United States Postal Service

National Labor Relations Board - Board Decisions

Mar 28, 1979

241 N.L.R.B. 524 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and David Drazek and
Judi Bari, and David C. Drazek. Cases 5-CA
9170(P) and 5-CA-9331(P)
March 28, 1979
DECISION AND ORDER
BY MEMBERS PENELLI.O, MURPHY, AND TRUESDALE
On December 14, 1978, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Party Bari
filed an answering brief to Respondent's exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions2 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, Largo, Maryland, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir, 1951). We have carefully examined the
record and find no basis for reversing his findings.
I In the absence of exceptions thereto, we adopt, pro forma, the Adminis-
trative Law Judge's finding that Respondent did not violate the Act by pro-
hibiting the distribution of the December and January issues of Postal Strife.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the Na-
tional Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has or-
dered us to post this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in bar-
gaining with us
To act together for your common interests
or protection
To refuse to participate in or oppose any or
all of these things.
WE WILL NOT confiscate or prohibit the distri-
bution of leaflets critical of your recognized col-
lective-bargaining agent, including leaflets of the
Postal Underground, where such distribution
takes place in nonworking areas on nonworking
time.
WE WILL NOT suspend you or otherwise dis-
criminate against you for exercising the rights
listed above.
WE WVIL. NOT in any like or related manner
interfere with, restrain, or coerce you in your
rights guaranteed by Section 7 of the National
Labor Relations Act, as amended.
WE Wll.. make David C. Drazek whole for
any loss of pay he may have suffered as a result
of his suspension on March 8, 1978, plus interest.
UNITED STATES POSTAL SERVICE
DECISION
STATEMENT OF THE CASE
HurroN S. BRANDON, Administrative Law Judge: This
case was heard before me in Washington, D.C., on August
22 23, 1978.1 The charge in Case 5-CA-9170(P) was filed
by David Drazek (hereinafter called Drazek) and Judi Bari
(hereinafter called Bari); both individuals, on February 1,
while the charge in Case 5-CA-933 I(P) was filed by Drazek
on March 24. The complaint in the initial case issued on
March 22, and the complaint in the later case issued on
May 16. Both were consolidated for hearing by an order
consolidating cases dated June 12. The complaints as con-
solidated allege violations of Section 8(a)(l) of the National
Labor Relations Act, as amended, herein called the Act, by
United States Postal Service, herein called Respondent. The
issues presented are whether Respondent violated Section
8(a)(1) of the Act by (a) banning or prohibiting distribution
of publications of Postal Strife and (b) suspending Drazek
for his protected concerted activities in connection with the
distribution of Postal Strife.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
I All dates are 1978, unless otherwise stated.
241 NLRB No. 74
524
UNITED STATES POSTAL SERVICE
FINDINGS OF FA('
1. JURISDICTION
At all times material, the Board has had jurisdiction over
this case by virtue of Section 1209 of the Postal Reorganiza-
tion Act, 39 U.S.C. §1201 09, herein called PRA.
II. IHE ALI.EGEI) UNFAIR I.ABOR PRA(TI(ES
A. Background
Respondent operates a bulk mail center in Largo. Mary-
land, the only location involved in this proceeding, where it
employs approximately 800 employees. A substantial num-
ber of these employees are represented by Local 305 of the
National Post Office Mail Handlers. Watchmen, Messen-
gers and Group Leaders Division of the Laborers' Interna-
tional Union of North America, AFL-CIO, herein called
the Mail Handlers or the Union. The Mail Handlers and
Respondent were parties to a collective-bargaining agree-
ment applicable to the Largo facility commonly known as
the Washington Bulk Mail Center or WBMC. The collec-
tive-bargaining agreement between the parties was effective
at all times material herein and contained a provision, arti-
cle XVIII, in which the Union agreed on behalf of its mem-
bers that it would not call or sanction a strike or slowdown.
In addition, the agreement in article XXII provided that
Respondent would furnish a bulletin board for the exclusive
use of the Union and further provided that the Union could
place their literature racks in swing rooms. However. the
agreement added, "Only suitable notices and literature may
be posted or placed in literature racks." In addition, the
agreement stated. "There shall be no posting or placement
of literature in literature racks except upon authority of
officially designated representatives of the Union."
In the fall of 1977, certain employees of Respondent at
the WBMC became active in an organization called the
Postal Underground. Drazek, the charging party herein, be-
came a member of that group, which he described in his
testimony as a group of rank-and-file employees whose pur-
pose it was to try to change undesirable working conditions
at the WBMC, including mandatory overtime and em-
ployee "harassment," and also to expose the inefficiency of
the unions representing employees at the WBMC. including
the Mail Handlers. Pursuant to those ends, the Postal Un-
derground began publishing a monthly newsletter in Octo-
ber 1977, known as Postal Strife.' While statements and
comments contained in the monthly publications of Postal
Strife will be more fully described below. it is sufficient to
note at this point that Postal Strife was highly critical of
Respondent's management and the Mail Handlers. It ap-
pears that the November and December 1977 issues of
2 According to Drazek's testimony, the Postal Underground was incorpo-
rated in March or April as Postal Strife. No officers had been named at the
time of the hearing, but the organization did have bylaws and a charter.
Aside from Drazek and the other charging party, Bari, who were the primary
contributors of articles to the Postal Strinfe newsletter, no other members of
the Postal Underground or Postal Strife were named in the record. Postal
Strife, the organization as opposed to the newsletter. appears to have been
used interchangeably with Postal Underground by Drazek in his testimony.
Postal Strife were distributed at the WBMC without inci-
dent. It was the subsequent distributions of Postal Under-
ground materials which encountered difficulties from Re-
spondent and gave rise to the charges and complaints
herein.
B. The JanuaN 10 Incidents
Drazek, employed by Respondent at the WBMC as a
mail handler who loaded and unloaded trucks under the
supervision of Orville Blue, supervisor of the outbound
docks, came to work on January 10 at around 7:10 a.m.
with a stack of leaflets3 announcing a Mail Handlers union
meeting at 3 p.m. on JanuarN 14. The space on the leaflet
for designation of the place of the meeting was filled with
question marks, and the tone of the leaflet, which requested
that employees come to the meeting prepared to ask ques-
tions regarding specified matters of employee concern, was
clearly sarcastic and obviously designed to put the Union
and its leaders in an embarrassing light, since, according to
the leaflet, the Union had agreed at its prior meeting in
December to hold regular meetings on the second Saturday
of each month with "adequate notification" to employees of
at least I week. The leaflet advised employees to ask certain
named union representatives for the location of the meeting
by calling them either at their homes or at the WBMC.
That the leaflet was a publication of the Postal Under-
ground was established not only by the name Postal Under-
ground, Mail Handlers Division, appearing on the bottom
of the leaflet but also bh the symbol of the Postal Under-
ground, a vulture appearing within a regular United States
Postal Service logo.
Drazek credibly testified without contradiction that he
was stopped by Walter Robinson, mail processing manager
for Respondent, and Henry Jones, tour (shift) superinten-
dent, who both advised Drazek that the leaflets would not
be allowed in the building. Although Drazek protested that
it was illegal to stop him from trying to distribute the leaf-
lets, he was advised to take the leaflets back outside and
that there would be no more Postal Strife allowed in the
building.
Drazek then proceeded to talk to Julie McCarthy, gen-
eral manager of the WBMC, and asked her why they would
not be allowed to give out the leaflets. He testified that he
was told by McCarthy that Respondent did not have to
allow distributions of the leaflet because "they" (Postal Un-
derground) were not a recognized bargaining agent. Mc-
Carthy, called by Respondent, did not specifically dispute
Drazek's testimony but added more details. She testified
that she advised him that the Mail Handlers bulletin boards
and literature racks in the facility were the proper places for
official union notices of meetings and that the leaflet was
not an official notice, that it was a fictitious document and
Drazek was not a union official authorized to distribute no-
tices of official union meetings and he would not be allowed
to post and circulate the leaflet.
Bari, also employed by Respondent at the WBMC as a
mail handler, testified that on January 10 at around 6:20
p.m., just prior to the beginning of her shift, she distributed
'G.C. Exh. 5.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Respondent's cafeteria some of the same leaflets regard-
ing a Mail Handlers meeting referred to above. She saw
Drazek, who informed her of the difficulty he had encoun-
tered with the leaflets earlier that morning. The two then
proceeded to Bari's timeclock, where she intended to punch
in. Both were carrying leaflets. They were approached by
James Strong, a tour superintendent, and General Supervi-
sor James Sheppard. Sheppard proceeded to escort Drazek,
who had completed his shift, out of the building while
Strong told Bari that they were not to distribute those "pa-
pers." Bari insisted that they had a legal right to distribute
them, but Strong told her that she could take what legal
recourse she wanted but that he was going to take the "pa-
pers." He then refused Bari's request to either put the leaf-
lets in her locker or give them to Drazek and, instead, took
them from her.
Strong was not called by Respondent, and the statements
and action attributed to him by Bari on January 10 are
uncontradicted. I therefore credit her testimony regarding
Strong.
The General Counsel relies upon Drazek and Bari to es-
tablish complaint allegations that Respondent, through
Robinson, banned distribution of Postal Strife in Respon-
dent's facility; through McCarthy, prohibited distribution
of literature other than that authored by the recognized
bargaining agent in Respondent's facility; and, through
Strong, confiscated issues of Postal Strife, all in violation of
Section 8(a)(l).
C. The February 2 Events
The complaint alleges that on February 2 mail processing
manager Robinson directed employees to remove Postal
Strife publications from Respondent's facility and that
General Manager McCarthy told employees that they
could not bring Postal Strife publications into Respondent's
facility. In support of these allegations, the General Coun-
sel again relies upon the testimony of Drazek.
Drazek related that on the morning of February 2 he was
coming in to work with a bundle of newspapers, publica-
tions of the Rank-and-File Postal Worker, a San Francisco
group, when he was again stopped by Robinson. Robinson,
again according to Drazek's uncontradicted and therefore
credited testimony. told Drazek that Drazek was not al-
lowed to bring in Postal Strife or any other paper. Although
Drazek showed Robinson what the material was, Robinson
replied that it did not make any difference and took the
material from Drazek.
Subsequently, on February 2, Drazek had a conversation
with McCarthy in her office concerning the papers. Accord-
ing to Drazek, McCarthy told him that the distribution of
"these" newsletters involved complex legal issues and that
neither she nor Drazek was competent to address those is-
sues, but that if he continued to bring them he would leave
her no other alternative than to have them confiscated from
him.
McCarthy's testimony was that she called Drazek into
her office on February 2 after she had received notice of the
charge' having been filed. She concedes that she told him
' It is clear that the charge in Case 5-CA 9170(P) had been filed the day
preceding this statement of McCarthy, but Drazek testified that she did not
refer to the filing of the charge.
that the distribution of "his literature" involved compli-
cated legal issues but says she added that the issues were
being addressed through the framework of the Board by
both Postal Service attorneys and Drazek's attorney and
that management was willing to abide by any sort of ruling
or settlement determination. She further asked his coopera-
tion to abide by the work rules that had been set out for
him until such time as a ruling was received, but also added
that if he continued to ignore those work rules and her
requests he would leave her with no choice but to pick up
his material and possibly subject him to disciplinary action
for failure to follow instructions. Drazek replied only by
saying that she was wrong.
I credit McCarthy's version of her conversation with
Drazek on February 2 with respect to the minor but appar-
ent conflicts in their respective testimony. McCarthy im-
pressed me as a credible witness with a good recall of detail.
Moreover, her testimony that the matter was being dis-
cussed between attorneys in an attempt to resolve it re-
ceives some support from the fact that on February 8 Mc-
C('arthy again called Drazek in and advised him that "his
material" was going to be allowed to be distributed in non-
work areas, on nonwork time, "with very specific details as
to where and when."5
D. The Suspension of David Drazek
The complaint in Case 5-CA 9331(P) alleges that Re-
spondent suspended Drazek on March 8 for 7 days because
of his protected concerted activities in distributing literature
during his nonwork periods in nonwork areas. The suspen-
sion was based directly on events occurring on February 10
but indirectly on events occurring on February 8, inasmuch
as the events of the latter date were considered in Respon-
dent's deciding on the suspension.
It was Drazek's testimony that on February 8 he came to
work with literature including the Rank-and-File Postal
Worker, Postal Strife, and some other "leaflets" which he
identified as announcements of a Postal Strife meeting. Su-
pervisor Blue told him that Blue was under instructions to
confiscate anything that Drazek brought in. Blue then
called General Supervisor Sheppard over. Sheppard told
Drazek that he was not allowed to have the material in the
building and asked Drazek to follow him. He directed Dra-
zek to put the material in Drazek's locker and wait until
9:00, when Sheppard could talk to McCarthy and Robin-
son about what to do. Drazek asked if he could check with
his lawyer, and Sheppard replied that he could but said he
was taking Drazek off the clock. Drazek protested that he
couldn't do that. Then, according to Drazek, Sheppard es-
corted Drazek to the security office and told him, "Get out
and never come back."
None of the restrictions noted and imposed by McCarthy on February 8
on Drazek's distributions are alleged to be unlawful. Such restrictions voiced
to Drazek included a prohibition of commercial newspapers on the work-
room floor (because of the possibility of confusion with mailed newspapers).
McCarthy also advised Drazek that the distributor of any literature would
be responsible for the content of the material distributed and that where such
material "encouraged, condoned, or otherwise had the effect of producing
illegal activities, such as slow-downs, sick-outs, work stoppages of one vari-
ety or another," the distributor would be responsible and subject to disciplin-
ary action.
526
UNITED STATES POSTAL SERVICE
Drazek left but later in the day was telephoned by Mc-
Carthy. who directed him to report to the WBMC. There
Drazek met with McCarthy at 2:00 p.m., and McCarthy
related to him the distribution rules as already referred to
above. Respondent reimbursed Drazek for the time lost in
being sent home that day, but on February 27 Drazek re-
ceived a warning letter signed by Supervisor Blue and dated
February 22 based on Drazek's February 8 conduct.
Neither Drazek's suspension on February 8 nor any of
the comments attributed by him to Sheppard or Blue were
alleged by the General Counsel as violative of the Act.
Sheppard was not called as a witness in the matter, and
Blue only briefly alluded to the February 8 events on cross-
examination. Blue testified that he had told Drazek the rule
was that if' Drazek were to bring printed materials on to the
workroom floor Blue was to confiscate them. Blue in-
structed Drazek to leave the materials on Blue's desk and
report to his truck. According to Drazek's warning letter,
Drazek reported to his truck but took his literature or mate-
rial with him. It was after that that Blue called Sheppard
into the matter, and Sheppard. according to the warning
letter,, directed Drazek to put the material in his locker, but
Drazek refused.
On February 10. Drazek had some leaflets which he tes-
tified pertained to a Postal Strife meeting, which he in-
tended to distribute in the break areas.' As he was going to
the break area during breaktime with the leaflets, he was
going through Blue's work area, where he encountered em-
ployees Melvin Mitchell and Robert Barrow. According to
Drazek, Barrow stopped him and took a leaflet from him
although Drazek did not hand it to him. Thereafter Blue
told him he was not allowed to give out leaflets in work
areas, and Drazek claimed that he had not.
Blue, on the other hand, testified that he had seen Drazek
hand a copy of the material he was distributing to either
Barrow or Mitchell but that since their backs were to him,
he could not see which one. Barrow and Mitchell were both
called as witnesses by the General Counsel. Mitchell testi-
fied that he recalled the date but could not recall Drazek
having any literature in his possession. Further, he testified
that Drazek had not given him any literature and that he
had not seen Drazek give Barrow any literature in Mitch-
ell's presence, although Mitchell conceded that Barrow had
been in the vicinity at the time. Barrow frankly and cred-
ibly testified that he had received literature from Drazek
numerous times but that he could not recall whether Dra-
zek gave him any literature or that he took any literature
from Drazek on the morning of February 10.
Drazek's suspension letter, dated March I and given to
Drazek on March 2, reflects that he was suspended for in-
subordination, based on his distribution of material to Bar-
row and Mitchell on February 10 in a work area. contrary
to instructions issued him on February 8. The letter also
indicated that his warning letter of February 22 and his
6 G.C. Exh. 6.
Respondent contends that the record does not establish that the material
or leaflets distributed hb Drazek on February 10 related to protected con-
certed activity. Since I accept Drazekss testimony, uncontradicted on the
point, that it pertained to a Postal Strife meeting, I reject Respondent's
contention.
counseling of January 38 were considered in deciding on his
suspension.
E. Contenlionls and Conclusions
1. The prohibition of distribution of leaflets and "Postal
Strife"
The General Counsel argues that Respondent's broad
prohibition of the Postal Strife literature violated Section
8(a)(I). citing United Parcel Service. Inc., 230 NLRB 1147
(1977). Consistent with this argument, the General Counsel
urges that "Postal Strife" and the material published
therein constituted activity protected under the Act. That it
was recognized by Respondent as protected was demon-
strated. the General Counsel argues, because after the ini-
tial charges were filed Respondent allowed the distribution
of Postal Strife and never disciplined anyone for the con-
tents of Postal Strife.
Respondent offers a number of arguments in its defense.
Initially, Respondent contends that the complaint allega-
tions with respect to the January 10 incidents are without
merit because they' refer to restrictions and confiscations of
Postal Strife but the evidence reflected that Postal Strife
was not involved, only the fake announcement of a Mail
Handlers union meeting. I find no merit in this contention,
inasmuch as the notices clearly designate that they were the
products of the Postal Underground. the producer at that
time of Postal Strife. The leaflet had the same logo as ap-
peared on Postal Strife. I deem the leaflet and Postal Strife
to be sufficiently related to justify the complaint references
to the leaflets as Postal Strife distributions. Moreover, the
complaint could not have been misleading in this regard,
since the allegations involve the January 10 date and there
was no showing of any other distribution of Postal Strife on
that date. And finally, I credit Drazek's uncontradicted tes-
timony that Robinson on January 10 stated that no more
Postal Strife would be allowed in the building, thus clearly
showing Respondent's recognition of the leaflet's associ-
ation with Postal Strife.
The Respondent next argues that the January 10 leaflet
distribution and posting did not constitute protected con-
certed activity under the Act. I disagree with this conten-
tion insofar as distribution of the leaflet is concerned. Al-
though Drazek testified that the notice of the meeting was
not a "sarcastic" commentary, it is obvious from examina-
tion of the leaflet that it was intended to prod the Union
into action with respect to concerns listed in the leaflet and
was critical of the Union's failure to meet with employees.
With the name of the Postal Underground on the bottom of
the leaflet and with the place of the meeting indicated only
by question marks, it could hardly be mistaken as an official
notice of a union meeting. And while the leaflet might have
been embarrassing to the Union. such embarrassment
serves as no basis to remove distribution of the leaflet from
the protection of the Act.
It is true that the leaflet suggested that employees ask
union representatives at the WBMC about the place of
meeting either in person or by phone (giving the home tele-
I The record contains no explanation of any counseling of Drazek on
Januar 3.
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone number of one union representative), but there was
no evidence that those officials received any harassment as
a result of the leaflet, and Respondent presented no evi-
dence that the leaflet resulted in any disruption of work.
Further, even if the Union complained to management
about the leaflet, such complaints also do not detract from
the protected nature of the leaflet.9 Considering the forego-
ing, I conclude that the January 10 leaflet was a legitimate
protest of what the Postal Underground viewed, rightly or
wrongly, as union inefficiency or inactivity with respect to
attention to, and resolution of, employee concerns listed in
the leaflet, as well as the Union's failure to meet with the
employees. I therefore find that the leaflet was a lawful
protest entitled to the protection of the Act.
To the extent that the leaflet was posted in certain areas
of the WBMC, Respondent was within its rights to remove
the posted leaflets. Section 7 of the Act has been interpreted
to grant employees the right to distribute literature on com-
pany premises under many circumstances, but it does not
bestow upon them a right to the use of bulletin boards or
other plant surfaces for the posting of information. Eastex,
Incorporated, 215 NLRB 271 (1974), enfd. 550 F.2d 198
(5th Cir. 1977), modified on other grounds 556 F.2d 1280
(5th Cir.), affd. 437 U.S. 556 (1978). Accordingly, McCar-
thy was entitled to bar, as she did on January 10, the post-
ing of the leaflet in the WBMC. But she could not also bar,
as I find she did, circulation of the leaflet on the premise
that it was not an official union announcement. Likewise,
the barring of the leaflet by Robinson, Jones, and Strong
and the confiscation of the leaflets by Strong from Bari
constituted interference, restraint, and coercion of employ-
ees in the exercise of their Section 7 rights. That Respon-
dent did not threaten or impose discipline for distribution
of the leaflet is irrelevant. I find that Respondent, by pro-
hibiting the circulation of the leaflet on January 10 and
then confiscating the leaflet, violated Section 8(a)(l) of the
Act.' 0
With respect to the complaint allegations regarding the
February 2 barring of the Postal Strife newsletter from the
WBMC by Robinson and McCarthy, Respondent contends
there was a failure of proof. Respondent argues that Drazek
was not carrying Postal Strife that morning, when Robin-
son told him he could not bring Postal Strife or any other
newspaper in. That is true, but the undenied fact remains
that Robinson included Postal Strife in his broad prohibi-
tion. The ban existed then, whether or not Drazek had any
' As the court said in V L. R B. v. Mid-State Metal Products, Inc., 403 F.2d
702. 704 (5th Cir. 1968), quoted with approval by the Board in The Magna-
vox Company of Tennessee. 195 NLRB 265, fn, 7 (1972):
The rights to distribute materials or solicit in organizing for collective
bargaining are rights of individual employees, relating to their selecting
(or choosing not to select) and constantly re-evaluating their collective
bargaining agent. They are to be distinguished from rights which em-
ployees acting in concert, through the collective bargaining agent, may
exercise in attempts to achieve economic advantage.
0 Respondent also appears to argue that there were other means of criti-
cizing the Union available to the Postal Underground, specifically the Postal
Strife newsletter. aside from the leaflet distribution. This is nothing more
than a bootstrap argument, which I find unmeritorious, since Respondent,
around the same time it barred the leaflet, barred distribution of Postal
Strife. Moreover, as will be subsequently seen. Respondent argues that bar-
ring of Postal Strife was lawful because distribution of that newsletter was
unprotected under the Act, inasmuch as it urged and encouraged employees
to engage in unlawful conduct.
Postal Strife newsletters with him at the time. This ban was
imposed and existed independently of any legitimate re-
striction which Respondent could impose on the bringing in
of other material, including regular newspapers.
Similarly, McCarthy by her own testimony admitted she
told Drazek that distribution of "his literature" involved
complex legal issues. "His literature" in the past had in-
cluded Postal Strife newsletters. By asking him to cooper-
ate, and by threatening discipline for not cooperating with
respect to "his literature," McCarthy was imposing restric-
tions on Drazek's distribution of "his literature." I find it
not unreasonable to draw the inference that McCarthy was
referring to Postal Strife newsletters and that by threatening
discipline she was making it clear that she did not want
Postal Strife brought in and distributed. I so conclude. This
conclusion is buttressed by McCarthy's own admission that
in January she instructed her supervisors not to allow distri-
bution of Postal Strife. There was no showing that that
direction was ever specifically countermanded or retracted,
although on February 8 McCarthy announced to Drazek
the legitimate distribution restrictions. Accordingly, I find
that there has been no failure of proof that Respondent did
ban distribution of Postal Strife newsletters through Robin-
son and McCarthy, as alleged in the complaint, even
though the total ban did not continue beyond February 8.
This brings us to the more critical issue argued by Re-
spondent, that distribution of the Postal Strife newsletter
was not an activity protected by Section 7 of the Act. Re-
spondent argues that its collective-bargaining agreement
with the Union contains a no-strike provision, article
XVIII, and, in addition, that postal employees are statutori-
ly" prohibited from striking. The December and January
issues of Postal Strife, according to Respondent's argument,
encouraged employees to engage in concerted work stop-
pages, contrary to the employees' contractual and statutory
obligations, and thus the distribution of those newsletters
was unprotected activity.
Examination of the December and January issues of
Postal Strife lend support and credence to Respondent's
argument that those issues encouraged the employees to use
unlawful self-help through concerted sickouts and break ex-
tensions. Thus, the first page of the December issue2 re-
ports on a Thanksgiving "slick-out" following an announce-
ment of 2 hours of mandatory overtime. While only a
relatively small number of employees engaged in the "slick-
out" by filling out sick leave slips, the "slick-out" did suc-
ceed in disrupting operations, according to the report. The
report then proceeded to state:
Postal Underground supports any progressive actions
against forced overtime. But it should be pointed out
that a sick-out would require workers to sign their
names and stick their necks out without knowing how
many people were supporting them.
A more realistic approach would be to unite the work-
ers in a common bond-like sitting out in the cafeteria.
At least then we would know who was on out side and
who was scab, and we could draw strength from each
other for a united action.
' 39 U.S.C. §410b) 5 U.S.C. §7311.
1 G.C Exh. 2.
528
UNITED STATES POSTAL SERVICE
The same issue of Postal Strife contained an article re-
garding opposition to Respondent's allowance of only 10
minutes for breaks. The article noted that some employees
at WBMC on Tour 11 had unofficially won the right to 15-
minute breaks just by taking them. It then concludes:
HOW ABOUT IT! Wouldn't you rather have a few
minutes to relax during a busy day? You never know-
it might even give you a better outlook on this place.
We believe that if enough of you out there want a 15
minute break, you'll get it. Start acting today on breaks
and maybe it will become official sooner than you
think. We can do it by sticking together in a common
goal: To try and make the WBMC a better place to
work in. "ATTENTION ALL PERSONNEL: Your
10 minute break is over!" You could still have 5 more
minutes. It's up to you.
In another article on excessive damage to mail, supervi-
sory preoccupation with quotas and speed is blamed, and
the author offers the following advice:
Management offers us no incentives to do things right,
and the only way we can ever change this place is if we
the workers take the correct running of the plant into
our own hands. If your supervisor tells you to ignore
sorting or operating procedures so they can get their
quote [sic] ignore them. They wouldn't dare write
you up for it.
The December issue also contains a cartoon of which the
humor is based on the comic character's obscene response
to an order of a supervisor, in effect advising the supervisor
that he could go f-k himself.
The January issue of Postal Strife, distributed sometime
after January 16, was somewhat more subtle in its over-
tures. It reported on the high absentee rate over Christmas
Eve and New Year's Eve as a result of people calling in
sick. While this article, entitled "BMC Flu." stated that it
was hoped that the sickout would "help management figure
that we are human beings, and after slaving 66 or more
hours a week for the holiday season, we need some time to
be with our families and friends," the article pointed out
that the absences were "completely spontaneous and un-
planned." However, the author concluded that maybe if
management would stop working the employees to death
with overtime they wouldn't get sick so much.
It is clear that Section 7 of the Act "protects employees
... when they denounce their employer for his conduct of
labor relations or affairs germane to the employment rela-
tionship." Jefferson Standard Broadcasting Company, 94
NLRB 1507, 1511-12 (1951), affd. sub nom. N.L.R.B. v.
Local Union No. 1229, International Brotherhood of Electri-
cal Workers, 346 U.S. 464, 475 (1953). This protection is not
without some limitation, however, and an employer's right
to maintain plant discipline includes the right to bar inflam-
matory propaganda from its premises in the course of an
employee campaign to obtain improved wages in a collec-
tive-bargaining agreement. Southwestern Bell Telephone
Company,. 200 NLRB 667, 671 (1972). Further, it has also
been held that distribution of literature on employer prem-
ises holding employer officers and officials up to ridicule
and contempt, which has the necessary tendency to disrupt
discipline in the plant, is unprotected. Mary'land Drdock
Company v. N.L.R.B., 183 F.2d 538, 539 (4th Cir. 1950);
Indiana Gear Works, a Division of Buehler Corporation v.
N.L.R.B., 371 F.2d 273 (7th Cir. 1967). Thus, some con-
certed activity by employees may be so indefensible as to
warrant employer discipline or discharge. Jefferson Stan-
dard Broadcasting Company, supra; N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9 (1962). In any case,
however, there must be "an adjustment between the undis-
puted right of self-organization assured to employees . . .
and the equally undisputed right of employers to maintain
discipline in their establishments." Republic Aviation Corpo-
ration v. N.L.R.B., 324 U.S. 793, 797-798 (1945).
The issue here boils down to whether the December and
January issues of the Postal Strife newsletter held Respon-
dent's supervisors up to ridicule and contempt or were oth-
erwise so obscene or offensive as to have the necessary ten-
dency to disrupt discipline, rendering distribution of those
issues unprotected under Section 7 of the Act and making
Respondent's barring of such distribution lawful. Consider-
ing the December and January issues as a whole, I conclude
that their content and tone were so obscene, offensive, and
obnoxious as to be far outweighed when balanced against
Respondent's need for proper discipline. Notably, the De-
cember issue, through the cartoon already noted, can only
be construed as obscenely advocating complete disregard of
supervisory instructions. Indeed, the same issue at another
point exhorts employees to "take the correct running of the
plant into our own hands" and directs employees to ignore
supervisory directions which employees may individually
determine are contrary to "sorting or operating proce-
dures." Such exhortations and directions are nothing more
than clarion calls to insubordination.
The continued theme of avoidance of managerial author-
ity is found in the blatant advocation of the extension of the
10-minute break periods through self-help in defiance of
break rules as well as the Respondent-Union contractual
provision against slowdowns and strikes. Finally, the De-
cember issue's apparent approval of the Thanksgiving
"slick-out," coupled with the express support of "progres-
sive actions against forced overtime," including the sug-
gested "sit out" in the cafeteria, is no less disruptive of
production and plant discipline.
The January issue, by also reporting on the Christmas
Eve and New Year's Eve "sick-out," i.e., the BMC Flu,
with obvious approval, was likewise disruptive of both dis-
cipline and production. No doubt, although spontaneous,
those "sick outs" received the encouragement of the De-
cember Postal Strife's expressed support of"progressive ac-
tion" against forced overtime.
That many of the criticisms and concerns expressed in
the December and January Postal Strife issues were well
founded may not be open to question. Some of its aims may
well have been legitimate. But the manner in which they
were expressed here and the advocation of self-help in the
face of contractual restrictions were in complete disregard
of the proper employee discipline which is essential to the
success of both management and employees in their com-
mon enterprise.
I conclude that by any measure the December and Janu-
ary issues of Postal Strife could be reasonably construed as
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being obscene, offensive, and a threat to plant discipline.'
Thus, I find that those issues fell outside the ambit of the
protection of Section 7 of the Act. It therefore follows that
Respondent's barring of distribution of those issues in its
facility up to February 814 did not violate Section 8(a)( 1) of
the Act. I so find.
2. The Drazek suspension
In arguing that the March suspension of Drazek was un-
lawful, the General Counsel refers to the February 22 warn-
ing letter issued to Drazek based on the February 8 events
and contends that the February 22 letter was "unwar-
ranted," apparently because Respondent retracted Drazek's
"discharge" of February 8 and paid him for the time he
lost. The General Counsel then hypothesizes that having
both the February 8 and 10 incidents, involving Drazek,
before it. Respondent realized that before it could take ac-
tion on the February 10 incident it had to issue a warning
letter to Drazek based on the February 8 events, a warning
letter that was based on "something" which was Respon-
dent's own fault, i.e., its unlawful restriction on distribution
of literature protected under the Act. Further, the General
Counsel claims that the February 10 incident was "too triv-
ial" to justify suspension. Respondent, according to the
General Counsel's argument, stinging from Drazek's Postal
Strife activities, decided to impose discipline and was not
willing to overlook "something that they had overlooked in
the past." Thus, aside from the simple issue, as framed in
the complaint, of whether Respondent suspended Drazek
for his alleged conduct of February 10 in distributing litera-
ture in work areas contrary to Respondent's announced re-
strictions, the General Counsel appears to be arguing a pre-
text theory.
The distribution rules announced to Drazek by McCar-
thy on February 8 were clear and lawful and are not alleged
to be otherwise by the General Counsel. Moreover, there
was no contention that such rules were discriminatorily
promulgated. Accordingly, if Drazek did violate the lawful
no-distribution rule on February 10, Respondent was not
precluded from taking appropriate disciplinary action, not-
withstanding the existence of any previous unlawful prohi-
bitions on distributions of "Postal Strife" of which Drazek
may have run afoul, unless Respondent seized upon the
prior incidents to obstruct protected employee activity. See
Uniflite, Inc., 233 NLRB 1108 (1977). 1 am not persuaded
that there was any such purpose in Respondent's actions.
The pretext argument loses persuasiveness not only in view
of the General Counsel's failure to allege and show that the
February 22 warning letter was unlawful but also because
there was no showing that the disciplinary procedure under
the Respondent-Union contract required a warning letter
for a prior offense as a necessary step for suspension for a
subsequent offense. While the March 2 suspension letter
does refer to the February 22 warning letter as a consider-
1
" While the November 1977 issue of Postal Stnfe is also contained in the
record. I have found it unnecessary to comment upon it, inasmuch as Re-
spondent appeared to have taken no steps to bar its distribution.
14The fact that Respondent after February 8 may have allowed further
distribution of the January Postal Strife newsletter does not detract from the
unprotected nature of that issue or the right of Respondent to initially bar its
distribution in its facility.
ation in the suspension, I am not convinced that such con-
sideration was improper or "unwarranted," since I have
found that Respondent could lawfully have barred the dis-
tribution of Postal Strife newsletters which Drazek had in
his "materials" on February 8. Too, Respondent's reinstate-
ment of Drazek on February 8 with pay for time lost as a
result of his having been sent home does not, without more,
establish that Respondent had decided to forego all disci-
pline of Drazek for his conduct on that date. Lastly, the
timing of the February 22 warning letter and the March 2
notice of suspension do not reflect an intent on Respon-
dent's part to retaliate against Drazek for his Postal Strife
activities as such. Had Respondent been so disposed, more
precipitous action could have been expected.
There remains, however, the issue of whether Drazek
passed out leaflets in a work area, as claimed by Respon-
dent. This requires a credibility resolution between Drazek
and Blue. I credit Drazek's version of the February 10 inci-
dent and find that he did not hand the leaflet to Barrow but
that Barrow reached into Drazek's stack of leaflets and took
the leaflet from him. Barrow did not contradict this, nor did
Mitchell, who was also present, for neither man had a recol-
lection of the incident. I am persuaded that the failure of
the recollections of both Barrow and Mitchell was genuine.
After all, it was not a matter of great significance to either
of them and they were not questioned about it by anyone
until 2 or more days later. On the other hand, I was im-
pressed by Drazek's apparent sincerity in testifying on the
point. Moreover, while Drazek, as shown by both his testi-
mony and his conduct reflected in the case as a whole, was
not the type of employee to be hesitant to confront or even
contradict management, I am not convinced he would have
distributed literature in work areas only 2 days after Mc-
Carthy had so clearly laid out the no-distribution rules to
him. Moreover, it would be highly unlikely that Drazek
would go through a work area with the intent of distribut-
ing material contrary to Respondent's rules and yet hand a
leaflet to only one person. Finally, the accuracy of Blue's
testimony on the incident was not persuasive. The backs of
Mitchell and Barrow were admittedly to Blue at the time,
and he was unable to specify which one received the docu-
ment allegedly handed out by Drazek. And he made no
effort to verify his observation by checking with either
Mitchell or Barrow. This did not prevent him from signing
Drazek's suspension letter drafted in such a way as to erro-
neously suggest that Drazek gave a document to both men.
Having found that the leaflet being distributed by Drazek
was one calling for a Postal Strife meeting, I find that the
leaflet distribution was a protected activity.' Since Drazek's
suspension was based on alleged misconduct in connection
with that protected activity, i.e., breach of the no-distribu-
tion rule, and since I find that that misconduct did not
is Although Respondent. as I have found, could have barred distribution
of the Postal Strife newsletter, in its facilities without violating employee Sec.
7 rights, it could not similarly lawfully bar distribution of leaflets announcing
meetings of Postal Strife, the organization. See United Parcel Service, Inc.,
230 NLRB 1147 (1977). The aims of Postal Strife, the organization, in early
February were not in derogation of the Union, nor does it appear that Postal
Strife sought to displace the Union in spite of the fact that Postal Strife was
highly critical of the Union. Accordingly, the distribution of notices of Postal
Strife meetings, I find, was a protected activity under the Act.
530
UNITED STATES POSTAL SERVICE
occur, it follows, and I find, that Drazek's suspension inter-
fered with his protected concerted activities. N.L.R.B. v.
Burnup and Sims, Inc., 379 U.S. 21 (1964). I therefore con-
clude that Respondent violated Section 8(a)(l) in suspend-
ing Drazek.
CONCLUSIONS OF LAW
1. Respondent, United States Postal Service, is subject to
the jurisdiction of the National Labor Relations Board pur-
suant to the National Labor Relations Act, as amended, by
virtue of certain provisions of Chapter 12 of the Postal Re-
organization Act, 39 U.S.C. §1201 09.
2. By confiscating and prohibiting the lawful distribution
of leaflets of Postal Underground critical of the recognized
collective-bargaining representative. on January 10, 1978,
Respondent violated Section 8(a)(1) of the Act.
3. By suspending David C. Drazek for 7 days, beginning
March 8, because of his distribution of a leaflet announcing
a Postal Strife meeting, Respondent violated Section 8(a)(1)
of the Act.
4. Respondent has not violated the Act in any other re-
spect alleged.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and post an appropriate notice.
Since I have found that Respondent unlawfully sus-
pended David C. Drazek for a period of 7 days, I shall
recommend that Respondent be ordered to make him
whole for any loss of earnings that he may have suffered as
a result of such suspension. Any backpay for Drazek shall
be computed in accordance with the formula approved in
F. W. Woolworth Company,. 90 NLRB 289 (1950), with in-
terest computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).'6
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
' See, generally, Isis Plumbing & Heaing Co., 138 NLRB 716 (1962).
"1 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.
ORDER 7
The Respondent, United States Postal Service, Largo,
Maryland, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Confiscating or prohibiting the distribution among
employees of leaflets critical of the recognized collective-
bargaining representative, including leaflets produced by
the Postal Underground, where such distribution takes
place in nonworking areas on nonworking time.
(b) Suspending employees for exercising rights guaran-
teed by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make David C. Drazek whole for any loss of pay he
may have suffered by reason of his suspension by payment
to him of a sum of money equal to the amount he normally
would have earned as wages but for the suspension, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying. all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant and necessary to a determination of the amount of
backpay due under the terms of this recommended Order.
(c) Post at its Largo, Maryland, bulk mail facility copies
of the attached notice marked "Appendix."' s Copies of said
notice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by the Respondent's autho-
rized representative, shall be posted by it 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.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaints be dismissed in-
sofar as they allege violations of the Act not specifically
found.
i' In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
531