United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Apr 18, 2017

07-CA-170211 (N.L.R.B. Apr. 18, 2017)

JD–24–17
Grand Rapids, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
UNITED STATES POSTAL SERVICE,
Respondent
and Case 07–CA–170211
SHELLEY KAY OGLESBY
an Individual
Joseph Canfield, Esq.,
for the General Counsel.
Mark Wilson, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Grand Rapids,
Michigan, on September 21, 2016.1 The Charging Party, Shelley Kay Oglesby (Oglesby), filed
the charge in Case 07–CA–170211 on February 22, 2016.2 Oglesby filed an amended charge
April 27. The Regional Director for Region 7 of the National Labor Relations Board (NLRB/the
Board) issued a complaint and notice of hearing on May 25. Respondent filed a timely answer
denying all material allegations in the complaint.
The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor
Relations Act (NLRA/the Act) when on about February 16, Respondent, through Annette
McMillan (McMillan), at its Walker Avenue facility, threatened to discharge Oglesby because
she requested union representation. The complaint also alleges Respondent violated Section
8(a)(1) and (3) of the Act when on about February 16, Respondent, through McMillan, at its

1 General Counsel’s exhibits, Respondent’s exhibits, and Charging Party’s exhibits are identified as “GC Exh.”,
“R. Exh.” and “CP Exh.”, respectively. Joint exhibits are identified as “Jt. Exh.” The hearing transcript is identified
as “Tr.” The General Counsel and Respondent posthearing briefs are identified as “GC Br.” and “R. Br.”,
respectively. The Charging Party did not introduce exhibits into the record or file a posthearing brief.
2 All dates are in 2016, unless otherwise indicated.
JD–24–17
2
Walker facility, issued Oglesby a critical 30-day evaluation and probationary report; and on
about February 16, Respondent discharged Oglesby.
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 following5
FINDINGS OF FACT
A. I. Jurisdiction
10
Respondent provides postal service for the United States and operates facilities
nationwide, including in the State of Michigan and its facility located at 1625 Walker Avenue, in
Grand Rapids, Michigan (Walker Avenue facility). Respondent admits and I find that Section
1209 of the Postal Reorganization Act, 39 U.S.C. § 101, et seq. (PRA) gives the NLRB
jurisdiction over Respondent in this matter. 15
At all material times, Western Michigan Area Local 281, American Postal Workers
Union (APWU), AFL–CIO (the Union) has been labor organizations within the meaning of
Section 2(5) of the Act.
20
II. Alleged Unfair Labor Practices
A. Overview of Respondent’s Operation
Respondent processes and delivers mail nationwide, and is organized into seven distinct 25
regions: Northeast, Eastern, Great Lakes, Capital Metro, Southern, Western, and Pacific. Each
region is divided into districts; and the districts consist of postal locations that are grouped into
an installation. Installations are comprised of a number of postal facilities within a certain city.
The Great Lakes region, which is involved in this case, has seven districts: Detroit, Lakeland,
Greater Michigan, Greater Indiana, Gateway, Central Illinois, and Chicago.3 The facility at issue 30
is the Northwest Station Walker Avenue facility.4 The Walker Avenue location has
approximately 70 employees. A large portion of those employees are city carrier assistants
(CCA). A CCA is responsible for casing and delivering mail.5
McMillan is and was at all relevant times the station manager for the Walker Avenue 35
facility, overseeing its entire operation from retail to delivery. She is also on the work floor to
coach and mentor CCAs. Part of her responsibility as a station manager includes monitoring
employees’ work and performing employee evaluations. Occasionally, she accompanies

3 I have taken judicial notice of Respondent’s administrative structure as set forth on its website. See
http://about.usps.com. F.R.E. 201(b); Doron Precision Systems, Inc. v. FAAC, Inc., 423 F.Supp. 2d 173, 179 fn. 8
(S.D.N.Y. 2006) (“a court may take judicial notice of information publicly announced on a party’s website, as long
as the website’s authenticity is not in dispute and it’s capable of accurate and ready determination.”)
4 The City of Grand Rapids, Michigan has seven “stations” which are under the authority of Postmaster
Theresa Mullins.
5 “Casing” is a term unique, in this context, to the United States Postal Service. McMillan defines it as a
method of preparing mail for delivery with the CCA taking mail from a bin and sorting it into cases that “have street
addresses on it for the customers.” (Tr. 50.)
JD–24–17
3
employees on their delivery routes for a firsthand look at their performance before conducting
employee reviews. In the year leading up to the hearing, she had performed approximately 30
performance evaluations on CCAs.6
B. Oglesby Delivery Route on February 16, 20165
Oglesby was hired on January 16, 2016, as a CCA. As part of new employee training,
Oglesby, and about 13 or 14 other new hires, attended an orientation meeting conducted by a
union representative, Scott McHale (McHale), who instructed them on their employee rights. In
the orientation, McHale told the trainees that if called into a meeting with management, they 10
should request union representation and not speak or sign any documents until a union
representative is present. There is no evidence that management agreed with McHale’s
sentiments. Approximately 2 weeks into her employment, Oglesby joined the union.
On February 16, Oglesby was assigned to work at the Walker Avenue facility for the first 15
time. Her route was scheduled to start at 9 a.m. but before leaving the facility she first had to
case the mail on her route. Management estimated that her route would take 6-1/2 hours to
complete. (R. Exh. 1.) Since February 16 was the day after a holiday, management anticipated
that the routes would be heavy; and it would take all of the CCAs slightly longer to deliver their
mail. Due to the postholiday mail crush and Oglesby’s first day working at the facility,20
McMillan instructed one of the supervisors to give Oglesby assistance with casing to enable her
to start her route earlier. Brittany Tran (Tran), a swing carrier, was assigned to provide Oglesby
with 1.25 hours of help casing her mail.7
The goal established by management was to have the delivery routes completed and the 25
carriers back at their facility by 5 p.m. As the day progressed, it became obvious to management
that Oglesby would need assistance completing her route on time. Consequently, management
sent several carriers to help Oglesby deliver her route. Janet Makowsks (Makowsks) provided
.56 hour of route assistance; Jim Martin (Martin) gave 1.49 hours of help; Tran provided about
an hour of assistance on the route; and J. R. Sicaro was also sent to help but Oglesby’s route had 30
been completed before he arrived.8 Oglesby received in total over 4 hours of assistance with her
route.9

6 The performance evaluations for newly hired CCAs are performed at 30-day, 60-day, and 90-day intervals.
The 30-day evaluation is performed by the station manager where the CCA is assigned at their 30-day mark.
Oglesby was assigned at the Walker Avenue station on her 30-day mark. Consequently, McMillan was responsible
for performing Oglesby’s 30-day evaluation.
7 McMillan defines a “swing carrier” as a carrier responsible for casing and delivering routes for regular
carriers on their scheduled days off of work. A “swing carrier” is also referred to as a “T-6” employee. Swing
carrier Tran covered the five regular carriers’ routes as needed.
8 Oglesby testified that she also received help in the morning delivering her route, but McMillan noted that
would have been unusual because the carrier would have had to finish his/her route before assisting Oglesby.
Moreover, unlike the other carriers, there is no documentation of Oglesby receiving help in the morning with route
delivery. It is possible she misunderstood the question from counsel at the hearing and was testifying about the help
she received casing mail that morning from Tran.
9 Oglesby testified that she received only 1.45 hours of assistance with her route. I do not credit her testimony
on this point. The clock rings clearly establish that she was afforded more than 3 hours of assistance. (R. Exh. 1)
Moreover, McMillan provided undisputed testimony that for about an hour Tran also assisted Oglesby with
delivering her route.
JD–24–17
4
Sometime after 5 p.m., McMillan asked the “closing” supervisor if there were carriers
still on the street delivering mail. The “closing” supervisor responded that despite receiving help
from four carriers, Oglesby had not returned to the facility. McMillan called Oglesby while she
was delivering her route and told her to come to her office when she returned to the facility so 5
they could talk about the reasons for the difficulties Oglesby had delivering her mail route.10
C. February 16, Meeting Between McMillan and Oglesby
On February16, Oglesby returned to the Walker Avenue facility; and about 5:25 or 5:30 10
p.m. proceeded to McMillan’s office as instructed. Oglesby and McMillan testified to different
versions of the subsequent meeting.
Oglesby testified that immediately after entering McMillan’s office and closing the door,
McMillan, in an angry and aggressive manner, told her it was unacceptable that Oglesby needed 15
four employees help to finish her route. McMillan continued by stating that they were going to
discuss it. Oglesby responded that if there was going to be any disciplinary action taken against
her or if this was a disciplinary meeting she wanted a union representative. McMillan answered,
“well, don’t you think you know everything about how things work around here, only being here
for 3 weeks and asking for a union representative already.” (Tr. 22.)11 Oglesby countered that it 20
was her right to have union representation at the meeting and she was not going to say anything
until it was provided. According to Oglesby, McMillan told her it was okay if she did not want
to talk but she was going to listen. At this point in the conversation, Oglesby claims that
McMillan called an unidentified person for her personnel file and other paperwork.12 Oglesby
also testified that when she reiterated to McMillan that she was not going to say or sign anything 25
until she was given union representation, McMillan allegedly crossed her arms and leaned
towards Oglesby to angrily respond, “. . . well, since you’re not going to say anything or sign
anything and because you’re requesting union representation, I’m firing you. If you’re not going
to sign it or say anything without union representation, then I want your badge.” (Tr. 23.) In
response to Oglesby’s insistence that she would not speak, McMillan told her that was “fine” and 30
she could sit and listen to what she had to tell her. Oglesby insisted that it was not until after

10 Oglesby testified that McMillan called her while she was on her route and instructed her to come to her office
when she returned to Walker Avenue station. McMillan could not remember if she made the call but admitted it was
not unusual for her to personally call an employee on their route if a supervisor is otherwise occupied. I do not find
it necessary to reconcile the discrepancy between their testimonies on this point because it is not essential to my
decision regarding the merits of the case. Nonetheless, I will credit Oglesby’s testimony on this point because
McMillan could not recall whether she or a supervisor made the telephone call to Oglesby.
11 McMillan testified that she was unsure whether she said to Oglesby “well, don’t you think you know
everything, even though you’ve only been here 3 weeks.” (Tr. 71) However, she admitted that she might have said
something along those lines. I credit Oglesby testimony on this point because, although she could not recall the
exact remark, McMillan agreed she made a similar statement. Id.
12 McMillan denied calling anyone to get Oglesby’s personnel file or any other paperwork pertaining to her. She
noted that she did not need to research Oglesby’s personnel file or call another station for information about her.
Oglesby admitted that she did not know who was on the telephone with McMillan. I credit McMillan’s testimony on
this point because Oglesby admitted she did not know who was on the line with McMillan; and there is no evidence
that during their meeting McMillan ever received Oglesby’s personnel file or other paperwork related to her
employment. Oglesby’s testimony on this point strikes me as illogical.
JD–24–17
5
McMillan terminated her that she was informed that the purpose of the meeting was to give her a
performance review.13
McMillan denied that she dealt with Oglesby in an angry and aggressive manner; and
testified that when she asked to meet with Oglesby at the end of her shift it was not her intent to 5
terminate her. She noted that because of her personal experience as a “casual” (at that time the
equivalent of a CCA) when she was first hired to work for Respondent, she was very
sympathetic to the challenges of a newly hired CCA. She testified that the CCA position was a
difficult job, and it was not uncommon for new employees to fail. As an example of the job’s
challenges, McMillan noted that between February 2015 and February 2016, the Walker Avenue 10
facility had about 25 probationary CCAs with 25-30 percent of them leaving the job because
they failed to meet the standards. Consequently, McMillan is frequently on the workroom floor
to coach and mentor CCAs. Moreover, she performs “follow-up” conversations with any
employee who has difficulty on a route to ascertain the cause of the problem so that she can help
them perform better. 15
According to McMillan, when she learned that Oglesby needed four employees to help
her complete her route; and she was still late returning to the facility, McMillan was concerned.
In an effort to ascertain and address the problem, McMillan testified that she asked Oglesby to
explain why she struggled with her route that day. After hearing Oglesby’s response, it was 20
McMillan’s intent to personally go with Oglesby or have a supervisor go with her the next day
on her route to observe areas where Oglesby needed improvement. McMillan testified, “. . . I
already was developing a plan in my mind based upon the information, that if she [Oglesby]
would have gave me anything as far as why the day fell apart, we were going to go back out to
assist her—to try to improve upon so that she could do better and be more confident.” (Tr. 75.) 25
However, Oglesby informed her that she was not talking and asked if she was going to be
disciplined. McMillan responded “no” and told her it was just a performance review to help her
to understand why Oglesby had such a difficult time delivering her route. In anticipation of
recording Oglesby’s response, McMillan retrieved a Form 175014 and blank piece of paper.
However, Oglesby repeated that she was not going to talk. McMillan testified that again she tried 30
to assure Oglesby that she only wanted to understand what happened on Oglesby’s route, told her
she was not going to be disciplined, and that their talk was simply a performance review.
Oglesby insisted that she was not going to talk unless she received a union representative.
McMillan repeated that she was not going to take disciplinary action against Oglesby and it was
simply a performance review. Nonetheless, Oglesby refused to talk without a union 35
representative. McMillan testified that since her assurances to Oglesby that she was not going to
take disciplinary action against her did not convince Oglesby to explain why she had trouble
delivering her route, McMillan finally responded, “…well there’s nothing else to talk about.
You’re terminated.” She ended the interview by telling Oglesby to return her badge and she
would escort her out of the building. McMillan escorted Oglesby to get her personal belongings 40

13 McMillan testified that in response to Oglesby’s question about whether she was going to be disciplined, she
told her it was performance review to determine why she had difficulty delivering her route and that she would not
be disciplined. I credit McMillan’s testimony on this point because, for reasons previously noted, I found her to be
overall a more credible witness than Oglesby.
14 Form 1750 is used to conduct 30-, 60-, and 80-day performance reviews for probationary employees. (Tr.
63.)
JD–24–17
6
and then out of the building. The meeting lasted approximately 10 minutes. Within minutes of
escorting Oglesby from the building, McMillan wrote an email to Postmaster Mullins detailing
her actions and the reason for Oglesby’s discharge. (R. Exh. 3)
I credit McMillan’s testimony regarding her meeting with Oglesby because she was an 5
overall more credible witness based on her demeanor and candor. Moreover, her version of the
conversation was more logical and, unlike Oglesby, had the ring of truth.
Their testimonies about the meeting on February 16 differ on several minor points but the
most significant contradiction involves whether McMillan stated she was terminating Oglesby 10
because she asked for a union representative. McMillan denies making the statement while
Oglesby insists that she did. I credit McMillan’s testimony on this point and overall. Based on
her demeanor and the passion and detail that she went into in speaking about her experience as a
newly hired casual, I found McMillan to be sincere when she testified about the empathy she felt
for newly hired CCAs; and her desire to work with them to help them succeed. Consequently, I 15
credit her testimony that she denied being aggressive and angry with Oglesby during their
meeting or raising her voice; and her insistence that she did not get upset when Oglesby asked
for a union representative. Moreover, I found McMillan’s candor admitting to unflattering
statements attributed to her a contributing factor in my overall positive impression of her
truthfulness as a witness. As an example, McMillan did not deny making the comment, in 20
response to Oglesby’s demand for a union representative, that “well, don’t you think you know
everything about how things work around here, only being here for 3 weeks and asking for union
representation already.”
Moreover, I find it is highly improbable that McMillan, a 30-plus veteran with 25
Respondent, who has worked with the unions and in management, would have been so reckless
and foolish to have made such a clear statement (“because you’re requesting union
representation, I’m firing you.”) that is violative of the Act. I believe McMillan when she
testified that she understands and appreciates the value of working collaboratively with the union
because it results in a peaceful work environment with “happy” employees. She also noted that 30
in her 20-plus years in management she has never had a charge filed against her for “disparaging
remarks or engaging in discriminatory activity against employees because of their union
activity.” (Tr. 40.)
In contrast I found Oglesby to be a sullen and less than credible witness. In addition to 35
her overall demeanor, her testimony on several key points contributed to my finding that she was
not a credible witness. An example is Oglesby’s unsuccessful attempt to minimize the assistance
that she received from other employees in delivering her route. While the objective evidence
clearly established that she received over 3 hours of assistance with her route, Oglesby insisted
that she got only about an hour and 45 minutes of help. She also tried to paint McMillan as an 40
aggressive and angry manager who bluntly informed her that she was being terminated because
of her protected activity. As noted previously, Oglesby testimony on this point does not ring
true. According to Oglesby, McMillan first stated she was being discharged because of her
refusal to provide input about her performance review. It is therefore not logical or reasonable to
believe that McMillan would have followed this statement up by gratuitously providing Oglesby 45
with a clear violation of the Act by explicitly stating she was terminating her because of her
JD–24–17
7
protected activity. I find there is nothing in the record to support a finding that McMillan was
that stupid or incompetent to commit such a clear violation of the Act.
III. DISCUSSION AND ANALYSIS
5
A. Allegation of Threat to discharge Oglesby Because of Protected Activity
Section 8(a)(1) of the National Labor Relations Act (NLRA/the Act) provides that it is an
unfair labor practice for an employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 10
include the right “to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.” See Brighton Retail, Inc., 354 NLRB
441, 441 (2009).
The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act by 15
threatening to discharge Oglesby because she requested a union representative. The counsel for
the General Counsel posits that the violation occurred after the second time Oglesby informed
McMillan she was not going to speak unless she had a union representative present. In his brief,
the counsel for the General Counsel contends that “. . . McMillan folded her arms and leaned
over her desk, and in an aggressive and angry voice said that a union representative was not 20
available, and that this was just going to be a review, but since Oglesby was not going to say
anything or sign anything, and because she was requesting union representation, she was firing
her. McMillan then also said that if Oglesby was not going to say anything or sign anything
without union representation, then she wanted Oglesby’s badge. At that point, the termination
was not yet in effect, but McMillan’s statement did constitute a threat to terminate Oglesby 25
because she asked for union representation.” (GC Br. 6.)
The General Counsel’s theory is based on facts that I have previously discredited. I
discredited Oglesby’s testimony that McMillan was aggressive and angry with her. More
importantly, I dismissed as not credible Oglesby’s testimony that McMillan stated or threatened 30
to discharge her because she would not say or sign anything without union representation. In
summation, the General Counsel’s theory is based on Oglesby’s discredited version of the
conversation between her and McMillan.
Regarding the merits of the allegation that Oglesby was threatened with discharge 35
because she requested a union representative, I find that the General Counsel has failed to prove
its case. Based on my findings of fact detailed above, I did not find credible Oglesby’s
testimony that McMillan told her that she was going to be terminated because she asked for a
union representative. I noted that I did not find Oglesby to be as credible a witness overall as
McMillan, she prevaricated on certain points, and on occasion her testimony was nonsensical. 40
45
JD–24–17
8
Accordingly, I recommend that paragraph 6 of the complaint be dismissed.
B. Oglesby Allegedly Issued an Evaluation and Discharged Because of Protected Activity
The General Counsel alleges that the Respondent violated Section 8(a)(1) and (3) of the 5
Act by issuing Oglesby a critical 30-day Evaluation and Probationary report because she
requested a union representative during her meeting with McMillan. Respondent counters that
McMillan never made the statement attributed to her by Oglesby; and the performance review
was conducted on Oglesby’s 30th day of employment as part of Respondent’s normal course of
business. Moreover, Respondent insists that McMillan conducted the performance review in an 10
attempt to determine the type of assistance and training Oglesby might require in the future so
that she would succeed as a CCA in Respondent’s employ.
The Board applies the Wright Line15 analysis to 8(a)(3) discrimination cases and 8(a) (1)
concerted activity cases that involve disputes about an employer’s motivation for taking an 15
adverse employment action against employees. Hoodview Vending Co., supra; Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009). The burden is on the General Counsel to
initially establish that a substantial or motivating factor in the employer’s decision to take
adverse employment action against an employee was the employee’s union or other protected
activity. Under the Wright Line framework, as developed by the Board, the elements required 20
for the General Counsel to show that protected activity was a motivating factor in an employer’s
adverse action are union or protected activity, employer’s knowledge of that activity, and union
animus on the part of the employer. Adams & Associates, Inc., 363 NLRB No. 193, slip op. at 6
(2016); Libertyville Toyota, 360 NLRB 1298, 1301 (2014); enf. 801 F.3d 767 (7th Cir. 2015).
Once the General Counsel has met its initial showing that the protected conduct was a motivating 25
or substantial reason in employer’s decision to take the adverse action, the employer has the
burden of production by presenting evidence the action would have occurred even absent the
protected concerted activity. The General Counsel may offer proof that the employer’s
articulated reason is false or pretextual. Hoodview Vending Co., supra 359 NLRB No. 36, slip op
at 5. Ultimately, the General Counsel retains the ultimate burden of proving discrimination. 30
Wright Line, id. However, where “the evidence establishes that the reasons given for the
Respondent’s action are pretextual—that is, either false or not in fact relied upon—the
Respondent fails by definition to show that it would have taken the same action for those
reasons, absent the protected conduct, and thus there is no need to perform the second part of the
Wright Line analysis.” Golden State Foods Corp., 340 NLRB 382, 385 (2003) (citing Limestone 35
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)). The Wright Line
analysis is not applicable when there is no dispute that the employer took action against the
employee because the employee engaged in protected concerted activity. Phoenix Transit
System, 337 NLRB 510, 510 (2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003).
40
Based on its investigation, by letter dated May 18, Region 7 notified Oglesby that the
Weingarten portion of her charge was dismissed. Despite Region 7’s dismissal of the
Weingarten allegation, counsel’s for the General Counsel entire posthearing brief argued a

15251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
JD–24–17
9
Weingarten violation.16 However, it is settled Board law that motive-based allegations are
analyzed using the framework set forth in Wright Line. See T.N.T. Red Star Express, 299 NLRB
894, 895 fn. 6 (1990) (Wright Line analysis appropriate in complaint of discipline imposed
because employee asserted Weingarten rights); Wal-Mart Stores, Inc., 351 NLRB 130, 133
(2007) (Wright Line framework utilized where discharge allegedly based on employee’s 5
protected insistence on his Weingarten right to a witness). Under the Wright Line framework, in
order to sustain its initial burden of proof, the General Counsel must first prove that Oglesby
engaged in a protected activity which was a motivating factor in Respondent’s decision to issue
the 30-day critical evaluation and ultimate discharge.
10
I find that there is no credible evidence that McMillan told Oglesby that she was going to
issue her a 30-day evaluation because she requested a union representative. I previously credited
McMillan’s denial that she threatened Oglesby with an adverse employment action or discharged
her because she asked for union representation. Accordingly, I find that the General Counsel has
failed to meet its initial burden of showing discriminatory motive.15
Even assuming arguendo that the General Counsel met its initial burden, I find that
Respondent established that the 30-day evaluation would have been issued to Oglesby even in
the absence of the protected conduct. See Wright Line, supra, 251 NLRB at 1089. The evidence
clearly established that pursuant to company policy, Oglesby was issued the 30-day evaluation 20
because February 16, was the 30th day of her probationary period; and the evidence was
undisputed that it was standard procedure for the manager of the facility where the employee was
assigned on their 30th day of employment to issue the 30-day evaluation.
Accordingly, I find that Respondent’s issuance of the 30-day evaluation and probationary 25
report to Oglesby does not violate Section 8(a)(1) and (3) of the Act; and I recommend,
therefore, that paragraph 7(a) of the complaint be dismissed.
The General Counsel also alleges that the Respondent violated Section 8(a)(1) and (3) of
the Act by discharging Oglesby because she requested a union representative during a meeting 30

16 Based on its investigation, by letter dated May 18, 2016, Region 7 notified Oglesby that the
Weingarten portion of her charge was dismissed. Consequently, Respondent filed a motion to
strike the portions of the General Counsel’s posthearing brief that allege a violation of the Act in
relation to the Weingarten rule. In response, counsel for the General Counsel admitted that at the
time he submitted his brief, he was unaware that the Region had dismissed the Weingarten
allegation. Consequently, counsel for the General Counsel noted that he “does not object to the
ALJ striking the cases supporting a Weingarten violation or argument that the ALJ should find
the same.” (GC Br. 4.) Since I have discredited the factual bases of the General Counsel’s
argument for finding a violation in this complaint, I deny as moot Respondent’s motion to strike.
Even assuming that I did not find moot Respondent’s motion to strike portions of the General
Counsel’s posthearing brief, I would grant Respondent’s motion because there is no Weingarten
allegation before me.
JD–24–17
10
with McMillan about her work performance. Respondent, however, counters that Oglesby was
discharged solely because she refused to talk to McMillan about the challenges she faced in
delivering her route on February 16. Respondent noted, “By blatantly refusing to talk to
McMillan at all Oglesby was refusing to participate in her own training, which made any chance
for improvement generally impossible, or even addressing the problems that may have occurred 5
that day.” (R. Br. 8.)
The General Counsel’s case primarily hinges on Oglesby’s contention that McMillan
specifically said she was firing her and effectuated her discharge because she requested a union
representative during her meeting with McMillan on February 16. However, I previously found 10
that McMillan did not make the discriminatory statements attributed to her by Oglesby. The
General Counsel also argues that Oglesby had a reasonable basis to believe that her meeting with
McMillan would lead to her termination because McMillan admitted that in the previous
calendar year she had evaluated about 25 CCAs and 25 to 30 percent of them were not
successful. The General Counsel also notes that evidence showing McMillan disciplined several 15
employees following her review on their form 1750 reinforced Oglesby’s belief that discipline
would follow. Since, however, the record is devoid of evidence that Oglesby was aware of these
facts at the time she met with McMillan and requested union representation, the General
Counsel’s argument is unpersuasive. Moreover, the record contains no other evidence, objective
or otherwise, to support a finding that Oglesby’s discharge was because McMillan harbored 20
discriminatory animus against her.
Accordingly, I find that Oglesby’s discharge does not violate Section 8(a)(1) and (3) of
the Act; and I recommend, therefore, that paragraph 7(b) of the complaint be dismissed.
25
Dated: April 18, 2017

Christine E. Dibble (CED)30
Administrative Law Judge
aik)._ .,-1-L,63