United States Postal Service

National Labor Relations Board - Board Decisions

Aug 13, 1982

263 N.L.R.B. 357 (N.L.R.B. 1982)

UNITED STATES POSTAL SERVICE
United States Postal Service and John Fripp and
North Jersey Area Local, American Postal
Workers Union, AFL-CIO. Cases 22-CA-
9616(P), 22-CA-10042(P), and 22-CA-
10312(P)'
August 13, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On July 27, 1981, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-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
briefs and has decided to affirm the rulings, find-
ings,2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER FANNING, concurring and dissenting:
I agree with my colleagues that Respondent did
not violate Section 8(a)(3) or (5) of the Act, and
that the case should not be deferred to arbitration.
However, the complaint separately alleges, and I
would hold, that Respondent violated Section
8(a)(l) of the Act when its supervisors limited em-
ployee access to Stewards Wittlinger and Arminio.
Article XVII, section 3, of the contract between
the parties provides that stewards may request to
interview aggrieved employees during working
hours and that such requests shall not be unreason-
ably denied.
These cases were formerly consolidated with Cases 22-CA-10315(P)
and 22-CA-10489(P), which were severed at the hearing.
2 Although we agree with the Administrative Law Judge's finding that
Respondent did not discipline John Fripp as a pretext for discouraging
his union activity, the record does not support the Administrative Law
Judge's accounts that: (I) no allegation was made by the General Counsel
that the supervisors who made the antiunion warnings were agents of Re-
spondent, and (2) John Fripp testified that he received a written request
to turn in his key to the cafeteria door.
263 NLRB No. 43
Between 1977 and 1979 the stewards were
having problems obtaining releases for handling
grievances from their immediate supervisors. Con-
sequently, the parties negotiated a more specific re-
lease policy which was set forth in a memorandum
dated July 27, 1979. According to the new policy,
"the supervisor shall release the steward within one
hour of the request under most circumstances, but
in no event will a delay beyond two hours be toler-
ated."
During September 1980, however, Union Stew-
ards Wittlinger and Arminio were told by their im-
mediate supervisors that they were no longer per-
mitted to process grievances during the first 2
hours of their shifts, and that they should limit the
time spent on each grievance to 15 minutes. The
problem was solved in December 1980 shortly
after Respondent's top management was notified
about the dispute and directed its supervisors to re-
lease the stewards immediately upon request.
Although the supervisors' actions here may have
breached the parties' contract and the terms of the
July 27 memorandum, I agree with the Administra-
tive Law Judge and concur with my colleagues
that Respondent did not, because of these actions,
unilaterally change the contract in violation of Sec-
tion 8(a)(5) of the Act because its top management
promptly corrected the problem upon notification
of its existence. However, the restrictions placed
on the stewards by their immediate supervisors for
over I month did interfere with the employees'
Section 7 right to consult with their stewards con-
cerning grievances, and in these circumstances Re-
spondent must be held responsible for its supervi-
sors' actions. Therefore, I would find that Re-
spondent interfered with its employees' exercise of
the rights guaranteed them in Section 7 of the Act
and thereby violated Section 8(a)(1).
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: On
November 20, 1979, John Fripp, a clerk employed at the
Newark, New Jersey, post office of the United States
Postal Service (herein called Respondent) filed the unfair
labor practice charge in Case 22-CA-9616(P) against Re-
spondent; on May 28, 1980, he filed the charge in Case
22-CA-10042(P) against Respondent. On September 30,
1980, the North Jersey Area Local, American Postal
Workers Union, AFL-CIO (herein called the Union),
filed the unfair labor practice charge in Case 22-CA-
10312(P) against Respondent. On January 21, 1981, an
order consolidating cases and third amended complaint
was issued by the Regional Director for Region 22 of
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board.' Respondent filed
its answer to that complaint. The hearing was held
before me in Newark, New Jersey, on February 17-19
and 26-27, 1981.
The issues are:
(1) Whether Respondent, in violation of Section 8(a)(l)
and (3) of the National Labor Relations Act, as amended
(herein called the Act), disciplined its employee, John
Fripp, because of his activities on behalf of the Union.
(2) Whether the allegation that Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally modify-
ing a policy governing the release of union stewards
from work to enable them to process grievances should
be dismissed on the ground that the underlying issue may
best be resolved by the grievance arbitration procedures
contained in the collective-bargaining agreement be-
tween Respondent and the Union.
(3) Assuming that the arbitral processes are not to be
deferred to, did Respondent, in violation of Section
8(a)() and (5) of the Act, unilaterally change the prac-
tice of releasing union stewards for grievance matters?
Upon the entire record, including my observation of
the demeanor of the witnesses and after careful consider-
ation of the briefs filed by the parties, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Board has jurisdiction over this matter by virtue
of section 1209 of the Postal Reorganization Act, 39
U.S.C. § 101, et seq. (herein called the PRA). The facility
involved in this proceeding is the Newark Post Office,
located in the city of Newark, New Jersey. Respondent
is now and has been at all times material herein an em-
ployer within the meaning of the PRA.
11. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The employees of Respondent, nationwide, are divided
into three collective-bargaining units: (a) letter carriers,
(b) truckdrivers, and (c) clerks. The American Postal
Workers Union, AFL-CIO (APWU), represents the na-
tionwide unit of clerks; and its North Jersey Local
Union, i.e., the Union in the instant case, services the
contract between Respondent and APWU, its parent, as
it pertains to approximately 3,000 clerks employed at Re-
spondent's postal service center in Newark, New Jersey.
Other cases had been consolidated with the cases captioned above.
At the hearing, I granted a motion by the General Counsel to withdraw
all allegations in the third amended complaint which pertained to those
other cases. In effect then, those other caes have been severed and I
have approved the motion to withdraw the related complaint allegations
involved in those cases, together with the underlying unfair labor prac-
tice charges.
As the testimony in this case discloses, there were
more than a few individuals involved in the events dis-
cussed below and it will be helpful at the outset to iden-
tify most of them. The postmaster at Newark is Joseph
Benucci; Respondent's director of employee and labor
relations there is Clifford Rowland; and its manager of
labor relations at Newark is Melvin Weibush.
The manager of distribution at Newark is Fulvio Stan-
ziale. The individuals who report directly to him are the
"administrators" in charge of the respective "tours." The
mail sorting at Newark is done on a three-shift basis.
Each shift is termed a "tour." Tour I covers the hours
10:30 p.m. to 7 a.m.; the exact hours for tours II1 and III
are not clear and it appears that they may overlap.
The administrator for tour I was Robert Robinson in
1979-80, the time period involved in this case. The tour
II administrator then was Michael Rosania.2 The man-
agerial level immediately under that of tour administrator
is that of operations manager. One function for which an
operations manager is responsible at Newark is classified
as LSM; i.e., letter sorting machines. Reporting to the re-
spective operations managers are the mail supervisors.
The specific mail supervisors involved in the instant case
included Antonio Agneta, Frances Reavis, Walter Pas-
terczyk, and Emanuel Bettinger.
The officials of the Union involved in this case are:
1. Its former president, Jules Turturiello.
2. Its current president, John Napurano.
3. Its chief steward and later its executive vice presi-
dent, James Pawlowicz.
4. Its present chief steward, Frank Arminio.
5. Its tour I-II steward, William Wittlinger.
6. A former steward, John Fripp.
B. Alleged Discrimination Against Former Steward
John Fripp
1. Background
John Fripp has worked for Respondent since Novem-
ber 1972 as a clerk in its Newark Post Office.
The General Counsel contends that in the latter
months of 1979 and in early 1980 Respondent discrimina-
torily (a) issued five letters of warnings to him, (b) sus-
pended him from work for 7 days, and (c) denied his re-
quest for authorization to take leave without pay but in-
stead charged him with being AWOL. The General
Counsel acknowledged that several of the allegedly un-
lawful letters of warning were withdrawn by Respond-
ent's supervisors during the grievance procedure. He in-
dicated at the hearing that a motion would be made to
withdraw the allegations pertaining to those adjusted
matters but that he would still seek a remedial notice
thereon. In his brief, counsel for the General Counsel
stated that at the hearing he had "moved to withdraw all
disciplinary actions against Fripp that were resolved by
the grievance procedure, more specifically the letters of
warning dated August 28, September 13 and 18, 1979
issued by supervisor Agneta." It appears that the refer-
ence to September 18 should have been to September 28
S The name of the tour III administrator is not in the record in this
case.
358
UNITED STATES POSTAL SERVICE
as Fripp was issued no letter of warning by Agneta
dated September 18. The General Counsel urged later in
his brief that Agneta's testimony should not be credited
as to his account respecting the September 28 letter he
issued to Fripp; the General Counsel also submitted as a
separate point of argument in his brief that the August 28
and September 13 and 28 letters, and other letters to
Fripp constituted violations of Section 8(a)(1) and (3)
and the General Counsel specifically requested that Re-
spondent be ordered to remove all such warnings from
Fripp's personnel file.
Respondent, in its brief, observed that the General
Counsel "amended the complaint to withdraw the allega-
tions" respecting the August 28 and September 13 and 28
letters by Agneta and that the General Counsel had in-
troduced evidence respecting those letters solely for pur-
poses of "background." Further, I note that the General
Counsel offered evidence that Fripp was given notice on
October 1, 1979, of a 7-day suspension (later reduced to
3 days) for purposes of "background"; there is no allega-
tion that that notice or the 3-day suspension was viola-
tive of the Act.
To avoid confusion, I will examine and decide upon
the merits of all issues raised including the August 28
and September 13 and 28 letters of warnings given to
Fripp by Agneta and also of the October I letter and the
resultant 3-day suspension imposed on Fripp. In that
way, each of these matters can be considered for pur-
poses of background, or as separate violations of the Act,
or to fashion any remedial notice that may be warranted.
2. Fripp's protected activities
Fripp had been a union steward from January 1977 to
February 1980. One of his coworkers, Philip Dempsey,
testified that he, Dempsey, edited a newsletter, entitled
"The Newark Postal Worker" from May to November
1979 and that he, together with other employees includ-
ing Fripp and the Union's chief steward, Frank Arminio,
distributed copies of that newsletter to clerks in the
Newark post office in that 6-month period. The purpose
of the newsletter, as set out in its headline, was to keep
the Union's general membership informed as to "changes
in their workplace." Altogether, 11 editions of the news-
letter were published; the last in the latter part of No-
vember 1979. The articles therein were critical of various
matters involving clerks at Newark, e.g., the abolishment
of unit positions; heat conditions; alleged failures to im-
prove facilities in locations where unit employees work;
light-duty assignments for allegedly favored employees;
and an assertedly new release program for union stew-
ards. Dempsey testified that, in June 1979, he had been
told that Respondent's manager of distribution, Stanziale,
was upset at comments made in the newsletters edited by
Dempsey.3
s There is no evidence that the individual who told Dempsey of Stan-
ziale's reaction to the newsletters was an agent of Respondent. Nor is
there any contention that a related warning conveyed to Dempsey by
that individual then (to the effect that he, Dempsey, and the other clerks
who were helping him had better watch their steps) constituted a sepa-
rate violation of the Act.
There were assertions made in those newsletters that
Respondent appeared to have retaliated against individ-
uals because they were selected as union stewards. There
is, however, no allegation in the complaint in this case
that any steward, other than Fripp, was discriminated
against by Respondent. There is no contention, either,
that Dempsey was treated unfairly because of his role as
editor of the newsletters referred to above. The newspa-
per also contained articles asserting that certain employ-
ees, including Fripp, were being treated in a disparate
and an adverse manner and it questioned whether such
treatment was related to their union activities.
Dempsey also testified that his supervisor, Richard
Novaks, told him in September 1979 that Postmaster
Benucci was extremely upset over "paper number 5
[published in September 1979] and that management may
take appropriate action." Two items appeared in that
issue. One article asked whether it was true that, at the
Newark post office, "workmen (bestow their favors on
their bosses) for preferential treatment"; the article then
answers by stating that "this practice stretches from the
work floor to the offices of higher management level." A
second item in that edition refers to a supervisor who
sold jewelry and asked if he were selling it during work-
ing time. 4
3. The August 28 letter of warning
Fripp testified that, in accordance with usual proce-
dures, he asked his supervisor, Antonio Agneta, on
August 27, 1979, for permission to leave his work area in
order to meet with Chief Steward Arminio to take care
of some union business and that Agneta granted his re-
quest. His testimony indicates that later that day Agneta
reviewed with him the matters set out at length in the
August 28 letter, discussed below, but the particulars of
that meeting are not set out in the record.
Agneta testified for Respondent that he had released
Fripp to meet with the Union's chief steward, Arminio,
on August 27 and that sometime later he was unable to
find Fripp on the first floor of the facility, presumably
the floor on which both Fripp and Arminio were as-
signed to work. Agneta testified that he later located
them in the basement and that they told him that it had
been past practice for them to use that area. Agneta testi-
fied that he "disputed" this and that he issued Fripp the
August 28 letter of warning to let him know that he
should not use such a remote area from Fripp's regular
work location.
The August 28 letter spells out in detail the conten-
tions of Supervisor Agneta respecting the foregoing
matter and to a related matter-Fripp's 25-minute delay
in reporting to a particular area to handle a grievance,
after Agneta had released him on August 27 to go to
that area.
Arminio testified that he was released on August 27 by
his supervisor to meet with Fripp. His testimony indi-
' The General Counsel adduced testimony that a supervisor was later
disciplined for selling jewelry during working time and that that supervi-
sor informed the editor of the newsletter that he "can play the same
game." I am unable to see the significance of that testimony in relation to
the issues in this case
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cates that there had been discussions between the Union
and Respondent as to the specific areas to be used by
union representatives to conduct union business and I
infer from his general testimony thereon that Respondent
had been endeavoring to persuade the union stewards to
use specific areas during working time whereas the union
stewards wanted to be free to choose where they met.
Arminio did not receive a letter of warning from his su-
pervisor respecting his use of the "remote" area with
Fripp.
Fripp filed a grievance to protest the issuance of the
August 28 letter. The first-step level of the grievance-ar-
bitration procedures requires a meeting with the supervi-
sor. At the first-step meeting, Supervisor Agneta conced-
ed that Fripp had not been specifically instructed previ-
ously not to use that "remote" area. Agneta testified also
that Fripp clearly understood then that he would be
given specific release times and locations and that he
would honor those. Based on those considerations,
Agneta testified he then rescinded the August 28 letter of
warning.
It is the General Counsel's contention that Fripp was
issued the August 28 letter of warning because he was
then a union steward and because of his activities in dis-
tributing the newsletters edited by Dempsey. There is no
evidence that he was more active as a steward than any
of the other union stewards or, for that matter, than the
Union's chief steward, Arminio. There is no evidence to
link the August 28 letter to the newsletters which had
been distributed since May 1979. The fact that Respond-
ent took no action against Dempsey or Arminio indicates
that it harbored no union animus toward them. I can see
no reason why the General Counsel would urge that Re-
spondent singled out a much lesser figure, Fripp, than
they. Further, the evidence fails to establish that the rea-
sons given by Agneta for issuing the August 28 letter of
warning were pretextual-Fripp was in a remote area
and apparently was otherwise missing for a 25-minute
period during the workday in question. Finally, I note
that Agneta's actions do not appear to have been calcu-
lated to undermine the support for the Union among the
clerks at Newark. On the one hand he issued a letter of
warning to a union steward and that may by itself raise
an issue respecting unlawful motivation. On the other
hand, the fact that Agneta rescinded the warning at the
first-grievance step strongly indicates lack of merit re-
specting that issue and suggests instead that the Union
had been an effective instrument in getting warning let-
ters rescinded promptly.
In view of the limited scope of Fripp's protected activ-
ities, the absence of direct, probative evidence of union
animus,5 the fact that more active supporters for the
Union were not disciplined, the lack of a showing that
the reasons proffered by Respondent for giving him the
warning were pretextual,6 and the ambivalent nature of
I In his brief, the General Counsel refers to testimony that individuals
with various titles. i.e., General Supervisor Ray De Furia, Supervisor
Richard Novaks, and Supervisor Paul Galli, conveyed antiunion warn-
ings at different times. None of ,hose matters was alleged to be violative
of the Act; none of the individuals who assertedly made those statements
was alleged to be agents of Respondent.
6 The General Counsel comments in his brief that Agneta had known
for months prior to August 28, 1979, that Fripp and Arminio had used a
the asserted discriminatory act itself, I conclude that the
evidence is insufficient to establish that the August 28
letter was issued for discriminatory reasons. 7
4. The September 13 letter of warning to Fripp
Agneta issued a second letter of warning to Fripp,
dated September 13, 1979. It recited that, on September
7, Fripp failed to report back to his work area after
having concluded a grievance interview and instead had
"began to research the . . . grievance" without authori-
zation. The warning letter also cited Fripp for having re-
ported back to work 25 minutes later from a grievance
meeting on September 12 and it noted that Fripp's
excuse, bathroom emergency, was unacceptable for so
long a period.
Fripp testified that he does not recall the September 7
incident and that, on September 12, he stopped briefly in
the bathroom on his way back from a grievance meeting
before returning promptly to his assigned work area.
Fripp stated that Agneta was not in that area when he
returned.
Agneta testified respecting the matters set out in the
September 13 letters. His account parallels the recital
contained in it. He further testified that he rescinded the
warning at the first step of the grievance procedures as
he conceded it was possible, in view of the size of his
work area, that he had failed to notice Fripp's return at
the time Fripp claimed he did come back to his assigned
workplace.
For essentially the same reasons that the earlier warn-
ing letter was found to be not a violation, I find that the
September 13 letter was not issued for discriminatory
purposes. There appears to have been at least a genuine
fact issue. Further, the General Counsel adduced no evi-
dence to establish that the September 7 incident recount-
ed by Agneta was in any way used as a pretext.
5. The first September 28 letter
The next allegedly unlawful letter of warning to Fripp
is dated September 28, 1979, and it also was rescinded by
Agneta at the first grievance step. That letter states that
Fripp punched his timecard in to work 2 minutes late on
room in the basement to conduct union business and he observes that this
disclosed that Fripp was being held to a more stringent standard than
was normally followed. I am not sure if the General Counsel is address-
ing the matter as to whether Respondent's reason for warning Fripp was
a pretext or the matter of alleged disparate treatment or both such mat-
ters. In any event, the evidence in the record indicates clearly that
Agneta was aware that the Union had not been assigned a specific loca-
tion in which to conduct its business during working time and that he
knew that the union officials used a room in the basement. The record
does not, however, clearly show, as the General Counsel asserts, that
Agneta readily knew on August 27 that Fripp and Arminio were using
the room in the basement during all the time Agneta claimed to be look-
ing for Fripp.
7 Bechtel Incorporated, 248 NLRB 1222 (1980). Alternatively, I note
that, were there merit in the General Counsel's contention that the
August 28 letter was violative of the Act, I would not provide any spe-
cific remedy therefor as the clear import of the General Counsel's re-
marks at the hearing was that testimony thereon was submitted as back-
ground only in view of the fact that that warning had been rescinded.
The fact that the General Counsel did not make a formal motion to with-
draw that allegation does not change the obvious intent of his remarks;
i.e., to remove that matter as a litigable issue.
360
UNITED STATES POSTAL SERVICE
September 25 and that Fripp was simply standing at the
timeclock without making an effort then to go to work.
Fripp contended that he was then engaged in explaining
to a group of new employees the procedures to be fol-
lowed in punching in for work. Fripp testified that there
was a great deal of confusion on that day because those
new employees had not received proper instructions.
Agneta denied that there was any such problem and he
asserted simply that Fripp for no reason delayed punch-
ing in to work. Respondent's administrator for that tour,
Michael Rosinia, had observed Fripp and directed
Agneta to issue the letter of warning to Fripp. I credit
Fripp's account as it is fairly detailed and as Agneta later
conceded that there was confusion that morning among a
group of new employees when they sought to punch in
and as Agneta acknowledged that then he, Agneta, was
too busy to recall the events of that day.
The September 28 letter also recounts that Fripp had
on September 25 failed to display his ID card as re-
quired. Fripp testified that while he did not display his
ID card in the manner specified in the letter, he nonethe-
less had worn it in a manner by which it was always
visible.
The credited evidence is insufficient to establish that
the September 28 letter was issued for discriminatory
reasons. The matters involved therein (the late time
period and the variation in the manner in which Fripp
displayed his ID card) were actual events, not prefabri-
cations. There appear to have been genuine issues as to
the merits of the respective contentions and they were
resolved by a rescinding of that warning letter at the
first-grievance step. The fact that the grievance had
merit does not thereby render the warning to Union Ste-
ward Fripp unlawful.
6. The second September 28 letter
Fripp was issued another letter of warning on Septem-
ber 28. That was given him by Acting Supervisor Fran-
ces Reavis because he went to the first floor when re-
leased to handle a grievance in an area located on the
second floor.
Fripp testified that he told her that he had to go to the
first floor and then to the second floor to conduct union
business and that she responded that, if he had to go to
the first floor, he should come back to get a separate re-
lease to conduct union business on the second floor.
Fripp testified he then told her he had to go to the first
floor only to get certain forms from the Union's locker
there and that he would then use those forms in conduct-
ing the union business he had on the second floor.
Supervisor Reavis testified that she had told Fripp that
he was authorized to go to a specific area and that, if he
wanted authorization to go to another floor, he should
return and request separate authorization. She testified
that she issued the letter of warning as Fripp failed to
comply with her instructions. I credit her account and
note that Fripp does not deny that he was so specifically
instructed by her. His testimony suggests only that
Reavis implicitly consented to permit him to go to the
first floor to pick up certain forms. Overall, the evidence
fails to establish that Respondent's reason for issuing the
September 28 letter of warning was a clear pretext. I
find that the evidence is insufficient to support a finding
that Reavis' letter of September 28 to Fripp was viola-
tive of the Act.
7. The October 1 letter
Fripp was issued a letter of warning on October 1,
1979, by his supervisor for that day, Fred Sylvers.8 The
letter recites that it was based on Fripp's having made an
unauthorized trip to the first floor when he had been re-
leased to go only to his locker located on the second
floor.
Fripp testified that he was authorized by Sylvers to go
to "the locker" to get certain grievance forms, that he
went first to his own locker on the second floor and
found none there, and that he then had to go to the
Union's locker on the first floor to obtain the forms he
needed. Respondent's contention is that Fripp regularly
wandered from his assigned work area and that warnings
were issued to him to induce him to follow specific re-
lease instructions in an effort to enable it to account for
his working time. The evidence presented to me by the
General Counsel falls short of establishing that the
reason proffered by Respondent for issuing the October
1 letter of warning to Fripp was clearly a pretext. At
best, such evidence may show that Supervisor Sylvers
misconstrued the import of Fripp's request for permission
to go to "the locker" as a reference to his locker, rather
than to both that locker and also to the Union's locker
on the first floor. Such a contention relates only to
whether Respondent had "just cause" to issue the letter
of warning. In any event, I find the evidence insufficient
to establish that Respondent issued the October 1 letter
of warning to discourage Fripp from pursuing his duties
as a union steward or as retaliation for his having helped
distribute the newsletter referred to above.
8. The notice of suspension and the suspension itself
The General Counsel offered evidence respecting a
notice issued to Fripp on October 1, 1979, informing him
that he would be suspended for 7 days beginning Octo-
ber 4. Respondent objected to any testimony thereon as
the complaint did not allege that that notice or the subse-
quent suspension (which was later reduced, during a
grievance discussion, from 7 to 3 days) was violative of
the Act. Nevertheless, the General Counsel stated that
the testimony thereon should be received as "back-
ground to show the totality of the conduct" displayed by
Respondent toward Fripp. On that premise, testimony
was received. The October I notice of suspension recites
that Fripp was instructed in writing on September 19 not
to unlock the door between the cafeteria and mezzanine
at the Newark post office and that he nevertheless used a
key to unlock that door on September 28 to enter the
cafeteria.
Fripp testified that he was asked in writing on Septem-
ber 19 to turn in his key to that door and that he told his
supervisor then that he had no key to that door. He testi-
* Fripp was supervised then by Sylvers for 2 of his 5 workdays;
Acting Supervisor Reavis was his supervisor for the remaining 3 work-
days.
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled further that, on September 28, he observed that that
door was not completely closed and he then pushed it to
enter the cafeteria. He and the General Counsel assert
that the door was also not "locked." The General Coun-
sel contends that the statement in the October 1 notice of
suspension that he used that door "in direct disregard of
official instructions" was false as (a) Fripp used no key
to open the door, and (b) Fripp had not been told that he
could not use that door.
Respondent adduced evidence that the door was
always locked and that it was not "slightly ajar" at the
time Fripp used it. It appears too that there was a door
closer above that door to insure that it would close com-
pletely.
I am unable from the above evidence to infer any im-
proper motivation in Respondent's issuance of the notice
of suspension. Even if Fripp's account were credited, it
is still fair to say that he knew or should have known
that he was not to use the door in question and that, de-
spite that knowledge, he used it. Obviously, the reason
he was asked to turn in his key was to insure that he
could not use it to open that door. Again, his opening
the door from a position where it was all but locked
would warrant an inference by Respondent that he had
used a key to open the door. The evidence fails to estab-
lish that Respondent acted on the basis of a clear pretext.
Consequently, I infer no union animus from the issuance
of the October 1 notice of suspension. As there is no al-
legation that the notice or the suspension violates the
Act, I make no express determination thereon.
9. The November 7 notice of suspension and the
resultant suspension
The complaint does allege that a notice given Fripp on
November 7, 1979, of a 14-day suspension, effective be-
ginning November 13, violated Section 8(a)(1) and (3) of
the Act. That suspension was later reduced to 7 days.
According to the notice, Fripp (a) failed to follow
instructions by wearing a radio headset while working
on November 6, and (b) was absent without authoriza-
tion from the work floor at intervals on October 26 and
31 and November 1, respectively.
Fripp testified that he used a headset and that other
employees did. The inference was that Respondent treat-
ed him in a clearly disparate manner. Respondent's wit-
nesses testified that other employees did, in fact, wear
headsets while working; their testimony, however, dis-
closes that those employees had either been specifically
authorized to do so or even required to do so. These
other employees operated noisy letter sorting machines
and apparently the headsets they wore protected their
hearing. The use of a headset by Fripp, on the other
hand, could be a hazard under certain circumstances.
Respecting the alleged unauthorized absence of Fripp
from his work area on October 27, Fripp testified that he
obtained authorization to handle a grievance with a su-
pervisor in another section, Walter Pasterczyk, and went
to that section. While there, according to Fripp, it
became apparent that he needed certain forms and he ex-
cused himself to go to another area where the forms
were kept. He then filled out those forms and returned
to present those forms to Supervisor Pasterczyk, who
asked him where he had been. Fripp testified that he ex-
plained to Pasterczyk that he was filling out the forms
and that Pasterczyk told him that Fripp returned too late
and that he, Pasterczyk, could not handle the matter
then. Fripp testified that he then reported back to his
work area where his own supervisor told him that Pas-
terczyk had been looking for him. It appears that Pas-
terczyk had been looking for Fripp for about 45 minutes.
Pasterczyk's account does not differ extensively from
Fripp's. His testimony indicates he expected Fripp to
return momentarily to resume discussing the matter
under consideration but that, when Fripp did not come
back, he began a search. According to Pasterczyk, he
observed Fripp about 45 minutes later in another area of
the building. When Fripp saw him Pasterczyk testified,
Fripp tried to hand him, Pasterczyk, some forms but Pas-
terczyk refused to accept them and told him that he,
Fripp, was supposed to have returned promptly as he
had employees waiting there in order to process the
grievance being discussed.
As to the October 31 incident, Respondent's records
show that Fripp finished processing a grievance with a
supervisor named Hutmaker at 2:15 p.m. that day but did
not return to his own work area until 2:45 p.m. Fripp
testified that he spent that 30-minute interval reviewing
data furnished him by Hutmaker and that he then had
occasion to discuss another matter with Supervisor Pas-
terczyk for about 5 to 7 minutes before returning to
work. There is no evidence that he had been released by
his supervisor to meet with Pasterczyk. Pasterczyk testi-
fied-that Fripp spoke with him that day for a minute or
two in order to obtain a written extension of time to
process a grievance and to ask Pasterczyk to arrange for
him to speak to some individuals apparently involved in
that grievance matter.
The last incident referred to in the November 7 sus-
pension notice occurred on November I and pertained to
the fact that Respondent's records disclose that Fripp
finished processing a grievance that day with Supervisor
Hutmaker at 8:35 a.m. but did not report back to his
work area until 9 a.m. Fripp testified that an emergency
matter had developed after he finished talking with Hut-
maker and that he had to take care of it. It appears that
some employees in another section were complaining
loudly about being required to work overtime and that
Fripp went to that section to discuss that matter with
their supervisor. Respondent's suspension notice states
that Fripp had not procured the requisite authorization
to be absent from his own work station during the inter-
val he discussed that overtime problem.
Fripp filed a grievance protecting the November 7
notice of suspension. As a result of the grievance discus-
sions thereon, the 14-day suspension was reduced to 7
days.
The General Counsel observes that "[a]ll of the above
incidents involve extremely minor incidents which did
not warrant substantial discipline." From this, the Gener-
al Counsel further argues that the application of more
stringent rules against a steward is violative of the Act. I
do not accept that reasoning process. The first proposi-
tion put forth by the General Counsel appears to con-
362
UNITED STATES POSTAL SERVICE
cede that Respondent could properly have disciplined
Fripp in some manner as long as it was not "substantial."
For all I know, a 7-day suspension for the asserted in-
fractions may be insubstantial under the labor relations
history between Respondent and the Union. More signifi-
cantly, there is no evidence of disparate treatment. For
substantially the same reasons given before for the alle-
gations that Respondent had otherwise discriminatorily
issued warnings to Fripp, I conclude that the evidence
fails to demonstrate that the November 7 notice was
issued to Fripp or the resultant 7-day suspension was im-
posed on him because of his activities as a union steward
or for his other union activities.
10. The AWOL notice
The last allegation of discrimination against Fripp is
based on the denial by Respondent of his request to treat
December 28, 1979, as a day on which he was on leave
without pay (LWOP) and on its, instead, having marked
him as AWOL for that day. Fripp testified that he called
the timekeeper at 6:45 a.m. on December 28, to advise
that he would not be in for his shift starting at 7 a.m. and
that he would be out all day on union business. He testi-
fied that he learned about a week later that Respondent
did not grant him LWOP for December 28 when his su-
pervisor, Frances Reavis, told him that he had not ob-
tained "documentation" that he was in fact engaged in
union business that day. Fripp testified that he told her
that the procedure she followed was not correct, that
Reavis never expressly asked him to furnish "documenta-
tion" and that, if she had done so, he would have been
able to furnish it.9
Reavis testified that she told Fripp that she could not
approve his request for LWOP without his first supply-
ing "verification." One of the General Counsel's wit-
nesses testified that Respondent has followed no set pat-
tern in requiring employees to submit written verification
to justify LWOP requests. It appears that, on some occa-
sions, such verification is sought and on others it is not.
The "verification" if asked and if it pertained to union
affairs consists of a simple affirmation by a union officer
that the individual in question was absent due to official
union business. I am unable to conclude that Respondent
discriminatorily denied Fripp's request for LWOP on
December 28 as, at best from the General Counsel's
standpoint, the evidence is ambiguous as to whether
Fripp was reasonably expected to, and failed to, proffer a
letter from the Union's president to support his request.
There seems to be no question but that, had he done so,
his request for LWOP would have been honored. There
is no allegation that his being requested to furnish "au-
thentication" was itself a discriminatory condition and, in
fact, the evidence suggested that such an allegation
I I have substantial doubts that that documentation was so readily
available to Fripp. He testified he was at the union office all day. An-
other employee testified that he and Fripp were there to discuss certain
matters with John Napurano, then the Union's executive vice president.
Napurano testified that he saw Fripp at the union office on December 28
and that he supposed that Fripp was there to meet with the Union's
president, Jules Turtunello. Napurano did not testify that he had any
business with Fripp then. Turturiello also testified for the General Coun-
sel but did not refer to any union business he had with Fripp on Decem-
ber 28.
would clearly be meritless as the act required was virtu-
ally ministerial in nature and consistent with established
practice, both for requests pertaining to LWOP for union
business and for other reasons.
The procedural defense raised by Fripp to the determi-
nation by Respondent that he was AWOL-that he was
not expressly asked to furnish "authentication" that he
was on official union business on December 28-may or
may not be adequate in deciding whether Respondent
acted in accordance with established procedures in treat-
ing Fripp as AWOL. The assertion of that procedural
defense, however, is insufficient to convert the AWOL
determination into an unfair labor practice. There is
simply no persuasive evidence that Respondent's reason
for treating Fripp as AWOL on December 28 is a pre-
text-especially as the Union had never, prior to the
hearing, notified Respondent that Fripp was entitled to
LWOP on the ground that he was engaged in official
union business on the day in question. At the hearing,
the Union's president acknowledged that he would be
willing to document that Fripp was at the union's office
on union business that day. That may well have been suf-
ficient and still may be. For my purposes, however, the
evidence is insufficient to establish, as alleged in the
complaint, that Respondent unlawfully failed in January
1980 to grant Fripp LWOP for December 28 as there is
no showing that its actions were motivated by discrimi-
natory considerations.
11. The allegations in aggregate
In examining the overall testimony respecting the al-
leged discriminatory acts against Fripp, I note that he
helped distribute newsletters prepared by another union
official, that others also helped in distributing those let-
ters, and that Fripp was one of the Union's stewards at
the Newark post office. There were several statements
by Respondent's supervisors that the individuals distrib-
uting the newsletters were viewed by Respondent's man-
agers as being engaged in questionable practices. Some
of the news items were in fact questionable, insofar as
they may or may not have been protected by the Act. I
also note that evidence of discrimination cannot be in-
ferred from the events on which the letters of warnings
and other alleged acts of discrimination were based. In
making the preceding observation, I further note that the
General Counsel has failed to demonstrate that the bases
relied on by Respondent for issuing those letters of
warnings and the suspensions and its refusal to honor
Fripp's request for LWOP were clearly pretextual. Thus,
I conclude that the General Counsel has failed to demon-
strate that Respondent violated Section 8(a)(l) and (3) in
the various aspects of discipline it meted out to Fripp.
C. Alleged Unlawful Unilateral Change in the
Practice of Releasing Union Stewards From Work To
Process Grievances
The complaint, as amended at the hearing, alleges that
Respondent, in violation of Section 8(a)(1) and (5) of the
Act, restricted its clerks at the Newark post office from
having access, on September 24, 1980, and in October
1980, to Union Shop Stewards William Wittlinger and
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Arminio. Respondent contends first that the
policy, upon which such access is predicated is based on
an agreement between Respondent and the Union, and
thus the resolution of any question thereon must be proc-
essed under the related grievance-arbitration provisions
of the contract between Respondent and the Union.
With respect to the merits of the allegation itself, Re-
spondent asserts that there has been no substantial
change in the release policy.
Respondent has recognized the American Postal
Workers Union, AFL-CIO, as the exclusive bargaining
representative for all its employees employed in the clerk
craft, including employees so employed at its Newark fa-
cility. The Union in the instant case, i.e., North Jersey
Area Local of APWU, AFL-CIO, polices the national
agreement at Newark and has negotiated with the
Newark postmaster a local supplement. As noted earlier,
there are about 3,000 employees in the clerk craft in
Newark.
Article XVII, section 3, of the national contract, spells
out the general policy regarding the release of union
stewards during working time to process grievances and
provides:
Section 3. Rights of Stewards. When it is necessary
for a steward to leave his work area to investigate
and adjust grievances, he shall request permission
from his immediate supervisor and such request
shall not be unreasonably denied. In the event his
duties require he leave his work area and enter an-
other area within the installation or post office, he
must also receive permission from the supervisor
from the other area he wishes to enter and such re-
quest shall not be unreasonably denied.
The steward or chief steward may request and shall
obtain access through the appropriate supervisor to
review the documents, files and other records nec-
essary for processing a grievance, and shall have
the right to interview the aggrieved employee, su-
pervisors, and witnesses during working hours.
Such requests shall not be unreasonably denied.
While serving as a steward or chief steward, an em-
ployee may not be involuntarily transferred to an-
other shift or to another facility unless there is no
job for which he is qualified on his shift or in his
facility, provided that this paragraph shall not apply
to rural carriers.
The General Counsel's witnesses testified that, begin-
ning in 1977, stewards in Newark began to experience
difficulties in obtaining permission from their immediate
supervisors to be released from work to handle grievance
matters. The Union's president then, Jules Turturiello,
observed in the course of his testimony that "supervisors
being human. . . sometimes. . . get a little uptight with
the work problem(s) and (their) attitude ... " is not
good from a labor-management relations standpoint. By
early 1979, the problem had escalated to the point where
Turturiello instructed his stewards to document each in-
stance where a request to be released was denied. When
he had compiled reports of about 50 such instances. Tur-
turiello filed an unfair labor practice charge against Re-
spondent. The Newark postmaster, Joseph Benucci,
called him and asked why he had done that. Turturiello
explained to him that the Union's efforts to get coopera-
tion from immediate management personnel had proved
futile. Benucci and Turturiello considered the matter fur-
ther and they reached an agreement which was designed
to spell out precisely the applicable guidelines to be fol-
lowed by the parties in implementing at Newark, article
XVII, section 3. The terms of that agreement were set
out in a memorandum by Benucci dated July 27, 1979,
and were addressed to all supervisors at the Newark fa-
cility. Based on that agreement, Turturiello withdrew the
unfair labor practice charge he had filed. From then and
until his term ended around February 1980, the Union
experienced but one or two minor problems concerning
the release of stewards and those problems were quickly
resolved. The July 1979 memorandum by Benucci to su-
pervising personnel at Newark which sets out the release
policy at Newark states:
It has come to my attention that Union stewards are
not being released from duty to attend to grievance
matters. This is a matter of utmost concern to me
and it must not continue.
Effective immediately, when a steward requests to
be released from duty, the supervisor shall release
the steward within one-hour of the request under
most circumstances, but in no event will a delay
beyond two-hours be tolerated. In all such requests
the steward will be informed immediately as to the
time when he/she will be released.
On no occasion is the steward to be given a release
time near the end of the steward's tour, unless the
steward makes a specific request for a late tour re-
lease time.
Upon receiving the steward's request, the supervi-
sor must immediately make arrangements with the
supervisor of any unit which the steward must visit.
The supervisor of a unit to be visited must arrange
to accommodate the steward within one-hour in
most circumstances.
The same time limits (one-hour in most cases, no
more than two-hours) will be observed when an
employee informs a supervisor that the employee
desires to see a steward. Supervisors will confirm to
employees, as soon as possible, that the steward has
been notified and the approximate time the steward
will be available.
It is required that stewards be badged in-and-out
(600 series), and be issued Forms 7020 each time the
steward is released.
This policy shall be administered by the Operations
Analyst on each tour. Any problems that may
occur will be resolved by the Operations Analyst in
cooperation with the North Jersey Area Local's
office (in Clifton) for Tour II, the Chief Steward
for Tour III, and the Director of the Craft for Tour
I.
364
UNITED STATES POSTAL SERVICE
All concerned will be held accountable for the suc-
cessful implementation of this policy. It is incum-
bent upon all of us to realize that the stewards have
a right to, and must represent the employees. We
must extend ourselves to provide their exercise of
this right. Any supervisor who does not abide by
this policy will be subject to, at the least, severe
rebuke.
I have been promised the cooperation of the Union.
I look forward to your earnest efforts to insure con-
tinued Labor-Management cooperation.
In February 1980, the Union elected a new president,
John Napurano. He had been its executive vice presi-
dent. Its then chief steward, James Pawlowicz, was
elected executive vice president. One of the night stew-
ards, William Wittlinger, took over a major part of
Pawlowicz' former duties. The Union was unsuccessful
in inducing any of the unit employees to volunteer to
assist Wittlinger as a night steward. As a consequence,
Wittlinger had to take care of the grievances of about
1,000 employees and sometimes as much as 1,500. Prior
to the election of union officers in February 1980, Witt-
linger, as a union steward, took care of only about 100
employees. Wittlinger also has been employed at Newark
as a registry clerk. That position demands experience in
the procedures involved in recording and processing reg-
istered mail and related matters. At that time, late Febru-
ary 1980, no one was trained to replace Wittlinger as
registry clerk. Whenever Wittlinger was released from
work as chief steward to process a grievance, there was
no one to substitute for him as registry clerk. It soon
became apparent that Wittlinger's additional duties as
steward were taking up the major part of his working
hours and that had an obvious impact upon his ability to
handle his regular position as registry clerk. His supervi-
sor, obviously in an effort to keep the registry desk cur-
rent, began to restrict him from having access to employ-
ees during working hours to process grievances. Witt-
linger insisted he needed much more free time from his
regular work duties to handle the rapidly accumulating
grievances and, feeling himself under great pressure, he
absented himself from work until April 1980. At that
point, the Union's president discussed the problem with
Respondent's postmaster at Newark. Benucci then
agreed that Wittlinger would be granted administrative
leave for the weeks that Wittlinger was absent and Ben-
ucci arranged that two clerks would be trained as regis-
try clerks to backup and substitute for Wittlinger when-
ever his union duties required it. For the next 5 months,
Wittlinger was able to handle grievances for about 4 to 6
hours each shift.
His supervisor, Emanuel Bettinger, testified that, in
late September 1980, he (Bettinger) was experiencing
many problems with respect to handling the registry
area. He noted for example that, on the first hour of a
tour, he spent a great deal of time trying to get experi-
enced clerks from other units reassigned to his area to fill
in as needed and in making other adjustments so that his
section could function adequately each day. Bettinger
testified also that he was finding it very difficult during
the first hour or two of a tour to get his unit set up prop-
erly as other supervisors during those first 2 hours were
too busy on other matters to meet with Wittlinger on
grievances or to make employees under them available to
meet with Wittlinger for grievance discussions. Bettinger
observed that many of the other supervisors were also
engaged then in trying to get their respective teams "set
up for the whole tour." It was at that point, according to
Bettinger, that he approached the administrator of his
tour and proposed that, for the first hour or two of the
tour, Wittlinger should not be permitted to leave his
area. Bettinger testified that the tour administrator
agreed to that proposal. Bettinger also informed Witt-
linger that he should limit his time on each grievance to
15 minutes. At or about this same time, the Union's chief
steward, Arminio, was also restricted in his efforts to be
released from working time during the first part of the
tour.
Respondent contends that those limitations are consist-
ent with the provisions of the national contract and with
the provisions of Benucci's memorandum in July 1979 as
those provisions contemplate that a steward must be re-
leased no later than I or 2 hours after a request is
made."' That contention, however, is not supported by
the ensuing events. When Postmaster Benucci was ap-
prised of the problems that the Union's chief steward
was experiencing in late 1980, he sent his director of
labor relations, Clifford Rowland, to take care of the
matter. As the General Counsel conceded in his brief,
Respondent's director of labor relations at Newark noti-
fied the Union that employees would be trained immedi-
ately to substitute for Wittlinger. Respondent had also
offered to transfer Wittlinger to a less-demanding job so
that he would be better able to handle labor relations
matters but Wittlinger declined the offer as he preferred
the registry clerk position. Also, the Union continued to
experience difficulty in recruiting and retaining stewards.
Rowland met with first supervisors and with intermedi-
ate management personnel in early November and told
them that, when a steward requests release time, he is to
be released in the time it takes to snap a finger. Rowland
made it very clear to them that Benucci wanted strict
adherence to that instruction. There was no evidence
presented of any specific problem experienced by the
Union since then as to its stewards being released to
handle grievance matters or of employees being unable
to meet promptly with their stewards on grievance mat-
ters.
Respondent urges as a procedural defense that the alle-
gation that Respondent unilaterally restricted the access
of union stewards to employees should be dismissed on
the ground that that contention can best be pursued via
the grievance-arbitration channels of the parties' collec-
tive-bargaining agreement. That contention misstates the
issue. As I grasp the contention of the General Counsel,
Respondent is alleged to have, from late September to
10 Respondent also introduced voluminous records which disclosed
that Wittlinger and other stewards spend a great deal of their working
time handling grievances. I attach no great significance to that material as
the other evidence indicates that restrictions were imposed on the stew-
ards and as other evidence indicates that they were adversely affected
thereby with respect to their abilities to handle grievances.
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mid-November 1980, resumed its efforts to change the
long-established policy under which stewards are to be
released immediately, upon request, except in the most
exceptional circumstances. The General Counsel is seek-
ing to have the Board write finis to such continued ef-
forts and is not alleging that Respondent adopted a tem-
porary modification of a contractual provision which
would be susceptible to the grievance-arbitration proce-
dures for appropriate clarification and interpretation. In
these circumstances, and noting that allegations of
wrongdoing which bear directly on a union's ability to
use the very grievance procedures themselves are mat-
ters that go the core of labor-management relations, I
find that it would not be appropriate to defer the issues
in the case to the arbitral process." I thus reject Re-
spondent's first defense and now consider the merits of
the unfair labor practice issue.
The testimony demonstrates clearly that Respondent
and the Union have for many years followed a practice
whereby a union steward has been routinely released
promptly on request to handle a grievance and that, on
occasion or for brief intervals, first-line supervisors and
intermediate managers have delayed the release of stew-
ards in order to give preference to the manpower needs
of their respective units. On one occasion, i.e., in early
1980, the underlying problem was traceable primarily to
the Union's inability to furnish enough stewards. Never-
theless, the established release policy was recognized by
the Union's president and by Postmaster Benucci as con-
trolling. When the problem surfaced again in the fall of
1980, it was decisively resolved by the unequivocal
orders issued by the Newark postmaster. While I thus
reject Respondent's contention at the hearing that the ac-
tions of its first-line supervisor and of its middle manage-
ment personnel were at all times consistent with the es-
tablished policy governing release of stewards, I do not
thereby suggest that the General Counsel has met his
burden of proving the violation alleged. On the contrary,
the evidence is clear to me that he has failed in this
regard. As noted above, the basic allegation is that Re-
spondent has repeatedly changed the established release
practice and that the modifications put into effect for a
couple of months in late 1980 constituted its last unlaw-
ful act to that effect. To find merit in that contention, it
would be necessary for me to ignore the unequivocal ac-
tions of Respondent's principal official at Newark in
dealing with the matter. Briefly put, I put significant
weight on the actions of the Newark postmaster, in con-
trast to the acts of some of those under him and which
were done at irregular intervals.12 In substance, I con-
clude that the General Counsel has failed to establish
that Respondent made any substantive change in its re-
lease policy at Newark but has shown only sporadic ef-
'1 Cf. Native Textiles, 246 NLRB 228 (1979); Westinghouse Electric Cor-
poration, 243 NLRB 306 (1979).
L' I do not agree with Respondent that the actions of Supervisor Bet-
tinger and others were consistent with Benucci's directive or with its
other assertion that that directive did not contain binding release proce-
dures. Clearly Benucci and the Union were defining reasonable release
procedures insofar as Newark is concerned and these provide simply that
stewards are to be released immediately on request unless extraordinary
circumstances exist and, in such an event, stewards must be released in 1
hour, or, at most, 2.
forts on the part of some intermediate supervisory per-
sonnel to do so and that those efforts were promptly ne-
gated by the unequivocal acts of the Newark postmaster.
D. Post-Hearing Motions
After the parties filed post-hearing briefs, the General
Counsel filed with me a motion to reopen the record to
receive additional evidence and a separate motion to cor-
rect transcript errors. The latter motion is granted; the
former, however, is denied for the reasons discussed
below.
Some background is needed to consider the merits of
the General Counsel's motion to reopen the record.
When this case first opened, five cases had been consoli-
dated for hearing-the three decided above which in-
volved incidents at the post office in Newark, New
Jersey, and two other cases which involved allegations
of unlawful conduct at one of Respondent's facilities, lo-
cated in Jersey City, New Jersey. At the first day of the
hearing, counsel for the General Counsel moved to with-
draw from the complaint the allegations pertaining to the
Jersey City location. In particular, the General Counsel
had moved to withdraw all allegations in Case 22-CA-
10315 and, in connection with that motion, noted that
the charging party in that case, Jeffrey Perry, had re-
fused to cooperate.
The second case which involved the Jersey City loca-
tion had been based as an unfair labor practice charge
filed by an individual, Marvin Hodges, in Case 22-CA-
10489(P); the relevant complaint allegations thereon
were that Respondent, at its Jersey City facility, had un-
lawfully refused on October 22, 1980, to allow Hodges
to meet with Union Steward Joseph Eiche and that Re-
spondent thereafter had limited Eiche, at its Jersey City
location, with respect to the time he could spend in
processing grievances for Hodges. The General Counsel
moved to withdraw those allegations on the ground that
Respondent and the Union had satisfactorily adjusted
that matter between them.
The motions to withdraw the allegation pertaining to
the matters affecting the Jersey City facility were grant-
ed and those cases were thereby effectively severed from
the three cases decided herein.
The General Counsel had now moved to reopen the
record. In that regard, the memorandum in support of
the motion recites that a complaint had been issued on
May 12, 1981, in Case 22-CA-107281(P) based on a
charge filed by Joseph Eiche and that that complaint al-
leged that Respondent violated Section 8(a)(1), (3), and
(4) of the Act "by issuing letters to Eiche; filing an inci-
dent report about Eiche; notifying Eiche of a suspension;
denying Eiche's request for leave of absence; advising
Eiche that he would not be paid for emergency leaves of
absence; notifying certain of its employees that the times
of their daily breaks and lunches would be changed; al-
tering said employees' daily lunch and break periods; ad-
vising Eiche in writing that he had punched out from
work early and that his pay would be reduced accord-
ingly; and notifying Eiche that he would again be sus-
pended." I note also that the third amended complaint
which issued in the instant case had contained allegations
366
UNITED STATES POSTAL SERVICE
that the Jersey City facility was managed by individuals
different than those who managed the Newark post
office.
Respondent was afforded the opportunity to state its
position respecting the General Counsel's motion to
reopen the record. It had timely filed a memorandum in
opposition to the motion to reopen the record and there-
in asserts that the General Counsel has set forth no facts
to demonstrate that a reopening would avoid unneces-
sary costs and delay. Respondent further asserts that the
General Counsel's real purpose is to prejudice me and ul-
timately the Board by accusing Respondent of "enough
violations."
I have carefully considered the arguments made pro
and con the motion to reopen. While some of the factual
allegations in the newly issued complaint in Case 22-
CA-10728(P) are similar to some of the allegations in the
instant case, I note that the allegations in Case 22-CA-
10728(P) raise issues under Section 8(a)(3) and (4) of the
Act and the somewhat similar allegations in the instant
case relate to Section 8(a)(5). Further, the General Coun-
sel does not assert that the charging party in Case 22-
CA-10728(P) had any contact with the Newark post
office and I also note that the officials of Respondent at
its Jersey City location are different from those officials
who are responsible for the Newark post office. The
Board has held that it is not appropriate to consolidate
cases involving different units of employees and factual
backgrounds and where the complaint allegations
vary.'s The Board has also held that it is not appropriate
to reopen a hearing to take evidence on collateral issues
when such a procedure would unduly delay the issuance
of a decision. 4 For the same reasons set forth in those
" The Dow Chemical Company, Texas Division, 250 NLRB 748 (1980).
14 Barnard and Burke, Inc., Construction Division, 221 NLRB 55 (1975).
cases, I shall deny the General Counsel's motion to
reopen the hearing in the instant case.
CONCLUSIONS OF LAW
1. Respondent is an employer over whom the Board
has jurisdiction.
2. The Union is a labor organization as defined in the
Act.
3. Respondent did not unlawfully discriminate against
its employee John Fripp based on his activities in sup-
port of the Union or for other concerted activities pro-
tected under the Act and thus did not violate Section
8(aXl) and (3) of the Act.
4. Respondent did not unilaterally change the policy
governing the release of union stewards from work to
handle grievances and thus did not violate Section
8(aXl) and (5) of the Act.
5. It will not effectuate the purposes of the Act to
reopen the record in this case to take testimony pertain-
ing to matters alleged as separate violations of the Act in
the complaint issued on May 22, 1981, in Case 22-CA-
10728(P).
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER'15
The complaint, as amended, is dismissed and the Gen-
eral Counsel's motion to reopen the record is denied.
"5 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.
367