United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Aug 1, 2017

05-CA-180590 (N.L.R.B. Aug. 1, 2017)

JD–61–17
Alexandria, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED STATES POSTAL SERVICE
and Case 05-CA-180590
LARRY THURMAN PRETLOW II,
an Individual
Katrina Ksander, Esq., for the General Counsel.
Mark Wilson, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Washington, D.C.
on May 31 and June 1, 2017. Larry Thurman Pretlow, II, filed the charge on July 21, 2016. The
General Counsel issued the complaint on March 21, 2017.
The General Counsel alleges that Respondent, the United States Postal Service, violated
Section 8(a)(3) and (1) of the Act by terminating the employment of Charging Party Pretlow on
June 9, 2016 because Pretlow filed a grievance about his prior termination in February 2015 on
which he prevailed in arbitration.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent, which has its headquarters in Washington, D.C., provides postal services
throughout the United States, including from its Engleside post office in Alexandria, Virginia.
The Board has jurisdiction over Respondent pursuant to Section 1209 of the Postal
Reorganization Act. The National Association of Letter Carriers (NALC), which represented the
Charging Party, is a labor organization within the meaning of Section 2(5) of the Act.
JD–61–17
2
The Postal Service hired Larry Pretlow in March 2013 as a City Carrier Assistant (CCA).
He began working in the District of Columbia but was transferred to Alexandria, Virginia, a few
months later. On February 21, 2015, the Postal Service converted Pretlow to full time regular
status. Five days later, on February 26, 2015, it terminated his employment. At the time of 5
Pretlow’s termination Shakeel Khan was the manager of the Engleside post office in Alexandria.
Khan was also the manager when Respondent fired Pretlow in 2016. Although Khan is not
mentioned in the arbitration award discussed below, he played some role in Pretlow’s 2015
termination, Tr. 105-06.1
10
Pretlow filed a grievance pursuant to the collective bargaining agreement between the
NALC and the Post Office. Tobie Braverman, an arbitrator, conducted a hearing of Pretlow’s
grievance on April 8, 2016. On April 22, 2016, Arbitrator Braverman issued an award ordering
Pretlow’s reinstatement. She also ordered that Pretlow would have to serve the remainder of the
90-day probationary period that is required for employees who are converted from CCA to 15
regular status.
The Arbitration Award
According to the arbitration award, Pretlow’s 2015 termination arose out of a dispute 20
with Supervisor Shari Hearns on February 14, 2015.2 Pretlow threatened to file an EEO charge.
Then, according to Pretlow, Hearns threatened him by saying that her sons would take care of
him. Pretlow called the Postal Inspection Service’s National Law Enforcement Communications
Center (NLECC) and alleged that Hearns had threatened his life. Hearns also reported their
confrontation. A Postal Inspector credited Hearns’ account. However, the Postal Service did not 25
take disciplinary action against Pretlow as a result of his February 14 argument with Hearns. It
fired him for falsely stating to the Inspection Service that his life was in danger on 3 occasions.
This apparently referred to the three occasions on which Pretlow contacted the Inspection
Service; February 14 or 15, [the day he came a regular carrier], February 21 and 23, 2015.
30
On February 27, 2015, the Postal Service terminated Pretlow for making false statements
to the Inspection Service that his life was in danger.
Under the terms of the collective bargaining agreement between NALC and the Postal
Service, a regular carrier has a 90-day probationary period during which time that carrier is not 35
permitted access to the grievance procedure. CCAs do have such access. The Arbitrator
concluded that the Postal Service delayed disciplining Pretlow until he became a regular carrier
to prevent him from having recourse to the grievance procedure. She also found that the Postal

1 Khan’s testimony regarding his role in the 2015 termination is confusing, Tr. 105-06. He testified
that he initiated the termination but also suggested that his role was somewhat ministerial.
2 Hearns was deceased by the time of the arbitration hearing and Pretlow did not testify about the
circumstances of his dispute with her in this proceeding. Thus, I rely on the arbitrator’s award for
background as to the events resulting in the 2015 termination. However, I do not rely on the arbitrator’s
decision to credit Hearns’ account of the February 14 confrontation. Therefore, I find the admonishment
to Pretlow in her decision about the unacceptability of refusing to obey or arguing with a supervisor’s
instructions is irrelevant except insofar as it affected the conduct of manager Shakeel Khan in 2016.
JD–61–17
3
Service had failed to meet its burden of proving that Pretlow had made false statements, the
offense for which he was terminated.
Arbitrator Braverman ordered the Postal Service to reinstate Pretlow with full backpay.
She ordered that he would remain in probationary status until he completed the remainder of his 5
90-day probationary period. She also admonished Pretlow for being insubordinate to Hearns on
February 14 and urged him to be more cooperative with management upon his return to work.
Pretlow’s return to work on May 4, 2016
10
Larry Pretlow returned to work at the Engleside Post Office on May 4, 2016. On his first
day back at work he met post office manager Shakeel Khan and local union president Andre
Washington. Khan informed Pretlow that his performance would be evaluated since he was a
probationary employee. Khan and Pretlow initialed a blank evaluation form (Postal Service form
1750).15
On May 31, Pretlow took offense at some conduct by Khan. It is not exactly clear what
transpired. However, Khan apparently felt that Pretlow could not finish his delivery route on
time. According to Pretlow, Khan publically ridiculed him for needing extra time or help to
finish his route. He complained in writing about this to the Assistant Postmaster on June 1, Exh. 20
R-4. Khan testified that he generally tried to avoid interaction with Pretlow because Pretlow
blamed him for the 2015 termination and because he “knew the way he goes off,” Tr. 127.
June 8, 2016 performance evaluation
25
On the afternoon of June 8, after Pretlow had finished his route, he was approached by
his immediate supervisor, Rebar Chergosky. She informed him that he was going to have his
evaluation that afternoon. Chergosky and Pretlow went to a private office in the back of the post
office where they were joined by Shakeel Khan and Chief Union Steward Dwayne Martin. Of
the conflicting versions of what occurred I find that of Martin most credible since of all the 30
witnesses he had the least at stake in the outcome of this proceeding.3
Chergosky started reading from the evaluation form, which had 6 categories in which the
employee was to be rated either outstanding, satisfactory, unacceptable or not observed.
Chergosky told Pretlow that his work quantity was unacceptable. Pretlow loudly objected. 35
Shakeel Khan and Pretlow began to argue loudly. Martin testified that there was no screaming,
no threatening, no finger pointing. However, Martin took Pretlow out of the room to calm him
down.
After they returned, most likely after Chergosky told Pretlow his dependability was 40
unacceptable, Pretlow loudly protested again.4 Pretlow and Khan began to argue again. Martin

3 Respondent suggests that I should not credit Martin because he was afraid of Pretlow. Pretlow had
threatened to sue the Union, had alleged that Martin and Union President Washington were “in cohoots
with management;” and complained to the Union that Martin had not satisfactorily done his job as
steward. Pretlow filed a “CB” charge against the Union which apparently related to his June discharge
and Martin’s conduct, Tr. 81-83.
4 Dependability is the third category on the form. Rebar gave Pretlow a satisfactory rating on the
JD–61–17
4
testified that Pretlow did not scream, bang on doors (as Khan testified) or otherwise behave in a
bizarre manner. Pretlow stated that “he could not take this.” Then he left the room again, Tr.
145. Martin then suggested that the meeting be terminated, Tr. 147-48. The evaluation was not
completed.
5
With respect to how the meeting ended, I find Khan’s account more plausible than
Pretlow’s. In regard to credibility, I have considered the fact that the General Counsel did not
call Pretlow as part of its direct case. Respondent called Pretlow as a witness as part of its case.
Also, I do not regard Martin’s testimony at Tr. 83-84 to be inconsistent with Khan’s at 145. I
conclude that it is Pretlow’s behavior that prevented the meeting from being concluded.10
After the meeting ended, on June 8, Reber Chergosky prepared a termination letter for
Pretlow with input from Khan and Respondent’s labor relations staff.5 The letter, G.C. Exh. 4,
states:
15
This is to advise you that your employment is being terminated during your probationary
period, effective immediately. The reason for this action is your improper conduct.
You were recently converted to a full-time, regular letter carrier position with a 90 -day
probationary period. On June 8, 2016, when Supervisor Reber Chergosky began conducting
your 30-day evaluation, you became disruptive and rude, raising and shaking your hands. 20
Your union steward, Dwayne Martin, was present for the evaluation and asked for a few
minutes to talk to you. Martin took you out of the room, and upon your return a few minutes
later, your behavior became even worse. Your attitude was negative, and your body
language was aggressive. When I began to discuss your attendance and dependability, you
began waiving your hands and speaking loudly. You were threatening, saying, "You're in 25
trouble already! I know people in high places!" I had to end the evaluation due to your hostile
and threatening behavior.
Based on your improper conduct, it has been determined that it would be best not to retain
your employment as a letter carrier.30
July 9 termination
Respondent pulled Pretlow’s time card before he arrived for work on July 9. He was told
to report to the office in the back of the post office. Martin, Khan, Chergosky and Henry Baer 35
from Respondent’s labor relations department were present. Chergosky tried to present the
termination letter to Pretlow. He began screaming, crying and rolling around on the floor.
Ultimately, somebody called an ambulance and Pretlow was transported off the premises.

second category, work quality.
5 Chergosky and Khan testified that Chergosky made the decision to terminate Pretlow. I am very
skeptical that this is true except in the most technical sense. Chergosky had been a supervisor for only a
couple of months. It is clear that she consulted with Khan and Baer in making the termination decision.
Given Khan’s intimate involvement with the events surrounding Pretlow’s discharge, I infer that his
opinion was determinative. I also do not credit Chergosky’s testimony that she was considering
terminating Pretlow for poor performance prior to the June 8 meeting. That testimony is completely self-
serving and unsupported by any documentation.
JD–61–17
5
Analysis
The filing of a grievance is a right protected by the Act, Yellow Transportation, Inc. 343
NLRB 43 (2004). It is thus a violation of Section 8(a)(1) to discriminate against an employee for 5
filing a grievance or prevailing in an arbitration.
To establish a Section 8(a)(1) or 8(a)(3) violation based on an adverse employment action
where the motive for the action is disputed, the General Counsel has the initial burden of
showing that protected activity was a motivating factor for the action, Wright Line, 251 NLRB 10
1083 (1980). The General Counsel generally satisfies that burden by proving the existence of
protected activity, the employer’s knowledge of the activity, animus against the activity and
sufficient grounds for inferring discriminatory motive. If the General Counsel meets his burden,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. 15
In this case the General Counsel has met his initial burden. Respondent knew that Larry
Pretlow had filed a grievance and had prevailed. Animus and discriminatory motivation can be
inferred from the timing of Pretlow’s second discharge so soon after his return to work following
the arbitrator’s award. Thus, the question becomes whether Respondent meet it burden of 20
proving that it would have fired Pretlow on account of his conduct at the June 8 performance
evaluation.
The General Counsel relies heavily on the proposition that the June 8 evaluation was a
“set-up” arranged to allow Respondent to terminate Pretlow for filing a grievance and prevailing. 25
In support of this argument, the General Counsel notes that 3 other letter carriers were converted
from city carrier to regular carrier and none of these had a performance evaluation during their
probationary period, Tr. 136-37.
The Postal Service’s response is that Shakeel Khan was not aware that he was supposed 30
to do such an evaluation until a managers’ meeting, G.C. Exh. 8, Tr. 136-37. Khan could not
recall precisely when this meeting took place, Tr. 137-38.6 The General Counsel argues,
somewhat persuasively, that Respondent “failed to specifically articulate the circumstances
resulting in Mr. Khan’s education about the evaluation requirement,” G.C. brief at 16. Given
evidence that no other probationary regular carrier was given an evaluation prior to Pretlow, this 35
is something on which one would expect more specificity. Khan testified that the evaluation
requirement was something that was news to other managers, Tr. 136. Respondent could
certainly have proffered testimony from other managers to corroborate Khan’s testimony. Such
testimony would certainly have gone a long way to indicating that the June 8 evaluation was not
discriminatoraly motivated.40

6 His testimony is that the meeting occurred a few months prior to June 2016.
JD–61–17
6
The General Counsel also argues that the discriminatory motive is suggested by the fact
that the evaluation was conducted in a backroom office at the Post Office. Respondent argues
that this was so because of Pretlow’s hypersensitivity to criticism. This hypersensitivity,
according to Respondent, was exhibited by Pretlow with regard to Khan’s assignment of other 5
carriers to assist Pretlow on his route on May 31.
Despite the suspicious background to the June 8 evaluation, there is no question that
Pretlow did not cooperate in the evaluation and did not allow Respondent to complete it. I would
also note that on May 4, when Khan informed Pretlow that this evaluation would take place, he 10
did not object or assert that Respondent was discriminating against him in performing an
evaluation during his probationary period. Moreover, there is nothing in this record that would
lead one to conclude that Respondent’s managers should have anticipated Pretlow’s outburst in
reaction to his performance evaluation.
15
The General Counsel argues that Respondent cannot rely on Pretlow’s behavior on June
8, because it provoked his reaction. I disagree. There is no evidence on which I can base a
conclusion that Respondent’s adverse assessment of Pretlow’s work quantity and dependability
was discriminatorily motivated. He was not privileged to refuse to cooperate in the evaluation
and prevent its completion. Therefore, I conclude that Respondent met its burden of establishing 20
its affirmative defense (that it would have fired Pretlow for his conduct on June 8 absent his
protected activity) and did not violate the Act in terminating his employment on the basis on his
behavior at the evaluation.
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended7
ORDER
The complaint is dismissed.30
Dated, Washington, D.C. August 1, 2017
35

Arthur J. Amchan
Administrative Law Judge
40

7 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 purposes.
(4,/,.(,