U.S. Postal Service

National Labor Relations Board - Board Decisions

Nov 12, 1999

330 N.L.R.B. 6 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
United States Postal Service and Sharon Jacqueline
Lee. Case 16–CA–18520(P)
November 12, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
The issue in this case1 is whether the judge erred in
dismissing the complaint alleging that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing to
hire Sharon Jacqueline Lee, a former employee, because
she filed a grievance against the Respondent during her
initial employment. The Board has considered the deci-
sion and the record in light of the exceptions and brief
and has decided to affirm the judge’s rulings, findings,
and conclusions and to adopt the recommended Order.
We agree with the judge that the General Counsel has
failed to prove the allegation that the Respondent unlaw-
fully refused to hire Sharon Lee in 1997 for a position at
either the Groves or Port Neches, Texas post offices be-
cause she had filed a grievance over the denial of her
request for a uniform allowance during a prior period of
employment at Port Neches in 1994. Applying a Wright
Line2 analysis to the facts, we affirm the judge’s finding
that the 1994 grievance filing was not a motivating factor
in the decisions of Groves Postmaster Levina Elmoore
and Port Neches Postmaster William Robertson not to
choose Lee from the five candidates for the two letter
carrier positions. We further agree with the judge’s al-
ternative finding that, even assuming that Lee’s griev-
ance filing was a motivating factor in the decision not to
hire her, the Respondent proved that it would not have
hired Lee because of her prior poor work performance.
As noted, an issue in this case is whether Robertson
failed to hire Lee on February 5, 1997, for a position at
Port Neches, because of a grievance that Lee had filed in
1994. The General Counsel relies heavily on Lee’s tes-
timony. Lee testified that, on February 17, she called
Robertson to ask, “[W]hy he didn’t choose me, because I
was a good worker and got along with everybody and
had experience and never had any trouble.” Robertson
responded: “[Y]ou never had any trouble . . . . Well what
about that grievance you filed against me . . . . The griev-
ance about your uniform allowance.”
There is no credibility conflict on this matter. As the
judge correctly pointed out, Robertson was simply re-
sponding on February 17 to Lee’s comment that she
“never had any trouble.” Assuming arguendo that the
“trouble” was the act of filing the grievance, this does
not establish that the decision of February 5 was moti-
vated by that “trouble.” The inescapable fact is that
Robertson testified that he decided on February 5 that he
would not hire Lee because she “wasn’t worth a shit.”
Robertson further testified that this opinion was based on
her work and not on the grievance filing. In finding no
violation, the judge obviously credited Robertson.

1 On April 10, 1998, Administrative Law Judge Jerry M. Hermele is-
sued the attached decision. The General Counsel filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
The judge did not ignore Robertson’s remark of Feb-
ruary 17. Even if Robertson considered the grievance
activity to be “trouble,” that comment, made almost 2
weeks after the decision, is not inconsistent with Robert-
son’s merit-based mental processes on the day of the
decision.
In sum, the General Counsel has not established his
case that Robertson’s decision was based on Lee’s griev-
ance activity.
A second issue in this case is whether Elmoore unlaw-
fully failed to hire Lee for a position in Groves. Immedi-
ately after Robertson made his selection for the Port
Neches position, Elmoore made her selection. She did
not choose Lee either. Both Robertson and Elmoore
deny that Lee’s grievance activity was discussed at the
time. There is no evidence that it was discussed.
On February 19, Lee called Elmoore to inquire about
the Groves post office position. According to Lee, El-
moore said she asked Robertson if he would hire Lee and
Robertson said “no.” Lee then said: “I know the reason
why he didn’t hire me and it was because of my—of
the—grievance I filed with the union over my uniform
allowance.” Lee said that Elmoore replied, “Well, when
you’re fixing to be terminated, you don’t get the uniform
allowance.”
In sum, Lee made an allegation that Robertson failed
to hire her because of the grievance activity. The bare
accusation that Robertson acted unlawfully does not
prove that he did so, and it surely does not prove that
Elmoore acted unlawfully. To the contrary, Elmoore
made her decision on February 5, and there was no refer-
ence to Lee’s grievance activity at that time. Finally,
Elmoore’s response to Lee on February 19 was addressed
solely to the merits of the grievance.
Thus, the General Counsel failed to establish a prima
facie case as to the two decisions not to hire Lee. Fur-
ther, as shown below, even if the General Counsel did
establish that case, Respondent rebutted it.
Lee first worked as a transitional employee with Re-
spondent from 1993 to 1994 at its Groves post office.
James Tyler was her supervisor at this facility. In the
only written evaluation of Lee’s work, Tyler rated her
overall performance as “good” after her first 30 days on
the job. According to ratings checked by Tyler on the
evaluation form, Tyler’s work met, but did not exceed,
expectations. Tyler testified, however, that he thereafter
came to view Lee’s casing skills as deficient. “Casing”
is the process of sorting mail prior to street delivery. Lee
330 NLRB No. 3
POSTAL SERVICE 7
spent too much time casing and was not able to complete
her delivery in a timely fashion.
After Lee’s term expired at Groves, she took the tran-
sitional employee position at Port Neches under Post-
master Robertson. Both Robertson and Joyce Porter, a
supervisor familiar with Lee’s work, testified that Lee
spent too much time in the office casing mail prior to
delivery. Robertson also said that Lee made some mis-
deliveries. He claimed to have discussed Lee’s perform-
ance with her on two occasions.
Lee denied having any discussions about her perform-
ance with Robertson. But, even if Robertson did not
have these conversations, it is clear that Lee was an em-
ployee with performance problems. Indeed, she did not
deny having general work problems. To the contrary,
she admitted that Tyler criticized her need for casing
assistance. Subsequent to this incident, Tyler accused
Lee of insubordinate conduct and warned that he would
write her up if she ever did it again. Lee did not deny the
warning. She simply could not recall what she had said
that drew this reaction from Tyler.
In sum, the evidence clearly shows that Lee’s casing
skills were deficient. Even Lee’s testimony provides
corroboration on this point. Furthermore, it is undisputed
that Supervisor Tyler and Robertson expressed negative
views of Lee’s ability when they spoke to Elmoore dur-
ing the 1997 hiring process. They both concluded they
would not hire Lee. Under these circumstances, we think
that this evidence supports the judge’s conclusion that
Lee was a poor worker whom the Respondent would not
have hired even in the absence of her protected grievance
filing.
Our dissenting colleague finds significance in the lack
of documentation substantiating management testimony
about Lee’s shortcomings. The record does not support
the claim that the Respondent had a consistent past prac-
tice of documenting employee problems. Robertson was
the only witness who testified on this point. He testified
that, as a general matter, written disciplinary notices
were placed in employee files “whenever I felt it neces-
sary . . . [and] in terms of casing and stuff like that [Lee’s
job], what I usually do is leave it to the supervisor.”
There is no evidence that Robertson or his supervisors
felt it necessary to always keep written records of an em-
ployee’s work inadequacies.
Finally, we attach no significance to Lee’s brief and
not fully developed testimony that she trained three new
employees at Port Neches. Her testimony sheds little
light on the extent of such training. Although the dissent
and General Counsel urge that Respondent would not
logically use a poorly performing worker to train other
employees, we find no logical inconsistency on the re-
cord presented. There is no claim that Lee lacked the
knowledge about how to case or about any other aspect
of the letter carrier’s job. That she could communicate
this information about the job to others does not rebut the
substantial evidence that she herself did not in fact per-
form the job well. There is a meaningful difference be-
tween knowing how to case mail for a delivery route and
actually doing it quickly and efficiently.
In sum, we find the judge’s findings and conclusions
well supported by a preponderance of the entire record.
There are no outstanding evidentiary issues whose reso-
lution would warrant a different result. We shall there-
fore adopt his recommendation to dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER FOX, dissenting.
I dissent from my colleagues’ adoption of the judge’s
dismissal of the complaint in this case because I would
find that the judge failed to make credibility findings
crucial to two dispositive issues: (1) whether the General
Counsel established a prima facie case, i.e., showed that
animus against Charging Party Lee’s grievance filing
was a motivating factor in the Respondent’s failure, in
1997, to hire her into a transitional employee position;
and (2) whether the Respondent established that it would
not have hired her into the position even in the absence
of her protected grievance filing. I would remand for the
requisite credibility findings.1
Lee was rejected for a transitional employee position
at the Port Neches Post Office by Postmaster William
Robertson and a similar position at the Groves Post Of-
fice by Postmaster Levina Elmoore. It is undisputed that,
when asked by Lee why he had failed to hire her, Robert-
son cited her previous grievance filing “against me” as an
example of “trouble” she had caused. The judge found
that Robertson told Elmoore, before she too rejected Lee,
that Lee “wasn’t worth a shit” but that Robertson had
said nothing about Lee’s grievance filing. The judge
failed to acknowledge testimony by Lee that, before the
hiring decision, Elmoore had commented on the sub-
stance of Lee’s grievance, providing the basis for a rea-
sonable inference that Elmoore had known of the griev-
ance. I would find that Lee’s testimony concerning Rob-
ertson’s statement supports a finding that animus played
a part in his decision, and I would remand for a
credibility resolution regarding Lee’s testimony about
Elmoore.2

1 In view of the judge’s failure to acknowledge the conflicts in the
evidence detailed below, I do not agree with my colleagues that the
judge had in fact discredited the testimony on which the General Coun-
sel relies.
2 Although the judge stated that “Elmoore knew nothing about Lee’s
1994 grievance at the time of the February 1997 interview,” it is not
clear that the judge considered and discredited Lee’s testimony about
Elmoore’s previous discussion with Lee about uniform allowances, the
subject of her earlier grievance. I would also note that, even if Elmoore
did not know of the grievance, if she relied on Robertson’s assessment
of Lee and that assessment itself was discriminatorily motivated, it
would be appropriate to find that Elmoore’s decision was also discrimi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
In finding that the Respondent also established, as an
affirmative defense under Wright Line,3 that Lee would,
in any event, have been rejected for hire because of her
poor performance in “casing” mail during previous tem-
porary assignments, the judge also ignored certain evi-
dence and failed to resolve conflicts in testimony about
matters that could affect this conclusion. The judge re-
lied on testimony by two supervisors (Tyler and Porter)
and Postmaster Robertson that Lee had been slow in cas-
ing mail. If, in fact, Lee’s performance had been sig-
nificantly deficient in that respect, however, one would
expect that the deficiencies would have been recorded in
Lee’s personnel record or at least mentioned to her at the
time. The judge ignored testimony that, under the Re-
spondent’s practice, if a supervisor found fault with an
employee’s work performance, the deficiency would be
described in writing and placed in the employee’s per-
sonnel file. No documentary evidence of this kind was
submitted by the Respondent.4 Although the judge men-
tioned testimony by Robertson that when Lee had
worked for him in 1994, he had twice talked to her about
her slow casing, the judge also noted Lee’s testimony
that Robertson had never talked to her about it. The
judge failed to make an express credibility finding on
this point.
I would also ask the judge to consider, on remand, the
significance of uncontradicted testimony that Lee had
been called on to train new employees in their duties,
including the casing of mail, and that the Respondent had
continued to use Lee’s services after her casing deficien-
cies supposedly became apparent, but before her filing of
the grievance that angered Robertson.
In sum, in my view, the above-mentioned matters need
to be resolved by the judge before a decision can be
made whether to find a violation in this case. I therefore
dissent from the dismissal of the complaint.

Robert G. Levy, II, Esq., for the General Counsel.
Philip W. Eglsaer, Esq., of Memphis, Tennessee, for the Re-
spondent.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. The sole is-
sue in this simple case is whether Sharon Jacqueline Lee, a
former temporary postal service employee from 1993 to 1995,
was passed over for employment for another temporary posi-

natory. JMC Transport v. NLRB, 776 F.2d, 612, 619 (6th Cir. 1985),
and cases there cited.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
4 I do not agree with my colleagues that Robertson’s testimony that
“in terms of casing and stuff like that,” he would “leave it to the super-
visor” signified that such a supervisor would not follow the employer’s
practice, described by Robertson, of describing work deficiencies in
writing and placing them in the employee’s personnel file.
tion in 1997 because she filed a grievance during her initial
work stint, thus violating Section 8(a)(1) and (3) of the National
Labor Relations Act. Shortly after her unsuccessful attempt to
reobtain employment, Lee filed a charge on February 26, 1997,
and the General Counsel issued its complaint on September 17,
1997. The Respondent, the United States Postal Service, filed
its answer on October 1, 1997, denying that Lee’s grievance
“played any part” in the decision not to hire her in 1997.
The trial in this case was held on January 27, 1998, in Port
Arthur, Texas, during which the General Counsel and the Re-
spondent each called three witnesses. Then, briefs were filed
by the General Counsel and the Respondent on March 2 and 16,
1998, respectively.
II. FINDINGS OF FACT
The United States Postal Service uses transitional employ-
ees, who work for up to 359 days at a time, because they cost
less than a permanent employee (Tr. 15–17). Sharon Lee was
hired as a transitional employee on May 15, 1993, to work at
the Groves, Texas Post Office as a letter carrier. After 30 days
on the job, her supervisor, James Tyler, rated her overall per-
formance as “good” (G.C. Exh. 2). But as her tenure contin-
ued, Tyler found her “casing” skills—the sorting of the mail in
preparation for street delivery—as deficient (Tr. 89–90). Lee’s
tenure at the Groves Post Office ended in mid-1994 (Tr. 39). A
few days later, Lee obtained another transitional position at the
nearby Port Neches, Texas Post Office. There, Lee was as-
signed as a letter carrier on Auxiliary Route 5111, which in-
volved about half the work of that facility’s other dozen routes
(Tr. 23–24). The Port Neches Postmaster, William Robertson,
also found Lee’s casing ability to be slow and, to that end, he
talked with her twice in late 1994. But her performance did not
improve (Tr. 25–27). According to Lee, however, Robertson
never talked to her about her job performance (Tr. 44).
Transitional employees are paid a $57 uniform allowance af-
ter every 90 days on the job. This is an important job benefit
because letter carriers need changes of uniform during a work-
week. Lee received this allowance during her tenure at Groves
(Tr. 56–57). Around November 12, 1994, Robertson told Lee
that her last day as a transitional employee at Port Neches
would be November 20. Then, on November 14, which was
after 90 days on the job at Port Neches, Lee asked Robertson
for her uniform allowance. Robertson denied her request. Lee
then asked again on November 15, and Robertson’s response
was the same (Tr. 53–54, 71–73, 118–119). But Lee bought a
uniform with her own money and presented the $58.41 bill to
Robertson. Lee did this because she believed that “I earned it.”
(Tr. 75; R. Exh. 2). This made Robertson “highly upset” (Tr.
119). So, he wrote a letter to Lee, dated November 17, stating
that she was ineligible for reimbursement because “you are
scheduled for termination as a TE on November 20, 1994” and
that “it does not make good since [sic] for me as a manager to
pay for your clothing allowance under the circumstances.” (R.
Exh. 1.) Indeed, U.S. Postal Service rules state that “Postmas-
ters/supervisors must use discretion in approving payments for
employees with less than 30 days remaining in their appoint-
ments and who are not expected to be rehired for another ap-
pointment.” (R. Exh. 3.) After refusing to pay the bill, Robert-
son told Lee to “grieve it.” And Lee did, but she was unsuc-
cessful though step 2 of the grievance procedure (Tr. 55, 130–
131).
POSTAL SERVICE 9
Although Lee’s appointment as a temporary employee ex-
pired in November 1994, she continued to work at the Port
Neches Post Office as a “casual employee” until June 1995.
Robertson knew in November 1994 that Lee would stay on in
this capacity (Tr. 133). Casual employees work by the hour
with no benefits, and do not receive a uniform allowance (Tr.
76–77, 133). According to Joyce Porter, who was Lee’s super-
visor at Port Neches, Lee was slow at casing the mail (Tr. 93–
95).
Lee kept looking for work with the U.S. Postal Service after
June 1995. When other transitional positions opened up at both
the Port Neches and Groves facilities, Lee’s name appeared on
a register with four other people, none of whom had prior ex-
perience with the Postal Service. Robertson conducted the
interviews of these five people on February 5, 1997, along with
Levina Elmoore, the new postmaster at Groves (Tr. 46, 48, 101,
111). Robertson had already decided before the interview that
he did not want to select Lee because Lee “wasn’t worth a
shit.” According to Robertson, the grievance filed by Lee in
1994 was irrelevant to his opinion of Lee (Tr. 112, 123–126).
Before the interview, Elmoore asked Tyler about Lee and Tyler
opined that Lee was not a good letter carrier (Tr. 91, 101–104).
Robertson did not discuss Lee with Elmoore before the inter-
view. Robertson and Elmoore then interviewed all five people
on February 5. Robertson and Elmore both wanted a Mr.
McKenery, but because Robertson got to pick first he selected
Mr. McKenery for the Port Neches job. It was then Elmoore’s
turn to select from the remaining group of four people for the
Groves job. Elmoore then asked Robertson for his opinion of
Lee. Robertson told Elmoore that Lee “wasn’t worth a shit.”
But Robertson did not discuss Lee’s 1994 grievance matter
with Elmoore. Elmoore then selected Mr. Dang. Neither
McKenery nor Dang had any prior postal experience (Tr. 22–
23, 98–105, 111, 125, 129). According to Robertson, both
McKenery and Dang performed “very good” during the inter-
view. Moreoever, Robertson felt that Lee was arrogant during
the interview, assuming the job was hers because she had prior
experience (Tr. 124.)
After the interviews, Lee heard that she was not selected for
either job. So she called Elmoore on February 14, and Elmoore
told her that no final decision was made yet. Then she called
Robertson on February 17, asking why she apparently was not
chosen. Lee specifically told him she was a good worker who
never had any trouble. But according to Lee, Robertson said,
“You never had any trouble . . . . Well, what about that griev-
ance you filed against me . . . . The grievance over your uni-
form allowance.” (Tr. 51–53.) Then, on February 17, Lee
called Elmoore again, who confirmed that neither Robertson
nor Elmoore wanted to hire her (Tr. 61, 107). Lee then filed
her charge with the National Labor Relations Board on Febru-
ary 26, 1997.
Roxie Sanford is another transitional employee at the Groves
Post Office. According to Sanford, her supervisor, James Ty-
ler, cautioned her in January 1997 against going to the Union
about grievances. Specifically, Tyler told her that the Union
was “the enemy” and that dealings with the Union could cause
her to lose her job. Elmoore also attended this meeting. After
Tyler’s remarks, Elmoore told Sanford that, “[w]e didn’t mean
anything by that.” (Tr. 79–85.)
III. ANALYSIS
The General Counsel alleges that Robertson and Elmoore re-
fused to hire Lee in 1997 because of Lee’s membership in the
National Association of Letter Carriers (the Union) and her
filing of a grievance in 1994 concerning the uniform allowance.
To prove these allegations, the General Counsel must establish,
by a preponderance of the record evidence, that the employee’s
protected activity was a motivating factor in the decision not to
hire Lee. If this is so established, the burden shifts to the em-
ployer to show, also by a preponderance of the evidence, that
the decision not to hire Lee was based on a lawful reason unre-
lated to Lee’s protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in Transportation Management
Corp., 462 U.S. 393 (1983).
Upon a thorough review of the evidence, the presiding judge
concludes that the General Counsel has failed to establish that
Lee’s protected activity contributed to Robertson’s or El-
moore’s decisions to reject her for the 1997 transitional em-
ployee jobs. First, the record is silent on whether Lee ever has
been a member of the National Association of Letter Carriers.
Thus, it cannot be concluded that any decisions by the Respon-
dent were based on her union membership. Second, there is
insufficient evidence that Port Neches Postmaster Robertson
held the 1994 grievance filing against Lee in rejecting her for
the 1997 job. The General Counsel’s most potent evidence is
Robertson’s unrebutted February 17, 1997 remark to Lee, after
the February 5 interview: “You never had any trouble . . . .
Well, what about that grievance you filed against me . . . . The
grievance over your uniform allowance.” But Robertson’s
remark refers to the substantive controversy underlying the
grievance as much as the protected activity itself. Also, it is
significant that Lee continued to work for Robertson after the
1994 grievance, albeit as a casual employee. It is also signifi-
cant that Robertson’s decision to end Lee’s transitional em-
ployee status was made before the uniform controversy arose.
Further, Robertson did not attempt to torpedo Lee’s chance for
the Groves job in 1997: he voluntered his opinion about Lee to
Elmoore only after being asked by Elmoore. Third, there is
absolutely no evidence that Groves Postmaster Elmoore de-
clined to hire Lee because of Lee’s 1994 grievance filing. El-
moore knew nothing about Lee’s 1994 grievance at the time of
the February 1997 interview. Rather, she simply relied on
Robertson’s objective opinion of Lee’s casing ability in reject-
ing Lee. Although Elmoore also relied on Tyler’s negative
opinion of Lee’s casing ability, there is simply insufficient
evidence to connect Tyler’s antiunion animus with Elmoore’s
decision to reject Lee. Indeed, although Elmoore was present
during Supervisor Tyler’s January 1997 antiunion tirade with
letter carrier Sanford, Elmoore disassociated herself from Ty-
ler’s remarks by telling Sanford, “We didn’t mean anything by
that.”
Even if the General Counsel had met its burden of showing
that Lee’s 1994 protected activity caused Robertson and/or
Elmoore to reject her 1997 job application, the plain fact is that
Lee was not hired in 1997 because of her poor casing ability,
which is a very important part of a letter carrier’s job. Indeed,
three different supervisors at two different job locations all
found Lee’s casing abiilty to be below average: Port Neches
Postmaster Robertson, Groves Supervisor Tyler, and Port
Neches Supervisor Joyce Porter. As for Tyler’s initial 30-day
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
rating of Lee’s job ability as good, it was only an initial rating
and is clearly vitiated by Tyler’s later, and more comprehen-
sive, opinion. In sum, there is plenty of objective evidence that
Lee was a below average letter carrier, and that this was the
reason she failed to secure a job in 1997.
As a final matter, it cannot be concluded that Lee’s rejection
for transitional positions at both the Groves and Port Neches
Post Offices is suspicious because she was the only one of the
five applicants in February 1997 with prior postal experience.
In this regard, the General Counsel has failed to establish that
either of the two people hired—McKenery and Dang—was
unqualified. Also, there has been no showing that the letter
carrier job is a skilled position for which prior experience
would be a clear asset. Moreover, Robertson credibly testified
that Lee possessed a bad attitude during the interview. Thus,
the evidence does not show any impermissible disparate treat-
ment of Lee.
CONCLUSIONS OF LAW
1. The Respondent, the United States Postal Service, is sub-
ject to the jurisdiction of the National Labor Relations Board
pursuant to 39 U.S.C. § 1209(a).
2. The Respondent did not violate Section 8(a)(1) and (3) of
the Act by failing to hire Sharon Jacqueline Lee in February
1997.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
Accordingly, it is ordered that the General Counsel’s com-
plaint is dismissed.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.