Postal Service

National Labor Relations Board - Board Decisions

Dec 10, 2001

336 N.L.R.B. 1182 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
United States Postal Service and George French

National Association of Letter Carriers, Branch 109
(United States Postal Service) and George
French. Cases 34–CA–9194 and 34–CB–2378.
December 10, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On April 3, 2001, Administrative Law Judge Margaret
M. Kern issued the attached decision. The Respondent
United States Postal Service and the Respondent Union
filed exceptions and supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We correct the following error in the judge’s decision. The judge
stated that the Respondent Employer’s officer-in-charge, Anthony
Lombardozzi, and Union President Ronald Persico testified that they
questioned Charging Party George French’s seniority during the week
of January 6, 2000, when they were awarding jobs based on seniority.
Lombardozzi testified, however, that he met with Persico to award jobs
based on seniority in September or October 1999, not the week of
January 6, 2000, and while Persico testified to an early January 2000
conversation with Lombardozzi, it was about the seniority list, not job-
bidding.
The judge’s error, however, does not affect her rejection of the tes-
timony of Lombardozzi and Persico. The judge’s reason for discredit-
ing Lombardozzi’s testimony was not based on the date of the conver-
sation with Persico, and the judge found Persico generally not to be a
credible witness.
In sec. IV,F, the judge inadvertently stated that the “1994–1998 Na-
tional Agreement . . . was interpreted in 1992.” The correct date of the
agreement to which the judge refers is 1990–1994.
2 We have modified the judge’s recommended Order (1) in accor-
dance with our recent decision in Ferguson Electric Co., 335 NLRB
142 (2001); (2) to note in par. A,1(a) that the Respondent Employer is
not to reduce seniority at the unlawful request of the Respondent Un-
ion; (3) to note in par. B,1(b) that the Respondent Union is not to cause
or attempt to cause the Respondent Employer to discriminate against
employees by demanding a reduction in seniority of any employee who
has a personal disagreement with the Respondent Union; (4) to provide
in par. B,2(a) that the Respondent Union is to send George French a
copy of its notification to the Respondent Employer that it has no ob-
jection to the restoration of French to his previous position on the sen-
iority list; (5) to provide that the Respondent Employer and the Re-
spondent Union are to jointly and severally make French whole; (6) to
include in pars. A,2(b) and B,2(b) the statement that the Respondent
Union’s liability for backpay shall terminate 5 days after it notifies the
Respondent Employer that it has no objection to the restoration of
French’s seniority; (7) to require the Respondent Employer and the
Respondent Union to remove from their files any reference to the re-
duction of French’s seniority and to notify French in writing that they
have done so and that the reduction of his seniority will not be used
against him in any way; and (8) to require the reciprocal posting of
notices. See Nationsway Transport Service, 327 NLRB 1033 (1999).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. Respondent Employer, United States Postal Ser-
vice, Shelton, Connecticut, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Reducing the seniority of, or otherwise discriminat-
ing against, any employee in regard to hire or tenure of
employment or any term or condition of employment,
pursuant to the unlawful request of Respondent Union,
National Association of Letter Carriers, Branch 109,
thereby encouraging membership in a labor organization.
(b) In any like or related manner interfering with, re-
straining, 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) Within 14 days from the date of this Order, restore
George French to his previous position on the seniority
list with a seniority date of April 7, 1987.
(b) Jointly and severally with the Respondent Union,
make George French whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent Union’s liabil-
ity for backpay shall terminate 5 days after it notifies the
Respondent Employer that it has no objection to the res-
toration of French to his previous position on the senior-
ity list with a seniority date of April 7, 1987.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful reduction of
George French’s seniority, and within 3 days thereafter
notify him in writing that this has been done and that the
reduction of seniority will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an

336 NLRB No. 125
POSTAL SERVICE 1183
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Shelton, Connecticut facility copies of the attached
notice marked “Appendix A.”3 Copies of the notice, on
forms provided by the Regional Director for Region 34,
after being signed by the Respondent Employer’s author-
ized representative, shall be posted by the Respondent
Employer and maintained 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 Employer to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent Employer has gone
out of business or closed the facility involved in these
proceedings, the Respondent Employer shall duplicate
and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
the Respondent Employer at the Shelton, Connecticut
facility at any time since January 27, 2000.
(f) Post at the same places and under the same condi-
tions set forth in paragraph 2(e) above, and as soon as
they are forwarded by the Regional Director, copies of
the Respondent Union’s attached notice marked as “Ap-
pendix B.”
(g) Furnish the Regional Director for Region 34 signed
copies of Appendix A in sufficient number to be posted
by the Respondent Union in places where notices to its
members are customarily posted.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Employer has
taken to comply.
B. Respondent Union, National Association of Letter
Carriers, Branch 109, Derby, Connecticut, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with loss of seniority for
arbitrary or invidious reasons.
(b) Causing or attempting to cause the Respondent
Employer, or any other employer, to discriminate against
employees in violation of Section 8(a)(3) of the Act by
demanding a reduction in seniority of any employee who
has a personal disagreement with the Respondent Union.

3 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(c) In any like or related manner restraining or coerc-
ing 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) Within 14 days from the date of this Order, notify
the Respondent Employer, in writing, with a copy to
George French, that it has no objection to, and affirma-
tively requests, the restoration of French to his previous
position on the seniority list with a seniority date of April
7, 1987.
(b) Jointly and severally with the Respondent Em-
ployer, make George French whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent
Union’s liability for backpay shall terminate 5 days after
it notifies the Respondent Employer that it has no objec-
tion to the restoration of French to his previous position
on the seniority list with a seniority date of April 7, 1987.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful reduction of
George French’s seniority, and within 3 days thereafter
notify him in writing that this has been done and that the
reduction of seniority will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Union office copies of the attached notice marked
“Appendix B.”4 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being
signed by the Respondent Union’s authorized representa-
tive, shall be posted by the Respondent Union and main-
tained for 60 consecutive days in conspicuous places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent Union to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Post at the same places and under the same condi-
tions set forth in paragraph 2(e) above, and as soon as
4 See fn. 3, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
they are forwarded by the Regional Director, copies of
the Respondent Employer’s attached notice marked as
“Appendix A.”
(g) Furnish the Regional Director for Region 34 signed
copies of appendix B in sufficient number to be posted
by the Respondent Employer at all places at the Shelton,
Connecticut facility where notices to its employees are
customarily posted. Copies of that notice, after being
signed by the Respondent Union’s authorized representa-
tive, shall be returned to the Regional Director for dispo-
sition by him.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Union has taken
to comply.
APPENDIX A
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.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT reduce the seniority of, or otherwise
discriminate against, any employee in regard to hire or
tenure of employment or any term or condition of em-
ployment, at the request of National Association of Letter
Carriers, Branch 109, thereby encouraging membership in
a labor organization.
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 Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, restore George French to his previous position on
the seniority list with a seniority date of April 7, 1987.
WE WILL jointly and severally with National Associa-
tion of Letter Carriers, Branch 109, make George French
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful reduction of George French’s seniority, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the reduction of proper senior-
ity will not be used against him in any way.
UNITED STATES POSTAL SERVICE
APPENDIX B
NOTICE TO MEMBERS
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.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees with loss of senior-
ity for arbitrary or invidious reasons.
WE WILL NOT cause or attempt to cause the United
States Postal Service, or any other employer, to discrimi-
nate against employees in violation of Section 8(a)(3) of
the Act by demanding a reduction in seniority of any em-
ployee who has a personal disagreement with us.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, notify the United States Postal Service, in writing,
with a copy to George French, that we have no objection
to, and we affirmatively request, the restoration of French
to his previous position on the seniority list with a senior-
ity date of April 7, 1987.
WE WILL, jointly and severally with the United States
Postal Service, make George French whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
reduction of George French’s seniority, and WE WILL,
within 3 days thereafter, notify him in writing that this has
been done and that the reduction of seniority will not be
used against him in any way.
NATIONAL ASSOCIATION OF LETTER
CARRIERS, BRANCH 109

POSTAL SERVICE 1185
Lindsey Kotulski, Esq., for the General Counsel.
Joseph Sassi, Esq., for the United States Postal Service.
Thomas Ciantra, Esq., for the National Association of Letter
Carriers, Branch 109.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This
case was tried before me in Hartford, Connecticut, on Novem-
ber 16 and 17, 2000.1 The consolidated complaint, which issued
on July 20, was based on unfair labor practice charges filed on
February 29, by George French against the United States Postal
Service (the Postal Service or Respondent) and the National
Association of Letter Carriers, Branch 109 (Branch 109 or the
Union or Respondent).
It is alleged that on January 27, as a result of a personal ar-
gument between French and Ronald Persico, president of
Branch 109, Persico threatened French with loss of his senior-
ity. It is further alleged that on February 29, Persico requested
the Postal Service lower French’s seniority status and that on
March 20, the Postal Service acceded to that to demand. For the
reasons set forth, I find the Union, acting through its admitted
agent Persico, violated Sections 8(b)(1)(A) and (2) of the Act,
and the Postal Service violated Section 8(a)(1) and (3) of the
Act, as alleged. I further find that deferral to the decision of a
grievance panel is inappropriate in this case.
FINDINGS OF FACT
I. JURISDICTION
Respondents admit, and I find, the Board has jurisdiction in
this matter under Section 1209 of the Postal Reorganization
Act.
II. LABOR ORGANIZATION STATUS
Respondents admit, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE FACTS
A. Relevant Provisions of the National Agreements
The Postal Service and the National Association of Letter
Carriers, AFL–CIO (NALC) have been party to a series of col-
lective-bargaining agreements (the National Agreements).
Relevant to this case are several provisions in five successive
National Agreements, covering the period 1984 to 2001. The
provisions are identical in all of these agreements2 and provide
in relevant part:

Article 12.2.B: An employee who left the bargaining
unit on or after July 21, 1973 and returns to the same craft:
1. Will begin a new period of seniority if the employee
returns from a position outside the Postal Service; or

1 All dates are in 2000 unless otherwise indicated.
2 The 1990–1994, 1994–1998, and 1998–2001 agreements were in-
troduced into the record. The relevant provisions in the 1984–1987 and
1987-–990 agreements are summarized in the Snow arbitration award
introduced into evidence. The only provision not referred to in the
Snow award is art. 41.2.F.
2. Will begin a new period of seniority if the employee
returns from a non-bargaining unit position within the
Postal Service, unless the employee returns within 2 years
from the date the employee left the unit.
41.2.A.2: Seniority is computed from date of appoint-
ment in the Letter Carrier Craft and continues to accrue so
long as service is uninterrupted in the Letter Carrier Craft
in the same installation, except as otherwise specifically
provided.
Article 41.2.F: Return From Any Position for Which
Selection Was Based on Best Qualified. Effective July 21,
1978, when an employee, either voluntarily or involuntar-
ily returns to the Letter Carrier Craft at the same installa-
tion, seniority shall be established after reassignment as
the seniority the employee had when leaving the Letter
Carrier Craft without seniority credit for service outside
the craft.

In 1990, arbitrator Carlton J. Snow decided five cases that
arose under the 1984–1987 and 1987–1990 National Agree-
ments. The issue in each case was the seniority status of former
supervisors returning to the letter carrier craft. Snow noted that
there was no clear pattern of reassigning former supervisors to
full-time regular status. The data showed that the Postal Service
had acted at its discretion, sometimes assigning returning su-
pervisors to full-time regular status and sometimes to part-time
flexible status. Snow interpreted article 41.2.A.2 as obliterating
the accumulated seniority rights of a letter carrier who transfers
to a different installation on becoming a supervisor and who
then returns to his original installation as a letter carrier regard-
less of how long the supervisor was out of the craft. In render-
ing his decision in each of the five cases presented to him,
Snow observed that the Postal Service had failed in each case
presented to him to justify its decisions to place former supervi-
sors into full-time regular positions.
In June 1998, the Postal Service and NALC published the
Joint Contract Administration Manual (JCAM), as a guide to
those provisions of the 1994–1998 National Agreement on
which the national parties were in agreement. The purpose of
the JCAM is to “inform labor and management in the field of
these areas of agreement and encourage consistency and com-
pliance with the issues treated.” The JCAM contains narrative
explanations of each contractual provision which, according to
the terms of the JCAM, are to be considered “dispositive of the
joint understanding of the parties at the national level.” The
JCAM narrative explanation of article 12.2.B states that if an
employee leaves an installation and later returns to the letter
carrier craft, article 12.2.B is not applicable. Rather, article
41.2.A.2 requires that in such cases the employee begin a new
period of seniority. The JCAM narrative explanation of article
41.2.A.2 states the general rule that a letter carrier’s seniority is
computed continuously from the date of appointment in the
letter carrier craft if the carrier serves without interruption in
the same installation. The JCAM narrative explanation of arti-
cle 41.2.F reiterates that if an employee is awarded a best-
qualified position in a different installation and later returns to
the letter carrier craft in the original installation, article
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
41.2.A.2 requires that the employee begin a new period of sen-
iority.
In April 1998, the Postal Service and NALC piloted a new
dispute resolution process in selected areas of the country, in-
cluding Connecticut. The program was ultimately incorporated
into memoranda of understanding signed in July and September
2000, and made part of the 1998–2001 National Agreement.
Under this new procedure, a dispute is initially discussed be-
tween the local shop steward and supervisor. This discussion
constitutes the filing of the grievance. If the matter is not re-
solved at this initial stage, the grievance is taken to step A,
which is a discussion between the shop steward and the
installation head or postmaster. If these two individuals are not
able to resolve the matter, the grievance is then taken to a step
B panel consisting of one management and one union
representative. In Connecticut, the step B panel representatives
are Ed Halloran for the Union and George Costeines for the
Postal Service. After reviewing the case, the step B panel issues
a written decision. If the representatives are in disagreement,
the Union may proceed to take the case to arbitration. A
proviso relating to the functions of the step B panel provides:
“Step B representatives may not be subjected to instruction or
coercion intended to subvert the application of the contract as
understood by the national parties.”

B. French’s Employment History
George French began his employment with the Postal Ser-
vice in 1982. In December 1985, he was assigned to the Shel-
ton, Connecticut post office as a letter carrier and his bargain-
ing unit seniority was calculated from the time of that assign-
ment.3 He remained in the letter carrier position until August
1991, when he took a supervisory position at the Fairfield,
Connecticut post office. After several months, French began to
have doubts about his decision to become a supervisor and in
October 1991, he telephoned Sal Persico, vice president of the
Union.4 French inquired about returning to the bargaining unit
and how it would affect his bargaining unit seniority. Accord-
ing to French, Sal Persico said French had “retreat rights” for
up to 2 years. Sal Persico did not testify.
In October 1992, French again considered returning to the
bargaining unit. He was aware of the possibility that if he re-
turned to the letter carrier position, he might lose his accrued
seniority and have to begin a new period of seniority. French
contacted Ronald Persico and asked how he could return to
Shelton as a letter carrier. According to French, Persico told
him that he had to make his request in writing and that although
he would not be given credit for the 14 months he worked as a
supervisor, he would not lose his accrued bargaining unit sen-
iority. In his testimony at trial, Persico flatly denied ever having
had such a conversation with French.
French testified that about a week after this conversation
with Persico, he contacted Patrick Jeanette, then superintendent
3 The exact date French became a letter carrier is not in the record.
4 Sal Persico is the brother of Ronald Persico, the Union’s president
for 24 years. At the time of this phone call, Ronald Persico was on
extended sick leave having suffered a heart attack. Ronald Persico
returned to work in February 1992. To avoid confusion between the
two brothers, I will use Sal Persico’s full name when referring to him.
of postal operations (SPO) of the Shelton facility. Jeanette told
French it was his understanding if French reverted back to the
bargaining unit, he would lose only the 14 months he worked as
a supervisor and would not have to start a new period of senior-
ity. Several days later, French met with Persico in the union
hall. They again discussed what French’s seniority status would
be if he returned to the unit. French asked if he had 2 years to
retreat back to the unit and Persico said yes and that the only
time French would lose was the 14 months he spent as a super-
visor. In this conversation with French, Persico said he had to
talk to Jeanette. Persico denied having this conversation with
French.
Jeanette testified he recalled French speaking to him about
returning to Shelton as a letter carrier and that while he himself
had no objection, when he spoke to Persico on the subject, Per-
sico initially expressed the view that French should go to the
bottom of the seniority list. Jeanette testified he was certain he
spoke with his superiors about this issue because he did not
have the authority to take a personnel action without their ap-
proval. Although he could not recall specifically with whom he
spoke, he recalled the decision was made to reinstate French to
the bargaining unit with all of his accrued seniority and the only
time he would not be given credit for was his 14 months as a
supervisor. Jeanette testified that Persico verbally agreed to this
arrangement. Persico flatly denied ever having spoken to
Jeanette about French’s return to the Shelton facility.
By letter dated October 27, 1992, French wrote to Mike Flu-
ery, director of human resources and requested to return to the
Shelton facility as a full-time letter carrier. In a memo dated
October 29, 1992, Fluery approved French’s request. A person-
nel action form (form 50) prepared by the Postal Service re-
flects the effective date of the reassignment was October 31,
1992, and at the bottom of that form, in the remarks section, the
following notation appears: “Changed to lower level at em-
ployees request—moved back to craft within two years.”
When French returned to the Shelton facility, he was given
full seniority credit for his previous years in the bargaining unit
and was made a full-time letter carrier. He was not given credit
for the 14 months he served as a supervisor and his newly cal-
culated seniority date was April 7, 1987. French testified that
about 2 weeks after his return, in mid-November 1992, Persico
told him he should have come back as a part-time flexible em-
ployee, meaning that he should have started a new period of
seniority which would have made him eligible only for part-
time status. French told Persico if that were the case he would
never have come back because he and his family could not
survive on part-time pay. Again, Persico denied ever having
had this conversation with French.
From October 31, 1992, and for the next 7 years, French’s
full-time status was not disturbed and his seniority date re-
mained April 7, 1987. The seniority list was regularly posted
over the employee timeclock.
C. Early January 2000
Persico testified in or about early January 2000 letter carrier
Ismael Rosario mentioned to him that although he and em-
ployee Tim Herrick started their employment on the same day
Herrick’s name appeared ahead of Rosario’s on the seniority
POSTAL SERVICE 1187
list. Rosario believed he should be ahead of Herrick. Persico
testified he looked at the tiebreaker provisions of the collective-
bargaining agreement and determined that because Rosario had
previous military service he should have been placed ahead of
Herrick on the seniority list. Persico told Supervisor Bill Un-
fricht that Rosario should be ahead of Herrick on the list and he
requested that Unfricht print him a copy of the seniority list.
After he received the list from Unfricht, Persico noticed
French’s name ahead of Herrick’s name. Persico testified to his
thought processes at the time:

I took the list and I was looking at the list and Mr. French’s
name jumped out at me. Then it hit me because there was
problems with Mr. Rosario and there might have been other
discrepancies there. [It] hit me as gee, this guy was a supervi-
sor at one time. I’m wondering if maybe he’s in the wrong
spot.

Sometime in the week of January 6, Persico met with Offi-
cer-in-Charge Anthony Lombardozzi to award jobs bid on by
employees based on seniority and French was one of the em-
ployees being considered. Persico described his conversation
with Lombardozzi as follows:

I mentioned to Mr. Lombardozzi that I thought that Mr.
French was in the wrong place could he please check and get
back to me and let me know if Mr. French had indeed been
moved for the 14 months because when I was reading the
JCAM I noticed in there that anybody that was outside of the
Postal Service and then came back within two years they lose
the time that they should have been out and Mr. French had
been out for 14 months he was out and should have lost that. I
asked him if he could let me know if he had been moved.

Lombardozzi testified that French was awarded the job for
which he had bid. Rosario and Unfricht did not testify.
D. January 26
According to Persico, on the morning of January 26, he was
in the men’s room when French walked in. No one else was
present. Persico said to him, “George, I’ve been checking the
seniority, you might be in the wrong spot. I don’t know if they
have moved you for the time you spent outside the craft.” Per-
sico testified French got “huffy” and said to Persico “you can’t
do that, it’s been seven years.” Persico testified he was fearful
of French at that point and walked out of the men’s room.
French denied having had any conversation with Persico in the
men’s room on January 26.
E. January 27: Incident on the Workroom Floor
The morning of January 27 was bitter cold and it was snow-
ing. French punched in at his usual time of 7 a.m. and pro-
ceeded to sort his mail along with approximately 36 other letter
carriers in a large room.5 In years past on snowy mornings, the
vehicle operations maintenance assistant (VOMA) had assisted
the letter carriers in getting their trucks ready by starting the
engines and clearing snow from the vehicles. On January 27,
Persico held the position of VOMA. According to French, he

5 There are 37 cases or work stations where letter carriers sort mail
in the Shelton facility.
left his case and walked to the head of the room to ask Unfricht
if Persico was going to help get the trucks ready as the preced-
ing VOMA had done. Unfricht said Persico was not going to do
that. French walked back toward his case and observed Persico
conducting a football pool with employees. He called to Persico
and complained in a loud voice that Persico had time to run a
football pool but didn’t have time to do the trucks. Persico re-
sponded, also in a loud voice, it was not his job to do the trucks,
French should do it himself. The volume and tone of the argu-
ment escalated and French accused Persico of only being out
for himself. Persico retorted, “I’ve been good to you. My
brother’s been good to you, I’ll take your fucking seniority.
You’ll go right down the fucking list.” Unfricht and Supervisor
Tim Howard stepped in front of Persico and employee John
Karpiej stepped in front of French. The exchange did not last
more than 30 seconds.
Karpiej has been a letter carrier at the Shelton facility for 12
years. Karpiej testified that he was preparing his mail when he
heard French say to Persico that instead of running the football
pool, Persico should clean off the trucks and start the engines.
Karpiej heard Persico respond that he and his brother had been
good to French. He heard Persico say, “[D]on’t fuck with me,
I’ll take your seniority.” Karpiej testified the two men were
standing about 6 feet from one another and talking loudly, to
the point of yelling.
Edgar Yother has been a letter carrier at the Shelton facility
for 14 years. He was at his case when he heard French say,
“[H]ow come you’re not down cleaning the trucks?” He heard
Persico respond, “[I]t’s not my job.” French then said, “[H]ey,
Brickett was always down there cleaning the trucks. He’d go
down there and start the trucks for us.” Yother heard Persico
say he had taken care of French and French said yes he had, a
long time ago. More words were exchanged and Yother heard
Persico yell, “I’ll take away your seniority.” It was not until he
heard this last statement that Yother looked around his case to
see Unfricht, Howard, and several employees gathered around
French and Persico. Yother testified French and Persico were
speaking very loudly and he had no difficulty hearing what they
said. He did not recall hearing any profanity.
Linda Dewey has been a letter carrier at the Shelton facility
for 16 years. Dewey testified she was sorting mail at her case
when she witnessed French and Persico standing 8 to 10 feet
from one another, speaking in loud voices. She heard French
tell Persico he should go down to the lower lot to start the
trucks and she also heard him say Persico only took care of his
own. She heard Persico respond that he and his brother had
been good to French in the past and how would French like it if
he took away his seniority. Later that same morning, Dewey
was exiting the downstairs ladies room when she encountered
Persico. Persico stated to Dewey he was not going to let French
get away with what he did. Dewey’s response was, “Ronnie,
leave it alone.”
Persico testified he was talking to an employee when he
heard French yelling from a distance of 20 to 30 feet about
someone running a football pool and he couldn’t get his truck
running. French “flew” past him and out the doors of the post
office. A few minutes later, French came walking back inside
and Persico asked him what the problem was with his truck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
French came very close to Persico and yelled in his face,
“[C]an’t get a fucking truck started and you don’t do your fuck-
ing job.” Persico said he became nervous because French was
right over him. Persico said, “get the fuck out of my face. What
are you mad because you’re going to lose your seniority?” The
confrontation ended and French walked away.
F. January 27: Meeting in Lombardozzi’s Office
Lombardozzi testified that he was walking out of his office
and down a corridor when he heard loud voices. He walked out
to the workroom floor and he saw Persico walking down the
aisle. Lombardozzi saw that Persico was “very upset” and
brought him into his office. Persico told Lombardozzi that
French was yelling at him because French thought Persico
should have started the vehicles. Lombardozzi’s testimony
continued:

He asked me if I did anything yet with the seniority, looked
into the seniority of George French . . . said yes I have but I
cannot find anything to show me. There was an issue over 14
months I believe it was seniority that I guess Mr. French was
supposed to have been taken away from—that 14 months was
supposed to have been taken away from him sometime back
in 1990 or 1991 and he asked me if I had found any evidence
of that. I said no I hadn’t. He was pretty adamant about it. I
said look why don’t you calm down and you know I was just
afraid that it was—I didn’t want it to become—I was worried
about Mr. Persico let’s put it that way because we talked in
the past and I knew that he had some troubles, health prob-
lems, and I just didn’t want to see him get sick over a crazy
thing. So I tried to just you know bring the tension down as
much as I could over the situation.

Persico admitted in his testimony that Lombardozzi sug-
gested he come back with a cooler head before talking about
French’s seniority. Persico also admitted that he nevertheless
persisted and asked Lombardozzi to print him out a copy of the
seniority list. Lombardozzi complied and the printed list re-
flected French’s seniority date of April 7, 1987. Persico drew
an arrow from French’s name which appeared in the 24th posi-
tion on the list to the 34th position on the list. He told Lombar-
dozzi, “If he does lose it, if you can’t find it, this is where he
would go.” Lombardozzi responded, “[W]e’ll do what we have
to do.”6
G. January 29
Both Lombardozzi and Persico testified that within a day or
two of the workroom floor incident, they again discussed
French’s seniority. Both testified that Persico asked if Lombar-
dozzi had obtained any information to show whether or not

6 On the printed copy of the seniority list French appeared in the
24th position, Herrick in the 25th position and Rosario in the 26th
position. Persico hand numbered the names on the list and crossed out
the name of employee Macdonald in the seventh position. Because
Macdonald’s name appears on subsequent seniority lists in the seventh
position, I have included Macdonald in calculating French’s position on
the January 27 list. Regardless of whether Macdonald is counted or not,
Persico dropped French 10 positions on the list which is the operative
fact in this case.
French had been given bargaining unit credit for the 14 months
he had served as a supervisor. Both testified that Lombardozzi
said that he had not verified that information and both testified
that Persico stated that the seniority list should be adjusted
anyway. Lombardozzi obliged Persico’s request and the senior-
ity list that had been marked up by Persico was posted above
the timeclock where the seniority list was typically displayed.
At trial, Lombardozzi was asked about the quality and sub-
stance of his investigation into French’s seniority status after
the January 27 incident. He testified he looked at old seniority
lists and personnel information available to him. He did not
speak to anyone else in management and he did not speak to
French. Nor did he consult the National Agreement, the Snow
award or the JCAM. He summed up his decisionmaking on the
issue:

JUDGE KERN: Was the seniority list changed at Mr.
Persico’s request as it related to Mr. French?
A: Yes and no. He brought it to my attention and as I
stated I really couldn’t find anything to show concrete evi-
dence where it was taken away. Really I don’t recall
speaking to any supervisors about it. The record keeping
in the office was kind of shoddy so I basically went with
his word, Mr. Persico’s word, because being the Union
president I would think that he would be privy to just as
many seniority issues as we were.

Lombardozzi left the Shelton facility several days later and
was replaced by John O’Mara, an admitted supervisor and
agent of the Postal Service as of February 2.
H. Persico’s Questioning of Witnesses
A subsequent seniority list printed on February 9, showed
French in the 34th position with a new seniority date of June
27, 1988. On observing this, French spoke with O’Mara who
confirmed that French’s seniority had been recalculated. French
appealed to about 30 of his fellow employees to sign a state-
ment if they heard Persico’s threat. Five employees volunteered
to sign a statement including Karpiej and Dewey.
Karpiej testified that about a month after he signed the
statement attesting to his observations on January 27, he was
summoned to the postmaster’s office in the Shelton facility.
Present in the office when he arrived were Persico and Fran
Krugel, shop steward. Persico asked him a series of questions
about the statement, but Karpiej did not testify what specific
questions were asked.
Dewey testified that she was summoned to the postmaster’s
office by Unfricht and she was afraid she had done something
wrong. Once in the office, Unfricht, Persico, and Krugel were
present. Unfricht told Dewey that Persico was there to talk to
her and told Dewey to sit down. Persico had a copy of Dewey’s
statement and proceeded to question her about why she signed
the statement and about her recollection of the events of Janu-
ary 27. He asked her why she didn’t come to him with the
statement before she signed it and she said she didn’t think she
had to. Krugel took notes as Dewey spoke. Dewey repeatedly
said to Persico that his questioning of her was wrong and asked
why he was doing this. Persico responded, “[W]hy don’t you
just answer the questions.”
POSTAL SERVICE 1189
I. French’s Grievance
French filed a grievance claiming that the lowering of his
position on the February 9 seniority list violated articles 5 and
41 of the National Agreement,7 and also violated the October
1992 agreement reached between Persico and Jeanette. On
February 23, Unfricht denied the grievance at step 1.
Sometime after the step 1 decision, French again spoke with
O’Mara and related to him the events of January 27 and his
subsequent drop on the seniority list. O’Mara testified that he
advised French as follows:

Well I told George he should be careful because he was put-
ting a lot more on the line because in reality at the time he
shouldn’t have lost the 14 months. He should have lost all of
his seniority and that if he pushed the issue he could end up
losing more on the seniority list because if they determined
that that’s where he actually should have been, he would have
dropped by 11 positions or more.

French prepared a submission of facts to support his griev-
ance at the step 2 level. In that packet of information, French
stated that on his return to the bargaining unit on October 31,
1992, an agreement was reached between Jeanette and Persico
that French would only lose seniority credit for the 14 months
he was a supervisor. He went on to state: “The National [collec-
tive bargaining agreement] states otherwise, but the Local Un-
ion President knew this and had the authority to make the
agreement. This agreement was made over (7) years ago.”
French claimed that the recalculation of his seniority date from
April 7, 1987, to June 27, 1988, was done at Persico’s insis-
tence and that Persico was motivated purely out of personal
animosity toward French. He claimed the Postal Service’s ac-
tion not only violated the National Agreement but also violated
Section 8 of the Act. Attached to French’s submission were the
employee letters regarding the January 27 incident as well as a
letter dated February 15, from Jeanette in which Jeanette wrote:
“As I recall it was agreed by the National Association of Letter
Carriers (local branch) and by management that he would lose
only that time he served as a supervisor at the Fairfield Post
Office which was approximately 14 months.”
Persico testified his review of French’s submission prompted
him to reexamine the JCAM and he noticed, for the first time,
the narrative explanation of article 41.2.F indicating that on
returning to Shelton, French should have started a new period
of seniority. Persico testified he had missed this provision when
he had earlier investigated French’s status.
On February 28, Persico and O’Mara met and O’Mara told
Persico that French had not been given credit for his 14
months’ seniority as a supervisor, i.e., French’s seniority date
of April 7, 1987, was correct and the June 27, 1998 date was
incorrect. Persico’s response to learning that O’Mara deemed
French’s grievance meritorious was to tell O’Mara, [W]ell
that’s moot anyway right now . . . . I just said to him I’m going

7 Art. 5 is a general prohibition against unilateral action by the Postal
Service in violation of any provision of the National Agreement or in
violation of the law. The relevant provisions of art. 41 have previously
been summarized.
to withdraw that grievance and file a new one.” Persico never
advised French that he had withdrawn his grievance.
On a seniority list printed on March 7, French was restored
to the 24th position with a seniority date of April 7, 1987.
J. Persico’s Class Action Grievance
On February 29, Persico filed a class action grievance alleg-
ing the Postal Service had failed to keep an updated seniority
list. The remedy sought was described as follows:

1) That Mr. Rosario be placed ahead of Mr. Herrick on the
seniority list. 2) That Mr. French be placed behind Mr.
Schlenk on the seniority list with a seniority date of (10–31–
92) the day that he returned back to the carrier craft in Shelton
from Fairfield.

In support of his position, Persico incorporated as Union’s
Exhibit 2 the JCAM narrative explaining article 41.2.F. The
grievance was denied at the initial step by Unfricht and on
March 9, Persico and O’Mara met to conduct the step A meet-
ing. O’Mara denied the grievance as untimely. Specifically,
O’Mara determined that the Union was aware of French’s
placement on the seniority list when he returned to the bargain-
ing unit in 1992. It was O’Mara’s position that the reduction in
French’s seniority by only 14 months was not grieved in 1992
because the Union had agreed that was the proper placement
for him on the seniority list. O’Mara’s stated view was that the
Union’s waiting 8 years to ask for a further reduction in
French’s seniority was unreasonable. Persico appealed from
O’Mara’s denial of the grievance and the matter was submitted
to the step B panel. Incorporated in the packet of materials
forwarded to the step B panel was a copy of French’s submis-
sion of facts that he had prepared in connection with his own
grievance.
On March 17, the step B panel determined that the class ac-
tion grievance was not untimely since it is the Postal Service’s
responsibility to maintain the seniority list and corrections must
be made whenever an error occurs. The panel also determined
that French was properly credited with his previous bargaining
unit seniority on his return to Shelton. Relying specifically on
article 41.2.F of the National Agreement, as interpreted by the
JCAM on page 41–16, the panel concluded that French had
returned to the same installation within 2 years and therefore
should have received credit for the seniority he had prior to
leaving the unit, losing only the time he spent outside the bar-
gaining unit.
When Persico received the step B panel decision, he told
O’Mara that the decision was incorrect and that he was going to
call the panel members to straighten the matter out. O’Mara
agreed to participate in a four-way conference call with Persico,
Halloran, and Costeines. During the call, Persico pointed out
that there was additional language on the bottom of page 41–16
of the JCAM which stated that where an employee leaves an
installation to take a supervisory position and later returns to
the letter carrier craft in the original installation, the National
Agreement requires the employee begin a new period of senior-
ity and the 2-year retreat provisions do not apply. Halloran and
Costeines agreed that they had made a mistake.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
Three days after its first decision, on March 20, the step B
panel issued a “corrected decision” in which it was concluded,
based on article 41.2.A.2 of the National Agreement, that
French should have begun a new period of seniority on his
return to the Shelton post office.
Vernon Tyler is a labor relations specialist for the Postal
Service. Tyler was asked about the appropriateness of local
parties contacting the members of the step B panel to advise
them that their decision was wrong. Tyler testified that such
contact would be improper.
On March 22, O’Mara sent a letter to French advising him of
the step B panel’s March 20 decision and providing him with a
copy of the adjusted seniority roster. This was the first time
French was aware that the class action grievance had even been
filed. On that roster, dated March 22, French was listed in the
40th position with a seniority date of October 31, 1992.
In May, French bid on a postal route and as a result of his
lowered position on the seniority list, lost the bid to another,
more senior, employee.
K. French’s Union Membership
From December 1985, when he first became a letter carrier
to the present, French has been a member of the Union in good
standing, with the exception of the 14-month period he served
as a supervisor. He has never sought or held an elected position.
Persico testified that his pursuit of the class action grievance
was motivated purely out of his desire to protect the seniority
rights of all his members and was unrelated to his argument
with French on January 27.
IV. ANALYSIS
A. Credibility
I discredit the testimony of Ronald Persico as the record is
replete with examples of his lack of credibility. I found French
and Jeanette to be more credible witnesses than Persico and
these individuals’ testimony contradicted Persico’s testimony in
material respects. I credit French and Jeanette that they each
spoke with Persico on several occasions in October 1992 about
French’s return to the bargaining unit. I found Jeanette to be a
particularly credible witness who had no stake in the outcome
of this case, and I reject the suggestion that Jeanette was pre-
disposed to testify favorably for French because he earned a
small commission as a real estate agent on the sale of French’s
home several years ago. It is entirely reasonable that the return
of a supervisor to the bargaining unit was a matter that would
have been discussed with the union president and Persico’s
testimony that he was completely unaware of the circumstances
of French’s return is simply not believable. I therefore reject as
false Persico’s testimony that he first questioned French’s sen-
iority in early January 2000, when he was looking at the senior-
ity list and French’s name just “jumped out” at him.
I also reject Persico and Lombardozzi’s testimony that they
questioned French’s seniority during the week of January 6,
when they were awarding jobs based on seniority. Lombardozzi
admitted that French was awarded the job for which he had bid.
Had there been a genuine issue as to French’s seniority at that
time, he would not have been awarded the job.
Finally, I reject as utterly false Persico’s testimony that he
had a one on one conversation with French in the men’s room
on January 26. Persico testified that after he questioned whether
French had been given credit for the 14 months he served as a
supervisor, French became so upset that Persico was afraid
French might do something to him. The fact is that French al-
ways knew he had not been given credit for those 14 months
and would have had no reason to become upset by Persico’s
interest in the matter. Persico’s testimony on this point is illogi-
cal and I credit French that this encounter never took place.
I credit the testimony of French, Karpiej, Yother, and Dewey
as to the events of January 27, over the testimony of Persico.
While all of these witnesses were generally credible, Dewey’s
testimony was particularly impressive. Dewey recounted how
she was intimidated by Persico when he cross examined her in
the postmaster’s office about why she signed a statement
against his interests. When she asked him why he was question-
ing her in this fashion, his imperious response was “just answer
the questions.” Dewey kept her head down throughout much of
her testimony and was clearly anxious about testifying in Per-
sico’s presence. Under these difficult circumstances, I found
Dewey to be particularly credible.
B. The 1992 Decision of the Postal Service
The credible evidence establishes that on French’s request to
return to the Shelton facility in October 1992, there was discus-
sion amongst French, Persico, and Jeanette about French’s
seniority status and whether he would be able to return as a
full-time letter carrier. Jeanette’s testimony establishes that he
consulted with his superiors in the Postal Service and that the
decision was made to allow French to retain his accrued bar-
gaining unit seniority. His testimony is corroborated in several
ways. First, the uncontradicted testimony is that Sal Persico, the
union vice president, told French that he had “retreat rights” for
2 years. Second, in his letter to Fluery, French requested to be
returned as a full-time letter carrier and that request was
granted. Third, the notation at the bottom of the Form 50 pre-
pared on October 31, 1992, was “moved back to craft within 2
years,” clearly a reference to the 2-year retreat provisions of the
1990–1994 National Agreement in effect at the time. Fourth,
and perhaps most relevant, Persico had the right, under article
15, section 2 of the 1990–1994 National Agreement to chal-
lenge the Postal Service’s determination of French’s seniority
rights and to file a grievance. Persico did not file a grievance
and abided by that determination for 7 years.
There is no evidence to determine whether in 1992 the Postal
Service and Persico were aware of the 1990 Snow arbitration
award. It may be that they were ignorant of the decision, or it
may be that they considered French’s case distinguishable in
some way. The record is silent on this point. What is clear is
that neither the Postal Service nor Persico considered the
JCAM interpretations in 1992 as the JCAM was not published
until 6 years later.
Under all of these circumstances, I conclude that under the
terms of the 1990–1994 National Agreement, as construed by
the Postal Service in 1992, French was given credit for his ac-
crued bargaining unit seniority on his return to the unit on Oc-
POSTAL SERVICE 1191
tober 31, 1992. The Union abided by that determination for 7
years.
C. January 27 Demand by Persico
The credible testimony of French, Karpiej, Yother, and
Dewey establishes that on January 27, French and Persico en-
gaged in a heated exchange over Persico’s refusal to assist the
letter carriers in clearing their trucks of snow while at the same
time conducting a football pool. In the course of that exchange,
Persico threatened to take away French’s seniority. There was
no motivation for Persico to question French’s seniority other
than his anger and embarrassment at being called to task in
front of fellow employees and union members. I therefore find
Persico’s threat to affect French’s terms and conditions of em-
ployment because of personal animosity violated Section
8(b)(1)(A) of the Act as alleged in the complaint. Miranda Fuel
Co., 140 NLRB 181 (1962).
Immediately following the argument, Persico was visibly
agitated and upset, so much so that Lombardozzi was con-
cerned for Persico’s health given his history of heart disease.
Later that morning, Persico was still angry and told Dewey he
was not going to let French “get away with what he did.” That
same day, Persico took a pen and marked up the seniority list,
drawing an arrow to indicate French should be moved from the
24th position on the list to the 34th position. He instructed
Lombardozzi that if Lombardozzi could not find evidence to
establish whether French was properly listed on the seniority
list, he should rely on Persico’s markings and reduce French’s
seniority anyway. Two days later, on or about January 29,
without having verified Persico’s assertions in any objective
way, Lombardozzi posted the adjusted seniority list. The Gen-
eral Counsel did not specifically allege these acts as violating
Sections 8(b)(2) and 8(a)(3). Nevertheless, I find the issues
were sufficiently raised by the pleadings and fully litigated at
the hearing. Williams Pipeline Co., 315 NLRB 630 (1994);
Pergament United Sales, Inc., 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990). It is therefore appropriate to
make a finding with respect to this conduct particularly, where
as here, the violations are established, at least in part, by the
testimonial admissions of Persico and Lombardozzi. Metrocare
Home Services, 332 NLRB 1570 fn. 2 (2000). I therefore find
that on January 27, the Union, by Persico, violated Section
8(b)(2) of the Act by causing and attempting to cause the Postal
Service to discriminate against French in violation of Section
8(a)(3) of the Act. I further find that on January 29, the Postal
Service violated Section 8(a)(3) of the Act by acceding to Per-
sico’s arbitrary demand and reducing French’s seniority. Id.
D. The February 29 Filing of Class Action Grievance
On February 28, O’Mara determined that French had not
been given bargaining unit seniority for his time as a supervisor
and sustained French’s grievance. Not only did Persico fail to
advise French that his grievance had been upheld by the offi-
cer-in-charge, Persico actually withdrew the meritorious griev-
ance and continued his campaign against French. Persico’s new
theory, and the premise on which he filed the class action
grievance as it related to French, was based on the JCAM nar-
rative explanation of article 41.2.F. Again, the essential point is
that the JCAM explanation of article 41.2.F was not published
until June 1998, 6 years after the decision was made regarding
French’s seniority status. When Persico filed the class action
grievance on February 29, he was uniquely aware that he had
previously agreed to the Postal Service’s decision to credit
French with his bargaining unit seniority and that he was rely-
ing on the JCAM to mask his true motivation in filing the
grievance: to avenge his humiliation by French in front of his
co-workers and fellow union members. Under these circum-
stances I find that by filing the class action grievance on Febru-
ary 29, Respondent Union, by Persico, violated Section 8(b)(2)
of the Act.
E. The March 20 Decision of the Step B Panel
Respondents argue that the Board should defer to the March
20 decision of the Step B panel under the standards for deferral
set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and
Olin Corp., 268 NLRB 573 (1984), and as applied to settlement
agreements reached during grievance and arbitration proceed-
ings. Postal Service, 300 NLRB 196 (1990); Alpha Beta Co.,
273 NLRB 1546 (1985), petition for review denied sub nom.
Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987). The General
Counsel opposes deferral in this case.
Under Spielberg/Olin, (1) the arbitration proceedings must
have been fair and regular; (2) all parties must have agreed to
be bound; (3) the arbitral decision must not be clearly repug-
nant to the Act; (4) the contractual issue before the arbitrator
must be factually parallel to the unfair labor practice issue; and
(5) the arbitrator must have been presented generally with the
facts relevant to resolve any unfair labor practice. I find that the
first prong of the Spielberg/Olin test has not been met in that
the proceedings which culminated in the March 20 resolution of
the step B panel were not fair and regular.
Persico was true to his word when he told Dewey that he was
going to get French for what French had done to him, and from
January 27 to March 20, Persico was a man on a mission. It was
at Persico’s insistence that Lombardozzi improperly took away
14 months seniority from French. French grieved that decision
and his grievance was upheld by O’Mara, Lombardozzi’s suc-
cessor. When O’Mara told Persico that he had determined
French’s grievance meritorious, Persico withdrew French’s
grievance and filed a class action grievance the sole purpose of
which, as it related to French, was to strip him of the seniority
he had accrued from 1985 to 1991. Persico never advised
French that his grievance was deemed meritorious or that Per-
sico had filed a grievance that sought to disadvantage French.
When the step B panel issued its first decision on March 17,
Persico was unhappy with the outcome, which was favorable to
French. At his initiation, he and O’Mara telephoned the panel
members and Persico told them that their decision was wrong.
This communication was improper as acknowledged by the
Postal Service’s own labor relations expert. As a direct result of
Persico and O’Mara’s phone call, the step B panel reversed
course and issued a decision adverse to French. The Board has
long held that it is not consonant with statutory policy to defer
to arbitration, or in this case to a grievance settlement, when the
interests of the charging party discriminatee is in obvious con-
flict with the interests of the Union. Russ Togs, Inc., 253 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
767 (1980); Kansas Meat Packers, 198 NLRB 543 (1972).
Deferral in this case is therefore inappropriate.
F. Wright Line Defense
In all cases alleging a violation of Section 8(a)(3) or viola-
tions of Section 8(a)(1) turning on employer motivation, the
General Counsel is required, in the first instance, to make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established, the employer has the burden
to demonstrate that the same action would have taken place
even in the absence of the protected conduct. Wright Line, 251
NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
For all the reasons previously discussed, I find the General
Counsel has established by a preponderance of the evidence
that the Postal Service acceded to the Union’s demands to re-
duce French’s seniority. As to the January 29 reduction in
French’s seniority by 14 months, the evidence establishes con-
clusively that the sole reason Lombardozzi changed French’s
position on the seniority list was at the insistence of Persico
whom Lombardozzi knew was acting out of anger and retalia-
tion. The reason O’Mara reinstated French to his previous posi-
tion on the list a month later was because it was the first time
the Postal Service bothered to check the facts. I therefore find
that the Postal Service has failed to satisfy its burden of estab-
lishing its defense that it would have reduced French’s seniority
on January 29, absent unlawful motivation.
Similarly, French’s seniority status would not have been re-
duced on March 22, but for the class action grievance, the filing
of which I have found to be an unfair labor practice. The Postal
Service cannot divorce itself from the fact that the entire griev-
ance process was corrupted by Persico’s invidious motives. I
reject the argument that if the Postal Service had been pre-
sented with a class action grievance on the issue of seniority,
even in the absence of the January 27 dispute between Persico
and French, the step B panel would have reduced French’s
seniority. As already summarized, the evidence establishes that
the Postal Service determined, under the terms of the 1994–
1998 National Agreement as it was interpreted in 1992, that
French was entitled to retain his seniority since he returned to
the bargaining unit within 2 years. In fact, this interpretation
paralleled the interpretation given by the step B panel in its
initial March 17 decision. It was only when Persico and
O’Mara improperly communicated with the step B panel that
the panel members were persuaded that they had made an erro-
neous determination. I therefore find that the Postal Service has
failed to satisfy its burden under Wright Line.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Postal Service by vir-
tue of section 1209 of the Postal Reorganization Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. On January 27, 2000, the Union, by Persico, violated Sec-
tion 8(b)(1)(A) of the Act by threatening an employee with loss
of job seniority for arbitrary and invidious reasons.
4. On January 27, 2000, the Union caused and attempted to
cause Respondent Postal Service to discriminate against French
in violation of Section 8(b)(2) of the Act by demanding his
seniority be reduced for arbitrary and invidious reasons.
5. On January 29, 2000, the Postal Service violated Section
8(a)(3) of the Act by reducing French’s seniority pursuant to
Respondent Union’s request.
6. On February 29, 2000, the Union caused and attempted to
cause Respondent Postal Service to discriminate against French
in violation of Section 8(b)(2) of the Act by demanding his
seniority be reduced for arbitrary and invidious reasons through
the filing of a grievance.
7. On March 22, 2000, the Postal Service violated Section
8(a)(3) of the Act by reducing French’s seniority pursuant to
the Union’s request.
8. Deferral to the March 20, 2000 decision of the step B
panel is inappropriate.
9. The unfair labor practices engaged in by Respondents af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having discriminatorily re-
duced the seniority of French from January 29 to February 28,
and from March 22, 2000, continuing to the present, Respon-
dent Postal Service must restore French to his former position
on the seniority list with a seniority date of April 7, 1987. Re-
spondent Postal Service and Respondent Union must jointly
and severally make French whole for any loss of earnings and
other benefits suffered as a result of this discrimination, com-
puted on a quarterly basis plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]