
cumstances, I find that the sole reason for Camacho’s re-
moval from the 204B program was his signing of the ‘‘A.J.’’
suggestion to disband the EI program.
I also find that by signing the ‘‘A.J.’’ suggestion,
Camacho was engaged in protected concerted activity. The
content of the suggestion clearly concerns a term and condi-
tion of employment, and, even though it was signed only by
Camacho, it was drafted by several employees and was clear-
ly a continuation of the activity which included the employee
meetings and the earlier suggestion, signed by Camacho and
seven other employees to disband the EI program.
Further, Cicala was aware of this earlier suggestion to dis-
band the EI program and, from his conversation with Silvia,
it is apparent that he knew the EI progrann was one of the
concerns discussed by employees at the several employee
meetings. I therefore find that Cicala was put on notice that
the ‘‘A.J.’’ suggestion was the product of concerted activity
and knowledge of the concerted nature of the suggestion can
be imputed to the Postal Service. See Oakes Machine Corp.,
288 NLRB 456 (1988). In these circumstances I find that
Camacho was removed from the 204B program in violation
of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The United States Postal Service is subject to the juris-
diction of the National Labor Relations Board by virtue of
39 U.S.C. Section 1209.
2. National Association of Letter Carriers and National As-
sociation of Letter Carriers, Branch No. 193, each is a labor
organization within the meaning of Section 2(5) of the Act.
3. By deducting, and remitting to the Union, union dues
from the pay of employees who have resigned from the
Union, the Postal Service has violated Section 8(a)(1) and (2)
of the Act.
4. By interrogating an employee and by failing and refus-
ing to provide employees, on their request, with the anniver-
sary dates of their authorizations for deduction of union dues,
the Postal Service has violated Section 8(a)(1) of the Act.
5. By removing Anthony Camacho from the 204B pro-
gram because he engaged in a concerted expression of oppo-
sition to an employee involvement program negotiated be-
tween the Postal Service and the Union, the Postal Service
has violated Section 8(a)(1) and (3) of the Act.
6. By accepting union membership dues withheld by the
Postal Service from employees’ pay notwithstanding the em-
ployees’ resignation from membership in Branch 193, and by
failing and refusing to provide employees, upon their request,
with the anniversary dates of their authorizations for deduc-
tion of union dues, NALC and Branch 193 have violated
Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent Postal Service and Re-
spondent Union have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(1), (2),
and (3) and Section 8(b)(1)(A), respectively, of the Act, we
shall order that they cease and desist therefrom and take cer-
tain affirmative action necessary to effectuate the purposes of
the Act.
Having found that Respondent Postal Service removed An-
thony Camacho from the 204B program in violation of Sec-
tion 8(a)(3) and (1) of the Act, it is recommended that Re-
spondent Postal Service be ordered to offer Camacho imme-
diate and full reinstatement to the 204B program without
prejudice to his seniority or other benefits or privileges that
flow from participation in such program and that he be made
whole for any loss of earnings incurred as a result of the dis-
crimination against him, with backpay to be computed as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
It is further recommended that Respondent Postal Service,
Respondent NALC, and Respondent Branch 193 jointly and
severally make whole each employee from whose pay union
dues were deducted after his/her resignation from the Union
for any monetary loss he/she may have suffered by reason
of the unlawful withholding of union dues from his/her pay
after he/she had effectively resigned from union membership.
All interest is to be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]