United States Postal Service

National Labor Relations Board - Board Decisions

Mar 15, 2018

366 NLRB No. 39 (N.L.R.B. 2018)

366 NLRB No. 39
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United States Postal Service and Larry Thurman
Pretlow II. Case 05–CA–180590
March 15, 2018
DECISION AND ORDER REMANDING
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On August 1, 2017, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The General
Counsel and Charging Party filed exceptions and sup-
porting briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s ruling, findings, and conclusions only
to the extent consistent with this Decision and Order
Remanding.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by first discriminatori-
ly issuing to Charging Party Larry Thurman Pretlow II a
probationary performance evaluation on June 8, 2016,
and then by discharging Pretlow on June 9, 2016. The
General Counsel’s theory of the case connects these alle-
gations, contending that the Respondent unlawfully ter-
minated Pretlow because of his reaction to and during the
discriminatorily-issued performance evaluation. The
General Counsel’s theory thus invokes the principle that
“misconduct provoked by an employer’s unfair labor
practice is not grounds for discharge” because employers
should not be “permitted to take advantage of their un-
lawful actions, even if employees may have engaged in
conduct that—in other circumstances—might justify
discipline.” Supershuttle of Orange County, Inc., 339
NLRB 1, 3 (2003).
The judge dismissed the complaint in its entirety, but
in so doing made no reference to the complaint allegation
concerning the issuance of the performance evaluation.
Rather, he addressed only the discharge issue, finding
that Pretlow’s protected activity2 was a motivating factor
in the Respondent’s decision to discharge him but that he

1 Prior to filing exceptions, the General Counsel filed a Motion to
Rescind Order Transferring Proceeding to the National Labor Relations
Board. By unpublished order dated November 6, 2017, the Board de-
nied the General Counsel’s motion.
2 The undisputed facts show that the Respondent previously dis-
charged Pretlow, and that Pretlow was reinstated after the Union suc-
cessfully arbitrated his discharge.
would have been discharged even in the absence of his
protected activity because he failed to cooperate during
the presentation of his performance evaluation. By fail-
ing to address the complaint’s discriminatory perfor-
mance evaluation allegation and analyzing the discharge
allegation without considering its connection to that un-
addressed allegation, the judge failed to duly consider the
General Counsel’s theory of the case.
In view of the absence of findings of fact or conclu-
sions of law regarding the allegation that the Respondent
discriminatorily issued Pretlow a performance evalua-
tion, and the judge’s failure to consider whether the con-
duct for which Pretlow was discharged was unlawfully
provoked by the discriminatory issuance of the perfor-
mance evaluation—or indeed whether the conduct would
have even taken place had there been no allegedly dis-
criminatory performance evaluation—we find it neces-
sary to remand the case to the judge for further findings
and analysis.3 On remand, the judge should consider,
under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), whether Pretlow’s protected activity was a moti-
vating factor in the Respondent’s decision to give him
the performance evaluation and, if so, whether the Re-
spondent would have given Pretlow the performance
evaluation even absent his protected activity. In consider-
ing this complaint allegation the judge should make spe-
cific credibility findings.4 Further, in view of the General
Counsel’s theory of the case, the judge should also re-
consider Pretlow’s discharge in light of his findings and
conclusions regarding the performance evaluation allega-
tion.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge Arthur J. Amchan for further
appropriate action as set forth above.
IT IS FURTHER ORDERED that the judge shall prepare a
supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-
mended Order. Copies of the supplemental decision shall
be served on all parties, after which the provisions of

3 See generally R-W Service System, Inc., 238 NLRB 1016, 1016
(1978) (proceeding remanded to judge, where decision did not contain
“findings and conclusions, with supporting reasons, on all material
factual, legal, and discretionary issues involved in the case”).
4 In particular, the judge should make a specific credibility finding
concerning the testimony of the Respondent’s manager, Shakeel Khan,
who testified that the Respondent gave Pretlow a performance evalua-
tion—but not three other probationary employees—because Khan had
only recently learned that a performance evaluation was required for
probationary employees. Although noting Khan’s lack of specificity
and the absence of corroborating testimony on this point, the judge did
not specifically state whether he found Khan’s testimony credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Section 102.46 of the Board’s Rules and regulations shall
be applicable.
Dated, Washington, D.C. March 15, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Katrina Ksander, Esq., for the General Counsel.
Mark Wilson, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Washington, D.C. on May 31 and June 1, 2017.
Larry Thurman Pretlow II, filed the charge on July 21, 2016.
The General Counsel issued the complaint on March 21, 2017.
The General Counsel alleges that Respondent, the United
States Postal Service, violated Section 8(a)(3) and (1) of the
Act by terminating the employment of Charging Party Pretlow
on June 9, 2016, because Pretlow filed a grievance about his
prior termination in February 2015 on which he prevailed in
arbitration.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent, which has its headquarters in Washington, D.C.,
provides postal services throughout the United States, including
from its Engleside Post Office in Alexandria, Virginia. The
Board has jurisdiction over Respondent pursuant to Section
1209 of the Postal Reorganization Act. The National Associa-
tion of Letter Carriers (NALC), which represented the Charging
Party, is a labor organization within the meaning of Section
2(5) of the Act.
The Postal Service hired Larry Pretlow in March 2013 as a
city carrier assistant (CCA). He began working in the District
of Columbia but was transferred to Alexandria, Virginia, a few
months later. On February 21, 2015, the Postal Service con-
verted Pretlow to full-time regular status. Five days later, on
February 26, 2015, it terminated his employment. At the time
of Pretlow’s termination Shakeel Khan was the manager of the
Engleside Post Office in Alexandria. Khan was also the man-
ager when Respondent fired Pretlow in 2016. Although Khan
is not mentioned in the arbitration award discussed below, he
played some role in Pretlow’s 2015 termination (Tr. 105–106).1
Pretlow filed a grievance pursuant to the collective-
bargaining agreement between the NALC and the Post Office.
Tobie Braverman, an arbitrator, conducted a hearing of
Pretlow’s grievance on April 8, 2016. On April 22, 2016, Arbi-
trator Braverman issued an award ordering Pretlow’s reinstate-
ment. She also ordered that Pretlow would have to serve the
remainder of the 90-day probationary period that is required for
employees who are converted from CCA to regular status.
The Arbitration Award
According to the arbitration award, Pretlow’s 2015 termina-
tion arose out of a dispute with Supervisor Shari Hearns on
February 14, 2015.2 Pretlow threatened to file an EEO charge.
Then, according to Pretlow, Hearns threatened him by saying
that her sons would take care of him. Pretlow called the Postal
Inspection Service’s National Law Enforcement Communica-
tions Center (NLECC) and alleged that Hearns had threatened
his life. Hearns also reported their confrontation. A postal
inspector credited Hearns’ account. However, the Postal Ser-
vice did not take disciplinary action against Pretlow as a result
of his February 14 argument with Hearns. It fired him for
falsely stating to the Inspection Service that his life was in dan-
ger on three occasions. This apparently referred to the three
occasions on which Pretlow contacted the Inspection Service;
February 14 or 15, [the day he came a regular carrier], February
21 and 23, 2015.
On February 27, 2015, the Postal Service terminated Pretlow
for making false statements to the Inspection Service that his
life was in danger.
Under the terms of the collective-bargaining agreement be-
tween NALC and the Postal Service, a regular carrier has a 90-
day probationary period during which time that carrier is not
permitted access to the grievance procedure. CCAs do have
such access. The Arbitrator concluded that the Postal Service
delayed disciplining Pretlow until he became a regular carrier
to prevent him from having recourse to the grievance proce-
dure. She also found that the Postal Service had failed to meet
its burden of proving that Pretlow had made false statements,
the offense for which he was terminated.
Arbitrator Braverman ordered the Postal Service to reinstate
Pretlow with full backpay. She ordered that he would remain

1 Khan’s testimony regarding his role in the 2015 termination is
confusing (Tr. 105–106). He testified that he initiated the termination
but also suggested that his role was somewhat ministerial.
2 Hearns was deceased by the time of the arbitration hearing and
Pretlow did not testify about the circumstances of his dispute with her
in this proceeding. Thus, I rely on the arbitrator’s award for back-
ground as to the events resulting in the 2015 termination. However, I
do not rely on the arbitrator’s decision to credit Hearns’ account of the
February 14 confrontation. Therefore, I find the admonishment to
Pretlow in her decision about the unacceptability of refusing to obey or
arguing with a supervisor’s instructions is irrelevant except insofar as it
affected the conduct of Manager Shakeel Khan in 2016.
POSTAL SERVICE 3
in probationary status until he completed the remainder of his
90-day probationary period. She also admonished Pretlow for
being insubordinate to Hearns on February 14 and urged him to
be more cooperative with management upon his return to work.
Pretlow’s Return to Work on May 4, 2016
Larry Pretlow returned to work at the Engleside Post Office
on May 4, 2016. On his first day back at work he met Post
Office Manager Shakeel Khan and Local Union President An-
dre Washington. Khan informed Pretlow that his performance
would be evaluated since he was a probationary employee.
Khan and Pretlow initialed a blank evaluation form (Postal
Service form 1750).
On May 31, Pretlow took offense at some conduct by Khan.
It is not exactly clear what transpired. However, Khan appar-
ently felt that Pretlow could not finish his delivery route on
time. According to Pretlow, Khan publically ridiculed him for
needing extra time or help to finish his route. He complained in
writing about this to the assistant postmaster on June 1 (Exh. R-
4). Khan testified that he generally tried to avoid interaction
with Pretlow because Pretlow blamed him for the 2015 termi-
nation and because he “knew the way he goes off.” AA” (Tr. 127).
June 8, 2016 Performance Evaluation
On the afternoon of June 8, after Pretlow had finished his
route, he was approached by his immediate supervisor, Rebar
Chergosky. She informed him that he was going to have his
evaluation that afternoon. Chergosky and Pretlow went to a
private office in the back of the Post Office where they were
joined by Shakeel Khan and Chief Union Steward Dwayne
Martin. Of the conflicting versions of what occurred I find that
of Martin most credible since of all the witnesses he had the
least at stake in the outcome of this proceeding.3
Chergosky started reading from the evaluation form, which
had six categories in which the employee was to be rated either
outstanding, satisfactory, unacceptable or not observed. Cher-
gosky told Pretlow that his work quantity was unacceptable.
Pretlow loudly objected. Shakeel Khan and Pretlow began to
argue loudly. Martin testified that there was no screaming, no
threatening, no finger pointing. However, Martin took Pretlow
out of the room to calm him down.
After they returned, most likely after Chergosky told Pretlow
his dependability was unacceptable, Pretlow loudly protested
again.4 Pretlow and Khan began to argue again. Martin testi-
fied that Pretlow did not scream, bang on doors (as Khan testi-
fied) or otherwise behave in a bizarre manner. Pretlow stated
that “he could not take this.” Then he left the room again (Tr.
145). Martin then suggested that the meeting be terminated (Tr.
147–148). The evaluation was not completed.

3 Respondent suggests that I should not credit Martin because he
was afraid of Pretlow. Pretlow had threatened to sue the Union, had
alleged that Martin and Union President Washington were “in cohoots
with management;” and complained to the Union that Martin had not
satisfactorily done his job as steward. Pretlow filed a “CB” charge
against the Union which apparently related to his June discharge and
Martin’s conduct (Tr. 81–83).
4 Dependability is the third category on the form. Rebar gave
Pretlow a satisfactory rating on the second category, work quality.
With respect to how the meeting ended, I find Khan’s ac-
count more plausible than Pretlow’s. In regard to credibility, I
have considered the fact that the General Counsel did not call
Pretlow as part of its direct case. Respondent called Pretlow as
a witness as part of its case. Also, I do not regard Martin’s
testimony at transcript pages 83–84 to be inconsistent with
Khan’s at 145. I conclude that it is Pretlow’s behavior that
prevented the meeting from being concluded.
After the meeting ended, on June 8, Reber Chergosky pre-
pared a termination letter for Pretlow with input from Khan and
Respondent’s labor relations staff.5 The letter (GC Exh. 4),
states:
This is to advise you that your employment is being terminat-
ed during your probationaryperiod, effective immediately.
The reason for this action is your improper conduct. You
were recently converted to a full-time, regular letter carrier
position with a 90 –day probationary period. On June 8, 2016,
when Supervisor Reber Chergosky began conducting your
30-day evaluation, you became disruptive and rude, raising
and shaking your hands. Your union steward, Dwayne Mar-
tin, was present for the evaluation and asked for a few
minutes to talk to you. Martin took you out of the room, and
upon your return a few minutes later, your behavior became
even worse. Your attitude was negative, and your body lan-
guage was aggressive. When I began to discuss your attend-
ance and dependability, you began waiving your hands and
speaking loudly. You were threatening, saying, “You're in
trouble already! I know people in high places!” I had to end
the evaluation due to your hostile and threatening behavior.
Based on your improper conduct, it has been determined that
it would be best not to retain your employment as a letter car-
rier.
July 9 termination
Respondent pulled Pretlow’s timecard before he arrived for
work on July 9. He was told to report to the office in the back
of the Post Office. Martin, Khan, Chergosky, and Henry Baer
from Respondent’s labor relations department were present.
Chergosky tried to present the termination letter to Pretlow. He
began screaming, crying, and rolling around on the floor. Ul-
timately, somebody called an ambulance and Pretlow was
transported off the premises.
Analysis
The filing of a grievance is a right protected by the Act, Yel-
low Transportation, Inc., 343 NLRB 43 (2004). It is thus a
violation of Section 8(a)(1) to discriminate against an employee
for filing a grievance or prevailing in an arbitration.

5 Chergosky and Khan testified that Chergosky made the decision to
terminate Pretlow. I am very skeptical that this is true except in the
most technical sense. Chergosky had been a supervisor for only a
couple of months. It is clear that she consulted with Khan and Baer in
making the termination decision. Given Khan’s intimate involvement
with the events surrounding Pretlow’s discharge, I infer that his opinion
was determinative. I also do not credit Chergosky’s testimony that she
was considering terminating Pretlow for poor performance prior to the
June 8 meeting. That testimony is completely self-serving and unsup-
ported by any documentation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
To establish an 8(a)(1) or (3) violation based on an adverse
employment action where the motive for the action is disputed,
the General Counsel has the initial burden of showing that pro-
tected activity was a motivating factor for the action, Wright
Line, 251 NLRB 1083 (1980). The General Counsel generally
satisfies that burden by proving the existence of protected activ-
ity, the employer’s knowledge of the activity, animus against
the activity and sufficient grounds for inferring discriminatory
motive. If the General Counsel meets his burden, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.
In this case the General Counsel has met his initial burden.
Respondent knew that Larry Pretlow had filed a grievance and
had prevailed. Animus and discriminatory motivation can be
inferred from the timing of Pretlow’s second discharge so soon
after his return to work following the arbitrator’s award. Thus,
the question becomes whether Respondent meet it burden of
proving that it would have fired Pretlow on account of his con-
duct at the June 8 performance evaluation.
The General Counsel relies heavily on the proposition that
the June 8 evaluation was a “set-up” arranged to allow Re-
spondent to terminate Pretlow for filing a grievance and pre-
vailing. In support of this argument, the General Counsel notes
that three other letter carriers were converted from city carrier
to regular carrier and none of these had a performance evalua-
tion during their probationary period (Tr. 136–137).
The Postal Service’s response is that Shakeel Khan was not
aware that he was supposed to do such an evaluation until a
managers’ meeting (GC Exh. 8, Tr. 136–137). Khan could not
recall precisely when this meeting took place (Tr. 137–138).6
The General Counsel argues, somewhat persuasively, that Re-
spondent “failed to specifically articulate the circumstances
resulting in Mr. Khan’s education about the evaluation re-
quirement” (GC Br. at 16). Given evidence that no other pro-
bationary regular carrier was given an evaluation prior to
Pretlow, this is something on which one (Tr. 136). Respondent
could certainly have proffered testimony from other managers
to corroborate Khan’s testimony. Such testimony would cer-

6 His testimony is that the meeting occurred a few months prior to
June 2016.
tainly have gone a long way to indicating that the June 8 evalu-
ation was not discriminatorily motivated.
The General Counsel also argues that the discriminatory mo-
tive is suggested by the fact that the evaluation was conducted
in a backroom office at the Post Office. Respondent argues that
this was so because of Pretlow’s hypersensitivity to criticism.
This hypersensitivity, according to Respondent, was exhibited
by Pretlow with regard to Khan’s assignment of other carriers
to assist Pretlow on his route on May 31.
Despite the suspicious background to the June 8 evaluation,
there is no question that Pretlow did not cooperate in the evalu-
ation and did not allow Respondent to complete it. I would also
note that on May 4, when Khan informed Pretlow that this
evaluation would take place, he did not object or assert that
Respondent was discriminating against him in performing an
evaluation during his probationary period. Moreover, there is
nothing in this record that would lead one to conclude that Re-
spondent’s managers should have anticipated Pretlow’s out-
burst in reaction to his performance evaluation.
The General Counsel argues that Respondent cannot rely on
Pretlow’s behavior on June 8, because it provoked his reaction.
I disagree. There is no evidence on which I can base a conclu-
sion that Respondent’s adverse assessment of Pretlow’s work
quantity and dependability was discriminatorily motivated. He
was not privileged to refuse to cooperate in the evaluation and
prevent its completion. Therefore, I conclude that Respondent
met its burden of establishing its affirmative defense (that it
would have fired Pretlow for his conduct on June 8 absent his
protected activity) and did not violate the Act in terminating his
employment on the basis on his behavior at the evaluation.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 1, 2017

7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.