United States Postal Service

National Labor Relations Board - Unpublished Board Decisions

Sep 25, 2008

10-CA-034974 (N.L.R.B. Sep. 25, 2008)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNITED STATES POSTAL SERVICE
and Cases 10-CA-34974(P)
10-CA-35144 (P)
NATIONAL POSTAL MAILHANDLERS UNION
LOCAL 317
and Case 10-CA-35273(P)
EDWARD STEELE
UNITED STATES POSTAL SERVICE
and Case 10-CA-36056(P)
(formerly 16-CA-23973(P))
NATIONAL POSTAL PROFESSIONAL NURSES
and Case 10-CA-36057(P)
(formerly 16-CA-24128(P))
NATIONAL ASSOCIATION OF LETTER
CARRIERS, BRANCH 404
DECISION AND ORDER1
Statement of the Cases
On June 17, 2008, United States Po-stal Service (the
Respondent), National Postal Mailhandlers Union Local 317,
Edward Steele, National Postal Professiona l Nurses, National
Association of Letter Carriers, Branch 404, and the General
1 E ' ffective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
Board's powers in anticipation of the expiration of the terms
of Members Kirsanow and Walsh on December 31, 2007.. Pursuant
to this delegation, Chairman Schaumber and Member Liebman
constitute a quorum of the three-member group. As a quorum,
they have the authority to issue decisions and orders in
unfair labor practice and representation cases. See Sec. 3(b)
of the Act.
Counsel of the National Labor Relations Board entered into a
Formal Settlement Stipulation, subject to the Board' s approval,
providing for the entry of a consent order by the Board and a
consent judgment by any appropriate United States Court of
Appeals. The parties waived all further and other proceedings
before the Board to which they may be entitled under the
National Labor Relations Act, as amended, and the Board's Rules
and Regulations (except those allegations subject to the
parties' motion to sever) , and the Respondent waived its right
to contest the entry of a consent judgment or to receive further
notice of the application therefor.
The Formal Settlement Stipulation is approved and made a
part of the record, and the proceeding is transferred to and
continued before the Board in Washington, D.C., for the entry of
a Decision and Order pursuant to the provisions of the Formal
Settlement-Stipulation.2
1
2 In addition, the Board grants the parties' joint motion to
sever certain allegations related to employee Annu Rajan, as
described in the Formal Settlement Stipulation.
Member Liebman notes that the remedy to which the parties
have agreed is not fully con ' sistent with previous orders the
Board has issued against the'Respondent in cases alleging that
the Respondent has violated Sec. 8 (a) (1) of the Act by denying
employees union representation at investigative interviews,
including a nationwide order and a broad order, respectively.
See, e.g., United States Postal Service, 303 NLRB 463 (1991),
enfd. 969 F.2d 1064 (1992); United States Postal Service, 345
NLRB 426 (2005), enfd. 486 F.3d 683 ( I oth Cir. 2007). These
orders, as enforced by the United States Courts of Appeals,
remain in effect. However, because all parties have agreed to
the terms of this Formal Settlement Stipulation, Member Liebman
has determined that approval of the parties' settlement will
effectuate the purposes of the Act. The Board's approval of this
stipulation does not modify these orders in any respect.
Chairman Schaumber adheres to the view he expressed in
United States Postal Service, supra, 345 NLRB at 427 fn. 4
(citing United States Postal Service, 345 NLRB 409, 412-415
(2005), enfd. as modified 477 F.3d 263 (5 th Cir. 2007)), that
broad orders should be reserved for situations where a respondent
"is shown to have a proclivity to violate the Act or has engaged
in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory
rights." NLRB v. Express Publishing Co., 312 U.S. 426 (1941);
Hickmott Foods, Inc., 242 NLRB 1357 (1979).
9
Based on the Formal Settlement Stipulation and the entire
record, the Board makes the following:
Findings of Fact
1. The Respondent's business
The Respondent provides postal services for the United
States and operates various facilities throughout the United
States in the performance of that function, including its four
facilities located at 4500 lst Avenue South, Birmingham, Alabama;
351 24 th Street North, Birmingham, Alabama; 401 DFW Turnpike,
Dallas, Texas; and 112 South Dr. J.B. Riggs Drive, Groesbeck,
Texas.
The Board has jurisdiction over the Respondent by virtue of
Section 1209 of the Postal ReorganizationAct, 39 U.S.C. Section
101, et. seq. (PRA) .
2. The labor organizations involved
National Postal Mailhandlers Union Local 317, National
Postal Professional Nurses, and National Association of Letter
Carriers Branch 404 are labor organizations within the meaning
of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement
Stipulation, and the entire record, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board orders that:
The Respondent, United States Postal Service, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Denying the requests of employees at its Birmingham
Annex facility located at 4500 1st Avenue South, Birmingham,
Alabama, and at its Birmingham Plant facility located at 351 24 th
Street North, Birmingham, Alabama, to meet and confer with a
union representative prior to the commencement of an
investigatory interview, when the employee has reasonable cause
to believe that the interview will result in disciplinary action
against him or her, and conducting the interview with the
employee even though the Respondent had denied the employee's
request for union representation.
(b) Denying the requests of employees at its facilities
located at 401 DFW Turnpike, Dallas, Texas, and 112 South Dr.
J.B. Riggs Drive, Groesbeck, Texas, to be represented at an
interview when the employee has reasonable cause to believe that
the interview would result in disciplinary action against him or
her, and conducting the interview at Groesbeck even though
Respondent had denied the employee's request for union
representation.
(c) Directing a union representative at its facility
located at 401 DFW 'Turnpike, Dallas, Texas, to remain quiet
throughout an interview of an employee, thereby denying the
request of the employee to be represented by a union
representative during his or her interview, when the employee
had reasonable cause to believe that the interview would result
in disciplinary action taken against him or her, and conducting
the interview even though Respondent had denied the employee's
request for union representation.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of Act.
(a) Permit an employee to be represented by a union
representative at an interview which the employee believes
reasonably could result in disciplinary action.
(b) Permit an employee and a union representative to
consult privately in advance of an interview to prepare for the
interview which the employee reasonably believes could result in
disciplinary action.
(c) Permit a union representative to speak at a
predisciplinary meeting with the employee and at all other
interviews with employees which the employee reasonably believes
could result in disciplinary action.
(d) With respect to each of the interviews involved in
this proceeding (excluding the allegations concerning the
interview of Annu Rajan on October 15, 2004) which resulted in
4
discipline, 3 and upon the request of the labor organization
and/or the affected employee, made within thirty (30) days of
receipt of notification from the Respondent of this right,
conduct anew the meeting at issue, affording the employee
involved full Weingarten rights, and advise the Board's Regional
Director for Region Ten in writing of the date of such meetings.
Such meetings shall be held no later than sixty (60) days from
the entry of the judgment, except as otherwise agreed to by the
Parties. If the Respondent determines after each of the new
meetings that the discipline imposed after the earlier meeting
was warranted, the discipline shall stand. If, on the other
hand, the Respondent concludes that no discipline was warranted,
or that a mitigation of the penalty is warranted, the Respondent
shall take appropriate action rectifying the situation, which
shall include a make whole remedy for any losses suffered by the
employee to the extent consistent with the Respondent's decision
on reconsideration.4 In no event shall any information obtained
from the employee at the first meeting be used against the
employee in any manner and the employee shall be so notified of
this requirement in writing.5
(e) With respect to each of the interviews involved herein
which did not result in discipline, or in which the discipline
was ultimately rescinded, the Respondent shall:
-i. Notify the employee in writing that none of the
information obtained from the employee at the
meeting will be used against the employee in any
way in any proceeding, that none of the
information will be retained in the employee's
3 The term "discipline" as used in this Order refers to all
removals from employment, all suspensions from work, (with or
without pay), and all letters of warning, but does not include
counseling or instruction.
4 The terms "conduct anew," "reaffirm," "'redone,"
"reconsider," and "reconsideration" (or derivatives of such
terms) as used in this Order do not mean or imply in any way
that the original disciplinary action is rescinded, revised,
or modified in any way, unless rescinded, revised, or modified
in writing by the Respondent after the second meeting with the
employee in accordance with Weingarten.
5 The Respondent may conduct a new meeting if no request is
made by the employee or the labor organization. The meeting
shall be conducted in the manner described in paragraph 2(d),
including granting the employee full Weingarten rights.
r)
personnel file and that, with the exception of
attorney's files, none of the information will be
retained in any other record, unless required by
law or statutory regulation; or
ii. Notify the employee that although no discipline
resulted from the meeting (or where the
discipline was rescinded), the Respondent will
conduct anew the meeting if so requested by the
labor organization and/or the affected employee
within thirty (30) days of receipt of the
notification by the Respondent. In such cases,
the Respondent may conclude, after the new
meeting, that the non-disciplinary action taken
against the employee was appropriate or, if not,
shall take appropriate actions, if any, to
mitigate the non-disciplinary action, including
elimination of any mention of the non-
disciplinary action from the employee's personnel
file and from other records, consistent with
paragraph 2(e)(i), and its decision on
reconsideration. In no event shall any
information obtained from the employee at the
first meeting be used against the employee in any
manner; nor, absent special circumstances, shall
any discipline be imposed based on information
obtained from this reinterview.
(f) Provide all supervisors at the involved facilities
with a copy of any court order that enforces any Board order in
these matters and have the supervisors sign an acknowledgment
that they received the copy of the court order. Said
acknowledgment should be placed and maintained in the personnel
file of the supervisor.
(g) Within 14 days after service by the Region, post at
its facilities at 4500 lst Avenue South, Birmingham, Alabama; 351
24 th Street North, Birmingham, Alabama; 401 DFW Turnpike, Dallas,
Texas; and 112 South Dr. J.B. Riggs Drive, Groesbeck, Texas,
copies of the attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director for Region
10, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all
places were 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
proceedings, the Respondent has gone out of business or closed
any of the facilities 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 the since closed facility or
facilities at any time since April 14, 2004.
(h) 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.
Dated, Washington, D.C., September 25, 2008.
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a stipulation providing for a Board order and a
consent judgment- of any appropriate United States Court of
Appeals
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join or assist a union;
Choose representatives to bargain with us on your behalf;
Act together with other employees for your benefit and
protection;
Choose not to engage in any of these protected activities.
WE WILL NOT deny your request to be represented at an interview
when you have reasonable cause to believe that the interview
would result in disciplinary-action against you, and WE WILL NOT
conduct the interview even though we have denied your request
for union representation.
WE WILL NOT deny your request to meet and confer with a union
representative prior to the commencement of an investigatory
interview, when you have reasonable cause to believe that the
interview will result in disciplinary action against you, and WE
WILL NOT conduct the interview with you even though we denied
your request for union representation.
WE WILL NOT direct a union representative to remain quiet
throughout an interview with you, thereby denying your request
to be represented by a union representative during your
interview, when you have reasonable cause to believe that the
interview would result in disciplinary action against you, and
WE WILL NOT conduct the interview even though we have denied
your request for union representation.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
by Section 7 of the Act.
WE WILL permit you to be represented by a union representative
at an interview which you believe reasonably could result in
disciplinary action.
WE WILL permit you and a union representative to consult
privately in advance of an interview to prepare for the
interview which you reasonably believe could result in
disciplinary action.
WE WILL permit a union representative to speak at a
predisciplinary meeting with you and at all other interviews
with you which you reasonably believe could result in
disciplinary action.
WE WILL take certain actions with respect to investigative
interviews held with David Callens on about April 14, 2004;
William Amerson on about April 16, 2004; Tommy Jones on about
April 21, 2004; William Amerson on about July 4, 2004; Tyrone
Hendrix on about August 11, 2004; Annu Rajan on about October
18, 2004; Edward Steele on about October 26, 2004; and Deloris
Snyder on about January 19, 2005, as described here.
WE WILL advise the employees whom we disciplined based on the
events discussed in those interviews listed above, where such
discipline has.not already been rescinded, of our willingness to
reconvene the interviews and interview any of these employees
anew if requested by the employee and/or the employee's union
within thirty (30) days of their receiving notification of this
option and to then consider whether a lesser discipline or no
discipline at all would be suitable while disregarding all
information gathered in the initial interview.
WE WILL, with respect to those employees who attended
investigative interviews listed above and did not receive
discipline, or else the discipline has already been rescinded,
elect either to notify the employee in writing that none of the
information obtained from the employee in the first interview
listed above will be retained in the employee's personnel file
and that such information will not be used against him or her in
any way, or to notify the employee that although there never was
or no longer is discipline resulting from the original
interview, the Postal Service will reinterview the employee if
requested by the employee and/or the employee's union within
thirty (30) days of their receiving notification of this o ption.
WE WILL, with respect to all employees whom we reinterview
pursuant to this process, afford the employees the right to
A
representation by union stewards, including the right to confer
with such stewards before the meeting, and the right to have
active steward participation in the meetings.
WE WILL, in those instances where we do reinterview employees
whom we disciplined based on events that were the subject of
earlier interviews and when that discipline has not been
previously rescinded, disregard all information obtained in the
first interview and reconsider whether a lesser disciplinary
action, or no disciplinary action at all, should be undertaken
based on the reinterview; and in instances where we decide that
a lesser disciplinary action or no discipline at all should
issue; WE WILL afford a make-whole remedy commensurate with the
new disciplinary decision by, as appropriate, the payment of
backpay and the modification of the initial discipline or its
expungement from our disciplinary files; and WE WILL provide the
affected employees written notice of what we have done and
notice that we will not use any discipline expunged as a result
of this process against them in any way.
WE WILL, in those cases in which the original investigative
interview listed above did not result in discipline, or in which
the resulting discipline has been rescinded, and in which we do
offer the reinterview option and the employee and/or the
employee's union timely request that the employee be
reinterviewed, conduct the new interview and reconsider whether
any non-disciplinary action taken against the employee was or
was not appropriate; if such action was not appropriate, WE WILL
mitigate the non-disciplinary action consistent with our
decision, including as appropriate elimination of its mention
from the employee's personnel file and other files; and WE WILL
refrain from using any of the information obtained from the
employee's original interview listed above against the employee
in any way, and WE WILL refrain from disciplining any employee
based upon information obtained from the reinterview, absent
special circumstances.
UNITED STATES POSTAL SERVICE
(Employer)
DATE: BY:
(Representative) (Title)
National Labor Relations Board, Region 10, 233 Peachtree
Street., Suite 1000, Harris Tower, Atlanta, Georgia 30303.
Telephone: (404 331-4675).
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