United States Postal Service

National Labor Relations Board - Board Decisions

Jan 9, 1987

282 N.L.R.B. 686 (N.L.R.B. 1987)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Miguel Angelo
Vega. Case 29-CA-I 1989(P)
9 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 23 September 1986 Administrative Law
Judge Robert T. Snyder issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, fmdings, and conclusions and to adopt the
recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Kevin R. Kitchen, Esq. and Anthony Ambrosio, Esq., for
the General Counsel.
Stuart A. Abrambson, Esq. and Laurence A. Dinerstein,
Esq., of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
case was heard by me on 3 and 4 February 1986 in
Brooklyn, New York. The complaint, which was issued
on 4 November 1985, alleges that the Respondent,
United States Postal Service (Postal Service), suspended
Miguel Angelo Vega, the Charging Party, for a 14-day
period and threatened to terminate his employment be-
cause he had engaged in protected concerted activities as
a shop steward on behalf of the National Post Office
Mail Handlers, Watchmen, Messengers and Group Lead-
ers Division of the Laborers' International Union of
North America, AFL-CIO, Local 300 (the Union), and
engaged in other protected concerted activities, and be-
cause he filed a charge and gave testimony under the
Act, in violation of Section 8(a)(l), (3), and (4) of the
Act. Respondent denied that it engaged in any violations
of Vega's rights under the Act and asserted, by way of
affirmative defense, that all allegations of the complaint
should be deferred to the grievance-arbitration provisions
of the National Agreement between the Postal Service
and the Union.
Based on the entire record, including my observation
of the demeanor of the witnesses, and after consideration
of the briefs filed by Respondent and the General Coun-
sel, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Board has jurisdiction over the subject matter of
the complaint by virtue of Section 1209 of the Postal Re-
organization Act, 29 U.S.C. § 151 et. seq.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that the Union, Na-
tional Post Office Mail Handlers , Watchmen ,' Messengers
and Group Leaders Division of the Laborers ' Interna-
tional Union of North America , AFL-CIO, Local 300, is
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The unit of the Postal Service involved in this contro-
versy is the Respondent's facility at 185 West John
Street in Hicksville, New York. The mailhandlers at this
facility are represented by the- Union for the purposes of
collective bargaining. Miguel Angelo Vega, a mail-
handler at the aforementioned facility, has been em-
ployed by Respondent for approximately 13 years. Vega
concurrently became a member of the Union and was ap-
pointed a shop steward sometime in 1984.
Vega's work area is defined as the Sectional Center
Facility (SCF). The SCF is a sorting operation where
mail is separated according to whether it is machinable
or nonmachinable. Under normal conditions there are 12
employees working in the SCF area. The area consists of
a series of conveyor belts. Vega's job entails culling trays
of mail onto a conveyor belt and removing letters that
are damaged and cannot be processed through the letter-
sorting machine. Vega works Wednesday through
Sunday on the 3 to 11:30 p.m. shift.
During Vega's tenure as shop steward he has filed ap-
proximately 25 to 30 grievances, half of which were on
behalf of other employees. Vega further testified that he
has investigated approximately 10 other incidents based
on requests from employees in which grievances were
not filed. Throughout Vega's stewardship, Respondent
has taken issue with how he undertakes investigation of
grievances. Insight into the nature of this conflict is es-
sential to an understanding of the events on which the
complaint is based.
Preliminarily, the National Agreement between the
Postal Service and the Union, generally effective 7 Janu-
ary 1985 to 20 July 1977, contains certain provisions re-
lating to the grievance procedure, discipline procedure,
and rights of stewards which are relevant to this conflict.
In article 15, "Grievance-Arbitration Procedure," section
15.1 defines a grievance broadly "as a dispute, difference,
disagreement or complaint between the parties related to
wages, hours and conditions of employment" and shall
include, but is not limited to, "the complaint of an em-
ployee or of the Union which involves the interpretation,
282 NLRB No. 102
POSTAL SERVICE 687
application of, or compliance with the provisions of this
Agreement." The formal grievance procedure, in section
15.2, contains a detailed four-step formal process culmi-
nating in binding arbitration at both the national and re-
gional levels (section 15.4). Step 1 provides for a griev-
ance to be initiated by either an employee or the Union
within 14 clays of the date on which the employee or the
Union 'first learned or may reasonably have been expect-
ed to have learned of the grievance's cause or facts
giving rise to the grievance. It is initiated, by a discussion
with the employee' s immediate supervisor. If filed by an
employee, he or she may be accompanied by the em-
ployee's steward or a union representative. The, supervi-
sor and steward or other union representative have au-
thority to settle the grievance. If not settled, the supervi-
sor shall render a decision orally stating the reasons for
the decision, and provide it in writing within 5 days
thereafter, initialing a form to be used at step 2 within
another 5 days if requested by the union representative.
Section 15.3(A) of the agreement notes the parties' ex-
pectation that good-faith observance, by their respective
representatives, of the principles and procedures recited
for all steps will result in settlement or withdrawal of
substantially all grievances initiated thereunder at the
lowest possible step and the parties' recognition of their
obligation to achieve that end.
Article 16, "Discipline Procedure," contains a progres-
sive discipline format, starting with discussions for minor
offenses, not considered discipline, running through let-
ters of warning, to 'suspensions of 14 days or less, to
those of more than 14 days or discharge. In a statement
of principle, a basic principle is affirmed that discipline
should be corrective in nature rather than punitive. Dis-
cipline and discharge- must also be based on just cause,
including, but not limited to, inter, alia, insubordination
and failure to perform work as requested, and any action
against an employee is subject to the grievance-arbitra-
tion procedure.
Article 17, "Representation," provides in section 17.1
for the designation of stewards for the purpose of investi-
gating, presenting, and adjusting grievances. Section
17.3, "Rights of Stewards," paragraph A, provides, in
part:
When it is necessary for a steward to leave his/her
work area to investigate and adjust grievances or to
investigate a specific problem to determine whether'
to file a grievance, the steward shall request permis-
sion from the immediate supervisor and such re-
quest shall not be unreasonably denied.
Related to this provision was the resolution of a class
action grievance 'made at a labor management meeting
held on 16 November 1984, attend by Tour Superinten-
dent Joseph Moder, Supervisor of Mails Donald Fergu-
son, and Labor Relations Assistant ' George 'Fredericks
for management and Administrative Vice, President
Robert Lussos and Steward Vega for the Union. The
class action resolution reads as follows:
It is resolved in that an employee does not have the
right as a steward to leave his work area without
permission and interrupt a supervisor who is giving
another employee instructions. In addition, an em-
ployee who is also a steward is required to perform
his job correctly and to follow instructions he or
she may receive. Being a ,steward does not give im-
munity from disciplinary action. Furthermore, upon
proper request stewards time will not be unreason-
ably denied.
Moder testified that this item was raised by manage-
ment because of problems, with grievances getting to step
2 of the procedure without going through the step 1
process' because of the manner in which Vega was rais-
ing disputes on 'the work floor "by leaving his work
area, going up to his supervisor, not presenting a step
one grievance or yelling across the workroom' floor,
saying and repeating he wanted union time." Moder tes-
tified that at the meeting the Union agreed that Vega
would go to the supervisor and request union time and
only after it was approved 'would he punch his timecard
into the union number that would officially give him
union time. Vega, while undergoing cross-examination,
admitted that one of his problems in dealing with man-
agement `had been that on occasions he would call out to
the supervisor from his work location that he wanted
union time rather than approach and speak'to him quiet-
ly. Vega also recalled that at the November 1984 meet-
ing one of the grievances subject to discussion was the
way in' which stewards were to conduct their business,
but he could not recall its resolution.
Vega has been disciplined on several occasions during
his tenure as shop steward for incidents related and unre-
lated to his activities as steward. On 15 October 1984
Vega responded to a request by coworker Bob Wolf to
investigate a safety problem. Vega had left his work area
to obtain a piece of needed equipment when he was ap-
proached by Wolf. Wolf told Vega that a button used in
the operation of a conveyor belt was crushed and had
sharp edges. Wolf further claimed that the safety captain,
Fitzgerald, was not doing anything about the situation.
Vega testified that he approached his supervisor, Donald
Ferguson," about the problem and asked if lie would fix
it. Ferguson told Vega that he was out of his work area
and he asked to see the count' card of culled mail that
Vega was asked to fill out. Vega had not' filled out the
card. Consequently, Vega was issued a letter of warning
on 25 October 1984 for rpeated failure to follow, in-
structions. The warning -letter, states the grounds for the
discipline as interruption of operations after being told
not to do so in the past and failing to fill out the, count
card after being told to do so, The warning letter was
subsequently reduced to a discussion, a nondisciplinary
action.
Another incident in which Vega was disciplined for
activities related to his steward position occurred on 14
September 1984.2 Vega claimed that he witnessed Super-
1 On cross-examination, Ferguson admitted that Vega had tried to dis-
cuss a safety problem concerning a broken button and that the letter of
warning was based on that incident and the fact he had not filled out his
count card.
2 The events of this incident are based on the unrebutted testimony of
Vega and the notice of suspension issued to Vega on 17 December 1984.
688 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
visor Ferguson harassing the employees by making them
lift 70-pound bags of mail and spill them onto the belt a
little at a time and by making unnecessary critical re-
marks about how they were doing it. Vega approached
Ferguson and told him he was browbeating the employ-
ees and doing bargaining unit work. Ferguson walked
away and Vega followed him. Ferguson then told Vega
to return to work. Vega repeated his contentions and
said he would return to work. Vega then began making
notations on a pad. Ferguson saw this and told Vega that
he just bought a suspension. Vega was issued a, 7-day
suspension on 17 December. The notice of suspension
states that Vega was twice told to return to work when
he began making notations. Ferguson then instructed
Vega to return for a third time and Vega continued to
loiter in the mixed state section. The suspension was sub-
sequently upheld by an arbitrator in a decision issued 13
January 1986.$
On 24 January 1985 Vega was given a 14-day suspen-
sion for failure to follow instructions and insubordination
relating to incidents that took place on 18 and 19 Janu-
ary.4 On 18 January Supervisor Ferguson observed Vega
and coworker Mantagna having a conversation in an
aisle away from their work area without permission. This
activity resulted in the idling of eight other employees.
After being told to return to work, Vega followed Fer-
guson to his desk and demanded to know why part of
the SCF ring crew was working other operations when
there was mail in their regular operation. Ferguson told
Vega he would discuss it later and to return to work.
Vega did not return and twice again demanded an
answer. Ferguson called Supervisor Hillsberg over and
again instructed Vega to return to work. Vega did not
respond and again demanded an answer to his question.
Hillsberg then advised Vega to return to work, where-
upon Vega repeated his demand. After being asked to
return to work again, Vega asked for grievance time to
handle the situation. The two supervisors then told Vega
to return to work and he finally complied.
The following day, 19 January, Vega was given an
order to return to his work assignment by Supervisor
Day. Vega returned to work after initially ignoring the
directive. Day then ordered Vega to resume working
several times, whereupon Vega began shouting at Day,
creating a temporary work stoppage among the other
employees. This created a delay in the mails. Vega was
then ordered off the workroom floor and he complied
only after being ordered several times. Vega' s suspension
for these incidents became the partial basis for an, unfair
labor practice charge filed on 4 June 1985 alleging his
continuous harassment and discipline in retaliation for his
activities as union steward and his exercise of protected
concerted activities under Section 7 of the Act.5 The 14
day suspension was subsequently modified to 8 days in
an arbitration decision issued 13 January 1986.
On 22 March 1985 another incident involving Vega
and Ferguson led to Vega's receiving a notice of remov-
a The arbitration decision is R. Exh 8.
4 The events of these incidents are based on the unrebutted testimony
of Supervisor Ferguson and the notice of suspension which is R. Exh. 9.
8 The Board charge filed in June 1985 was dismissed in part and de-
ferred to arbitration in part. See infra.
al.6 Due to a problem with his back, Vega was relegated
to light-duty status. Vega claimed that Ferguson was
making him do work where he had to bend down and
lift a- lot of weight. Ferguson denied Vega's request to
see the nurse. Vega testified that Ferguson would not let
him sit down when his back bothered him and that these
circumstances were driving him crazy. Thus, Vega re-
quested to see Employee Relations Manager Torres.
Vega claimed that Ferguson gave him permission to see
Torres for 5 minutes. Consequently, Vega went to
Torres' office to speak with him. The notice-of-removal
letter states that Vega left the work floor without per-
mission to go to Torres' office. The notice of removal
noted that elements of Vega's past record considered in
arriving at the disciplinary decision included (1) a 14-day
suspension on 24 January 1985 for failure to follow in-
structions and insubordination, (2) a 7-day suspension on
17 December 1984 for failure to follow instructions, and
(3) a letter of warning dated 7 December 1984 for failure
to follow instructions. The notice of removal was subse-
quently reduced to a 14-day suspension as a result,of a
discussion between Robert Lussos,7 Vega, and Ferguson.
In the agreement reducing the discipline, Vega guaran-
teed a fair day's work for a fair day's pay and promised
to follow all supervisory instructions.
B. The Sequence of Events That Led to Vega's
Suspension
The events which led to the suspension of Vega,
which is the subject of this proceeding and on which the
General Counsel relies, began on 24 July 1985. Accord-
ing to Vega, he had just returned that day from vacation
when he was approached by mailhandler Fitzgerald,
who asked if he, Fitzgerald, could do a simple distribu-
tion job. Vega said he saw no reason he could not and
asked Supervisor Louis Adams if he could. Adams re-
ferred Vega to Paul Bauccio, the acting tour superin-
tendent. Bauccio told Vega and Fitzgerald that the em-
ployee had to discuss the grievance first with his supervi-
sor. Vega said that an employee "doesn't necessarily
have to do that, he may be accompanied by the shop
steward, do it alone, or the steward can do it on his
behalf." Bauccio said, "[T]his is my policy." Vega said,
"[I]t may be your policy but that's not what your Na-
tional Office and the Union agreed to." Bauccio reaf-
firmed his policy and Vega said they would comply.
On 24 July Vega also told Supervisor Adams near
Adams' desk area that , he was doing bargaining unit
work, pushing "post cons" to storage areas. Adams re-
plied, "[W]ell just for that now you people are going to
have to ask for permission to go to the lavoratory [sic]
and you're going to have to have a pass to talk." Vega
said that he had one grievance to this effect and he
would write it up and Adams told him to go back to his
work area.
At 8 or 9 o'clock that evening, Vega, asked Adams to
give him a 7020 form (a form filled out by the steward
8 The events of this incident are based on the testimony of Vega and
the notice of removal dated 28 March 1985, which is R. Exh. 2.
1 Lussos is the administrative vice president of the Union
POSTAL SERVICE 689
when taking grievance time) for having gdne ' to Bauc-
cio's office earlier with Fitzgerald . Adams refused. Vega
said, "[Y]ou people are always trying to suspend me for
not doing union work and how am I supposed to prove
that I was doing union work if you won 't give me a
form." Adams said he did not really have to give it and
Vega said he was going to write it up. Then Vega asked
Adams for "union time" to investigate problems two em-
ployees, Ross and Axen, were having regarding hour
changes and guard duty which he had been asked to
look into by his administrative vice president. Adams
denied the request on the ground that the employees
never discussed it with their supervisor and therefore
there was no complaint. Vega said he would write this
up if he was not given the time. Adams then told him to
return to his work area . About 5 minutes later 'Adams
told Vega to report to Bauccio's office . On his arrival,
]Bauccio told Vega the employees never talked to their
supervisor , about the problem. Vega told Bauccio that
the employees were not required to do that , and that the
Union could look into it. Bauccio said this was his
policy, and Vega said he had this memo from his admin-
istrative vice president and, having been away on vaca-
tion, did not know what it was about. If Bauccio was not
going to give him the time , Vega was going to write it
up. Bauccio paused and then asked how ' much time did
Vega ' need. Vega said just enough time to see the em-
ployees and find out what the problem was. Bauccio
then gave him the time.
On 25 July 1985 Vega told Adams that he had a plant
clerical doing mailhandlers' work and he should bring in
mailhandlers on overtime . Adams replied , "[Y]ou know
what the budget is, I'm gonna do whatever I can to
move the mail." Vega ^ responded , "[Y]ou can do that
but, you know , I'll write it up" Earlier , Vega had heard
employee Fitzgerald say he wanted to see his shop stew-
ard, and Adams tell Fitzgerald to return to work. That
evening, Vega went to Adams' - desk and asked him for
union time concerning Fitzgerald 's complaint. Adams
denied the request because the employee never discussed
any problem with him . Vega told Adams that the em-
ployee had talked with him, but Adams told Vega to go
back to his work area.
About an hour later , Vega again went to Adams' desk
to ask for union time concerning Fitzgerald, and Adams
said, "I don't know , I'll see ." Vega said , "[L]isten, if
you're not going to give me the union time , I'm just
going to write it up." Adams then told Vega to return to
his work area.
On 26 July 1985 , while working, Vega observed
Adams standing over employees and, in his words,
"brow beating" them and pointing out trivial things.
Vega told Adams he had won grievances concerning
this, and Adams told Vega not to talk union matters
while he was-working and to stop shouting . Vega told
Adams that he was not shouting across the room and
that Adams was only 10 feet away from him. Adams
said, "[Y]ou have to talk union matters at my desk," and
ordered Vega to his desk. Adams then telephoned Bauc-
cio, at first informing Vega to go to Bauccio's office, but
then, after he completed the call , telling Vega that Bauc-
cio was coming to the work area. Vega went back to his
work -area . A few minutes later, Adams called Vega back
to his desk and Bauccio was there . Bauccio asked what
the problem was,, and then had Adams talk first, with
Vega allowed to talk afterward.
Adams said that he did not have many rights , but that
he had a right to talk to Vega about union matters at his
desk . Vega then said that he, referring to Adams, had
been "standing over people, brow beating them , picking
out all this stuff and my one grievance is that you're tell-
ing me I can't talk unless I have a pass, go to your
desk." Bauccio told Vega to lower his voice because
Vega was shouting and he did not want Vega to shout.
Vega said he was not shouting and that Bauccio was not
listening to what he was saying . Bauccio then told
Adams to take this down and told Vega to leave the
building within 5 minutes . Vega left the building.
The next day , 27 July 1985 , Vega reported to work
and was called down to the office of Joseph Moder, the
tour superintendent , who had been absent on vacation
during the prior week . Moder had a copy of the letter
from the Regional Director concerning the 4 June unfair
labor practice charge Vega had filed. According to
Vega, Moder was looking at the letter and said , "[W]ell
Mr. Vega it appears here that you lost and the others he
motioned his hand] are going to arbitration ." Moder then
asked, "[D]o you really want to work here?" Vega was
quiet and Moder continued , "[I]t seems that you don't
want to work here, this is like a ball , 'just keeps reoccur-
ing [sic] . I thought this was all settled in November.,, It
seems that you might get fired for this, do you , have any-
thing to add to this?" Vega said, "[N]o," and Moder told
him to return to work.
On 2 August 1985 Vega received the notice of remov-
al from Adams and Bauccio. Vega was working by the
culling conveyor , belt when Adams called him to his
desk, Bauccio told Vega to read the letter and asked him
to sign it . Vega read the letter and said lie was not going
to sign it . Bauccio told Adams to note that Vega would
not sign it and then he and Adams signed the notice. The
notice of removal , signed by Adams and Bauccio and
dated 2 August, referred to the incident on 26 July 1985.
It reads as follows:
You are hereby notified that you will be removed
from the Postal Service [on] September 6, 1985.
The reason for the action is:
Failure to Follow Instructions
On Friday, July 26 , 1985 , at approximately 1545
hours while talking to me and the Acting Tour Su-
perintendent, Paul Bauccio, you became boisterous.
On at least three occasions I instructed you to
lower your voice, due to the fact that you were dis-
rupting the SCF operations as evidenced by the fact
that people ceased to work in order to observe your
behavior. You were told by Mr . Bauccio to leave
the facility for failing to obey repeated instructions
8 Moder was referring to the resolution of the 16 November 1984
grievance involving Vega's conduct as steward, discussed supra.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cease your disruptive behavior. Your tour of
duty was ended at approximately 1550 hours.
In addition, the following elements of your past
record have been considered in arriving at this deci-
sion:
On March 28, 1985, you received a Notice of Re-
moval which was subsequently reduced to a disci-
plinary suspension in lieu of the Notice of Removal,.
as a last chance basis.
You have the right to file a grievance under the
Grievance/Arbitration procedure set forth in Arti-
cle 15 of the National Agreement within 14 days of
your receipt of this notice.
On 19 September 1985 this notice was reduced to a 14-
day suspension on a second-step appeal by the Union
from the initial removal notice. By letter dated 9 Decem-
ber 1985, following a step 3 meeting between the parties,
the Postal Service denied the grievance. The Postal
Service argues that it is this grievance to which all alle-
gations of the complaint should be deferred pending a
final and binding resolution under the grievance-arbitra-
tion provisions of the National Agreement between it
and the Union.
Donald Ferguson, supervisor of mails at the Hicksville
location, testified that he supervised Vega from'sometime
in 1984 until around March of 1985 when he was trans-
ferred to a different operation. Ferguson confirmed that
he had admonished Vega'that there could be corrective
action for not going back to his work area on one occa-
sion and, instead, taking out his note pad and making
notes -without asking for union time after Vega had come
to him over a work problem. After discussing the matter
with his tour superintendent, Ferguson, on advice, decid-
ed not to ' raise an issue of Vega's note taking in the
future because of his status as steward. Ferguson also
confirmed that Vega-had received a 2-week suspension
in January 1985 for insubordination and failure to follow
instructions to return to work, remaining at Ferguson's
desk for some 5 minutes after being directed to return to
work. This was the occasion when Vega had demanded
to know why part, of the SCF ring crew was working on
other operations.
Although Ferguson denied under cross-examination
that he had asked that Vega resign as shop steward at
some point in time while under his supervision, he admit-
ted that he had discussed with Lussos of the Union at a
meeting held to discuss Vega's March 1985 notice of re-
moval a proposal to resolve the continuing problem with
Vega that Vega give up his stewardship, take a volun-
tary transfer to another operation, consider a 30-day no
appeal suspension , and promise in writing a fair day's
work and to follow instructions.
Louis W. Adams, supervisor of mail, was in charge of
the SCF sorting operation at the Hicksville facility and
had been Vega's immediate supervisor since June 1985.
According to Adams, Vega's practice as steward was to
call out a request for union time from his work area to
Adams seated at his desk or passing by. Adams' contin-
ually instructed Vega that anytime he wanted union time
he was to come to Adams' desk and they would discuss
it, not to call out from his work position on the belt.
Vega continued to disregard these instructions. Yet, he
was given time to investigate" and present grievances.
On the evening of 24 July, Vega approached Adams
to ask for union time because he had a grievance. When
Adams asked the nature of the grievance, Vega replied
he did not have to disclose it. Adams asked how could
he give time without knowing the nature of the griev-
ance. Vega said that Adams could not tell him how to
conduct his union business . Adams called Bauccio, and
he and Vega went down to Bauccio's office. After some
time there, Vega finally disclosed that the mailhandler
with the grievance was Fitzgerald. Fitzgerald was then
summoned to the office and, when Vega was again asked
the nature of the grievance, he asked for time to talk
with Fitzgerald. Adams asked why this was necessary if
Vega had already discovered he had a grievance. Vega
did not respond. Adams then left to return to the work
floor, leaving Vega with Bauccio. The next day, Adams
refused Vega's request for union time for the visit to
Bauccio's office.
Adams next testified about the events of 26 July. On
that day, shortly after assigning the employees on the
rings, he told the mailhandlers he would like for them to
cull the mail a little faster to get mail into the SCF rings
so the clerks would have work to do. Adams testified he
just wanted them to speed it up because they were work-
ing at a very slow pace. At this point, Vega, who was
working nearby on the belt, about 5 feet away, said
loudly that Adams was harassing the employees and he
would bring Adams up on charges. Adams explained to
Vega that he did not consider it harassment to ask the
employees to perform the duties,that they were assigned
to do. At that moment, Adams noticed another employee
more or less playing around with the mail and he told
him he wanted him to cull it much faster. Vega raised
his voice again and said Adams was harassing the em-
ployees. Adams then asked Vega to come over to his
desk. At the desk, Adams told Vega that in the future if
he wanted union time or to discuss a union matter, he
should not do it on the belt, he should come to Adams'
desk and they would discuss it there. Vega's response
was that "you are harassing the employees , I'm going to
bring you up on charges." At this, point Adams told
Vega to return to his work area, and he did.
Adams next called Bauccio, the acting tour superin-
tendent, explained the problem, and asked if he would be
able to come to the floor. Adams heard Vega at his
workplace say, "[T]his guy's harassing us, we don't have
to take this and its unfair." Adams saw the mailhandlers
and clerks working at a slower speed than they had been
prior to the conversation he had held with Vega. After a
few minutes, Bauccio arrived and Adams called Vega
back to his desk.
Adams told Bauccio what had happened between
them before his arrival. Vega said he was being harassed,
the employees were being harassed, they were asked to
work faster, and he was going to bring Adams up on
charges. Vega was speaking in a louder voice than when
he had made his previous accusations. Adams asked him
to calm down three times, but without success, and at
this point Bauccio asked him to leave the building. Vega
POSTAL SERVICE
left, and was later paid for the time as administrative
leave . Adams asserted that during this time he did not
raise his voice and was trying to calm down Vega. He
had called Bauccio because Vega 's conduct , his loudness
which was causing somewhat a slight disruption in-the
operation, had gone beyond the point of Adams' han-
dling it alone.
Before Bauccio told Vega to leave , he had said that
Adams had a right to tell the employees he felt they
should work faster , and that it was management's right
to ask the employees to perform their duties.
Shortly after Vega left, Adams went to Bauccio's
office where they discussed the incident that had just
transpired and Vega 's work record by examining his per-
sonnel folder . Both of them concluded that removal from
his job was now the appropriate discipline for Vega
under the Postal Service progressive discipline system
because his record included several prior removals,
which had been subsequently reduced to suspensions,
and several prior disciplines for failing to follow instruc-
tions . They ' called Thomas Rosati , manager of distribu-
tion at Hicksville, who agreed with their recommenda-
tion . The removal letter followed in a few days.
Adams was not personally aware on 26 July 1985 that
Vega had recently filed an unfair labor practice charge
which, by letter from the Regional Director dated 18
July 1985 , had been dismissed in part and deferred in
part to the grievance procedure.
-Paul Bauccio , acting tour superintendent , testified that
on 24 July he had received a telephone call from Adams,
who told him he was having a problem about union time
with Angelo Vega , who had come to see him about a
step 1 grievance, and he did not know what it was about.
Bauccio told Adams to bring Vega to his office. When
they arrived , Adams , explained that Vega had asked for
union time ' concerning a step 1 grievance, but would not
tell Adams what it was about , saying he did not have to.
Bauccio -asked Vega to state the problem . Vega said he
had a step 1 grievance and management never gave him
union time . Bauccio explained that Adams, as supervisor
of that area, should be aware of why he needs union
time. On Bauccio's request , Vega said the , step 1 griev-
ance was for Paul ' Fitzgerald.
Bauccio then called Fitzgerald to the office . On Bauc-
cio's questioning , Fitzgerald said he did not want a shop
steward, he did have a problem, but had not brought it
to Adams' attention . Fitzgerald agreed to leave the office
with Adams to discuss it, rejected Vega 's offer to be
present, and left . At Bauccio 's request, Vega remained.
Bauccio said he was in charge of the tour at the time and
asked Vega to listen to , his views regarding how stew-
ards and supervisors should acct when it comes to union
time. At his usual post in a nearby building, Bauccio
said , they have a rule that if a shop steward needs union
time, he goes to his immediate supervisor quietly with
the request , that supervisor goes to his immediate super-
visor for an assessment , and the request is then granted.
In his current, acting position there are no general super-
visors so the request comes to him as tour superintendent
as the responsible party for the methods, means, and per-
sonnel to get the job done in a professional manner.
691
Vega agreed it was a fair policy, but stated he would
determine what he would do about asking for union
time . Bauccio said that "with this kind of answer you
have to be careful not to interfere with the supervisor's
responsibilities in his operations and you should ask for
permission , like the contract says, and the supervisor
can't be unreasonable but he does have a responsibility to
fulfill obligations entrusted to him."
On 26 July 1985 at approximately 3:45 p .m., Bauccio
was again called by Adams , who said he was having a
problem on his SCF belts . Vega was impeding his oper-
ations . He explained that he was giving directions to his
employees and Vega was countermanding them . Bauccio
told Adams he would be up there to view the situation.
As Bauccio passed by the work area on his way to see
Adams, he saw Vega and three other employees on the
culling belt on the SCF rings; Vega was talking very
loudly and the'three employees were looking at him and
not doing their work . When he neared the desk he heard
Vega say, "[T]his guy'-likes to harass people." When
Bauccio got to the desk he asked Adams to bring Vega
over.
When Vega arrived, Bauccio asked Adams what the
problem was . Adams said he told Vega to stop impeding
his operations, to stop countermanding his instructions,
and to stop telling the employees that they should not
accept "this harassment
."
Bauccio then asked Vega if
that was true . Vega did not answer that question, but
said, "all you people do is harass people , these people are
oppressed ; they don 't need to be stood over." As Vega
continued to complain about harassment his voice got
progressively louder and louder. Adams turned around
and told him to calm down and lower his voice. Adams
gave that instruction three times , and each time Vega
kept talking , getting louder, and waving his arms toward
the culling belt . At this point , the people on the culling
belt were watching the action and it was not being oper-
ated at full tilt. Bauccio ,was facing the belt about 7 to 10
feet distant from it . After the third time Adams asked
him to quiet down, and Vega got louder , Bauccio told
"him it seems to me that you do not like to follow in-
structions so you can end your tour and leave." Vega
said something like "this is unfair ," got his badge, and
left . Vega was given administrative leave for the balance
of the tour pending discipline. On the form Bauccio
filled out he commented "failure to'follow instructions."
Bauccio went back to his office and pulled Vega's per-
sonnel folder kept in the tour office . Adams came down
within 10 minutes and Bauccio said he wanted Adams'
input on discipline. They then proceeded to look
through Vega's folder and found that he had enough
corrective actions , past disciplinary actions, to warrant a
removal . Bauccio wrote out a statement on what oc-
curred and asked Adams to do the same . Bauccio then
called his boss , Distribution Manager Tom Rosati, whose
approval was required in the case of any severe person-
nel action. Rosati concurred in Bauccio's evaluation that
a letter of removal , be issued but that labor , relations
should be contacted as soon as possible.
On the following Monday, ,29 July , Bauccio contacted
labor relations and also received the concurrence of Sec-
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Center Director John Lunghi, Rosati's supervisor, in
the disciplinary action.
According to Bauccio, at no time prior to 26 July or
on 26 July did he have any discussion with Joseph
Moder, the tour superintendent then on vacation, about
discipline for Vega or the incident that occurred with
Vega. On 26 July 1985 Bauccio was not aware that Vega
had filed an unfair labor practice charge. As Bauccio ex-
plained, the reason elements of Vega's past record were
placed in the 2 August notice of removal was that, by
the contract, disciplinary action is both corrective and
progressive. Any current discipline, if progressive and
more severe, should rely on past corrective action.
On cross-examination, Bauccio acknowledged that he
chose to deal with the incident of Vega's interference
with operations on 2,6 July at Adams' desk on the work
floor rather than in his office as he had done with the
Fitzgerald incident on 24 July because it was an oper-
ational matter and not a union matter, even though the
result was that Vega's raising of his voice in the discus-
sion had the effect of stopping operations on the SCF
belts.
Joseph Moder, tour superintendent for the shift start-
ing at 3:30 p.m. to which Vega was assigned, had, from
time to time, witnessed Vega yelling over the workroom
floor to the supervisor that he wanted union time, even
after entry of the November 1984 grievance settlement
which was designed to deal with and resolve that prob-
lem.
Once, Vega was sent to see Moder to arrive at an un-
derstanding that he would not ask for union time within
the first half hour of the tour while the supervisor was
handing out badges, making work assignments, and
trying to get the operation started. On another occasion,
early in 1985, when he learned Vega was not following
the November 1984 understanding on requesting union
time, Moder called Vega to his office to go over again
what he was supposed to do to get union time. At those
meetings, Vega was instructed again that when he
wanted union time to go to the supervisor by his desk
and treat him with respect, that he would expect the
same back to the Union, and that he would pacifically
tell the management official what it was he wanted,
naming an employee or a specific item.
Moder also observed Vega on several occasions after
November 1984 telling another employee he did not
have to comply with a supervisory order or that it was
not part of his job bid, and spoke with Vega about these
incidents.
Modes was on vacation from Saturday, 20 July,
through Friday, 26 July, and returned to work on Satur-
day, 27 July. On 26 July he had no contact with any
management personnel at the-Hicksville Post Office. On
Saturday, 27 July, Moder learned that Vega had been
sent home the prior day. Later in the shift Moder called
Bauccio to learn more about the incident. At this point,
Moder wanted to talk to Vega and he had him sent to
his office. Moder wanted to discuss why Vega was sent
home and to tell Vega about a letter he had just received
from the NLRB. When shown General Counsel's Exhibit
4, a copy of the 18 July 1985 Regional Director's letter
dismissing in part and deferring in part Vega 's 4 June
1985 unfair labor practice charge, Moder could not iden-
tify the document' as the one he saw that day, but he did
affirm that they were similar in substance but not in the
same form. In all probability, Moder had a copy of a
condensed' analysis of the letter done by the Postal Serv-
ice labor relations office.
When Vega came in to Moder's office, they sat down
and Moder asked Vega about the experience of the day
before. He asked Vega to tell his side of the story con-
cerning why he was sent home. Vega said he did not
want to discuss it. Moder told him, "[Y]ou know that
you could get either suspended or terminated for this
type of action because it's based on past records." Vega
still did not want to discuss it. Moder then asked Vega
whether he had seen the copy of the NLRB decision or
part of it and Vega said he had not. Moder asked wheth-
er he would like to read it. Vega said he would. Moder
gave it to him and he read the entire statement. At the
end of that, Moder asked Vega what he felt about it and
Vega stated that he really did not feel anything about it
one way or the other. Moder started reading the one
item that was at the top of the page and said, "[W]ell,
don't you think ,that's favorable towards management."
Vega said, "[Y]es and no." Moder went through three or
four more items doing the same thing. Then when he got
to the point in the paper where it discussed items which
were not resolved,9 they did not discuss them at all. At
this point, Moder asked Vega whether he felt that it, the
problem they were having, was all over and Vega said,
"[N]o, it, wasn't all over yet, its a long ways to go yet."
Vega was then sent back to his work area.
Moder denied stating during this conversation, "[I]t
seems that you don't want to work here," or with re-
spect to the unfair labor practice charge "that you might
get fired for this." Moder reiterated that his reference in
the conversation to the possibility of Vega being sus-
pended or terminated was solely to what had happened
the previous day. Moder also stated that he played no
role in Vega's removal action or in the reduction of the
action to a 14-day suspension. Neither did Moder ever
tell anyone to discharge or discipline Vega because he
9 The Regional Director's letter of 18 July 1985, a copy or summary of
which Vega had just read and Moder and Vega were then discussing,
first disposes of Vega's allegations that the Postal Service harassed and
disciplined him by refusing to grant hun paid leave, forbidding employees
to speak to him, refusing to allow employees to telephone him at work,
transferring him to a less desirable work classification , and issuing him a
warning and notice of removal in violation of Sec. 8 (a)(l) and (3) of the
Act. These allegations were all dismissed . The letter then presented rea-
sons for the , dismissal in three successive paragraphs Following that, the
Regional Director then disposed of all the remaining allegations, in
which Vega asserted he was suspended on 17 December 1984, removed
from the facility on 19 January 1985, suspended on 24 January, issued a
20 March warning, required: to obtain his supervisor 's permission to use
bathroom privileges on 21 March, required to leave the work area during
breaktimes on 27 March, required to sit next to his supervisor 's desk since
27 March, required to submit written evidence to support leave requests
on 12 April, and threatened with reprisal for his grievance filing activity
and required to report his after work hours union activity to his supervi-
sor on 13 April, in violation of Sec 8(a)(1) and (3) of the Act, by defer-
ring them to the grievance process, where these allegations were present-
ly pending as the subject of grievances, under Dubo Mfg. Corp, 142
NLRB 431 (1963).
POSTAL SERVICE
had filed an unfair labor practice charge or had engaged
in union activities or filed grievances.
I am prepared to credit Adams regarding his initial
conversation with Vega on the evening of 24 July when
he referred Vega to Bauccio on Vega's request for union
time, particularly because Vega did not testify to or deny
his refusal to provide Adams with the , nature of the
grievance or the name of the grievant . I am inclined to
and do credit Bauccio over Vega on his version of their
discussion relating to the Fitzgerald matter later that
evening . While Vega was generally soft spoken , deliber-
ate, and responsive to questioning, his version omitted
Fitzgerald's having been brought into the discussion and
Fitzgerald 's decision to,pursue his complaint alone with
his supervisor , Adams . I credit Vega on his discussion
with Bauccio regarding the Ross and Axen matter, par-
ticularly because Bauccio did not deal with it in his testi-
mony . But I also credit Bauccio concerning his efforts to
impress on Vega the importance of properly seeking
union time without disruption of the work area or inter-
fering with supervisory responsibilities and providing su-
pervision with enough information regarding the nature
of the grievance and the identification of the grievant to
enable it to make an intelligent decision on granting
union time. This testimony did not conflict with Vega's,
and Vega acknowledged that his manner of presenting
problems had been the subject of past grievance discus-
sions and complaints from supervision . I also credit
Adams and Bauccio regarding the 26 July events involv-
ing Vega . Vega 's presentation was not in substantial dis-
agreement with theirs, but, again , lacked the detail, co-
herence, and verisimilitude which lends theirs weight
and credibility . I also , found Bauccio , in particular, to be
an effective witness, restrained in manner and disciplined,
thoughtful , articulate , and judicious in his presentation.
Regarding the Moder-Vega meeting on 27 July, on
which their versions were diametrically opposed, I am
not prepared to credit Vega that ..Moiler threatened him
with discharge for having filed and pursued a charge
under the Act. Vega testified the meeting lasted 20 min-
utes, but was unable to supply any cogent details of the
conversation and interchange other than the threat of
discharge related by implication to the unfair labor prac-
tice charge he had filed . Vega also insisted that he had.
no conversation at all with ' Moder, and that he said
hardly anything during their time together. His version
was also somewhat ambiguous and confusing . Moder's
testimony on the other hand was'much clearer and more
comprehensive . It also was consistent with a concern he
would have had and expressed as Vega's regular tour su-
perintendent concerning Vega's having been sent home
the day before, a matter which Vega did not acknowl-
edge was discussed at all between them ., I am prepared
to find that in all probability Model did make reference
to the 19 November 1984 grievance settlement agree-
ment in which Vega agreed to moderate his behavior as
steward in seeking union time to investigate or present
grievances as Vega swore he did, but not in reference to
the charge as the General Counsel urges. That'reference
would have been related by Moder to Vega 's continuing
a disruptive pattern in ` complaining about supervisory
and management conduct in spite of his agreement the
693
prior November to change his ways. Furthermore, it is
unlikely , that Moder would have taken the opportunity to
threaten Vega with reprisals at a time when Vega's
charge had been dismissed , and otherwise deferred and
the Postal Service had been successful in its defenses to
the charge . Moder's priority of concern, dealing first
with Vega's conduct of the prior day and then with the
disposition of the charge, had the ring of truth, as did
Moder's admissions against interest , which skirted but
did not rise to the level of interference , that in his curios-
ity and concern about their relationship he sought to
obtain Vegas views concerning whether the disposition
of the allegations were unfavorable to Vega and the
Union and would help resolve the problems between
them on the job.
C. Analysis and Conclusions
Respondent argues , in conformity with its affirmative
defense, that the complaint should have been deferred to
the grievance-arbitration procedure of its National
Agreement with the Union. Respondent recognizes that
under International Harvester Co., 271 NLRB 647 (1984),
the Board reaffirmed its long-held view that it will not
defer 8(a)(4) allegations because the resolution of ques-
tions concerning access to Board processes has always
been held to be solely within the Board's province to
decide . Respondent nonetheless urges that when the
8(a)(4) allegation is not "closely intertwined" with' the
8(a)(3) allegation , and particularly when the 8(a)(4) alle-
gation is shown ultimately to lack merit, indeed to have
been fictitious, the Charging Party should not be allowed
to have two bites of the apple by litigating his charge
both' before the Board and an arbitrator under the Na-
tional Agreement.
In both International 'Harvester Co., supra, and Road-
way Express, 274 NLRB 357 (1985), affirming without
comment the administrative law judge's conclusions and
adopting his recommended Order , the Board has adopted
the principle that it will not defer , among other allega-
tions, 8(a)(3) and '(1) allegations cognizable under the
grievance-arbitration provisions of applicable collective-
bargaining agreements , otherwise deferrable under its
United Technologies Corp., 268 NLRB 557 (1984), hold-
ing, when the alleged violations of Section 8(a)(3) and
(1) are "closely intertwined" with the allegations involv-
ing Section 8(a)(4). Respondent argues that the 8(a)(3)
and (4) allegations are not closely intertwined. I con-
clude, to the contrary, that they are. Respondent goes to
great lengths to insulate Moder from the incidents which
gave rise to the 8(a)(3) allegation, but the meeting at
which the 8(a)(4) conduct allegedly took place arose, ad-
mittedly, in part , to inquire into the alleged 8(a)(3) inci-
dent the prior day. Also, the General Counsel contends,
(but fails to prove) that Adams and Bauccio knew of
Vega's, charge-filing activity and that this knowledge
played a part in their motivation to initially remove him.
Furthermore , while the 8(a)(3) issue appears on the sur-
face to be cognizable under the agreement , under section
17.1 and the November 1984 grievance settlement agree-
ment, Respondent 's case is essentially , that Vega exceed-
ed the bounds of protected activity through his disrup-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the workplace. This is a basic Section 7 question
which lends itself far better' to Board determination than
to an arbitrator's ruling, particularly when, as here, a
hearing on all the alleged violations has already been
held. International Harvester Co., supra.
As to Respondent's fear that Vega may be able to
pursue his claims in two forums and that this may lead to
inconsistent results, those are distinct possibilities, but
they are insufficient grounds for the Board, under the
circumstances of this case and the record already made,
to refrain from determining, itself, the rights of the par-
ties and of the public under the Act in this case.
Accordingly, having determined this threshold issue
(see L E. Myers Co., 270 NLRB 1010 fn. 2 (1984)), I
turn now to a consideration of the case on the merits.
Concerning the 84aX4) allegation, I have found, as a
matter of credibility, that Moder made no threat to Vega
related to Vega's having filed his'unfair labor practice
charge or given testimony under the Act. While Moder
questioned Vega, apparently at length, on 27 July con-
cerning his opinion about the outcome of the Region's
investigation of the charge and its bearing on their future
relationship, these inquiries and comments do not consti-
tute threats of reprisal or even show hostility for Vega's
having made use of the Board's processes and the Gener-
al Counsel does not claim that they do, absent Moder's
allegedly related threat of discharge. Furthermore, evi-
dence is lacking that Moder played any role in Vega's
discipline apart from his receiving information about it
from Bauccio' on 27 July. Thus, even if he had uttered a
threat under Section 8(a)(1), a conclusion I reject, the
General Counsel has failed to show that Moder's alleged
illegal motives had any bearing on the discipline Adams
and Bauccio determined to impose against Vega on 26
July 1985, the day before the alleged threat.
The General Counsel's further reliance on alleged
knowledge by Adams and Bauccio of Vega's charge and
his pursuit of claims under the Act also fails for lack of
probative evidence. Both Adams and Bauccio credibly
denied such knowledge at the time they determined to
remove Vega for his conduct on 26 July and prior histo-
ry of infractions. Also there is no evidence by any con-
duct or statement that either of them was motivated by
Vega's charge in determining to discipline him.
Thus, I am constrained to recommend that the 8(a)(4)
allegation and the 8(aXl) allegation of a threat by Moder
because of Vega's filing and pursuit of charges under the
Act be dismissed.
The 8(a)(3) and (1) allegation and 8(a)(1) allegation re-
lated to Moder's threat made because of Vega's 26 July
conduct present a separate issue to which I now turn.
As a preliminary matter, the issue is posed as to
whether Vega was acting in his capacity as steward
when the incident arose on 26 July. I conclude that he
was. Vega was disciplined because he failed to lower his
voice as directed while speaking with Adams and Bauc--
cio and thus disrupted operations. This conversation
stemmed from Vega's allegation that Adams was harass-
ing employees. Under the agreement a steward has the
right to initiate an independent grievance at step 1 (see
sec. 15.2(a)) and surely Adams' directions to employees
to work faster were imposing a set of working conditions
on the employees affected that was encompassed within
the definition of a grievance under section 15.1. I con-
clude that Vega was grieving the perceived harassment
of employees on the part of Adams.
The fundamental issue is thus posed as to whether, in
pressing the grievance with Adams and Bauccio, Vega
exceeded the bounds of protected activity under the Act,
thereby permitting the supervisors to discipline him with-
out restraint.
In considering this issue, the immediate antecedents to
the confrontation cannot be ignored. Vega, in a repeat of
past behavior, voiced an immediate complaint against his
supervisor's conduct at the workplace, conduct which
Adams could reasonably conclude countermanded his
orders to employees or at least raised a question in their
minds whether to obey him. In doing so, Vega also
failed to comply with a series of past instructions and a
written understanding as to the manner in which he
would invoke steward's grievance rights under the
agreement. In calling Vega to his desk, Adams sought
again to moderate Vega's behavior, not to interfere with
his right to properly invoke the grievance process.
Vega's only response was to repeat his claims of harass-
ment. When Adams saw he could not influence Vega's
behavior, which was interfering with his own superviso-
ry responsibilities, he brought his supervisor, Bauccio,
into the picture.
Bauccio had every right to deal with the problem on
the work floor. Contrary to the General Counsel, and as
asserted by Bauccio on the record, the incident was re-
lated to operations and Respondent cannot legitimately
be held responsible for Vega's subsequent conduct inter-
fering with production.
When Bauccio sought Vega's version of the incident,
he continued to assert his claim of harassment, failed to
respond to the inquiry, and became increasingly obstrep-
erous to the point where he repeatedly ignored direc-
tions to lower his voice. This behavior had the effect of
interfering with employee work duties to the extent that
they worked at a slower pace, or stopped work altogeth-
er to view the scene at Adams' desk. It is significant that
as against Adams' and Bauccio's testimony of the disrup-
tion of the operation, the General Counsel failed to call
any employees to rebut these assertions . They stand un-
contested and, although it may not have resulted in a sig-
nificant interference with operations, Vega's repeated re-
fusal to follow directions under all the circumstances, in-
cluding its impact or the work environment, and the
pains Respondent had previously taken to correct Vega's
past conduct of a similar nature,' ° not attacked by the
10 Contrary to Respondent, I do not find that the November 1984
grievance settlement constitutes a waiver by the Union of Vega's right as
steward to contest Respondent's discipline of him. Vega was disciplined
for failing to follow directions and lower his voice. The November
agreement set a standard of conduct for requesting grievance time There
is a lack of clear and convincing proof that the Union waived Vega's
right as steward to defend his assertion of rights under the agreement.
Nevertheless, the wording of that agreement generally bound Vega to
conduct himself in a restrained and obedient manner, and therefore relat-
ed to his antecedent behavior in objecting to Adams' directions at the
workplace as well as to his failure to follow instructions to calm down
during the interchange at Adams' desk. Accordingly, I have accorded the
grievance settlement a proportionate weight in evaluating Vega's conduct
under the Act.
POSTAL SERVICE,
General Counsel, including Bauccio's advice to`him; on
24 July, warranted Respondent in taking the action it
did. As stated by the Board in a case very similar on its
facts to the instant one:
The Board recognizes the right of the employer to
maintain order and respect in the conduct of its
business . [Southwestern Bell Telephone Co., 260
NLRB 237 (1982).] Winn's derogation 'of a reasona-
ble order to quiet down by continuing to shout on
the work floor, hurling personal insults, and disrupt-
ing operations constituted unprotected activity and
gave the Respondent a legitmate, permissible reason
to discipline Winn, and we so find. We further fmd-
that the Respondent has met its burden to prove
that it would have issued the warning to Winn even
in the absence of his protected conduct. The record
shows that Winn had been disciplined at least five
times in the 2-year period preceding the warning in
issue here, and that those instances of discipline re-
lated to conduct akin to that shown in the instant
case.
Postal Service, 268 NLRB 274, 275-276 (1983).
The Board found there that 'Winn was not engaged in
the formal pursuit of a grievance when he was disci-
plined. Rather, Winn reacted with insubordination when
his request to have his timecard adjusted was refused.
Here, Vega disobeyed repeated directions to calm down
before he was sent home, conduct which mirrored re-
peated past failures to follow directions, as a result of
which he had incurred progressively stiffer penalties.
Neither of the two cases cited by the General Counsel
at page 9 of her brief presents a similar factual t setting in
which the employee's conduct, independent of his Sec-
tion 7 conduct, was 'sufficiently insubordinate or disrup-
tive of the workplace to warrant concluding that it inter-
fered with the employer's right to, maintain 'order and re-
spect in the conduct of its business. Postal Service, 252
NLRB 624 (1980), contrary to the instant case, involved
a supervisor's attempt to prevent a union steward from
performing her official duties. The steward's reaction
was restrained, did not exceed "acceptable bounds," and
695
involved -neither a refusal to work,- nor a disruption of
work production, and it was provoked by the supervi-
sor's unwarranted, interference with the steward's pro-
tected right to investigate a grievance. In Postal Service,
250 NLRB 4 (1980), unlike the situation here, the union
steward had received supervisory permission to discuss
an employee's potential grievance, and was engaged in
its formal investigation as steward when he uttered a
single, spontaneous, obscene remark, provoked at least in
part by the failure of the 'supervisor with' whom the
steward was speaking to provide an immediate and direct
answer to his inquiries.
Accordingly, although I conclude that the General
Counsel initially established a prima facie case, I also
conclude that Respondent has met its requisite burden of
proof by showing it had a legitimate, permissible reason
for disciplining Vega and for threatening to take such
action against him and that it would have done so in the
absence-of Vega's protected activity. - -
I shall therefore recommend dismissal of the complaint
in its entirety.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the subject matter
of the complaint by virtue of Section 1209 of the Postal
Reorganization , Act, 29 U.S.C. § 151 'et seq.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act. -
3. The General Counsel has not established by a pre-
ponderance of the evidence that Respondent has violated
the Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The complaint, is dismissed.,
i i If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses'