United States Postal Service

National Labor Relations Board - Board Decisions

Aug 23, 2018

366 NLRB No. 168 (N.L.R.B. 2018)

366 NLRB No. 168
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 American Postal
Workers Union, Local 170. Case 08–CA–197451
August 23, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On May 25, 2018, Administrative Law Judge Thomas
M. Randazzo issued the attached decision in this consol-
idated unfair labor practice and backpay proceeding. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order and supplemental Or-
der, except that the attached notice is substituted for that
of the administrative law judge.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order and Supplemental Order of the admin-
istrative law judge and orders that the Respondent, Unit-
ed States Postal Service, Toledo, Ohio, its officers,
agents, successors, and assigns, shall take the action set
forth in the Orders, except that the attached notice is sub-
stituted for that of the administrative law judge.

1 Chairman Ring is recused and took no part in the consideration of
this case.
2 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by unilaterally reducing the
duration of paid breaks without providing the Union notice and oppor-
tunity to bargain over that change or the effects of that change.
For the reasons stated by the judge, we find that the Respondent’s
exceptions to the awarding of backpay here are without merit. Accord
Rangaire Co., 309 NLRB 1043, 1043 fn. 6 (1992) (ordering backpay
for unilateral elimination of extended lunch periods on Thanksgiving),
enfd. 9 F.3d 104 (5th Cir. 1993) (Table); Inland Steel Co., 259 NLRB
191 (1981) (ordering backpay for employees based on the elimination
of 5 minutes of “washup time” and a 10-minute reduction in paid lunch
break). We additionally emphasize that neither Sec. 10(b) of the Act
nor Board law or procedures provide support for the Respondent’s
argument with respect to the backpay remedy.
3 We shall substitute a new notice to conform to the Board’s stand-
ard remedial language.
Dated, Washington, D.C. August 23, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
American Postal Workers Union, Local 170 (the Union)
by changing the terms and conditions of employment of
our unit employees without first notifying the Union and
giving it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole bargaining unit employees for
any loss of earnings and other benefits you may have
suffered as a result of the unilateral reduction in break
times in effect from March 25, 2017, to September 26,
2017, in the manner set forth in the remedy section of
this decision.
UNITED STATES POSTAL SERVICE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-197451 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Stephen M. Pincus, Esq. and Rudra Choudhury, Esq., for the
General Counsel.
Dallas G. Kingsbury, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This
case was tried in Bowling Green, Ohio, on March 7, 2018. The
American Postal Workers Union, Local 170 (the Union or
Charging Party) filed the instant charge on April 21, 2017,1 and
the General Counsel issued the complaint on August 29, 2017.
On February 12, 2018, the complaint was amended and consol-
idated with a compliance specification alleging the make-whole
remedy owed to unit employees for any losses suffered as a
result of Respondent’s alleged unfair labor practices. The
amended complaint/compliance specification alleges that the
United States Postal Service (the Respondent), from on or
about March 18, 2017, through about September 26, 2017,
reduced paid break periods from 15 to 10 minutes for employ-
ees at the facility in Toledo, Ohio, without providing prior no-
tice to the Union and/or without affording the Union the oppor-
tunity to bargain over that change and the effects of that
change, in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act). In addition, the compliance
specification alleges that the backpay period for the unit em-
ployees began on March 25, 2017.2
The Respondent denied in its answers to the complaint and
amended complaint/compliance specification that it violated the
Act as alleged. It also alleged that if a violation occurred, the
remedy should not include backpay for the affected employees.
Notwithstanding that assertion, at trial the Respondent stipulat-
ed to the backpay calculations and amounts as set forth in Joint
Exhibit 1 in the event that it is found to have violated the Act.3

1 All dates are in 2017 unless otherwise indicated.
2 At trial, the General Counsel’s motion to amend the consolidated
complaint/compliance specification pars. 10 and 11 to allege that the
backpay period began on March 25, 2017 (instead of March 18, 2017),
was granted. (Tr. 15.)
3 The General Counsel’s motion at trial was granted to substitute the
calculations and figures set forth in Jt. Exh. 1 for the calculations and
figures in pars. 12 and 13 of the consolidated complaint/compliance
specification. (Tr. 11–14.)
On the basis of the entire record,4 my determination of credi-
ble evidence,5 and after considering the briefs filed by the Gen-
eral Counsel and the Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that the National Labor
Relations Board (the Board) has jurisdiction over it by virtue of
Section 1209 of the Postal Reorganization Act (PRA), and that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent provides postal services and operates vari-
ous facilities throughout the United States in performing that
function, including its Vehicle Maintenance Facility in Toledo,
Ohio (Respondent’s facility). The Respondent’s facility pro-
vides maintenance for approximately 900 postal vehicles,
which include repairs for those vehicles when they break down.
The Respondent’s facility is managed by Robert L. Price and its
supervisor is Tom Baker.6
The Respondent employs 17 technicians, 3 clerks, and 1 cus-
todian at its facility, all of whom are represented by the Union.
At all material times, the Respondent has recognized the Union
as the exclusive collective-bargaining representative of those
employees who constitute the following described unit:
All maintenance employees, motor vehicle employees, postal
clerks, the special delivery messengers, mail equipment shops
employees, material distribution centers employees, and oper-
ating services and facilities services employees; and excluding
managerial and supervisory personnel, professional employ-
ees, employees engaged in personnel work in other than a
purely non-confidential clerical capacity, security guards as
defined in Public Law 91-375, 1201(2), all Postal Inspection
Service employees, employees in the supplemental work
forces as defined in Article 7 of the Collective-Bargaining
Agreement, rural letter carriers, mail handlers, and letter carri-
ers.
The Respondent’s recognition of the Union as the collective-
bargaining representative of the Unit employees has been em-
bodied in successive collective-bargaining agreements, the
most recent of which is effective from May 21, 2015, to Sep-
tember 20, 2018.
With regard to changes or proposed changes in working con-

4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “Jt. Exh.” for Joint Exhibit; “GC Exh.” for General Counsel’s
Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for the General
Counsel’s Brief; and “R. Br.” for Respondent’s Brief.
5 In making my findings regarding the credible evidence, including
the credibility of witnesses, I considered the testimonial demeanor of
such witnesses, the content of their testimony, and the inherent proba-
bilities based on the record as a whole.
6 Baker is an admitted supervisor and agent within the meaning of
Section 2(11) and(13) of the Act.
POSTAL SERVICE 3
ditions, Motor Vehicle Craft Director and Union Official Mi-
chael Fincher testified that such communications with man-
agement have usually been through mail or emails. (Tr. 42–43.)
He also testified that in the past, the Respondent has notified
the Union of changes in writing. As an example, Fincher testi-
fied that in February 2017, the Respondent notified the Union
in writing of its desire to make a change in working conditions
by sending a letter dated February 13, 2017, from Price to Un-
ion President Arnie Cowell regarding “VMF hours of opera-
tion.” (Tr. 43–44; GC Exh. 3.) In that letter, Price informed
Cowell that, as a courtesy, he was writing to inform him that
the Respondent decided to change the hours of operation for the
facility starting on February 25, 2017. Price indicated that such
notice was to “help facilitate talks, training and group discus-
sions between both tours…” (GC Exh. 3.) The record also
shows that Respondent’s communications with the Union on
matters affecting terms and conditions of employment, such as
requests for information, were made by written letters sent
priority mail for no cost. (Tr. 45–46; GC Exh. 4.)
2. The employees’ terms and conditions of employment
included two 15 minute paid breaks at Respondent’s Vehicle
Maintenance Facility in Toledo, Ohio
It is undisputed that the Respondent provided employees at
its facility with two 15 minute paid breaks per each eight and
one-half hour shift, which included a half-hour unpaid lunch
break. (Tr. 26.) Employees are entitled to an additional break if
they work longer than their 8-hour shift. The practice at the
facility was that employees could take a break anytime up until
lunchtime and they could schedule when they wanted to take
their afternoon break.
3. The Vehicle Maintenance Facility Safety and Service
employee meeting on March 3, 2017, where it announced the
scheduling of lunches and breaks
a. The testimony of the General Counsel’s witnesses regarding
the March 3 meeting
The Respondent conducts staff meetings referred to as “safe-
ty and service meetings” or “safety talks” every Friday where it
discusses vehicle maintenance facility safety issues. (Tr. 27.)
In the safety and service meeting on March 3, 2017, the Re-
spondent’s management discussed schedule changes. The top-
ics for the meeting were described on the “VMF Safety & Ser-
vice Talks” sign-in sign sheet as: “Informed Delivery, Seat
Belts Save Lives—When Used, Stainless Bolts for Fuel Sender
Grounds, VMF Schedule, [and] Pop Machine Suggestions.” Id.
There were 17 employees that signed-in as having attended that
meeting, and one of those employees was Union Motor Vehicle
Craft Director Fincher. (GC Exh. 7.)
Fincher testified that in the March 3 meeting, Supervisor
Baker (who was also acting manager at that time) ran the meet-
ing for the Respondent, but that Price was also in attendance.
Prior to that meeting, it was not the Respondent’s practice to
post work schedules because the employees knew what hours
they worked based on their bids.7 (Tr. 31–32.) However, in

7 For example, if the bid for that job started at 5 a.m., that was when
the employee showed up for work. (Tr. 32.)
that meeting Baker made an announcement about scheduling to
the entire group. (Tr. 31, 47.) According to Fincher, Baker said
the Respondent would be posting a schedule. At that time,
Price came out of his office and sat down in the meeting. He
informed the employees that if they needed to take an hour-
long lunch, to let him know and he would change it to an hour
lunch. (Tr. 47.) Fincher testified that nothing else was said
about scheduling. (Tr. 47–48, 60.) Fincher specifically stated
that nothing was said about reducing the break times, and he
was certain about that fact because reducing break times would
have “stuck out to [him],” and when the meeting ended, he
“would have had [employees] . . . demanding some action.”
(Tr. 48, 60.)
Fincher’s testimony was corroborated by current employee
Ronald Cowell, who testified that in the March 3 meeting
Baker informed the employees that there was going to be
scheduled lunches and breaks. He specifically testified that
nothing was said about cutting break times, and he was sure of
that fact because if that would have been said, he would not
have been happy about it and he “would have had a discussion
with the union….” (Tr. 117.) Thus, Cowell stated that when he
left the meeting, he had no idea there was a plan to cut break
times to 10 minutes. (Tr. 117.)
b. The testimony of the Respondent’s witnesses regarding the
March 3 meeting
While the General Counsel’s witnesses testified that the Re-
spondent’s managers never mentioned in the March 3 meeting
that breaks were being reduced from 15 to 10 minutes, the Re-
spondent’s witnesses testified that they recalled being informed
that Respondent was reducing the breaks to 10 minutes. In that
connection, Baker testified twice at trial, being called once by
the General Counsel in its case-in-chief and once by the Re-
spondent in the presentation of its case. In the General Coun-
sel’s case, Baker vaguely asserted that he had made an an-
nouncement about “scheduling” to the entire group of employ-
ees. (Tr. 30–31.) With regard to the announcement to employ-
ees regarding scheduling, he admitted that prior to that March 3
meeting: (1) he never had a separate conversation with the
Union about scheduling; (2) he never provided notice to the
Union, written or otherwise, about the scheduling issues; (3) he
never informed the Union that schedules would be posted at the
facility when previously they were not; (4) he never discussed
the decision to implement the schedule with the Union; and (5)
he never informed the Union that employee breaks would be
reduced from 15 minutes to 10 minutes. (Tr. 31–33.)
In the Respondent’s case, when Baker was asked what was
said about break times, he testified that he talked about “need-
ing to schedule lunches,” and that Respondent would reduce
breaks from 15 to 10 minutes. (Tr. 68–69.) The Respondent
also called employees Eric Schneider, Greg Piskula, and Ste-
phen Recknagel, in support of its assertion that Baker an-
nounced breaks would be reduced to 10 minutes.
c. The credibility determinations
While it is undisputed that the Respondent held a Safety
Meeting for employees at the Toledo facility on March 3, 2017,
and that it discussed schedule changes such as the fact that it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
was going to begin posting a work schedule with scheduled
times for employees’ breaks and lunches, there is a dispute over
whether the Respondent informed the employees in that meet-
ing that break times were going to be reduced from 15 minutes
to 10 minutes. The General Counsel’s witnesses testified that
the Respondent’s managers never made any statements about
breaks being reduced to 10 minutes, and conversely, the Re-
spondent’s witnesses asserted that management informed em-
ployees that it was reducing their breaks to 10 minutes. Since
these testimonies differ, I must make determinations on the
credibility of the witnesses.
Credibility determinations may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the evidence, established or admitted
facts, reasonable inferences that may be drawn from the record
as a whole, and the inherent probabilities of the allegations.
Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need
not be all or nothing propositions. Indeed, nothing is more
common than for a judge to believe some, but not all, of the
testimony of a witness. Daikichi Sushi, 335 NLRB at 622;
Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB
v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950),
revd. on other grounds 340 U.S. 474 (1951).
My observation during the trial was that the General Coun-
sel’s witnesses appeared truthful and honest in their demeanor,
and they testified in a consistent and convincing manner on
direct and cross-examination. Specifically, I found Fincher to
be a very credible witness who displayed a convincing de-
meanor and his testimony that management never mentioned
that breaks would be reduced to 10 minutes in that meeting was
plausible and believable. Fincher’s testimony was also con-
sistent with, and corroborated by, current employee Cowell on
that key point. I also found that Cowell was a credible witness.
He testified in a truthful manner and was very certain about the
fact that Respondent’s managers did not mention that break
times were reduced to 10 minutes. He offered the basis for his
certainty, testifying that he was certain it was not discussed
because if it had been, he would have been unhappy about it
and he would have discussed the matter with the Union. (Tr.
117.) Also, as a current employee who provided testimony
adverse to the interests of his employer, I find his testimony
was entitled to additional weight. The Board has held that
where current employees provide testimony against the inter-
ests of their employer, and thus contrary to their own pecuniary
interests, such testimony is entitled to additional weight when
credited. Avenue Care & Rehabilitation Center, 360 NLRB
152, 152 fn. 2 (2014); PPG Aerospace Industries, Inc., 353
NLRB 103 (2008); Advocate South Suburban Hospital, 346
NLRB 209, 209 fn. 1 (2006); Flexsteel Industries, Inc., 316
NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996).
The Respondent’s witnesses, on the other hand, presented
testimony that was vague and they were less credible in their
assertions that management informed employees that break
times were being reduced. Baker’s testimony was at times
vague and appeared to be less than forthright. He was particu-
larly vague with regard to whether he stated in the March 3
meeting that breaks were going to be reduced from 15 to 10
minutes. When specifically asked what he said in that meeting
about break times, he answered: “We talked about needing to
schedule lunches and also, due to the constant abuse of the
breaks, that we’d reduce them from 15 to 10 minutes.” (empha-
sis added) (Tr. 69–70). Thus, when asked directly to testify
about what he allegedly said about break times, he instead
vaguely provided what either he or Price told employees.8 In
addition, when he was later asked what he told the Union on
March 3rd about break times, Baker answered: “I informed the
union, as well as all employees that breaks would be changing
once we give the schedule.” (Tr. 84.) His response to that ques-
tion made no mention of telling the employees that the break
times would be reduced to 10 minutes. Instead, only after
prompting by Respondent counsel as to what specifically the
breaks would be changed to did he assert that they would be 10
minutes. (Tr. 84.) In addition, Baker failed to state on redirect
examination (as he did earlier on direct examination) that he
mentioned “the constant abuse of breaks” on that subject.
I also found Respondent witnesses Schneider, Piskula, and
Recknagel, who claimed that Baker said breaks would be re-
duced to 10 minutes, were less credible than the General Coun-
sel’s witnesses, and their recall not as accurate. In this regard,
Schneider testified that he believed there was some discussion
after that meeting about breaks, but he admitted that he “[did
not] really recall what all was said.” (Tr. 87.) He also seemed
unsure of himself. When asked if in fact the breaks had been
cut from 15 to 10 minutes, he answered “I believe so, yes.” (Tr.
87.) It also appeared that the topic of break times being re-
duced was of little importance to Schneider because when he
was asked on cross-examination if he liked having his breaks
cut, he answered: “To be honest with you, it doesn’t really
matter to me.” (Tr. 88.)
Piskula, who testified that he was told in that meeting that
breaks “were going to go back to 10 minutes,” also seemed to
have difficulty with his recollection. In fact, he had difficulty
remembering who allegedly announced that the breaks would
be cut.9 I therefore find Piskula’s testimony unpersuasive and
provide it less weight. I also found Recknagel’s testimony
equally unpersuasive. He testified that in the March 3rd meet-
ing, Baker “brought up a schedule change policy…where
lunches would be scheduled and breaks would also be sched-
uled,” and that after that meeting he believed the breaks were
changed to 10 minutes. (Tr. 93–94.) However, when pressed

8 The Respondent did not call Price to testify in support of its case,
and there is no evidence that Respondent attempted to subpoena Price
to testify or that Price was unavailable to testify in this matter.
9 On that subject, Piskula provided the following testimony on
cross-examination:
Q. [W]as it Mr. Price who made that comment there about the
breaks being cut?
A. I don’t believe so.
Q. Okay. You don’t remember who said it?
A. Trying to remember. It’s been—no, I think it was Tom
[Baker], I think.
(Tr. 91.)
POSTAL SERVICE 5
on cross-examination as to “what was exactly said,” he stated
“[t]he policy that was proposed was that lunches . . ., from then
forward, would be scheduled so that employees would have a
set time to when they were to take their lunch break.” When
asked if anything else was said about breaks or scheduling,
Recknagel testified that Price said those who wanted to take a
longer lunch could take a 45-minute or an hour lunch, and if
they came to him for that, he would change their schedules.
Finally, when asked if anything else was said about the sched-
uling of breaks during that meeting, Recknagel responded:
“No. Just scheduling of breaks, scheduling of lunches.” (Tr.
97.) Thus, on cross-examination, he failed to specifically testi-
fy that reducing the breaks from 15 to 10 minutes was dis-
cussed by management at that meeting.
Based on the above, the assertions by Respondent’s witness-
es that management informed employees in the March 3 meet-
ing that breaks times were being reduced are not credible. In
addition, such assertions are also implausible and not supported
by the record evidence. As set forth more fully below, the Un-
ion filed a grievance alleging that Respondent’s scheduling of
assigned breaks and lunches, and changing break times from 15
to 10 minutes, violated the collective-bargaining agreement.
(GC Exh. 5.) Despite the fact that Respondent was clearly
aware the Union was alleging the change in break times to 10
minutes violated the contract, the response to that grievance
provided by Baker in the “Grievance Summary – Step 1”
makes no mention of fact that it allegedly announced the reduc-
tion of break times in the March 3 meeting. (GC Exh. 7; Tr.
77–81.) I find it implausible that Baker would inform the em-
ployees in a meeting that break times were being reduced, and
then neglect to mention that fact in the document where he set
forth the background and facts for Respondent’s position on the
grievance. In addition, Baker’s lack of credibility was further
evinced by his explanation for failing to put that critical infor-
mation in the document. Baker testified that his failure to men-
tion such information was attributed to limited space on the
grievance response form. (Tr. 78.) However, Baker acknowl-
edged that there were at least 5 more available lines on the
response form to place such information. (Tr. 78.)
Thus, the Respondent witnesses’ assertions that employees
were informed in the March 3 meeting that break times would
be reduced are not credible or supported by the undisputed
documentary evidence. I therefore credit the General Counsel’s
witnesses and find that the Respondent did not inform the em-
ployees in the March 3 meeting that break times were being
reduced from 15 to 10 minutes.
4. On or about March 20, 2017, the Union became aware that
Respondent posted a work schedule establishing that employee
breaks were reduced from 15 to 10 minutes
Baker testified that on March 18, 2017, the Respondent post-
ed the “Toledo VMF Schedule” for the week effective March
25 31, 2017. (Tr. 34–35; GC Exh. 2.) That schedule, signed
by Supervisor Baker and dated March 18, 2017, established that
the employees’ two breaks which were previously 15 minutes
in duration were changed to 10 minutes, and that “[a]ny devia-
tion from [the] posted schedule must be approved in advance
by Management.” (GC Exh. 2; Tr. 36.) Baker admitted that the
posted schedule reflected a change in employee breaks. (Tr.
34.) It is also undisputed that from that time until the end of
September 2017, schedules were consistently published and
posted showing 10 minute breaks for employees, and that there
were employees who worked overtime during that time period
and they were given additional breaks of 10 minutes duration.
(Tr. 36–37.)
Fincher testified that he saw the posted schedule on March
20, and that was the first time he noticed that breaks had been
reduced to 10 minutes. He further testified he did not have
prior notice from the Respondent of that change. (Tr. 48–49.)
Thus, the Union first learned about the reduction of break times
through the posting of the March 25 work schedule. (Tr. 48–
49.)
5. The Respondent reduced employee breaks from 15 minutes
to 10 minutes effective March 25, 2017, resulting in the Union
filing a grievance over that change in working conditions
It is undisputed that the Respondent changed the breaks for
employees from 15 minutes to 10 minutes effective March 25,
2017. The Union filed a step 1 grievance dated March 22,
2017, alleging that on or about March 20, 2017, the Respond-
ent’s change in break times from 15 to 10 minutes constituted a
unilateral action which affected the hours, wages, and working
conditions of the bargaining unit members in violation of article
5 of the collective-bargaining agreement. (GC Exh. 5; Tr. 49–
51.) In that grievance, the Union alleged that the 15 minute
breaks were “binding past practice” and that breaks had been
15 minutes, which was an item “acknowledged by management
in a stand-up service talks [sic] given to employees, and also in
management’s VMF Labor cost breakdown provided as part of
an NLRB settlement.” Id. The grievance requested corrective
actions including for Respondent to cease and desist from such
action and rescind the scheduling of breaks and lunches and
return to the past practice that existed prior to March 20,
2017.10
After the parties had a step 1 meeting on March 22, 2017, the
Respondent filed a step 1 answer on March 27, 2017, denying
the grievance. The Respondent generated a “Grievance Sum-
mary Step 1” document and in the “Background” section of that
document it set forth a statement of “all relevant information.”
In that regard, the Respondent, by its supervisor, Tom Baker,
stated:
On 3/3/17 all employees (including both stewards) were in-
formed we would be posting a weekly schedule during our
safety talk (see attached sign in sheet). The employees were
notified the lunches and breaks would be scheduled. Man-
agement also asked if any employees wished to take a 1 hour
lunch to notify management and we would schedule them for
an hour lunch. Management did not receive any requests for
an hour lunch so the schedule was put together and posted on
3/18/17 for the week of 3/25/1—3/31/17. (GC Exh. 7.)
As noted above, Baker made no mention in that document

10 The grievance also alleged that the Respondent’s posted schedule
assigned breaks and lunches while past practice consisted of employees
taking breaks and lunches whenever they saw fit, which also violated
Article 5 of the collective-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that he informed employees that breaks would be reduced to 10
minutes. Furthermore, in the section of the document setting
forth “Management’s Position” the Respondent indicated the
grievance “should be withdrawn by the union because it is un-
timely,” specifically stating that “[b]oth the employees and the
union were notified 3/3/17 during our safety talk that the
schedule would be posted including lunches and break times.”
(GC Exh. 7.) The Respondent, in that section of the document,
similarly failed to mention that any statements were made re-
garding reducing the duration of breaks to 10 minutes. That
grievance summary was written and signed by Baker, and the
employee sign-in sheet for the “VMF Safety & Service Talks”
meeting on March 3, 2017, was attached.
6. Effective September 26, 2017, the parties reached a step 3
grievance settlement in which Respondent restored the
15 minute breaks times
On September 26, 2017, the parties reached a step 3 settle-
ment for the grievance in which they mutually agreed that
breaks would be restored to 15 minutes immediately. (Tr. 37–
38; 51; GC Exh. 6.) The step 3 settlement stated that the parties
mutually agreed to the following:
The issue in this grievance is Management unilaterally chang-
ing the duration of breaks at the Toledo VMF from 15
minutes to 10 minutes. The Parties at Step 3 discussed this
matter with Management and we are in agreement that breaks
shall be restored to 15 minutes immediately.
Fincher testified that he was notified on September 28, 2017,
that the breaks had been restored to 15 minutes as a result of the
settlement, and that with regard to the remainder of the griev-
ance concerning the Respondent’s scheduling of breaks and
lunches, the Union did not press the fact that was instituted in
March 2017.
B. The Contentions of the Parties
The General Counsel contends that the Respondent did not
provide the Union with notice of the change in break duration,
and in particular that the Respondent did not state in the March
3rd safety meeting that it was making that change. The General
Counsel further argues that even if the Respondent provided the
employees with notice of that change on March 3rd, such an
announcement to employees did not constitute notice to the
Union. Therefore, the General Counsel contends that Respond-
ent presented the Union with a fait accompli when it reduced
the duration of the breaks on March 25, 2017, and that such
conduct violated Section 8(a)(5) and (1) of the Act.
The Respondent, on the other hand, contends that it provided
the Union with notice of its intent to change the breaks from 15
to 10 minutes when it allegedly announced such in the March
3rd meeting with employees, and therefore the Union was pro-
vided an opportunity to bargain over that change and it simply
waived that right to bargain by neglecting to do so. As men-
tioned above, I have determined the evidence establishes that
Respondent did not inform employees in the March 3 meeting
that breaks would be reduced to 10 minutes. In addition, the
Respondent alleges that even if it failed to provide the Union
with notice of that change, it was not obligated to do so because
“it is questionable whether the reduction in break times was
even a material change in terms and conditions of employment
for members of the Unit.” (R. Br. p. 9.) Finally, the Respond-
ent alleges that even if a violation of the Act is found, backpay
should not be awarded as a remedy. (R. Br. p. 9.)
C. Analysis
Section 8(a)(1) and (5) of the National Labor Relations Act
provide that it shall be an unfair labor practice for an employ-
er—
(1) to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed in section 7;
. . . .
(5) to refuse to bargain collectively with representatives of his
employees, subject to the provisions of section 9(a).
While Section 8(a)(5) establishes that an employer’s refusal
to bargain collectively may constitute an unfair labor practice,
Section 8(d) of the Act defines collective bargaining, stating in
part, that:
to bargain collectively is the performance of the mutual obli-
gation of the employer and the representative of the employ-
ees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of
employment….[Emphasis added.]
Subjects falling under the language of Section 8(d) are man-
datory subjects of bargaining. NLRB v. Borg-Warner Corp.,
356 U.S. 342, 349 (1958). “Section 8(a)(5) . . . read together
with Section 8(d), requires an employer to bargain collectively
with the representative of his employees ‘with respect to wages,
hours, and other terms and conditions of employment.’” Id.
See also Overnite Transportation Co. v. NLRB, 372 F.2d 765,
768–769 (4th Cir. 1967), cert. denied 389 U.S. 838 (1967). An
employer is obligated to provide a union with notice and a
meaningful opportunity to bargain concerning changes in terms
and conditions of employment that are mandatory subjects.
NLRB v. Katz, 369 U.S. 736, 742, 747 (1962). It is well settled
that, absent certain circumstances,11 “an employer acts in viola-
tion of Section 8(a)(1) and (5) of the Act by unilaterally, with-
out affording its employees’ exclusive collective-bargaining
representative an opportunity to bargain on their behalf, materi-
ally and substantially changing the employees’ terms and con-
ditions of employment.” See Washington Beef, Inc., 328 NLRB
612, 617 (1999), and cases cited therein; see also Angelica
Healthcare Services Group, 284 NLRB 844, 853 (1987). Thus,
an employer’s duty to bargain collectively under Section
8(a)(5) of the Act includes the duty to first notify and bargain
with the union before it effects change in mandatory subjects of
bargaining, and the failure to bargain or to provide the oppor-
tunity to bargain over such changes have been found to violate
Section 8(a)(5) and (1) of the Act. NLRB v. Katz, supra. The
Board has held, however, that the change unilaterally imposed
must be “a material, substantial, and significant one.” Peerless
Food Products, Inc., 236 NLRB 161 (1978); Alamo Cement
Co., 281 NLRB 737, 738 (1986).
In this case it is undisputed that from March 25, 2017, to

11 See NLRB v. Katz, 369 U.S. 736, 748 (1962).
POSTAL SERVICE 7
September 26, 2017, Respondent reduced paid breaks from 15
to 10 minutes for unit employees, and that such a reduction in
break times related to wages, hours, and other terms and condi-
tions of employment of the employees.12 I therefore find that
the change or reduction in break times was a mandatory subject
for the purposes of collective bargaining.
I further find that the Respondent’s change in break times
was clearly a material, substantial, and significant change in
employees’ terms and conditions of employment. Peerless
Food Products, Inc., supra; Alamo Cement Co., supra. On that
subject, the Respondent’s assertion that “it is questionable
whether the reduction in break times . . . [is] a material change
in terms and conditions of employment . . . “ is without merit
and must be dismissed. This case involves changes to working
hours and break times—core subjects to which the statutory
bargaining obligation applies and which are daily conditions of
employment. The Board has found that similar changes to
break or lunch times have had a material, substantial, and sig-
nificant effect or impact on employees’ terms and conditions of
employment. Rangaire Co., 309 NLRB 1043 (1992) (employer
discontinued past practice of providing an extra 15 minutes of
paid lunchbreak once per year on Thanksgiving); Atlas Micro-
filming, 267 NLRB 682, 695–696 (1983), enfd. 753 F.2d 313
(3d Cir. 1985) (employer added 15 minutes to the employees’
lunch period). The Board has thus found that lunch and break
periods may constitute terms and conditions of employment
and that unilateral changes to such lunch and break periods are
material, significant, and substantial changes violating Section
8(a)(5) and (1) of the Act. Pepsi-Cola Bottling Co. of Fayette-
ville, 330 NLRB 900, 903 (2000).
In addition, I note that the cases cited by the Respondent in
support of its assertion that the change was not material are
distinguishable and not controlling. The Respondent cited
Mitchellace, Inc, 321 NLRB 191 (1996). In that case the Gen-
eral Counsel alleged that the employer changed its policy speci-
fying when employees had to be back at their work stations by
requiring them to have returned to their work areas at the end of
their lunch and break times, and not simply be on their way
back to their work stations. Id. at 192. However, the Board
affirmed the administrative law judge’s finding that the em-
ployer’s breaktime action did not have a material, substantial,
and significant impact on working conditions because the ac-
tion “made no change” as the evidence established the policy
had been that employees were to remain at their work stations
until the break started and were to be back at their work stations
at the time the break ended, even though there were times when
that rule was not enforced. Id. at 192–193. That case is clearly
distinguishable from the instant case where the breaks were
historically 15 minutes and they were undisputedly changed to
10 minutes.
The other case cited by the Respondent, Postal Service, 275
NLRB 360 (1985), is similarly distinguishable. In that case, the
administrative law judge found the employer violated the Act

12 The Respondent admitted the allegations that the subjects relate to
wages, hours, and other terms and conditions of employment, and that
they are mandatory subjects of bargaining as set forth in com-
plaint/compliance specification pars. 7(A) and 7(B). (GC Exh. 1(k).)
by unilaterally reducing rest breaks for certain clerical employ-
ees from 15 to 10 minutes without notifying and bargaining
with the union. Id. at 360. However, the Board found that the
employer had consistently maintained and posted the rule limit-
ing the time of the breaks to 10 minutes. In addition, even
though there was some evidence of nonenforcement for em-
ployees who took 15 minute breaks (a fact relied on by the
judge), employees acknowledged posted signs stating that
breaks were 10 minutes and the employer, on several occasions,
attempted to enforce the 10 minute break rule. Id. The Board
therefore reversed the judge’s finding that there was an obliga-
tion to bargain and it did not agree with the determination that
the employer violated the Act by uniformly applying its estab-
lished general rest period of 10 minutes duration. Id. Thus, the
cases relied upon by Respondent differ from the facts of the
instant case where there was undisputedly a reduction in estab-
lished break times.
The evidence in this case establishes that the Respondent
unilaterally changed break times without affording the Union
advance notice and an opportunity to bargain over that change,
or the effects of that change. The Respondent did not inform
the Union of the reduction in break times prior to posting the
schedules implementing that change. In that connection, as
mentioned above, there is no merit to the Respondent’s conten-
tion that it informed employees in the March 3 meeting that
their breaks were being reduced to 10 minutes, and the witness
testimony offered to support that contention was neither credi-
ble nor plausible, and it was not supported by the record evi-
dence. However, I note that even if the Respondent had made
such an announcement to employees in that meeting, the Board
has found that informing employees of a change in working
conditions is insufficient to constitute notice to the Union.
Champion International Corp., 339 NLRB 672, 672 fn. 3
(2003) (where the Board found the fact that union officials
learned of the change in working conditions by the employer’s
distribution of a letter to employees, did not constitute evidence
that the employer provided the union with advance notice and
an opportunity to bargain).
It is well established that where the manner of the respond-
ent’s presentation of a change in terms and conditions of em-
ployment to the union precludes a meaningful opportunity for
the union to bargain, the change is a fait accompli and a failure
by the union to request bargaining will not constitute a waiver.
Aggregate Industries, 359 NLRB 1419, 1422 (2013); See e.g.,
Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023 (2001). I
find that the Respondent presented the Union with a fait ac-
compli when it failed to provide advance notice and an oppor-
tunity to bargain over the reduction in break times. The an-
nouncement of the change was made when the Respondent
posted the work schedules for employees, without special or
advance notice to the Union, and the union officers became
aware of that change the same way the other employees were
notified. See Ciba-Geigy Pharmaceuticals Division, 264 NLRB
1013, 1017 (1982) (where the Board, in determining whether an
employer’s announcement of a change constitutes a fait accom-
pli, held that the “most important factor” was that it was made
without advance notice to the union and the union officers be-
came aware “merely because they themselves were employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ees.”) The fact that the Respondent informed the Union of the
change in employee break times through its posted work sched-
ule precluded any meaningful bargaining and divested the Un-
ion of its obligation to demand bargaining or have inaction
construed as a waiver. Intersystems Design & Technology
Corp., 278 NLRB 759 (1986) (“It is . . . well established that a
union cannot be held to have waived bargaining over a change
that is presented as a fait accompli . . .”) citing Gulf States Mfg.
v. NLRB, 704 F.2d 1390 (5th Cir. 1983). I further find that the
Respondent had an obligation to bargain with the Union over
the effects of such a change in working conditions, which it
similarly failed to do.
As this case involves working hours and break times—core
subjects to which the statutory bargaining obligation applies
and a daily condition of employment that the collective-
bargaining representative is counted on to protect, the Re-
spondent’s unilateral change to that term and condition of em-
ployment conveyed to the employees that their bargaining rep-
resentative had no voice in the matter. See Kurdziel Iron, supra
at 156. It is well established that “the real harm in an employ-
er’s unilateral implementation of terms and conditions of em-
ployment is to the Union’s status as bargaining representative,
in effect undermining the Union in the eyes of the employees.”
Page Litho, Inc., 311 NLRB 881 (1993); See NLRB v C&C
Plywood Corp., 385 U.S. 421, 430 fn. 15 (1967). Unilateral
actions with respect to any mandatory subjects of bargaining,
such as lunch and break periods, are prohibited “for it is a cir-
cumvention of the duty to negotiate which frustrates the objec-
tive of Section 8(a)(5).” NLRB v. Katz, supra. at 743. In fact,
the Board has held that even the announcement or threat of a
unilateral reduction in lunch and break times violated Section
8(a)(5) and (1) of the Act. Kurdziel Iron of Wauseon, 327
NLRB 155 (1998). In Kurdziel, the employer announced a
reduction in lunch and break times, but never implemented
them. In that case, the Board held that:
Even if the announced reduction did not finally result in the
actual curtailment of employees’ breaks, the damage to the
bargaining relationship was accomplished. This occurred
‘simply by the message to employees that the Respondent
was taking it on itself’ to set an important term and condition
of employment, thereby suggesting the irrelevance of the em-
ployees’ collective-bargaining representative. Id. at 155, citing
ABC Automotive Products, Corp., 307 NLRB 248, 250
(1992).
In addition, such unilateral change may also be evidence of
overall bad-faith bargaining, especially where an employer
announces proposed changes to employees before notifying the
union. Food Mart, 158 NLRB 1294 (1966), enfd. NLRB v.
Agawam food Market, Inc., 386 F.2d 192 (1st Cir. 1967).
Accordingly, the Respondent’s failure to bargain or provide
the Union with advance notice and an opportunity to bargain
over the reduction in employee break times from 15 to 10
minutes from March 25, 2017, to September 26, 2017, and its
failure to bargain over the effects of that unilateral change,
constitute violations of Section 8(a)(5) and (1) of the Act.
D. Deferral to the Grievance Settlement is not Appropriate
While the Respondent asserted as an affirmative defense in
its answers to the complaint and the amended com-
plaint/compliance specification, that this matter “should be
deferred to the parties’ grievance/arbitration process,” it did not
set forth any such argument at trial or in its posthearing brief.
Even if the Respondent would have set forth such an argument,
I find that deferral to the parties’ grievance settlement is not
appropriate.
At the time the complaint issued in this matter the grievance
was not resolved, and the Respondent summarily denied the
grievance, asserting its management rights and that the griev-
ance was allegedly untimely filed. Prior to the instant hearing,
the grievance was processed to step 3, and was resolved by the
Union’s national business agent, William Wright, and the Re-
spondent’s labor relations specialist, Eric Conklin, without
consultation with the officials of the Charging Party or any of
the employees affected by the Respondent’s actions. (GC Exh.
6.) As mentioned above, on September 26, 2017, the parties
reached a step 3 settlement for the grievance in which they
mutually agreed that breaks would immediately be restored to
15 minutes. (Tr. 37–38; 51; GC Exh. 6.) It is undisputed that
the grievance settlement provided only that the 15 minute
breaks would be restored, without any provision for notifying
employees or for making them whole for the additional time
worked without pay due to the Respondent’s unlawful unilat-
eral change in working conditions. The settlement was entered
into after approximately 6 months of the unit employees work-
ing additional time without compensation and contrary to the
past practice, resulting in backpay which the parties agreed
totaled $11,585.89. (Jt. Exh. 1.)
In Alpha Beta, 273 NLRB 1546 (1985), review denied 808
F.2d 1342, 1345–1346 (9th Cir. 1987), the Board held that in
deciding whether to defer to a settlement agreement reached
between an employer and union pursuant to their contractual
grievance/arbitration machinery, it applies the principles of
Spielberg Mfg. Co., 112 NRLB 1080, 1082 (1995), and Olin
Corp., 268 NLRB 573, 573–575 (1984). In Alpha Beta, the
Board examined whether the settlement proceedings were fair
and regular; whether all parties agreed to be bound by the set-
tlement; whether the parties considered the facts underlying the
unfair labor practices; and whether the award was repugnant to
the Act.
In considering the first Alpha Beta factor, whether the set-
tlement proceedings were fair and regular, it appears they were
fair and regular, but the grievance proceedings were limited to
steps 1 and 2 of the procedure, and at no time was the substan-
tive issue considered beyond the alleged untimeliness of the
grievance. In addition, the settlement was entered into after
approximately 6 months of the employees working additional
time for no pay which amounted to over $11,000. In consider-
ing the second Alpha Beta factor, whether all parties agreed to
be bound by the settlement, the record shows the parties had
agreed to be bound, however, the evidence also shows that it
was resolved by the Union’s national business agent, without
consultation with the officials of the Local Union or any of the
employees affected by the Respondent’s actions. (GC Exh. 6.)
In considering the third Alpha Beta factor, whether the par-
POSTAL SERVICE 9
ties considered the facts underlying the unfair labor practices,
the evidence fails to show that the parties considered such facts.
The evidence establishes that the grievance was settled on the
regional level, without the involvement of the Local Union,
which represents the employees involved in this case. (Tr. 51–
52.) The record is devoid of any evidence that when they set-
tled the grievance, the business agent for the national Union
and the Respondent’s labor relations specialist considered the
fact from the underlying unfair labor practice charge that the
employees had worked additional time without compensation
and were owed $11,585.89. I find this factor does not weigh in
favor of deferral.
In considering the fourth and final Alpha Beta factor, wheth-
er the award was repugnant to the Act, I find that the results of
deferring to the settlement that did not include any notice to the
employees that the Respondent’s unlawful unilateral activity
infringed on their Section 7 rights under that Act, and did not
provide for compensation for the damages caused by the unlaw-
ful activity, would be repugnant to purposes and policies of the
Act. The evidence establishes that the Respondent unlawfully
and unilaterally imposed the reduced breaks. As set forth in the
“Remedy and Compliance Specification” section below, resto-
ration of the status quo ante includes not only rescission of its
unlawful action and any direct consequences from its unlawful
conduct, but also a make-whole remedy to compensate employ-
ees for the significant pecuniary losses they suffered as a result
of the Respondent’s unfair labor practices. Deferring to a set-
tlement that fails to provide back pay to make employees whole
for the losses they suffered as a result of the Respondent’s un-
lawful action is repugnant to the Act. See Dunham-Bush, Inc.,
264 NLRB 1347, 1349 (1982) (the Board did not defer to an
arbitration award which failed to provide back pay for the un-
lawful discharge); See also, Cessna Aircraft Co., 220 NLRB
873, 875 (1975) (Board found arbitration award fashioned a
remedy that was repugnant to the purposes and policies of the
Act as it departed from “longstanding Board principles” by
ordering reinstatement without providing that the employee be
made whole for the period of time prior to his return to work).
Moreover, the settlement in the instant case fails to provide for
remedial notice posting to notify employees of their rights un-
der the Act, nor does it reflect that the Respondent will cease
and desist from the commission of such unfair labor practices
and that it will affirmatively remedy the unfair labor practices it
has committed.
Under the terms of the grievance settlement, there is no evi-
dence that employees are even aware of the grievance settle-
ment, or that there is any accountability for the Respondent’s
unlawful unilateral change to working conditions. Requiring
Respondent’s rescission of its unlawful change without any
accountability for its unlawful conduct, notice to employees of
their rights under the Act, or compensation for employees to
make them whole for the unlawful actions taken against them,
does not preserve or protect their rights under the Act. The
grievance settlement in this case is thus repugnant to the pur-
poses and policies of the Act, and this Alpha Beta factors
weighs against deferral. In addition, I note that there would be
no Notice posting, notifying employees of their rights under the
Act and reflecting that the Respondent will cease and desist
from committing unfair labor practice, and affirmatively reme-
dy the unfair labor practices it has been found to have commit-
ted. This fact further establishes that the final factor does not
weigh in favor of deferral.
In evaluating the Alpha Beta factors, I find that two factors
weigh against deferral, and most significantly, that deferral to
the settlement would be repugnant to the purposes and policies
of the Act. Thus, under an Alpha Beta analysis, deferral is not
an appropriate substitute for the Board’s well-established reme-
dial processes.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent by virtue
of Section 1209 of the Postal Reorganization Act (PRA).
2. The American Postal Workers Union, Local 170 is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all material times, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining representa-
tive of the follow unit of employees:
All maintenance employees, motor vehicle employees, postal
clerks, the special delivery messengers, mail equipment shops
employees, material distribution centers employees, and oper-
ating services and facilities services employees; and excluding
managerial and supervisory personnel, professional employ-
ees, employees engaged in personnel work in other than a
purely non-confidential clerical capacity, security guards as
defined in Public Law 91-375, 1201(2), all Postal Inspection
Service employees, employees in the supplemental work
forces as defined in Article 7 of the Collective-Bargaining
Agreement, rural letter carriers, mail handlers, and letter carri-
ers.
4. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act by unilaterally
reducing paid break periods from 15 minutes to 10 minutes
from about March 25, 2017, to September 26, 2017, for unit
employees employed at its Motor Vehicle Maintenance Facility
in Toledo, Ohio, without providing prior notice to the Union
and without affording the Union an opportunity to bargain over
that change, and the effects of such a change.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The remedy in this case includes an order to cease and
desist from that action and the affirmative action of a make-
whole provision to those employees affected by the Respond-
ent’s unlawful unilateral action from March 25, 2017, through
September 26, 2017. As explained more fully in the “Remedy
and Compliance Specification” section below, the names of the
employees and the respective amounts of backpay owed are set
forth by stipulation of the parties in Joint Exhibit 1 (incorpo-
rated into the Compliance Specification by motion at the trial),
which totals $11,585.89, plus interest.
REMEDY AND COMPLIANCE SPECIFICATION
It is well established that the objective in compliance pro-
ceedings is “to restore, to the extent feasible, the status quo ante
by restoring the circumstances that would have existed had
there been no unfair labor practices.” Alaska Pulp Corp., 326
NLRB 522, 523 (1998), citing Phelps-Dodge Corp. v. NLRB,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
313 NLRB 177, 194 (1941). When remedying an unlawful
unilateral change in terms and conditions of employment, the
Board typically orders a respondent to cease and desist from
making unilateral changes and to rescind the unlawful change,
thus restoring the status quo ante. See, e.g., Bohemian Club,
351 NLRB 1065, 1068 (2007); Benteler Industries, 322 NLRB
715, 721 (1996), enfd. mem. 149 F.3d 1184 (6th Cir. 1998).
Having found that the Respondent has violated the Act and
thereby engaged in certain unfair labor practices, I shall rec-
ommend that it be ordered to cease and desist from such actions
and that it be ordered to take certain affirmative action designed
to effectuate the policies of the Act, such as restoring the break
times to 15 minutes duration. However, with regard to restor-
ing the status quo ante, I note that in this case the record estab-
lishes the Respondent restored the employees’ breaks to 15
minutes on September 27, 2017, pursuant to a grievance settle-
ment. Thus, I recognize that the Respondent has already taken
this affirmative action, and that the violation of the Act oc-
curred for a closed period of time, from March 25, 2017, to
September 26, 2017.
In addition, with regard to affirmative actions required to
remedy these types of cases, “the Board’s standard remedy in
8(a)(5) cases involving unilateral changes resulting in losses to
employees is to make whole any employee affected by the
change.” Grand Rapids Press, 325 NLRB 915, 916 (1998),
enfd. mem. 208 F.3d 214 (6th Cir. 2000); see Trim Corp. of
America, 349 NLR 608–609 (2007); see also Rangaire Co., 309
NLRB 1043, 1043 fn. 6 (1992). On that issue, the Respondent
argues that if it is found to have violated the Act by unilaterally
reducing break times to 10 minutes, the employees affected
should not be entitled to backpay because the breaks provided
were “paid breaks,” and employees were paid for a full 8 hours
of work regardless of whether they worked on their break time.
In addition, it asserts that backpay is not justified because the
Union did not request backpay as a remedy in its grievance and
no backpay was provided in the parties’ grievance settlement.
The General Counsel contends that the Respondent should be
ordered to make employees whole for their losses, which in-
cludes backpay, because they were required to work additional
time per day as a result of their shortened break times.
It is well established that the finding of an unfair labor prac-
tice is presumptive proof that some backpay is owed. Lorge
School, 355 NLRB 558, 560 (2010); Laborers Local 158 (Wor-
thy Bros.), 301 NLRB 35, 36 (1991), enfd. 952 F.2d 1393 (3rd
Cir. 1991). The General Counsel’s burden in a backpay pro-
ceeding is limited to showing the gross backpay due to each
discriminatee. Once the General Counsel meets its burden of
showing the gross backpay owed, the burden shifts to the re-
spondent to establish facts that negate or mitigate its liability.
St. George Warehouse, 351 NLRB 961, 963 (2007); Parts De-
pot, Inc., 348 NLRB 152, 153 (2006), enfd. 260 Fed. Appx. 607
(4th Cir. 2008).
After considering the positions of the parties on this issue, I
find the Respondent’s arguments lack merit. Employees were
paid for 8 hours of work, which included two 15 minute time
periods when they were compensated, but not required to work.
As a result of reducing the 15 minute breaks to 10 minutes, the
employees were required to perform work for an additional 5
minutes per break, for a total of 10 minutes per shift. The fact
that some employees may have voluntarily work on their paid
breaks without additional compensation does not mean that
employees who were forced to work when they should not have
been working, should not be compensated for working that
extra time. Prior to March 2017, when their breaks were 15
minutes, the employees had 7 hours and 30 minutes of produc-
tivity or work time for which they were compensated. (Tr. 55.)
However, when the breaks were reduced to 10 minutes, the
employees had 7 hours and 40 minutes of productivity or work
time, and it is undisputed that those employees did not receive
compensation for that extra 10 minutes per day of productivity
that they worked between March 25 and September 26, 2017.
(Tr. 55.) Respondent Manager Dale Patterson admitted at trial
that the reduction in break times resulted in employees having
to provide the Respondent an extra 10 minutes of service per
shift. (Tr. 110–113.) It stands to reason that requiring employ-
ees to work for an additional 10 minutes per day when they
should not have been working is a damage that should be com-
pensated and remedied to make them whole for their losses. In
fact, the Board has “traditionally ordered that employees be
made whole for any benefits unilaterally discontinued by the
Employer in violation of Section 8(a)(5) of the Act,” and that
includes directing “a make-whole remedy for any loss of pay
employees may have suffered as a result of [a] change in [a]
lunchbreak practice and length of workday.” Atlas Tack Corpo-
ration, 226 NLRB 222 (1976).
I find the Respondent’s argument that backpay should not be
awarded because it was not alleged in the grievance or provided
as part of the grievance settlement, is misplaced and lacks mer-
it. The Respondent failed to cite any case law which supports
its assertion that backpay should not be awarded for loses
caused by an unfair labor practice, just because such a remedy
was not provided for in the settlement of a grievance. Such an
assertion is simply nonsensical and without support. The Re-
spondent also argues that the “charge never sought backpay as
a remedy” and therefore “[t]he claim for backpay is untimely
and should be barred under Section 10(b).” (R. Br. p. 9.) The
Respondent did not assert its 10(b) argument as an affirmative
defense in its answers to either the complaint or the amended
complaint/compliance specification, and it did not assert such a
defense at trial. Instead, it first raised the 10(b) argument in its
posthearing brief. (R. Br. pp. 8–9.) As the Respondent failed to
assert its 10(b) defense until its post-hearing brief, the argument
is rejected as untimely. Alternative Energy Applications, Inc.,
361 NLRB No. 139 (2014); See, e.g., Paul Mueller Co., 337
NLRB 764, 764–765 (2002) (respondent waived its 10(b) de-
fense by failing to assert it until its posthearing brief to the
administrative law judge).13

13 Even if the Respondent’s 10(b) argument was timely, it lacks
merit and I would dismiss it on the merits as neither the Board’s Rules
and Regulations, Series 8, as amended, Sec. 102.15, nor its well-
established practice and procedure, requires that the proposed remedy
be alleged in the charge, or even in the complaint. “It is for the Board
to fashion the remedy which it deems appropriate to undo the effects of
the unfair labor practices found to have been committed.” Local 964,
Carpenters, 184 NLRB 625, 625–626 (1970); enfd. NLRB v. Local 964,
United Brotherhood of Carpenters, 447 F.2d 643 (1971).
POSTAL SERVICE 11
I find that the General Counsel has met its burden establish-
ing that gross backpay is due each employee affected by the
unfair labor practice committed. As a result of the Respond-
ent’s unlawful action of unilaterally reducing paid break peri-
ods from 15 to 10 minutes from March 25, 2017, to September
26, 2017, the unit employees set forth below are entitled to
backpay for the wages they earned while working when they
should not have been working. I further find that the Respond-
ent has failed to establish any facts that would negate or miti-
gate its liability. St. George Warehouse, supra; Parts Depot,
Inc., supra.
Based on my finding that backpay is due the affected em-
ployees in this matter, the Respondent and General Counsel
stipulated that Joint. Exhibit 1 reflects the damages owed to
employees as a result of the decrease in break times. (Tr. 11.)
Each employee took varying breaks and they had different rates
of pay, and the computation is based on the number of breaks
each individual earned on their shift and overtime. The number
of breaks were multiplied by the rate of pay and divided by 60
to convert the figure into hours. (Tr. 11.) Specifically, the
backpay is calculated based on the unit employee’s hourly rate
times the number of break periods reduced from March 25,
2017, through September 26, 2017, times five (5) minutes or
.08333 hour.14 In addition, the parties stipulated that the figures
in Joint. Exhibit 1 replaced the calculations set forth in para-
graphs 12 and 13 of the complaint/compliance specification.15
It is thus recommended that the Respondent be ordered to
pay the affected employees backpay as set forth below. In that
connection, the parties stipulated that the backpay amounts
owed to Unit employees as a result of Respondent’s unlawful
conduct are as follows:
EMPLOYEE 1ST Q
2017
2ND Q
2017
3RD Q.
2017
TOTAL
Joseph Ba-
sile
$ 26.92 $ 269.18 $ 276.83 $572.93
Tim Bennett $ 18.35 $ 305.85 $ 239.03 $ 563.24
Ronald
Cowell
$ 15.40 $ 268.34 $ 275.21 $ 558.94
Michael
Fincher
$ 21.54 $ 256.14 $ 266.13 $ 543.81
Dawn Ham-
ilton
$ 22.61 $ 269.04 $ 18.17 $ 309.83
Brandon
Holly
$ 31.18 $ 423.18 $ 469.83 $ 924.18
Anthony
Horvath
$ 30.39 $ 478.67 $ 356.20 $ 865.26
J.R. Jackson $ 24.47 $ 269.18 $ 251.21 $ 544.86
Mark Mabry $ 36.87 $ 458.18 $ 388.53 $ 883.57
Ryan Perry $ 17.02 $ 223.09 $ 264.69 $ 504.80
Greg Piskula $ 28.75 $ 395.25 $ 388.73 $ 812.73
Joel Pitzen $ 18.91 $ 217.42 $ 234.90 $ 471.23

14 The describing the stipulation, the parties indicated that the hourly
rate for employees changed on September 2, 2017, when a raise in pay
was made effective, and even though the employees were under previ-
ous rates of pay, for convenience that parties put them into the third
quarter figures for 2017. (Tr. 12.)
15 The parties stipulated that the figures are set forth by quarter of
work for ease in computing interest if a violation is found. (Tr. 13.)
Stephen
Recknagel
$ 36.52 $ 463.40 $ 340.64 $ 840.57
Tom Robert-
son
$ - $ - $ 168.59 $ 168.59
Robin
Sanchez
$ - $ - $ 62.66 $ 62.66
Eric Schnei-
der
$ 19.57 $ 284.69 $ 302.81 $ 607.08
Edwin Smith $ 12.66 $ 384.96 $ 295.84 $ 693.47
Rodriguez
Strother
$ - $ - $ 154.62 $ 154.62
Eric
Weinreich
$ 23.92 $ 166.14 $ 334.93 $ 624.99
Shelly Wit-
tenauer
$ 42.66 $ 445.26 $ 390.62 $ 878.54
TOTAL $11,585.89
The make whole remedy in this case shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971). That remedy shall
include interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Additional-
ly, the Respondent shall be ordered to compensate affected
employees for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards. In addition, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of
backpay is fixed by Board order, submit and file with the Re-
gional Director for Region 8 a report allocating the backpay
awards to the appropriate calendar years for said employees.
The Regional Director will then assume responsibility for
transmission of the reports to the Social Security Administra-
tion at the appropriate time and in the appropriate manner.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended16
ORDER
The Respondent, United States Postal Service, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
American Postal Workers Union, Local 170, as the exclusive
representative of its unit employees by unilaterally changing or
reducing paid employee break periods from 15 to 10 minutes
without bargaining or providing the Union with notice and an
opportunity to bargain over that change or the effects of that
change.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the unlawful unilateral change found in this de-
cision and restore the status quo ante which it appears the Re-

16 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
spondent has already accomplished when it restored the 15
minute breaks for the employees on September 26, 2017.
(b) Make whole bargaining unit employees in the manner
set forth in the “Remedy and the Compliance Specification”
section herein, for any loss of pay they may have suffered as a
result of the unilateral reduction of paid break times from 15
minutes to 10 minutes from March 25, 2017, to September 26,
2017, in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and it shall
include interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Additional-
ly, the Respondent shall compensate affected employees for the
adverse tax consequences, if any, of receiving lump-sum back-
pay awards. In addition, in accordance with AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall,
within 21 days of the date the amount of backpay is fixed by
Board order, submit and file with the Regional Director for
Region 8 a report allocating the backpay awards to the appro-
priate calendar years for said employees. The Regional Direc-
tor will then assume responsibility for transmission of the re-
ports to the Social Security Administration at the appropriate
time and in the appropriate manner.
(c) Within 14 days after service by the Region, post at its fa-
cility in Toledo, Ohio, copies of the attached notice marked
“Appendix.”17 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 25, 2017.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
SUPPLEMENTAL ORDER
IT IS HEREBY ORDERED that Respondent, the United States
Postal Service, its officers, agents, successors, and assigns,
shall pay the amounts of backpay set forth in the compliance
specification and Joint Exhibit 1, which total $11,585.89 to the
following employees:

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EMPLOYEE 1ST Q
2017
2ND Q
2017
3RD Q.
2017
TOTAL
Joseph Ba-
sile
$ 26.92 $ 269.18 $ 276.83 $ 572.93
Tim Bennett $ 18.35 $ 305.85 $ 239.03 $ 563.24
Ronald
Cowell
$ 15.40 $ 268.34 $ 275.21 $ 558.94
Michael
Fincher
$ 21.54 $ 256.14 $ 266.13 $ 543.81
Dawn Ham-
ilton
$ 22.61 $ 269.04 $ 18.17 $ 309.83
Brandon
Holly
$ 31.18 $ 423.18 $ 469.83 $ 924.18
Anthony
Horvath
$ 30.39 $ 478.67 $ 356.20 $ 865.26
J.R. Jackson $ 24.47 $ 269.18 $ 251.21 $ 544.86
Mark Mabry $ 36.87 $ 458.18 $ 388.53 $ 883.57
Ryan Perry $ 17.02 $ 223.09 $ 264.69 $ 504.80
Greg Piskula $ 28.75 $ 395.25 $ 388.73 $ 812.73
Joel Pitzen $ 18.91 $ 217.42 $ 234.90 $ 471.23
Stephen
Recknagel
$ 36.52 $ 463.40 $ 340.64 $ 840.57
Tom Robert-
son
$ - $ - $ 168.59 $ 168.59
Robin
Sanchez
$ - $ - $ 62.66 $ 62.66
Eric Schnei-
der
$ 19.57 $ 284.69 $ 302.81 $ 607.08
Edwin Smith $ 12.66 $ 384.96 $ 295.84 $ 693.47
Rodriguez
Strother
$ - $ - $ 154.62 $ 154.62
Eric
Weinreich
$ 23.92 $ 166.14 $ 334.93 $ 624.99
Shelly Wit-
tenauer
$ 42.66 $ 445.26 $ 390.62 $ 878.54
TOTAL $11,585.89
As mentioned above, the make whole remedy shall be in ac-
cordance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), and it shall include interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). The Respondent also
shall compensate the affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards.
In addition, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), the Respondent shall, within 21
days of the date the amount of backpay is fixed by Board order,
submit and file with the Regional Director for Region 8 a report
allocating the backpay awards to the appropriate calendar years
for said employees. The Regional Director will then assume
responsibility for transmission of the reports to the Social Secu-
rity Administration at the appropriate time and in the appropri-
ate manner.
Dated, Washington, D.C. May 25, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
POSTAL SERVICE 13
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with the Ameri-
can Postal Workers Union, Local 170 (the Union) by making
unilateral changes to terms and conditions of employment, such
as reducing employee breaks from 15 to 10 minutes, without
bargaining or affording the Union advance notice and an oppor-
tunity to bargain over that change or the effects of that change.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL cease and desist from making unilateral changes to
paid employee breaks without bargaining or providing the Un-
ion an opportunity to bargain over that change or the effects of
that change, and we have rescinded the unlawful unilateral
change and restored the status quo ante when we restored the
15 minute breaks on September 27, 2017.
WE WILL make whole bargaining unit employees for any loss
of pay they may have suffered as a result of the unilateral re-
duction in paid break times from 15 to 10 minutes from March
25, 2017, to September 26, 2017, with interest.
UNITED STATES POSTAL SERVICE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08-CA-197451 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.