United States Postal Service

National Labor Relations Board - Board Decisions

Mar 23, 1979

241 N.L.R.B. 389 (N.L.R.B. 1979)

UNITED STATES POSTAL SERVICE
United States Postal Service and St. Louis Local,
American Postal Workers Union, AFL-CIO. Case
14 CA-1I 1572(P)
March 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On November 15, 1978, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, United States Postal
Service, St. Louis, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This case
was heard before me in St. Louis, Missouri, on August 10,
1978, pursuant to charges timely filed and a complaint duly
issued on July 18, 1978, wherein it is alleged that Respon-
dent violated Section 8(a)(1) and (3) of the Act by suspend-
ing employee Melvin Sanders for 7 days because he en-
gaged in union and/or concerted activities with other
employees for their mutual aid and protection. Respondent
duly denied the commission of any unfair labor practices.
On the basis of the entire record, the demeanor of the
witnesses as they testified before me, and the post-trial
briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent provides postal service for the United States
of America and operates various facilities throughout the
United States in the performance of its duties. Its main
office is in Washington, D.C. The facility involved in this
proceeding is located in St. Louis, Missouri. The Board has
jurisdiction over this matter by virtue of Section 1209 of the
Postal Reorganization Act.
11. THE I.ABOR ORGANIZATION
St. Louis Local. American Postal Workers, AFL-CIO.
herein referred to as the Union. is a labor organization
within the meaning of Section 2(5) of the Act.
III. THEF ALI.lFGED UNFAIR LABOR PRACTICES
A. The Evidence
The facts are not in dispute. Employee Melvin Sanders is
a union steward who writes a monthly column in the
Union's newsletter, "Press On."' On June 13, 1978, Sanders
was given the following suspension notice:
You are hereby notified that you will be suspended for
a period of seven (7) calendar days beginning on June
16, 1978. at 3:30 P.M. You are to return to duty June
23, 1978, at 3:30 P.M. The reasons for this suspension
are:
I. Disrespectful Attitude Towards Postal Supervi-
sion
In the June 1978 issue of the American Postal Work-
ers Union's publication, the "Press On," an article
appears on Page 6 entitled "Tour 3-A Closer
Look." This article contains your byline and reads,
Management is loading Tour 3 with acting super-
visors. These are the flunkies that management
doesn't really want to make full time supervisors, so
they let them act as supervisors, so they can make
damn fools of themselves. For instances, there is one
on the LSM's who gives letters of warning for look-
ing in the trash can, there's one in the Illinois Sec-
tion who management makes take off his hat before
he can act as supervisor, and they even have a sub
that can't qualify on the LSM, but he acts as an
LSM supervisor.
Acting supervisor, acting fool, or acting a-hole.
Three different names, but they all mean the same.
This article represents a grossly disrespectful atti-
tude towards postal supervision and undermines
management's efforts to maintain the efficiency of its
operations.
You have the right to file a grievance under the Griev-
ance-Arbitration procedure set forth in Article XV,
Section 2 of the National Agreement within 14 days of
your receipt of this notice.
The quoted language in the notice is a verbatim recita-
tion of the entire content of Sander's June column which he
I "Press On" is mailed to local union members, honorary retired personnel,
advertisers, state and national offices of the Union, the Library of Congress,
members of the Senate and House Post Office committees, the Postal Press
Association which is apparently composed of member papers issued at other
postal locations, and some of the St. Louis Post Office's supervisors.
241 NLRB No. 61
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrote as a result of information from other employees that
they were having difficulties with acting supervisors.
On June 14, Respondent issued Sanders the following
notice of suspension:
This letter amends letter "Notice of Suspension of 30
days or less," which you received June 13, 1978.
You are hereby notified that you will be suspended for
a period of seven (7) calendar days beginning on Mon-
day, June 19, 1978, at 3:30 PM. You are to return to
duty Monday, June 26, 1978, at 3:30 PM. The reasons
for this suspension are:
I. Disrespectful Attitude Towards Postal Supervi-
sion
In the June 1978 issue of the American Postal Work-
ers Union's publication, the "Press On," an article
appears on Page 6 entitled "Tour 3-A Closer
Look." This article contains your byline and reads,
(second paragraph) as follows:
Acting supervisor, acting fool, or acting a-hole.
Three different names, but they all mean the same."
This article represents a grossly disrespectful atti-
tude towards postal supervisions and undermines
management's efforts to maintain the efficiency of its
operations.
You have the right to file a grievance under the Griev-
ance-Arbitration procedure set forth in Article XV,
Section 2 of the National Agreement within 14 days of
your receipt of this notice.
The amended letter was issued after Respondent received
legal advice that the first paragraph of Sanders' article was
protected and any action against him should be based on
the second paragraph. As the June 14 letter reflects, Sand-
ers was suspended the 7 calendar days commencing June
19.
B. Discussion and Conclusions
Respondent's position is that Sander's suspension was
based solely on his use of the word "a-hole,"2 which con-
stituted vulgar, abusive, egregious, and opprobrious name-
calling directed at acting supervisors, whose indentities
were known on the workroom floor, and was "designed to
dissuade a member of the bargaining unit from acting as a
supervisor and to effectively dissuade them from carrying
out their role while acting in that capacity." Respondent
contends that the use of the word is therefore unprotected
activity warranting discipline, and asserts that it only took
issue with that portion of the newsletter article referring to
"a-hole."
I find that Respondent's position that it only took issue
with the use of the word "a-hole" is belied by its action in
issuing the initial suspension notice of June 13 on the basis
of the entire content of Sanders' article. That it may have
later decided to base the suspension solely on the second
paragraph because of legal advice that paragraph I would
not warrant discipline does not alter the plain fact that Re-
spondent took umbrage at the entire article. Its retreat to
I agree with Respondent that this is a contraction of"asshole" and would
generally be so understood by the reader.
ostensible reliance on the second paragraph indicates to me
that Respondent sought to do on the basis of that para-
graph what it wanted to do on the basis of the entire article,
which was thwarted by advice that it could not legally sus-
pend Sanders for statements made in the opening para-
graph. In short, Respondent read Sanders' article, reacted
with a suspension on the basis of the entire article, and then
seized on the second paragraph, more specifically the word
"a hole," as a reason which might hold water. Accord-
ingly, I am persuaded that the asserted reliance on the sec-
ond paragraph is a pretext designed to disguise Respon-
dent's real motive for the suspension, which was the entire
article.
Further, the two sentence paragraph ultimately proffered
by Respondent as a reason for suspension is directly related
to the preceding statements which criticize Respondent's
utilization of acting supervisors and the qualifications and
performance of those employees so designated. In effect,
paragraph 2 is a summation of Sanders' opinion of the con-
duct of the acting supervisors discussed in paragraph I and
must be considered in that context.
Sander's article in the union newsletter, whose primary
targets are Respondent's employees even though it is dis-
tributed to others, conveyed the message that the on-the-job
conduct of acting supervisors, an obviously work related
problem of interest to employees, was of concern to and
protested by employees. This message was based on com-
plaints of Respondent's employees made to Sanders, a
union steward. The article is clearly protected concerted
union activity. That Sanders resorted to "rhetoricl hyper-
bole" to emphasize disapproval of the acting supervisors
does not deprive the article of its protected nature, nor does
the fact that Respondent may have been offended by the
use of "a-hole" as a descriptive term. Sanders' expression
of opinion might have been couched in words more accept-
able to management, and "a hole" is plainly a derogatory
epithet, but, as the Supreme Court has said:
. . the most repulsive speech enjoys immunity pro-
vided it falls short of a deliberate or reckless untruth.3
Linn v. United Plant Guard Workers of America, Local
114, 383 U.S. 53, 63 (1966);
and:
But Linn recognized that Federal law gives a union
license to use intemperate, abusive, or insulting lan-
guage without fear of restraint or penalty if it believes
such rhetoric to be an effective means to make its
point. Old Dominion Branch No. 469, National Associ-
ation of Letter Carriers, AFL-CIO v. Austin, 418 U.S.
264, 283 (1974).
For the foregoing reasons, I find that, by suspending
Melvin Sanders because he authored an article in "Press
On" and thereby engaged in protected concerted union ac-
tivity, Respondent violated Section 8(a)(1) and (3) of the
Act.4
There is no contention that Sanders' article was, in full or in part, delib-
eratel and/or recklessly untrue.
' See Springfield Library and Museum Association, 238 NLRB 1673 (1978).
390
UNITED STATES POSTAL SERVICE
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take other appropriate
actions to remedy its unfair labor practices. I therefore rec-
ommend that Respondent be required to make Melvin
Sanders whole for wages lost by reason of the 7-day suspen-
sion levied upon him, with interest thereon to be computed
in the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 5 I further recommend an order that all
records of and references to said suspension be totally ex-
punged and physically removed from all of Respondent's
personnel and other records wherein the suspension is now
noted, and that Respondent be required to post a notice
advising its employees of their rights and of "The Remedy"
in this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By suspending Melvin Sanders because he engaged in
protected concerted union activity Respondent violated
Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER6
The Respondent, United States Postal Service, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Suspending its employees, or otherwise discriminat-
ing in any manner with respect to their tenure of employ-
ment or any term or condition of employment, because they
engage in protected concerted union activities.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
sSee, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Make Melvin Sanders whole for any loss of pay he
suffered by reason of his unlawful 7-day suspension. Said
backpay shall be computed in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Expunge and physically remove from its records any
suspension notices and any references thereto relating to
the suspension of Melvin Sanders for 7 calendar days begin-
ning June 19, 1978.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and all other records required to assertain the amounts
of any backpay due under the terms of this Order.
(d) Post at its St. Louis, Missouri, facility copies of the
attached notice marked "Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 14,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILtl. NOT suspend our employees or otherwise
discriminate in any manner with respect to their tenure
of employment or any term or condition of employ-
ment because they engage in protected concerted
union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act.
WE WII.L make Melvin Sanders whole for any loss of
pay he may have suffered by reason of his suspension
for 7 calendar days beginning June 19, 1978.
WE WILL expunge and physically remove from our
records and files any suspension notices and any refer-
ences thereto relating to the suspension of Melvin
Sanders beginning June 19, 1980.
UNITED STATES POSTAL SERVICE
391