Postal Service

National Labor Relations Board - Board Decisions

Jun 28, 2007

350 N.L.R.B. 125 (N.L.R.B. 2007)

POSTAL SERVICE
350 NLRB No. 12
125
United States Postal Service and Bobby Cline. Case
15–CA–17506(P)
June 28, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 13, 2005, Administrative Law Judge Michael
A. Marcionese issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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 decided to
affirm the judge’s rulings, findings, and conclusions as
discussed below, and to adopt the recommended Order.
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening an employee with a
lawsuit and unspecified reprisals because he had filed an
unfair labor practice charge with the Board. In its excep-
tions, the Respondent contends, inter alia, that its threat
to sue was privileged under the principles set forth in BE
& K Construction v. NLRB, 536 U.S. 516 (2002). For
the following reasons, we find no merit in the Respon-
dent’s contention and conclude that, in the circumstances
of this case, the Respondent’s threat violated Section
8(a)(1) of the Act.
Background
On August 25, 2004, employee Eileen Wittic discov-
ered some white powder in a tray of letters at the Destin,
Florida post office and brought this to the attention of
Supervisor Bobby Powers. A disagreement then arose
among Wittic, Powers, Charging Party Bobby Cline (an
employee and union member), and Union Steward Mar-
cus Jackson regarding the safety of handling the mail.
The dispute became heated, and at one point Powers told
Jackson to shut up. When Jackson attempted to tele-
phone the Union for guidance, Powers told him that if he
did not get back to the work area, Powers would clock
Jackson out. As a result of this incident, Cline filed an
unfair labor practice charge with the Board on September
17, 2004. The charge alleged that on August 25, 2004,
Powers had “refused to allow Union Steward Marcus
Jackson to perform his union duties.”
Upon receiving a copy of the charge on September 23,
2004, Powers telephoned Cline in order to discuss the
charge with him. After identifying himself, Powers
opened the conversation by telling Cline that Powers had
received papers from the National Labor Relations
Board, and asking what it was about. Cline told Powers
that it was about the August 25 incident during which
Powers did not allow Jackson to make inquiries on be-
half of Cline and the other employees. At that point,
according to Cline’s credited testimony, Powers began
yelling and telling Cline that he was going to be sorry
that he had done this. In the next breath, Powers told
Cline that Cline “had better get a good attorney, because
he [Powers] was going to sue [Cline], and that he [Pow-
ers] already had a good attorney.” Powers then
“slammed the phone down” before Cline had a chance to
respond. Powers did not, however, obtain legal counsel
and no lawsuit was filed.
In finding that the Respondent’s threat to sue violated
Section 8(a)(1), the judge relied, inter alia, on Consoli-
dated Edison Co., 286 NLRB 1031 (1987), and Car-
borundum Resistant Materials Corp., 286 NLRB 1321
(1987), in which the Board found that similar threats to
sue violated Section 8(a)(1).1 The judge concluded that
Powers’ threats would reasonably tend to interfere with,
restrain, or coerce employees in the exercise of their
statutory rights, including the right to file an unfair labor
practice charge with the Board.
In exceptions, the Respondent argues that the “bright
line the ALJ imposes here chills the right to petition the
courts by handicapping activity immediately precedent
to, and intimately associated with, recourse to the judicial
process.” Although BE & K itself concerned a lawsuit,
the Respondent contends that its principles should be
extended to threats to sue, because “[t]hreatening re-
course to the judicial process, no less than complaints
seeking redress, promote[s] the interests served by the
right to petition the courts.” Under the Respondent’s
interpretation of BE & K, “threats of litigation, incidental
to the normal process of litigation,” would not constitute
unfair labor practices.
Analysis
For purposes of this decision only, we assume ar-
guendo, without deciding, that the principles of BE & K
are to be applied to a situation where a threat to file a
lawsuit is “incidental” to a lawsuit. Nevertheless, we
find that where, as here, no actual lawsuit was filed, the
threat was not “incidental” and, thus, the Respondent’s
threat to sue Cline for filing an unfair labor practice
charge violated Section 8(a)(1) of the Act.
In Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d
601 (D.C. Cir. 2007), the United States Court of Appeals

1 In those cases, the Board distinguished between the threat to file a
lawsuit and the actual filing of a lawsuit. The Board found that what-
ever constitutional concerns might exist with respect to the filing of a
lawsuit, they are not implicated when only a threat to file a lawsuit is in
issue. The judge found that nothing in BE & K overrules Consolidated
Edison or Carborundum, or suggests that a statement by itself could not
be found to be an unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD126
for the District of Columbia Circuit recently considered a
similar argument, that certain employer conduct was
privileged as “incidental” to a lawsuit. In that case, the
Board found that the employer violated Section 8(a)(1)
when it interfered with a protected union demonstration
on its sidewalk by broadcasting a message over loud-
speakers warning the demonstrators that they were com-
mitting criminal trespass and by attempting a “citizen’s
arrest” of a union official. Although the employer had
also filed a lawsuit against the union, that lawsuit was
not alleged or found to be an unfair labor practice.2
Before the court, the employer argued that its broad-
cast of the trespass message and its attempt to make the
“citizen’s arrest” were “incidental to and inextricably
intertwined” with its lawsuit, and therefore the broadcast
and attempted “citizen’s arrest” were protected under the
Supreme Court’s Noerr-Pennington doctrine.3 Supra at
612. The court rejected that contention.
The court explained that the Noerr-Pennington doc-
trine “provides that in certain contexts otherwise illegal
conduct—such as concerted activity among business
competitors—is protected by the First Amendment when
it is part of a direct petition to government or ‘incidental’
to a direct petition.” Supra at 611. Without deciding
whether the Noerr-Pennington doctrine was applicable to
“incidental” threats in a labor context, the court rejected
the employer’s defense, finding that the employer did not
establish that its conduct was in fact “incidental” to its
lawsuit. In reaching that conclusion, the court empha-
sized that the employer failed to show that broadcasting
the trespass message and attempting to effect a “citizen’s
arrest” were “in any sense prerequisites to its lawsuit.”
Supra at 614.
Applying those principles here, we find that the Re-
spondent has similarly failed to show that its conduct
was “incidental” to a lawsuit. Most significantly, the
Respondent never filed a lawsuit against Cline. There-
fore, the Respondent’s threat to sue Cline was not pre-
liminary to, or intertwined with, protected litigation or
petitioning activity. Consequently, the threat is not enti-
tled to immunity.4

2 345 NLRB 1061, 1068.
3 Eastern Railroad Presidents Conference v. Noerr Motor Freight,
365 U.S. 127, 136–138 (1961); United Mine Workers of America v.
Pennington, 381 U.S. 657, 669–670 (1965). Both of those cases are
discussed in BE & K.
4 Chairman Battista agrees that the remarks here were a threat and
were not simply statements incidental to a prospective lawsuit. How-
ever, he does not rely principally on the fact that the suit was never
filed. Chairman Battista believes that a respondent may lawfully state
an intention to file a suit and yet never actually file the suit. However,
in the instant case, Chairman Battista finds that the circumstances
(Powers’ yelling and his slamming the phone down, plus the fact that a
suit was never filed), support the view that Cline would reasonably
As found by the judge, Powers’ threat to sue Cline for
filing an unfair labor practice charge had the reasonable
tendency to restrain employees in the exercise of their
right to file charges under the Act. Accordingly, we find
that the threat violated Section 8(a)(1) of the Act.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Postal Service,
Destin, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Kevin McClue, Esq. and Valerie Bennett, Esq., for the General
Counsel.
John C. Oldenburg, Esq., for the Respondent.
BENCH DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Destin, Florida, on June 20, 2005. Bobby
Cline, an individual, filed the charge in this case on September
17, 2004, and amended it on October 4 and 28, 2004.1 On
January 26, 2005, the complaint and notice of hearing issued
alleging that the Respondent, United States Postal Service,
violated Section 8(a)(1) of the Act, through its alleged Supervi-
sor Bobby Powers, on or about September 23, 2004, by threat-
ening employees with unspecified reprisals and a lawsuit be-
cause employees had filed charges with the NLRB. The Re-
spondent filed an answer to the complaint on February 8, 2005,
denying the alleged unfair labor practices and raising certain
affirmative defenses, including that the Respondent was not
liable for the conduct of Powers because he was “acting in his
individual capacity without the knowledge of, without any con-
donation or ratification by, and without any encouragement
from the Respondent.” The Respondent also claimed, as an
affirmative defense, that any statements by Powers regarding a
lawsuit could not be found unlawful under the Supreme Court’s
decision in BE & K Construction Co., 536 U.S. 516 (2002).
After hearing the testimony of the witnesses, reviewing the
documentary evidence offered by the parties, and considering
the oral arguments of counsel, I rendered a bench decision in
accordance with Section 102.35(a)(10) of the Board’s Rules
and Regulations. For the reasons stated by me on the record at

perceive that the remarks were threats intended to chill his protected
activity of charge-filing.
5 In light of our disposition of this case, we find it unnecessary to de-
cide whether the Noerr-Pennington doctrine applies to this type of
threat, whether the threat to sue Cline would have been lawful had a
lawsuit been filed, or whether the threatened lawsuit, if it had been
filed, would have been protected under BE & K. In addition, we do not
pass on the continuing viability of Board cases such as Carborundum,
Consolidated Edison, and Clyde Taylor Co., 127 NLRB 103, 108
(1960), overruled on other grounds in Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731 (1983), to the extent that they imply that threats to
sue, even those that are “incidental” to protected litigation, necessarily
violate Sec. 8(a)(1).
1 All dates are in 2004, unless otherwise indicated.
POSTAL SERVICE 127
the close of the hearing, I found that the Respondent violated
the Act as alleged in the complaint.
I hereby certify the accuracy of the portion of the transcript,
pages 140 through 157, containing my bench decision. A copy
of that portion of the transcript, as corrected, is attached hereto
as “Appendix A.”2
CONCLUSIONS OF LAW
1. Bobby L. Powers, the Respondent’s supervisor of cus-
tomer services at the Destin, Florida post office was, at all
times material, a supervisor of the Respondent within the mean-
ing of Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
2. By threatening an employee, on or about September 23,
2004, with unspecified reprisals and a lawsuit because the em-
ployee had filed unfair labor practice charges with the National
Labor Relations Board, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I shall further recommend that the
Respondent post the attached notice to employees at its facili-
ties in Destin and Miramar Beach, Florida (Appendix C).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, United States Postal Service, Destin, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with a lawsuit or other reprisals
for filing unfair labor practice charges with the National Labor
Relations Board.
(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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Destin, Florida, including the Miramar Beach station,
copies of the attached notice marked “Appendix C.”4 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 15, after being signed by the Respondent’s authorized

2 The corrections to the transcript are reflected in the attached Ap-
pendix B [omitted from publication].
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 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.”
representative, shall be posted by the Respondent 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 altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 23, 2004.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
140
AFTERNOON SESSION
(Time Noted: 2:00 p.m.)
JUDGE MARCIONESE: On the record.
Okay. Good afternoon, everyone. I hope you all had a nice
break.
Now, at this point, I think, as we talked about previously, I
am going to be issuing my bench decision in accordance with
the Board’s rules and regulations. There are certain provisions
that are required even in a bench decision, so I will go through
all of those, as well as reviewing the facts, and make my find-
ings with respect to credibility and factual issues and then my
conclusions of law.
And under the Board’s procedures, what will happen after
today is that upon receipt of the formal transcript of these pro-
ceedings from the court reporting service, I will then issue a
certification of the portions of the transcript that contain the
bench decision, as well as the—whatever standard order of
recommended remedy I propose. And then that will be served
on all parties in writing—that portion with—the certified por-
tion of the transcript. And then at that point, you will all have
an opportunity to file any exceptions or appeals to any findings
or rulings that I have made in this decision.
(Whereupon, a bench decision was rendered, as follows:)
141
BENCH DECISION
JUDGE MARCIONESE: Now, the charge in this case was filed
by Mr. Cline, an individual, on September 17, 2004, and it was
amended on October 4 and again on October 28, 2004. On
January 26, 2005, the complaint and notice of hearing issued,
alleging that the Respondent, the U. S. Postal Service, violated
Section 8(a)(1) of the Act through its alleged supervisor, Bobby
Powers, on or about September 23, 2004 by threatening em-
ployees with unspecified reprisals and a law suit because the
employees had filed charges with the NLRB.
The Respondent filed an answer to the complaint on Febru-
ary 8, 2005, denying the alleged unfair labor practice and rais-
ing certain affirmative defenses, including that the Respondent
was not liable for the conduct of Powers, because he was—and
I’ll quote from the Respondent’s answer—“Acting in his indi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD128
vidual capacity without the knowledge of, without any condo-
nation or ratification by and without any encouragement from
the Respondent.”
The Respondent also claimed as an affirmative defense that
any statement by Powers regarding a law suit could not be
found unlawful under the Supreme Court’s decision in BE & K
Construction Co., 536 U. S. 516, a 2003 decision.
Having now heard the testimony of the witnesses for both
parties and reviewed whatever documentary evidence was of-
fered, and having considered the very eloquent arguments made
by
142
counsel for both parties, I am now prepared to render my deci-
sion, and that’s pursuant to Section 102.35(a)(10) of the
NLRB’s rules and regulations.
Now, with respect to jurisdiction, the complaint alleges, the
Respondent admits and I find that the Respondent provides
postal services for the United States and operates various facili-
ties throughout the United States in the performance of that
function, including the facility at issue here, which is located in
Destin, Florida.
The Respondent admits and I also find that the Board does
have jurisdiction over the Respondent pursuant to Section 1209
of the Postal Reorganization Act. The Respondent also admit-
ted and I find that the American Postal Workers Union Local
5643 is a labor organization within the meaning of Section 25
of the Act.
Now, in its answer, the Respondent admitted—and now I’ll
go to the evidence—that Bobby L. Powers, who the Respon-
dent has identified as a supervisor of customer services in the
Destin Post Office, is a supervisor of the Respondent within the
meaning of Section 211 of the Act and an agent of the Respon-
dent within the meaning of Section 213 of the Act, but the Re-
spondent at the same time denied responsibility for his actions
which are at issue in this case. I also note that while there’s no
dispute that there was a telephone conversation between Mr.
Powers and Mr. Cline related to Mr. Cline’s filing
143
of an unfair labor practice charge, there is a dispute regarding
what was actually said during that conversation, as well as the
legal significance of the statements that were made.
Now, in support of the complaint, the General Counsel of-
fered the testimony of the Charging Party himself, Mr. Cline.
Mr. Cline is a five-year employee of the Destin Post Office;
he’s employed in the bargaining unit represented by the Ameri-
can Postal Workers Union, but he does not now and has never
held any office in the union. And at the point when—of the
events that were taking place that are at issue here, he was a
rank-and-file employee, although there is some testimony from
Mr. Powers that Mr. Cline does have a history of filing EEO
and unfair labor practice charges although he has no official
status with the union.
Now, today, Mr. Cline has testified that there was an incident
that occurred on August 25. And there’s no dispute that an
incident did occur on that date, although there is maybe some
difference of opinion as to the seriousness of the incident. But,
basically, it involved one employee, not Mr. Cline—another
employee finding a tray of letters with some white powder in
the tray and that this was brought to Mr. Powers’ attention.
Now, after that, there were some disagreements between Mr.
Powers, Mr. Cline and the other employee, Ms. Wittic, as well
as Mr. Jackson—Marcus Jackson, who was the union steward,
144
regarding how to handle the situation. And apparently, from
the testimony of all sides, it appears that that dispute did be-
come somewhat escalated and heated, with Mr. Powers at one
point telling Mr. Jackson to shut up.
I think Mr. Powers admitted saying that and also telling Mr.
Jackson that he could not make a phone call when it appeared
from what Mr. Cline has said that Mr. Jackson was going to
make some inquiries from the union as to how handle the situa-
tion with the white powder.
Now, I don’t need to make any particular findings with that
incident; it’s only relevant for background purposes, and I’m
not going to determine whether there was any fault on either
side with respect to what happened that day or how it was han-
dled. But suffice it to say that as a result of that incident and
how Mr. Cline perceived it, he exercised his right that he has
under the law to file an unfair labor practice charge with the
National Labor Relations Board, which alleged specifically that
Mr. Powers had denied Mr. Jackson the opportunity to perform
his duties as a union steward in connection with that incident.
Now, there’s no dispute that upon receiving a copy of the
charge, which was sent to Mr. Powers at the Miramar branch of
the Destin Post Office, where he was working at the time, he
telephoned Mr. Cline in order to discuss the charge with him.
Now, according to Mr. Cline, Mr. Powers opened the conversa-
tion
145
after identifying himself by telling Mr. Cline that he had re-
ceived papers from the National Labor Relations Board, and
asking what it was about. And according to Mr. Cline, he told
Mr. Powers that it was about the August 25 incident and about
Mr. Powers not allowing Mr. Jackson to make inquiries on
behalf of Mr. Cline and the other employees.
At that point, according to Mr. Cline, Mr. Powers began yell-
ing and telling Mr. Cline that he was going to be sorry that he
had done this and, in the next breath, telling Mr. Cline that he,
“Had better get a good attorney, because I,” meaning Mr. Pow-
ers, “have a good attorney, and I’m going to sue.” Now, in the
course of his direct and cross-examination, it was brought out
that the version of the testimony that Mr. Cline provided today
differs in one respect from a version that he reported in his
December 27 affidavit in which essentially he reversed the
order, stating in December that Mr. Powers told him—made the
reference to filing a law suit before telling him that he was
going to be sorry.
But then on redirect examination, Mr.—the General Counsel
pointed out that the version testified to today is actually consis-
tent with the much earlier version, which was written by Mr.
Cline himself on October 15 in support of the amended charge
that he had filed. And that statement was much closer in time
to the events in question here.
Now, Mr. Powers in his testimony acknowledges calling Mr.
146
POSTAL SERVICE 129
Cline the same day that he received a copy of the unfair labor
practice charge and that he asked Mr. Cline why he had filed
the charge. Now, according to Mr. Powers, Cline told him that
he had filed the charge because he felt that the situation on
August 25 was an emergency situation and that Mr. Jackson
was looking out for his, Mr. Cline’s, health and that of the other
employees and that Powers had not given Mr. Jackson union
time.
Mr. Powers testifies that he disputed this, telling Mr. Cline
that Mr. Jackson had never asked for union time and that union
time has to be asked for and granted. At that point, according
to Mr. Powers, Mr. Cline disagreed with his recollection of the
events. And at that point, according to Mr. Powers’ own testi-
mony, he raised his voice and told Mr. Cline, Well, if you file
these false accusations against me, you had better get an attor-
ney, because I’m getting one. And he then admittedly hung up
the telephone at that point in time.
Now, having considered the testimony, there—really the
only significant difference in the two versions is whether Mr.
Powers made the statement that Mr. Cline would be sorry that
he had done this, meaning file the charge with the NLRB.
Powers denies saying this. And Mr. Cline—although acknowl-
edging that there are some differences in his previous affida-
vits, he does emphatically state that it was said in the conversa-
tion, whether it was before or after the reference to a law suit.
Now, it appears that Mr. Cline’s testimony here is
147
supported by the earlier statement made on October 15, not
long after the events in question, where, as best as I can tell,
Mr. Powers’ testimony today appears to be based on his recol-
lection of a conversation that occurred nine months ago and it is
quite possible that at this point in time, he is recalling things
selectively, since there’s really no contemporaneous statement
to compare it to to determine whether, you know, his recollec-
tion at that point in time would be the same as it is today.
I have to note that there was really nothing in Mr. Cline’s
demeanor that would suggest to me that he made up the part
about Mr. Powers telling him that he would be sorry. And
nothing was—certainly was pointed out in closing argument
that would convince me that Mr. Cline was not worthy of be-
lief.
I also note that it would not be a stretch for Powers to have
used that sort of language or that phrase, either before or after
telling Mr. Cline that he had better get a lawyer because Mr.
Powers was going to get one, it’s—which is something that he
admits telling Mr. Cline. And Mr. Powers, I note, also admits
raising his voice, even if he did not yell, and when—and mak-
ing his statement in an emphatic tone.
Considering all of that and the demeanor, it’s not hard to be-
lieve that in the heat of that moment, considering that he had
just received the charge and—which contained what he be-
lieved to be a false accusation—it’s not hard to believe that he
148
would also have said to Mr. Cline, as Mr. Cline recalls, that he
was going to be sorry.
So based on having considered the demeanor and the testi-
mony and the probabilities of what may have occurred at that
point in time, I find, as Mr. Cline has testified, that Powers in
fact told him that he was going to be sorry he had done this and
that he had better get a good attorney, because Powers had one
and was going to sue.
Now, that then raises and brings me to the legal issue, having
found factually the based—the allegations that the General
Counsel alleged. There are basically two legal issues involved
in this case. One is whether the Respondent, Postal Service, is
liable for the statements made by Mr. Powers in that telephone
conversation, and then, assuming that he is liable, whether the
statements made amount to an unfair labor practice under the
Act in light of the Supreme Court’s decision in BE & K Con-
struction.
Now, starting with the agency/supervisory status issue, the—
I’ll start off by quoting from Section 213 of the Act, which is
the section dealing with agency. And under the—and in the
National Labor Relations Act, it specifically states that, “In
determining whether any person is acting as an agent of another
person so as to make such other person responsible for his acts,
the question of whether the specific acts performed were actu-
ally authorized or subsequently ratified
149
shall not be controlling.”
Now, the Board has long held that statements and conduct of
individuals who meet the statutory definition of a supervisor
under Section 211 [of] the Act may be imputed to the Em-
ployer, and this is without regard to whether the Employer is
aware of the statements that have been made or has condoned
or ratified the statements, that, if the employee is a supervisor
within the meaning of the Act and is acting in his capacity as a
supervisor, the Respondent will be liable for the conduct.
And rarely has the Board taken—made an exception and
found that the Employer is not responsible for actions of an
admitted supervisor when they involved employees who were
engaged in activities protected by the Act.
Now, Respondent, while Mr. Oldenburg has cited numerous
cases under other statutes dealing with agency and when are the
conduct of supervisors to be imputed to the Employer, has not
cited any particular Board case other than the U.S. Postal Ser-
vice case at 275 NLRB 360 (1985). And in that case, the Board
did find that the Respondent, Postal Service, was not liable for
a threat to sue that was made by a unit employee who was act-
ing as a temporary supervisor at the time.
And in the research that I did in preparation for today’s hear-
ing, I didn’t find any cases where the Board had followed or
relied upon that U.S. Postal Service case in order to absolve an
Employer of liability for either a threat like this or any
150
other threat that was made by an admitted supervisor, but I did
find and the General Counsel does rely upon Carborundum and
Consolidated Edison.
And Carborundum—just for the record, the spelling is C-A-
R-B-O-R-U-N-D-U-M—Resistant Materials Corporation—and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD130
that’s reported at 286 NLRB 1321 (1987). And the other case
is Consolidated Edison Co. of New York, Inc., and that’s re-
ported at 286 NLRB 1031 (1987). In those two cases, the
Board specifically distinguished the U.S. Postal Service while
finding that the Employers in those cases were in fact responsi-
ble for threats made by supervisors to file law suits.
Now—and like both those cases, Con-Ed and Carborundum,
the threats here were not solely a threat to sue, but included the
more general, non-specific, You’re going to be sorry. Now,
that—now, of course, Respondent argues that that was—can’t
be read out of context with the threat to sue and that it should
be considered part of the threat to sue, but, basically, I’m
guided by the Board’s law in terms of evaluating these types of
statements by what an objective, reasonable employee would
interpret.
And I’m not sure that an employee objectively would see,
“You’re going to be sorry,” as meaning only, “I’m going to go
out and hire a lawyer and sue you,” and that it wouldn’t have
any broader consequences.
I also note that, like Carborundum and Consolidated Edison
151
and unlike the Postal Service, the threat here was not conveyed
to a union official or the union as an entity, but it was, rather,
conveyed to a rank-and-file employee who admittedly was
under Mr. Powers’ general supervision even if on that day in
question he was not working under him because Mr. Powers
was temporarily assigned to the Miramar branch. And it was
also directed at an employee for filing a charge with the Na-
tional Labor Relations Board over conduct by Mr. Powers in
his role as a supervisor.
The charge related to Mr. Powers’ actions as a supervisor on
August 25, and that was what initiated the conversation and
initiated the charge that led up to the conversation. So
clearly—with all of that in mind, regardless of whatever subjec-
tive intent Mr. Powers may have had in terms of personally
pursuing a law suit or calling to tell Mr. Cline in his personal
capacity that he was thinking of filing a law suit, he was clearly
acting as a supervisor when he called Mr. Cline that day upon
receipt of the unfair labor practice charge and discussed with
him what the charge was all about and then followed that up
with the threats that I have found.
And, again, regardless of whatever might have been in—the
state of mind of Mr. Powers when he had the phone conversa-
tion, the Board looks to what a reasonable employee objec-
tively could understand of the statements to have been made.
And I think an employee receiving a call from someone he
152
knows to be his supervisor while he’s at work and being asked
about a charge that he had filed and what the charge was about
and then being followed up with a threat would perceive that
that individual calling him was acting for and on behalf of his
Employer and that it was not a personal call.
It’s—he, Mr. Powers, was not calling Mr. Cline to discuss a
personal dispute or grievance that they had between them—say,
a dispute over whether money was owed or whether there had
been some incident that occurred out of work that they were
angry about. He was calling him about an issue that occurred
in the work place, in his capacity as a supervisor, that led to the
filing of an unfair labor practice charge. Under those circum-
stances, I am not prepared to find that Respondent is not liable
for the statements that were made by Mr. Powers.
Now, the next issue to be addressed is whether those state-
ments that were made are an unfair labor practice in light of the
Supreme Court’s decision in BE & K Construction. Now, de-
spite the very eloquent and well-researched and well-reasoned
arguments to the contrary made by the Respondent, I am con-
strained to adhere to existing Board law and find that the threats
that I have found that were made here do in fact violate Section
8(a)(1) of the Act. Essentially, and again, what I have found is
that Mr. Powers told Mr. Cline he would be sorry he did what
he had done, which is file a charge, and that he had better
153
get a good attorney, because Mr. Powers had one and was go-
ing to sue.
Those statements are almost identical to what the Board has
historically found unlawful. There’s the Consolidated Edison
case and the Carborundum case and other cases cited by the
General Counsel, and, while they admittedly pre-date BE & K,
the Board did address the issue of the impact of the National
Labor Relations Act on the right to file a law suit, because Bill
Johnson’s had been decided at the time those cases were. And
then in both Consolidated Edison and Carborundum at footnote
eight, the Board made a specific distinction between the threat
to file a law suit and the actual filing of a law suit.
The way I interpret the Board’s decisions, and, also, looking
at BE & K, basically what I find is that whatever constitutional
concerns might exist for the Board to either enjoin the filing of
a law suit or find unlawful an Employers’ filing of a law suit
are not implicated in the context of a conversation between an
employee and his supervisor.
The General Counsel is not alleging here and I don’t need to
determine whether a law suit filed by Mr. Powers against Mr.
Cline would have been or would be unlawful; I need only de-
termine whether objectively the statements that were made to
the employee would reasonably tend to interfere with, restrain
or coerce employees in the exercise of their statutory right,
which includes in this case the right of employees to petition
154
the government by filing an unfair labor practice charge with
the Board.
The Board has long held that the test to determine whether
statements violate Section 8(a)(1) is an objective one and that
the motives, state of mind or subjective impressions of either
the speaker or the listener are irrelevant. And this goes way
back to American Freight Ways, 124 NLRB 146, 147 (1959),
and that’s the standard the Board has adhered to for years in
addressing Section 8(a)(1) violations.
And I see no reason to depart from that standard in this case
here even in light of the BE & K decision, because I read noth-
ing in BE & K which overrules either Carborundum or Con-
solidated Edison or suggests that a statement by itself—and not
a law suit—would be—could not be found to be an unfair labor
practice. The Court was concerned with the filing of a law suit
in that case, not with threats to file a law suit.
I also note now with respect to the other allegation, the state-
ment that, “You’re going to be sorry”—that’s the type of threat
POSTAL SERVICE 131
of unspecified reprisals that the Board has traditionally found to
be unlawful. One case I will site is SKD—I think it’s Jonesville
Division, LP, 340 NLRB 101 (2003), where the Board reversed
an ALJ and found a non-specific threat to be an unfair labor
practice. There the statement made was that it would not be in
the best interest of the individual to get involved in the union.
155
And the Board in that case cites a number of other cases in
which similar, non-specific generalized threats have been found
to be unlawful by the Board. And, “You’re going to be sorry,”
made by a supervisor to one of the employees under his super-
vision certainly would carry the implication that—of a threat,
that there would be consequences to having engaged in conduct
that was clearly protected by the Act.
Now—and I’ll also—having made my findings and conclu-
sions, I want to note that, as I think I’ve previously said, I’m
not making any findings here that—and no—and my decision
should not be read in any way as indicating that Mr. Powers’
right to sue Mr. Cline or anyone else is affected by this decision
or by the National Labor Relations Act. This clearly involves
only a statement that was made in a conversation between him
and Mr. Cline.
I’m also, obviously, not holding Mr. Powers personally li-
able for any unfair labor practice here, since I think, as—I’m
not sure if he understands, but an unfair labor practice can only
be filed against an Employer. And his conduct as an agent of
the Employer is what is at issue, not whether he personally has
committed anything—any unfair labor practices or—unlawful.
What I am holding is that when an individual in their super-
visory capacity calls an employee under their supervision order
to inquire about an unfair labor practice charge that that em-
ployee has filed and then makes threatening statements based
on the employee having filed an unfair labor practice charge—
when doing so, he is acting as an agent for the Employer, the
Employer is liable for the threat and that that type of a threat
implicates very important employee rights of access to the
Board, and the chilling effect of such statements on the em-
ployees’ willingness to challenge their supervisor’s conduct
through the filing of unfair labor practice charges is obvious.
If I were to accept the Respondent’s argument that the Em-
ployer cannot be held liable because the supervisor was talking
about a personal law suit, essentially, it would insulate Em-
ployers any time a supervisor who’s named in an unfair labor
practice charge called up the employee who filed the charge
and made threats to that employee. And if that were to happen
on a regular basis, then it seems to me that employees’ access
to the rights that are contained in the statute would be severely
limited.
And I certainly do not read the Supreme Court’s decision in
BE & K so broadly. And I can find nothing under Board law
that would lead me to make that sort of a binding.
So, basically, based on what I’ve just said and the evidence
that I’ve heard and the arguments, I find, as alleged in the com-
plaint, that the Respondent did violate Section 8(a)(1) on Sep-
tember 23, 2004 when its supervisor/agent Bobby Powers
threatened employee Bobby Cline with unspecified
157
reprisals and a law suit because he had filed an unfair labor
practice charge with the Board.
I will recommend that the Respondent be ordered to cease
and desist from this conduct and post a notice to the employees.
And the notice will be attached to the decision that will be issu-
ing shortly upon receipt of the transcript.
And as I indicated previously, upon receipt of the transcript
and after I’ve issued my order, all parties have a right to file
exceptions to any rulings that I’ve made here today or any of
my findings of facts or conclusions of law. And I refer you to
the Statement of Standard Procedures, as well as the NLRB’s
rules and regulations, for the procedures to be filed—for the
filing of exceptions and briefs with the Board.
Okay. Anything further before we conclude the hearing?
MR. MCCLUE: None from the General Counsel, Your
Honor.
JUDGE MARCIONESE: Respondent?
MR. OLDENBURG: No, Your Honor.
JUDGE MARCIONESE: Okay. Thank you. I appreciate your
efforts. It was a very expeditious hearing and very well pre-
sented. Your arguments were very well-researched and well-
reasoned, and I’ve found them vary [sic] invaluable.
And now, I guess, Mr. Oldenburg, it will be up to you to see
if—how the Board views this and whether there’s going to be
any change in Board law as a result of your arguments.
If there’s nothing further, then the hearing is closed.
APPENDIX C
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten you with a lawsuit or other reprisals
for filing unfair labor practice charges with the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
UNITED STATES POSTAL SERVICE