U.S. Postal Services

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 901 (N.L.R.B. 1979)

U. S. POSTAL SERVICE
U. S. Postal Service and Aaron Wright and Roy
Wiggs. Cases 10-CA 13363(P), 10-CA 13827(P).
and 10-CA-13745(P)
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 22, 1979, Administrative Law Judge Hut-
ton S. Brandon issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed an answering brief, cross-excep-
tions, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order.
I We deny Respondent's motion to reject the exceptions and bnefs filed by
the General Counsel and the Charging Party as being untimely filed. Al-
though Respondent claims that it is highly unlikely that these matenals,
dated June 27, 1979, could have been received by the Board prior to the
applicable June 28. 1979. deadline, they were, in fact, received by the Board
on the latter date.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In the absence of exceptions, we adopt proforma the Administrative Law
Judge's dismissal of allegations that Respondent unlawfully denied employee
Wright union representation on November 21, 1977. Additionally, in that
part of his Decision in which he discusses alleged threats made to employee
Wright, the Administrative Law Judge recounts Wright's testimony regard-
ing a June 8 or 9, 1977. conversation with Supervisor Phagan. While addi-
tional evidence indicates that it is unlikely that Wnght was present at Re-
spondent's premises on either of these dates, in view of the use of this
testimony solely as background and the ultimate dismissal of the allegations
herein, we find it unnecessary to determine whether or when the conversa-
tion as testified to by Wright occurred.
Member Penello concurs in the dismissal of the complaint allegation
regarding Wright's September 23, 1977, suspension, but does so for the rea-
son that he would, in accordance with Spielberg Manufacturing Conmpany,
112 NLRB 1080 (1955), defer to the arbitrator's award with respect to the
September 23 suspension. In addition. Member Penello concurs in the dis-
missal of the complaint allegations regarding Wright's January 20. 1978.
discharge; the suspensions of Wright on October 28 and November 21, 1977;
and the denial of breaks to Wright, all for the reason that Respondent and
the Union settled those matters through their grievance procedures. See
United Stores Postal Service, 237 NLRB 117 fn. 2 (1978):; see, generally. the
dissenting opinion in General American Transportation Corporation, 228
NLRB 808 (1977).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
STATEMENT OF THE CASE
Ht:rloN S. BRANDON Administrative Law Judge: This
case was heard at Atlanta, Georgia, on January 15, 29, 30,
31 and February 1, 1979. The charge in Case 10-CA 13363
was filed by Aaron Wright, an individual, herein called
Wright, on January 9, 1978' (amended February 14). and
complaint based upon the charge was issued on March 2.
The charge and corrected charge in Case 10 CA 13745(P)
were filed by Roy Wiggs, an individual, herein called
Wiggs, on June 13, and complaint thereon issued on July
28. Wright filed the charge in Case 10 CA-13827(P) on
July 18. and a complaint and order consolidating the case
with Case 10-CA-13745(P) issued on August 28. On Janu-
ary 9, 1979, the Acting Regional Director for Region 10
issued an order consolidating all three cases for hearing.'
The primary issues are whether the U.S. Postal Service,
herein called Postal Service or Respondent, violated Section
8(a)(1) of the National Labor Relations Act, herein called
the Act, by (a) denying Wright breaks from August 25 until
December 28, 1977; (b) requiring Wright, beginning Sep-
tember 14, 1977, to work overtime or furnish a doctor's
excuse for each occasion he was unable to do so; (c) placing
Wright on "restricted leave" on September 15, 1977; (d)
suspending Wright for varying periods of time on Septem-
ber 22, October 28, and November 21. 1977: (e) issuing a
counseling report to Wright on October 20, 1977: (f) deny-
ing Wright's request for union representation on November
21, 1977; (g) discharging Wright on January 20, 1978; (h)
denying an annual-leave request of Wright on March 17,
1978; (i) issuing a final warning to Wright on May 22, 1978;
(j) threatening employees with reprisals for engaging in pro-
tected. concerted activities at various dates in 1977; and (k)
suspending Wiggs for a period of 14 days beginning De-
cember 14, 1977. Respondent filed timely answers to the
I All dates with respect to the pleadings in this case are in 1978. unless
otherwise stated.
2 Other significant docket entries in these cases include: Motion by U.S.
Postal Service for Summary Judgment in Case 10-CA-13363(P) filed on
June 27; Order of Board transfemng proceeding to Board and Notice to
Show Cause why Respondent's Motion for Summary Judgment should not
be granted in Case 10-CA-13363(P) dated July 12; Decision and Order
Denying Motion for Summary Judgment and Remanding Proceeding to Re-
gional Director for Hearing in Case 10-CA-13363(P) dated October 27, 239
NLRB 97 (1978): Motion by U.S. Postal Service for Summary Judgment in
Case 10-CA-13745(P) filed on September 19; Order of Board transfemng
proceeding to Board and Order to Show Cause why Respondent's Motion
for Summary Judgment should not be granted in Case 10-CA-13745(P)
dated October 10: Decision and Order Denying Motion for Summary Judg-
ment and remanding proceeding to the Regional Director dated December
20, 239 NLRB 962 (1978).
245 NLRB No. 115
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints denying the commission of any unfair labor
practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Respondent, and
counsel for the Charging Parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material, the Board has had jurisdiction over
this matter by virtue of section 1209 of the Postal Reorgani-
zation Act, 39 U.S.C. 1201-09, herein called PRA.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a facility in Atlanta, Georgia, called
the Northside Station where the Charging Parties Wright
and Wiggs were employed as letter carriers. The letter car-
riers at this facility were, and are, represented by the Na-
tional Association of Letter Carriers, AFL-CIO, herein
called the Union, which was party at all material times to a
collective-bargaining agreement with Respondent covering
the letter carrier craft. The agreement contains a grievance
procedure ending in final and binding arbitration. Both
Wright and Wiggs were members of the Union and both
filed grievances under the collective-bargaining agreement
procedures with respect to certain actions by Respondent
claimed to be discriminatory in this proceeding. Disposition
of those grievances will be discussed below.
While the facts are different with respect to the alleged
discriminatory conduct by Respondent toward Wright and
Wiggs, there is a common background involving both
Wright and Wiggs upon which the General Counsel relies
to support his contention that the two were engaged in pro-
tected, concerted activity under the Act. This background
involves their common complaint to Frank Melville, super-
intendent of the Northside Station, regarding employee
parking problems and preferred treatment of some employ-
ees with respect to early starting times.
Wright testified that he had gone in to speak to Melville
around January 1977, regarding a parking problem.
Wright, a black, complained that certain white employees
were receiving favorable treatment by being allowed to
park in restricted areas around the station while black em-
ployees were receiving reprimands and threats of repri-
mands for parking in the same spaces.' According to
Wright, Melville inquired where Wright parked and why he
was worried where other people parked. Then Melville said
Wright should not worry about other people's business, be-
cause he never liked for anybody to come in and speak for
anybody else. Melville added, still according to Wright,
' Wright had made a similar complaint to Melville in 1976 when he went
to Melville's office with a group of other employees he did not identify. He
also complained on this occasion about his supervisor, delivery foreman
James Phagan, and Phagan's conduct which was discriminatory toward
black employees according to Wright. Melville had stated he would try to
straighten the matter out.
that if Wright would take care of his own business things
would go smoothly for him. Melville in his testimony could
not recall any conversation with Wright concerning parking
in 1977. Wright impressed me with the sincerity of his testi-
mony, although at times he exhibited confusion and uncer-
tain recall with respect to dates and names. I credit
Wright's testimony with respect to his early 1977 meeting
with Melville related above, particularly in view of Mel-
ville's lack of recall and failure to specifically deny the inci-
dent.
Wiggs, also a black, likewise testified that he had conver-
sations with Melville regarding the parking situation and
contended that certain groups of employees were being al-
lowed to park in certain restricted spots while others were
being threatened with having their cars towed away when
they' parked in those spots. Melville told Wiggs on one oc-
casion when he so complained in 1977. sometime prior to
March 21, that no employees were going to be allowed to
park in that parking space in question and that was it.
Wright testified that about March 1977 some carriers
complained to him that other carriers on some routes were
being allowed to come in early from their routes and they
would like to do so also. Wright went to Larry Stevens,
supervisor of delivery and collections, and talked to him
about reporting times for various routes, and claimed that
some apartment delivery carriers were coming in earlier
than they were supposed to. Stevens replied that that was
the way he did it and it was going to stay like that. Wright
then took the matter to Melville and related to him what
Stevens had said. Melville inquired of Wright what time he
wanted to come in. Wright stated that it did not matter to
him as long as it was fair to others. Melville stated, accord-
ing to Wright, that he did not like people coming in speak-
ing for other people, and that Wright should mind his own
business and leave others alone.
The following day Wright went in again to talk to Mel-
ville on the subject of reporting times. This time, according
to his testimony, he was accompanied by Vivian Ector, an
alternate union steward, and employees Wiggs and Andrew
Jackson.' At this meeting Wright again complained that
some of the carriers were coming in earlier than they were
supposed to and "they" (the people in Melville's office)
wanted to come in early too. Melville again asked Wright
what time he wanted to come in and, as he had the day
before, Wright responded that it did not matter as long as it
was fair to everybody. Melville then told him if he would
just worry about his own business and leave other folks'
business alone it would be better for Wright. Melville
added, however, that if people came in individually and
explained to him why they needed to come in early he
would look into it.
Wright testified that later on the day as the above meet-
ing he went back to Melville again, this time with union
steward M. R. Martin. Early reporting times were the sub-
ject again and, still according to Wright. Melville stated
again that he did not like the idea of people coming in and
talking for other people. Martin stated that he was the
I Both Wiggs and Ector were present as witnesses by the General Counsel
but did not testify with respect to this meeting. Jackson was not called as a
witness by any party.
902
U. S. POSTAL SERVICE
union representative and was speaking for the group and
Melville knew that people were afraid of him and that no-
body would come into his office. Although Wright's testi-
mony does not establish how the meeting ended it is clear
that he was not satisfied with any results of the meeting.
Melville in his testimony conceded meeting with Wright
concerning reporting times but denied that he told Wright
that he never liked people to talk for other people or that
Wright should not worry about other people's problems but
should worry about what concerned him. Melville admitted
that he may have had other meetings which he could not
recall with Wright and other employees on early reporting
times. Wright appeared to me to have the clearest recall of
his March discussions with Melville, and I therefore credit
his versions of those discussions over that of Melville.
Insofar as the record shows, there was never any resolu-
tion of the earlier starting times issue. Employee Vivian
Ector testified that she did talk to Melville individually
about obtaining an earlier starting time for herself, but
without success. Nevertheless, no grievances were filed on
the subject by Wright or any other employee.
The General Counsel contends that Respondent's subse-
quent actions with respect to Wright and Wiggs outlined
hereafter were based, at least in part, upon their protected,
concerted activity in the expression to Melville, in behalf of
themselves and other employees, there concerns regarding
the parking problems as well as the early reporting-time
issue. Their efforts in contacting Respondent's Equal Em-
ployment Opportunity branch, as will also be set forth be-
low, is also a part of their protected, concerted activity un-
der the Act which the General Counsel argues was an
unlawful basis for Respondent's alleged discriminatory ac-
tions against them.
At the outset Respondent contends that Wright and
Wiggs were not engaged in protected, concerted activity
inasmuch as their complaints involved claims of racial dis-
crimination and that the Board in Jubilee Manufacturing
Co., 202 NLRB 272 (1973) held that discrimination based
on race was not inherently destructive of employee Section
7 rights and was not violative of Section 8(aXl) of the Act.
The fact that the complaints of Wright and Wiggs were
based in part upon their belief that Respondent was engag-
ing in racial discrimination is substantiated by their own
testimony and admissions. However, the Jubilee case does
not deprive employees of their protection under the Act
simply because their concerted activity relates to a protest
of racial discrimination. Furthermore, the filing of an Equal
Employment Opportunity (EEO) complaint has also been
found by the Board to constitute a protected, concerted
activity, particularly where such a filing may be viewed as
supportive of a collective-bargaining agreement which pro-
5Martin and Ector testified for the General Counsel in support of Wnght
with respect to at least one of Wright's meetings with Melville. They both
identified employees Clifford Lowe, Cornelius Watts, and Lewis Jones as
being present. While Watts, Jones, and Lowe all testified in this proceeding.
they did not testify concerning a meeting between Melville and Wright in
March 1977, but they did testify regarding a meeting between Melville and
Wright in late August or September 1977 also attended by Martin and Ector.
Accordingly, I am persuaded that Martin and Ector were confused in their
testimony about Wright's March meeting with Melville. I therefore find their
versions less reliable and do not credit them where their testimony differs
from that of Wright on the March meetings.
hibits discrimination based upon race. King Soopers, Inc..
222 NLRB 1011 (1976). In the instant case the collective-
bargaining agreement in effect between Respondent and the
Union prohibited such discrimination
Respondent further argues, citing The Emporiutm, 192
NLRB 173 (1971), that the activity of Wright and Wiggs to
protest racial matters relating to working conditions in-
dependent of their exclusive bargaining agent does not con-
stitute protected activity. Respondent's reliance on the Em-
porium case is misplaced for there the employees' actions
were unprotected because they were acting in derogation of
their collective-bargaining representative. Here there is no
such evidence that the action of Wright and Wiggs was in
derogation of the Union. On the contrary, Wright sought
and obtained union steward Martin's involvement in the
discussion with Melville on the reporting-time matter. Al-
ternate steward Ector was also involved. Moreover. there is
no evidence that Wright and Wiggs sought any resolution
on the parking problem inconsistent with any provision of
the collective-bargaining agreement.
In view of the foregoing, and since I am satisfied that the
record reflects that Wright and Wiggs in their discussions
with Melville were speaking of matters of common concern
to employees and with employee support. I find that they
were engaged in an activity protected under the Act. I fur-
ther find that their filing of a complaint with Respondent's
EEO branch constituted an activity within the Act's protec-
tion.
B. Respondent 's Actions Against Wright
1. The alleged threats to Wright
Wright had been employed by Respondent in about 1965
and had worked as a letter carrier in Respondent's North-
side Station since about 1967. Wright discovered in 1975
that he had stomach ulcers. In early June 1977,' Wright
found his ulcers acting up. Wright testified that about June
8 or 9 delivery foreman James E. Phagan observed Wright
leaning against his case and asked Wright what was wrong.
Wright replied that his ulcer was acting up but he would
start his delivery route on time and would have no prob-
lems delivering the mail. Shortly thereafter Phagan insisted
that none of the route should be curtailed, but Wright then
stated he could not do it at all. Then Wright decided he
should see his doctor that day and filled out a sick-leave slip
and presented it to Phagan. Phagan asked Wright to go to
the office with him where he told Wright that he would tear
up the sick-leave slip and Wright could go back to work
and Phagan would forget what happened. Wright insisted
that he felt badly and thought he should see a doctor. Pha-
gan replied that it looked like "we're fixing to bump heads
again." Wright left and went to his doctor who advised him
not to return to work for 2 weeks or until he was seen by the
doctor again. His doctor's statement with respect to his con-
dition and the necessity for his 3-week absence from the
job, dated June 13, was given to Respondent by Wright on
June 13. However, Wright was not cleared to return to
*G.C. Exh. 26, art. II(I).
'All events hereafter regarding Wright occurred in 1977, unless otherwise
specified.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work by his doctor until July 18, at which time his doctor
had requested that he be put on a "desk job" for a period of
I month. The request for light duty received concurrence
from Respondent's doctor, Dr. Gedney, who had "cleared"
Wright for return to work.
Wright discussed light-duty work with Melville upon his
return to the station following clearance by Gedney, and he
specifically requested that he be placed where he could
work daylight hours and were he could take his medication.
According to Wright's testimony, which I credit in this re-
gard, Melville told him he had been hardheaded and that
he had never been able to talk to Wright. Melville added
that if Wright were not hardheaded maybe he could do
something, but he did not know where "they" would send
Wright and he had "no control" over where he would be
sent.' Wright told Melville that he did not want special
favors, he just wanted Melville to do for him what he would
do for any employee in Wright's condition. Melville replied,
according to Wright, "Okay, I'll fix you." He then advised
Wright that he would be told later where to report for his
"light duty."
Melville denied the remarks attributed to him by Wright
in their discussion on the "light duty" and denied that he
told Wright he had no control over where Wright would be
sent for his light duty. He conceded, however, that he had
nothing to do with determining the location or type of
Wright's "light duty." I credit Wright's version of Melville's
remarks.
The General Counsel contends, and the complaint al-
leges, that Melville's statements to Wright in their discus-
sions on the light-duty assignment constituted a threat of
reprisal for Wright's having engaged in protected activity.
To find such a "threat" it must be inferred that Melville's
statements were based on his animosity toward Wright as a
result of his protected complaints about parking and early
reporting times. Although Melville's remarks reflect some
animosity toward Wright, I am not persuaded that a con-
clusion that it was based upon Wright's protected activity is
warranted. At the time, Wright's protected activity had oc-
curred some 3 to 4 months earlier. Such activities had not
caused Melville any problems or troubles which were likely
to engender retaliation. Moreover, and in any event, Mel-
ville's statement that he would "fix" Wright is ambiguous
and is susceptible to the interpretation that Melville would
see that Wright did get a light-duty assignment. That inter-
pretation is made more reasonable by the fact that on July
19 Wright received notice from Melville to report to the
Federal Annex station on July 20 based upon a 30-day
light-duty-assignment order signed by another Respondent
official. Accordingly, I do not find that Melville's remarks
to Wright on July 18 constituted a violation of Section
8(a)(1) of the Act.
Wright reported to the Federal Annex as directed and
was assigned to do work in the "clerk" craft which was
unfamiliar to him. A few days after he began work at the
Federal Annex, Wright was criticized by a supervisor he
identified as "Brooks" who related that he had been told by
s Melville testified that at that time there were no "light duty" jobs at the
Northside Station. I credit that testimony in the absence of any substantive
contradiction.
Chester Busby, an administrator of the second tour (shift)
and stipulated by Respondent to be a supervisor, to tell
Wright that he was not sitting on his stool properly. Wright
complained that to sit on the stool in the desired manner
hurt his stomach. Moreover, Wright observed that other
employees were not sitting in the desired manner. There-
after Wright went to see Busby, who confirmed that he had
to sit in the desired manner9 or go home. Wright filled out a
leave slip for the remaining 1 hour of his tour and presented
it to Brooks, who told Wright that Busby had stated that if
Wright was to go home Brooks was to put him on leave
without pay. Wright testified that about that time Edgar
Chafin, relief tour administrator and a stipulated supervi-
sor, approached Wright and told Wright he had been
watching him and Wright was "not doing anything."
Wright protested that he was sick and was there on light
duty and if given a chance would eventually learn and
could work. Chafin replied that there was no light duty
there and that if Wright was going to "Make the same
thing" that everybody else made he was going to have to do
the same thing everybody else did.
When Chafin walked away Brooks, according to Wright,
told Wright that "they" knew Wright was "there" and
where he was from and "they'll get you down here." Brooks
added that all they wanted Wright to do was start some-
thing so they could write him up. Further, Brooks stated
that he did not want to write up Wright but that if he went
home he would have to write him up. Wright finished the
shift and he worked the remainder of the 20-day detail at
the Federal Annex without incident, although he was re-
quired in his work to lift mail trays weighing in excess of
the 15-pound limit his doctor had imposed on him.
Chafin was called as a witness by Respondent but could
recall no conversations with Wright at all. Further, he de-
nied making the comments to employees attributed to him
by Wright, and he testified that he communicated to em-
ployees through lower-level supervisors. I find it difficult to
believe that Chafin would refrain from speaking to an em-
ployee if in fact he thought the employee was not perform-
ing his work. In any event, I credit Wright on his testimony
concerning the events and statements made to him at the
Federal Annex.
The complaint, apparently based on the testimony of
Wright regarding the statements made to him by "Brooks,"
alleges that James Brooks threatened employees (Wright)
with reprisals for engaging in concerted activities under the
Act. Respondent called its employee James Brooks, super-
visor of mails at the Federal Annex, who denied ever hav-
ing talked to Wright. The General Counsel conceded that
James Brooks was not the man Wright spoke to. Upon
questioning James Brooks and Edgar Chafin by the Gen-
eral Counsel and Charging Parties' counsel, it appeared
that Respondent did employ a Merle (M.D.) Brooks at the
Federal Annex during the summer of 1977. His position
was identified by Chafin as an acting supervisor. The Gen-
eral Counsel did not amend the complaint to substitute
Merle Brooks for James Brooks, and the record does not
reveal the duties or authority of an "acting supervisor." Un-
der these circumstances, and particularly since the supervi-
sor or agency status of Merle Brooks was not litigated, I
9 The desired manner was not reflected in the record.
904
base no findings of a violation of the Act on any remarks
attributed by Wright to "Brooks."
2. The alleged disparate treatment of Wright
a. The denial of breaks to Wright
Wright returned to work at the Northside Station on Au-
gust 22. On August 25, after returning to the station from
his route, he "took a break" and sat down to read a newspa-
per given him by employee Clifford Lowe. Wright testified
that delivery foreman Phagan approached him and told
him to put down the paper and get back to work. Wright
remarked that he was taking a break, but Phagan re-
sponded that he was not authorized to take a break and
that he could not read the newspaper on the work floor.
Wright replied that he would go downstairs and take his
break and read his paper. Phagan repeated that he was not
authorized to take a break and to go back to work. Wright
resumed his work but inquired of Phagan why he was pick-
ing on him, and Phagan told Wright to go to the office with
him. There Wright protested that another employee, Billy
Otwell, was taking a break and reading a magazine at his
work station. Phagan replied that he had specifically autho-
rized Otwell to take a break. Phagan said it was manage-
ment's prerogative under the collective-bargaining agree-
ment to grant a break and he was exercising that right not
to give Wright a break. Phagan told Wright to go back to
the "floor" and that he did not want Wright talking to any-
body and did not want him leaving his "case" unless it
pertained to mail. Wright asked what about his break, and
Phagan responded "no breaks."
Later that afternoon Wright again talked to Phagan, this
time in the presence of union steward Lewis Jones. The
discussion was about Wright's break, and, according to the
testimony of Jones, Wright wanted to know of Phagan why
Billy Otwell, a white employee, was entitled to a break but
Wright was not. Phagan's response was, still according to
Jones, that breaks were really a privilege instead of a right
and if Wright took a break he would have to make up the
time. Wright's version of this discussion is generally in ac-
cord with Jones'.
Phagan in his testimony admitted the encounter with
Wright on August 25. He initially told Wright that Wright
was not entitled to an afternoon break and told him to go to
work. He returned 5 minutes later to find that Wright had
put down his newspaper as directed but was still sitting. It
was at this time that he called Wright to his office, coun-
seled him regarding the incident, and cited him for insubor-
dination. Phagan conceded that Billy Otwell had been au-
thorized a break that day because he had been doing more
arduous work. However, he testified that afternoon breaks
were not scheduled, although employees were allowed
"chuck wagon" breaks in the mornings. Although Phagan
admitted that he told Wright to return to his case and not
to leave it, he denied that he told Wright generally that he
could not take breaks.
I credit Phagan's assertion that there were no afternoon
break schedules. His testimony in this regard finds more
support in the testimony of Martin, who testified that carri-
U. S. POSTAL SERVICE
ers received a "chuck wagon" break in the morning before
leaving on their routes and also were entitled to a 10-minute
break on their route in the afternoon before returning to the
station. Martin's testimony indicated carriers received no
scheduled breaks after returning to the station after com-
pleting their routes but did take a "relief break" of 5 to 10
minutes when needed to use toilet facilities, etc. Employee
Cornelius Watts, called by Respondent, testified also that
carriers did not take afternoon breaks.
I also credit Phagan's claim that he counseled Wright on
insubordination since Wright did not specifically deny this
in his testimony. On the other hand, I credit the testimony
of Wright that Phagan told him "no breaks."
It appears that Wright took up his break elimination with
Melville the day following his discussions with Phagan.
Thus, Wright testified that he, union stewards Jones and
Martin, and employees Watts and Ector went to see Mel-
ville. Phagan was present. Wright repeated his version of
what had happened, and Melville replied that there was
nothing wrong with what Phagan had done and that under
the collective-bargaining agreement management had the
right to take or give breaks. Wright protested that he did
not think it was right to do it on an individual basis, appar-
ently alluding to the preference accorded Otwell. Melville
replied that the trouble with Wright was that he had a hard
head, a nasty attitude, he was never able to get along with
anybody, and as far as he was concerned what Phagan did
"stood." Martin at that point, according to Wright, said he
thought it was unfair and that "we" had decided to file a
discrimination charge with the EEO.' 0 Melville told the
group that he was busy and that he had work to do and for
the group to leave and do what they wanted about an EEO
charge.
Melville denied in his testimony the specific remarks at-
tributed to him by Wright. According to Melville, he
viewed the dispute as one involving Phagan's counseling of
Wright and told the employees that Wright should have
followed the supervisor's instructions and then taken what-
ever recourse was appropriate. He admitted there was a
reference to the EEO in the discussion and testified he told
Martin that if he thought it was an EEO situation to deal
with it as such. Melville further testified he did not know
there was a problem with respect to a denial of breaks to
Wright until a grievance was later filed on the matter.
I credit Wright's version of his discussions with Melville
since Wright's testimony is generally supported with minor
variances by other employee witnesses present." Moreover,
the grievance subsequently filed by Wright was not resolved
until the third step of the grievance procedure, a step be-
yond Melville's level. Had there been simply a misunder-
standing as to the extent of the restriction on breaks put on
I0 Martin and the other members of this group meeting with Melville, it
must be noted, are black. Melville, Phagan, and Respondent's other supervi-
sors called as witnesses in this proceeding with the exception of Sam Dowdy,
Lloyd Smith, and Melvin Willis, are white.
1 Watts. called by Respondent, could not recall certain statements attrib-
uted to Melville by Wright. Nor could he recall that there was a reference in
the meeting to an EEO complaint. a reference conceded by Melville. Accord-
ingly, I find Watts' testimony less reliable than that of Wright and the other
employee witnesses.
905
DE(CISIONS OF NATIONAI. LABOR RELATIONS BOARI)
Wright, it is highly likely that the grievance would have
been resolved much earlier at a lower level.
Wright's grievance regarding his breaks was resolved by
mutual agreement on December 19. The resolution pro-
vided that "If employees are allowed 'breaks.' the grievant
will be afforded one also." It appears, however, and I find,
that between August 25 and the time the grievance was
resolved Wright was effectively denied breaks.
The denial of breaks to Wright reflects disparate treat-
ment. Whether it also consistitutes a violation of the Act
depends on Respondent's motivation in implementing such
treatment. That motivation will be considered below in the
context of other treatment accorded Wright.
b. The requirement of a doctors excuse Jbr fililure to work
overtime and the November 21 suspension
The fact that Respondent required its employees to work
substantial and frequent overtime is not disputed. Wright
appears to have encountered particular problems, however.
Wright testified that in late August he advised Lloyd Smith.
delivery foreman and supervisor of the carrier operation, in
the morning that due to his illness and medication as well
as his lack of breaks he would not be able to "clean up"
(complete delivery of all his mail) that day. Smith told him
to carry the first-class preferential mail and daily magazines
and Smith would take care of the rest. That afternoon, how-
ever, when he returned to the station he was told by Phagan
to work overtime or submit a doctor's statement the next
day. Wright said he could not, and Phagan insisted that
they go see Melville. Wright asked for a union steward, but
Phagan said he did not need one and proceeded to take him
to Melville's office. Melville was occupied with other people
in the office, and Wright remained outside the office, al-
though Phagan entered and talked to Melville. When he
came out he told Wright he could go on home.
On September 14 Phagan asked Wright to make 2 hours
of overtime. Wright responded that he was sick and on
medication and had been making overtime but was not able
to make it that day. Phagan told Wright to make it or bring
in a doctor's statement the next day. Wright said he would
not be able to get a doctor's statement. Wright did not work
the overtime nor did he bring in a doctor's statement the
next day regarding his failure to work the overtime.
Wright was absent from work on November 16 due to
illness, and when he returned to work he gave Phagan a slip
from his doctor reflecting that he had seen the doctor the
day before. He asked Phagan if he could be eliminated from
making overtime for a few days or a week until he felt
better. Phagan replied, according to Wright, that he would
be giving Wright instructions in the future and he expected
Wright to comply with them. The following day, November
18, Phagan asked Wright to work overtime and Wright re-
fused due to his illness. Phagan told him that if he did not
work the overtime he wanted a doctor's statement. Wright
did not work and did not bring in a doctor's statement the
next day. On November 19 Phagan asked Wright to work
overtime or bring in a doctor's statement excusing the fail-
ure to work. Wright again did not work nor did he bring in
a doctor's statement the following day.
On November 21 Phagan issued a "Notice of Disciplin-
ary Action" to Wright citing his November 18 and 19 fail-
ures to work overtime and failure to submit a doctor's state-
ment relative to such failures. The disciplinary action taken
was a 14-day suspension commencing December 1.
Union steward Martin testified that during his period of
employment with Respondent he had never known of any
employee other than Wright being required to bring in a
doctor's certificate for each day of overtime not worked.
Respondent never claimed that it had imposed such a re-
striction before. On the other hand. Respondent submitted
evidence reflecting that at least three employees, including
Wright, had been suspended before for failure to work
overtime. In August 1975 Wright himself had been sus-
pended for refusing to work overtime and had grieved the
suspension claiming he had been too ill to work the over-
time. The grievance was arbitrated and was denied on the
basis that Wright had not communicated the fact of his
illness to his supervisor when he refused to work the over-
time."
Notwithstanding the precedent of disciplining for refusal
to work overtime, a requirement that an employee bring in
a doctor's statement for each failure to work overtime
where such failures are related to an existing and continu-
ing medical condition is so burdensome as to be unreason-
able. Accordingly, such a requirement evidences disparate
treatment. Whether such treatment constitutes a violation
of the Act again turns on motive to be considered below.
c. Placing Wright on restricted sick leave
The day following Wright's failure to work overtime on
September 14 Phagan called Wright in to his office and put
Wright on "Sick Leave Restriction" which required that
any further absences be supported by a physician's state-
ment the day following the absence. Wright asked why he
was being put on restriction, and Phagan responded that it
was because he had refused to make overtime and because
in reviewing Wright's record he had determined that
Wright was abusing his sick leave.'
On the same day the restriction was imposed Wright took
union steward Martin with him to again talk with Phagan
on the subject. Martin inquired of Phagan if he had fol-
lowed the procedures in imposing the restriction, and Pha-
gan insisted that he had and claimed that he had counseled
Wright on sick-leave abuse on June 3. Wright testified that
he had not been so counseled and had not seen any record
of such a counseling on June 3. although he had gone
through his personnel records subsequent to June 3 and
prior to September 15.
The placing of Wright on restriction was not denied by
Phagan nor were the discussions with Wright and Martin
on the subject. However, Phagan testified that Wright was
counseled on sick-leave abuse on June 3, and his record of
that counseling was submitted in evidence. I credit Pha-
12 Resp. Exh. 148.
'' That Respondent had a policy of reviewing attendance records and put-
ting employees on restricted leave when it appeared that they were abusing
leave privileges is not disputed, The sick-lease restrictions called for review
and removal from restriction after a 90-day period i there were improve-
ment in attendance.
906
U. S. POSTAL SERVICE
gan's testimony regarding such a counseling. I note in this
regard that the date of the counseling coincides with a day
that Wright took 4 hours of sick leave.
Substantial evidence was submitted by Respondent in the
form of records imposing restriction of sick leave on a num-
ber of employees over the 4 or 5 year period prior to the
hearing. Wright himself had been put on sick-leave restric-
tion by Phagan in 1975. That restriction was removed or
canceled on October 10, 1975. An examination of Wright's
absentee record coupled with the precedent of imposing
sick-leave restrictions on other employees lends support to
Respondent's claim that the restriction on Wright was justi-
fied. Accordingly, I find no disparate treatment in imposing
the sick-leave restriction on Wright.
d. The September 23 suspension
The events upon which Respondent relies in effectuating
the September 23 suspensions of Wright occurred on Au-
gust 31. On that date supervisor Smith had instructed
Wright to count his mail in connection with a special week-
long route inspection Melville had decided to run on
Wright's route." The purpose of the route inspection was to
insure that route could be delivered in allotted times.
Wright testified that he counted his mail and entered his
total on the back of an envelope. Thereafter, according to
Wright, Smith came up and, apparently disbelieving that
Wright had counted his mail, began his own count. Wright
testified that he had given Smith his envelope back with his
total on it, and Smith put it down beside him as he counted.
As Smith approached his total Wright picked up his paper.
Wright had counted 585 pieces of mail but Smith had only
counted 570. Wright asked to have Martin, who was
nearby, redo the count. Smith refused, saying there was no
need. Smith asked Wright for the envelope with Wright's
figures on it, but Wright told him that since Smith was not
going to let anybody recount the mail he thought he would
just keep his count. Wright testified he asked Martin to say
something to Smith but Smith told Martin nobody was
talking to him and told him to go back to his "damn work."
Smith then directed Wright to "hit the clock," but Wright
refused. Smith left the area, and Wright proceeded with his
work.
Martin's testimony is generally in accord with Wright's.
He added that after the incident Smith came back and told
him he was sorry he had spoken to him as he had, and the
two discussed the count. Martin told Smith that there was
only a difference of 15, and Smith replied that "we" could
get you for one piece over. Smith asked Martin if he had
seen Wright "snatch" the envelope with the count on it
14 Route inspections are usually conducted during the first part of the
calendar year, and one had been so conducted on Wright's route. As a result
of the earlier inspection, according to Melville's testimony, substantial
changes had been made in Wright's route in April. Melville testified that
because he had heard a route-audit team was in town and because of the
substantial changes made in Wright's route which might warrant its being
audited he decided to run a special inspection on the route. Another factor
considered by Melville was Wright's equivocal responses about how the
route was working out with the changes. I credit Melville's testimony in this
regard in the absence of contradiction by Wright. Wright's route was in fact
subsequently audited.
from Smith. and Martin had replied that he had not. How-
ever, Martin testified that he had observed Wright put the
envelope in his pocket and refuse to give it to Smith.
It was Smith's testimony that he had counted Wright's
mail because he suspected that Wright had only "approxi-
mated" the count. Moreover. after Smith had counted the
mail he reached for the envelope with Wright's figures on it,
but Wright "snatched" it away and then refused to give it
to him. Wright also refused to conduct another count even
when Smith directed him to do so. He admitted that he told
Wright to clock out but then changed his mind and allowed
him to stay.
Smith impressed me as a candid and credible witness
whose version of the August 3 incident is very plausible. In
any event, there is no dispute as to the essential fact that
there was a difference in the respective counts by Wright
and Smith. And there is no dispute on the fact that Smith
asked Wright for the envelope with Wright's figures on it
and Wright refused to give it to him.
On September 23 Smith suspended Wright effective Sep-
tember 29 for an "improper count of mail during route in-
spection and failure to follow instructions of a supervisor."
Wright filed a grievance on this suspension, and the mat-
ter was arbitrated on April 19, 1978. The arbitrator found
that Wright's count had been improper but noted the facts
were conflicting as to Respondent's subsequent claim that
Wright failed to follow instructions of his supervisor. In any
event, he concluded that the 14-day suspension was "exces-
sive and punitive" and sustained the grievance to the extent
that the penalty was reduced to 7 calendar days.
e. The October 28 suspension
On September 28 Wright admittedly did not report for
work. He testified that he called in and told an employee
that he was ill and would not be in. He did not know the
name of the employee who took the message and could not
otherwise identify him. Wright testified that on September
30 he met with Phagan and Union President J.C. Taylor on
the subject of Wright's sick leave. At that time Wright of-
fered Phagan a statement from his doctor indicating Wright
was under the doctor's care on September 28, but Phagan
refused to accept it, saying that as far as he was concerned
Wright had been AWOL, absent without leave. Taylor was
not called to substantiate Wright's testimony. According to
Wright, he subsequently talked to Smith about his Septem-
ber 28 absence, and Smith indicated he would take care of
it. Nevertheless, Wright received a 7-day suspension on Oc-
tober 28, effective November 2, for his failure to work on
September 28. Sometime following the end of his suspen-
sion Wright tendered his doctor's certificate for the Septem-
ber 28 absence to Smith who took it without comment.
After Wright received his October 28 suspension notice
he and union steward Jones went to see Phagan about the
matter. In the discussion Phagan, according to Wright, told
Wright if he could find the clerk who took his phone call on
September 28, Phagan would lift Wright's suspension and
impose the suspension on the clerk who received the call.
Jones inquired if Phagan had attempted to call Wright on
the morning of September 28. after noting his absence, and
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phagan replied that he was not going to call anyone.'
Jones' inquiry was prompted by the fact that from time to
time supervisors either personally or through employees on
the job had telephoned employees when their failure to ap-
pear was noted to ascertain the problem and whether the
employee would be in. The existence of this practice was
corroborated by the testimony of employees Martin. Wiggs,
and Ector.
Foreman Smith acknowledge that he had on occasion
called employees upon discovery of their absence and other
supervisors had done so also. Smith denied, however.
Wright's testimony that he said he would "take care" of
Wright's September 28 absence. I credit Smith's denial in
this regard, not only because I find Smith generally credible
but also because it would be unlikely that he would volun-
teer to "take care" of a matter Wright had already taken up
with another supervisor.
Phagan denied that he refused to accept Wright's doc-
tor's statement on the September 28 absence, and instead
testified that Wright offered him the certificate but wanted
to keep the original and Phagan had no way of making a
copy at that point. Phagan denied that he had ever called
absent employees to ascertain if they would be coming in. I
credit Wright's version.
Considering all the foregoing, I conclude that Wright did
call in on the morning of September 28. tie had been absent
many times before and, so far as this record shows, had
never failed to call in. It would have been inconsistent with
past practice for him not to call in. In view of his inability
to identify the person receiving his call, however, I cannot
conclude that his message was ever transmitted to a super-
visor. However, in view of the fact that Respondent in the
past had telephoned some absent employees to ascertain
their intentions regarding reporting for work, and notwith-
standing evidence by Respondent that several employees
had previously been disciplined for being absent or late
without calling in I must conclude that the failure to call
Wright on September 28 constitutes further evidence of dis-
parate treatment.
f. The filing of the EEO complaint and the alleged threats
of Melville
It is undisputed that Wright wrote to Respondent's EEO
office on September 13, claiming that Respondent was en-
gaged in racial discrimination. Wright circulated that letter
among several of the employees, and Wiggs and Vivian
Ector, among others, also signed the letter which was ap-
parently mailed around September 15. In addition. Wright
on September 13 filed a form with the EEO requesting
counseling regarding the events of August 25 outlined
above. There is no evidence that any of Respondent's repre-
sentatives at the Northside Station knew of the EEO efforts
of Wright and the other employees until October 20 when,
according to Melville, EEO counselors appeared at the sta-
tion to interview Wright. At that time Melville was shown
'5 This is based on a composite of ihe testimony of Wright and Jones. I
found Jones to be a particularly impressive and straightforward witness who
displayed a generally good memory of events and showed no tendency to
exaggerate.
Wright's September 13 letter signed by himself and other
employees. It is to be recalled, however, that the intention
of the employees to file an EEO complaint had been con-
veyed to Melville by Martin in the meeting on August 25 as
noted above.
There is a considerable variation among the witnesses
concerning statements of Melville at meetings with employ-
ees in November and December which provide the basis for
the complaint allegations that Melville at these meetings
threatened employees with reprisals or their protected ac-
tivities. Melville conceded in his testimony that he spoke to
the employees in November about the EEO complaints, but
he testified he mentioned no names of an employees in-
volved in the EEO matter. While the General Counsel's
employee witnesses appear to agree on the absence of refer-
ence to names, they differ with Melville on the substance of
his remarks. Thus. Employee Harry Hines testified that
Melville remarked that a "handful of folks" was causing
some trouble, and "if you couldn't be a leader, don't be a
follower." and "don't be carried down the drain with the
rest of' them." That testimony was substantially corrobo-
rated by employees Clifford Lowe and Vivian Ector, al-
though Ector placed the remarks at the December meeting.
Robert Miller simply testified Melville stated there were a
number of employees being led by other employees. Wiggs
testified that Melville had stated in the November meeting
that there were some "troublemakers" at the station and
before he let the lack of smooth operation at the station
interfere with his family support he would go "one on one
with us."T Wiggs' testimony did not attribute any EEO ref-
erences to Melville.
Melville denied any reference to troublemakers or any
reference to employees being taken "down the drain." He
related that at the time of his first November talk to the
employees he thought the EEO matter had been resolved
and said he told employees he would abide b whatever
decision was made on the matter. He admitted that he
made a statement to the employees to the effect "Let's all
speak for ourselves and not be led by other opinions." The
testimony of' supervisor Smith was in accord with that of
Melville. Moreover, the testimony of Lewis Jones tends to
corrobate Melville's version of his remarks, although Jones
placed the remarks in the December meeting. According to
Jones. Melville mentioned the EO charge and said that
possibly some employees "were being influenced or led by
others" and that "we just shouldn't be influenced" by who-
ever these people were. Miller's testimony appears also to
support Melville's version.
Finally. Melville's testimony has it that in his December
meeting with the employees he just talked about postal op-
erations without any reference to the EEO matter.
The clear consensus from the foregoing testimony is that
Melville met with the employees in November and Decem-
ber and at one or the other of the meetings he alluded to the
EEO charges and admonished the employees not to be in-
i' Hlines placed a similar reference by Melville about going "one on one"
with employees at an earlier meeting in November. Hlowever, his testimony
on that point included no reference to "troublemakers" or the EO activity.
Ector. on the other hand, similarly testified to a reference by Melville to his
family and his raises but placed them all as being made in the one talk in
December.
908
U. S. POSTAL SERVICE
fluenced or led by others. The existence of the "threat of
reprisal" depends on whether Melville coupled his admoni-
tion with an additional admonition not to be carried "down
the drain" with these "leaders," or whether Melville, in re-
lation to the EEO matter, threatened to go "one on one"
with the "troublemakers." I find no unlawful threat was
made by Melville and rely in this regard on the testimony of
Smith, whom I previously found to be credible, and of
Jones who impressed me as the most objective and most
credible of the General Counsel's witnesses on the subject.
Jones' testimony attributes no threat of Melville and there-
fore supports the denials of Melville and Smith that there
was any reference to troublemakers or that those who fol-
lowed unnamed "leaders" would "go down the drain" with
them. Accordingly, I credit those denials and find no un-
lawful threats violative of Section 8(a)(10) were made by
Melville in his talks to employees occurring in either No-
vember or December.
g. The Januarv 20 discharge
Upon his return to work on December 15 from his 2-
week suspension for failing to work overtime, Wright was
given a "Notice of Removal" letter dated December 5 and
signed by Melville proposing Wright's removal from service
effective January 20. 1978. On December 30 Wright was
given a letter of decision in effect finalizing the "Notice of
Removal."
On December 17 Wright gave foreman Phagan a letter
dated December 15 signed by his doctor asking that he be
relieved from overtime work for a period of "two to three"
months. According to Wright's testimony which is credited
here, he asked Phagan a day or two later if he was going to
honor the doctor's request that he not be required to work
overtime, and Phagan replied that he had not read the letter
but that the "doctor don't tell us what to do, we tell you
what to do." Thereafter, still according to Wright's testi-
mony. he continued to work overtime up until his removal
on January 20, although the record does not establish the
frequency of such overtime. Wright's affidavit submitted
during investigation of the case reflects that some time after
December 29 he complained to Union President Taylor
about Phagan not honoring the doctor's statement on
Wright's release from overtime work, and after that "Smith
and Phagan began to give him help and did not require
overtime."
Whether or not the amount of overtime worked after De-
cember 20 was substantial. Phagan's initial rejection of the
doctor's excuse for Wright's inability to work overtime re-
veals a callousness and insensitivity indicative of an ulterior
motivation and must be considered below in connection
with the other evidence of disparate treatment of Wright.
However. it must be here noted that on February 3 Wright
met with union steward Martin and Respondent's then la-
bor relations specialist, Sam Dowdy, concerning Wright's
grievance on his discharge. The matter was resolved with
the discharge being reduced to a 2-week suspension and
with Wright reporting back to work on February 6. Dowdy
'7 Phagan admitted that Wnght did work some additional overtime hut his
testimony, which I do not credit in this regard, was that it was voluntar on
Wright's part.
also assured Wright that his doctor's request that Wright
not be required to work overtime would be honored.
In resolution of this grievance Martin. Wright, and
Dowdy signed a letter of agreement " containing the follow-
ing provision:
It is also agreed that all appeals now pending will be
withdrawn and that all rights or appeal or further ac-
tion of any sort concerning the matters settled by this
agreement will be waived for all purposes. This settle-
ment will not impair appeal rights for future disciplin-
ary action.
Consistent with his understanding of the above agree-
ment that all pending grievances of Wright were resolved,
Dowdy returned to union steward Jones, the grievances on
Wright's earlier suspensions on October 28 and November
21. Dowdy testified without contradiction that the nion
took no further action on these grievances.
h. The denial ! annual leave to Wright
The complaint in Case 10 CA 13827(P) alleges that on
or about March 17. 1978. Respondent denied the annual
leave request of Wright because of his prior protected, con-
certed activities. In support of this allegation. Wright testi-
fied that about March 17 he advised Phagan that he wanted
to be off all the next day but that if he could not be off the
full day he would like to be off half the day. According to
Wright's testimony, Phagan approved the leave but told
Wright to call Foreman Smith the next morning and if
Smith did not have "a lot" of sick calls Wright could be off.
and if Smith did need Wright. Wright could come in and
work 4 hours. The next morning Wright phoned Smith, and
Smith told him to come in to work. When he reported lor
work Smith told Wright that he then had all the positions
covered and Wright could take his leave. Wright declined.
saying that since he was there he would work 4 hours.
Smith told him to work the full 8 hours or go home. Wright
proceeded to work, but after 4 hours sought to take leave
for the rest of the day. Smith refused the request. Subse-
quently. however. Martin interceded in Wright's behalf,
and Wright was allowed to take 4 hours leave.
The testimony of Phagan and Smith does not differ sub-
stantially from that of Wright except that Phagan denies
that he specifically approved Wright's leave in advance. I
credit Phagan in this regard, for if there had been specific
approval granted there would have been no need for
Wright to "check" with Smith the following morning.
Moreover. Wright's prehearing statement submitted to the
Board on the point clearly reflects that the leave was con-
tingent upon Smith's needs the following morning.
I do not find disparate treatment of Wright in this epi-
sode. He was ultimately granted 4 hours of leave after he
rejected the full day's leave and even though. according to
Phagan's uncontradicted testimony, Respondent had to pay
another employee overtime in order to give Wright the 4
hours. The fact that Smith had legitimate production needs
which could not be fully determined prior to Wright's re-
porting time was not rebutted by Wright. Accordingly, and
also because Wright was offered a full 8-hours leave after
*s Resp. Exh. 145.
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he reported, I conclude that Respondent's actions with re-
spect to Wright did not constitute disparate treatment. I
therefore conclude that the denial of leave to Wright did
not violate Section 8(a)(1) as alleged.
i. The May 22 warning letter to Wright
On May 22, 1978, Wright was issued an "official warning
letter" dated May 22, 1978, containing a listing of Wright's
absences from work on unscheduled absences from Septem-
ber 23, 1976, through May 6, 1978. The letter reflects that
Wright had a total of 497 hours of unscheduled'9 leave for
the period and noted that Wright had previously been is-
sued a warning letter on August 2, 1976, citing his lack of
dependability and warning him therefor. The letter stated
that it constituted a "Final Warning and a Final Step," and
advised Wright that unless he made immediate, substantial,
and continued improvement in his attendance his dismissal
would be forthcoming.
The General Counsel does not dispute the accuracy of
the information with respect to Wright's absences set forth
in the final warning letter. Respondent, on the other hand,
does not contend that Wright was not ill on the days he was
absent. In any event, the complaint in Case 10-CA-
13827(P) alleges that the issuance of the warning letter was
motivated by Wright's involvement in protected, concerted
activities.
3. Contentions and conclusions on Wright
The General Counsel and counsel for the Charging Par-
ties contend in substance that the pattern of conduct by
Respondent against Wright, including the timing of its ac-
tions, the disparate nature of the treatment accorded
Wright, and the demonstrated animosity against Wright es-
tablish that Respondent's motivation was retaliatory for
Wright's involvement in protected, concerted activities. Re-
spondent argues, conversely, that Respondent's treatment
of Wright was consistent with its treatment accorded other
employees. Moreover, Respondent, by renewing arguments
made to the Board in support of its Motion for Summary
Judgment in Case 10-CA-13363(P), urges that the Board,
in keeping with the principles announced in Spielberg
Manufacturing Company, 112 NLRB 1080 (1955), and Elec-
tronic Reproduction Service Corporation, 213 NLRB 758
(1974), should defer to the award of the arbitrator with
respect to Wright's September 23 suspension. Further, Re-
spondent, citing U.S. Postal Service, 234 NLRB 820 (1978),
contends that the Board should defer to the settlements en-
tered into by Wright with respect to other alleged discrimi-
natory conduct against him, specifically the grievance dis-
position relative to his denial of breaks, General Counsel
Exhibit 5, and his removal or termination, Respondent Ex-
hibit 145.
Considering Respondent's latter arguments, I first con-
clude that deferral to the arbitration award would be inap-
propriate in this case. In Spielberg, supra, the Board held it
Ad While there is some conflict in the record as to the meaning of "unsched-
uled leave." it is clear that it includes sick leave whether or not substantiated
by a doctor's statements regarding the illness.
would defer to an arbitration award where: (1) the arbitra-
tion proceeding is fair and regular; (2) all parties agree to
be bound by the decision, and (3) the decision is not repug-
nant to the purposes of the Act. The burden is on Respon-
dent to show that all requisite elements to application of
Spielberg have been satisfied. John Sexton & Co., A Division
of Beatrice Food Co., 213 NLRB 794, 795 (1974). In the
instant case, aside from the arbitrator's decision itself, there
is little to show that the arbitration proceeding was in fact
fair or regular. In addition, there was no showing that the
arbitrator considered the unfair labor practice issue. On the
contrary, the arbitrator's decision notes the existence of, but
does not resolve the conflicting facts and circumstances of
Wright's alleged subsequent failure to follow instructions
upon which the suspension was allegedly partially based.
Further, if the arbitrator's conclusion that the 14-day sus-
pension was "excessive and punitive," even in part because
of Wright's involvement in protected, concerted activities,
the award, granting as it does only a reduction of the term
of suspension, would be repugnant to the Act and contrary
to Board decisions. See Versi Craft Corporation, 227 NLRB
877 (1977). Accordingly, I find deferral to the arbitrator's
award unwarranted.
Respondent's argument that the Board should defer to
the settlements of certain of Wrights grievances through the
contract grievance procedure has more apparent merit, par-
ticularly with respect to Wright's termination, because
Wright was an active participant in the grievance settle-
ment and signed the settlement. Indeed, overall the griev-
ance machinery worked rather well for Wright. If the
Board's policy is to encourage, require, and generally honor
the use of available grievance procedures between disputing
parties, the honoring of the settlement obtained through the
grievance machinery would achieve that result. However,
present Board law indicates a contrary result and appears
to require as a condition of deferral that the issues be re-
solved through an arbitration award which is shown to con-
form to Spielberg standards. See United States Postal Ser-
vice, 237 NLRB 117 (1978); T & T Industries, Inc., 235
NLRB 517 (1978). The "settlements" here did not reach the
status of an arbitration award which could be examined for
compliance with Spielberg standards.2° Accordingly, I find
deferral to such "settlements" unwarranted in this case.2'
Turning to the facts of the case, I must first observe that
Respondent's treatment of Wright in view of his undisputed
medical problems must be viewed as harsh, callous, and
insensitive. These acts render suspect all of Respondent's
actions toward Wright. Nevertheless, to find a violation
based on such treatment I must find that it not only was
disparate but also that such disparity was occasioned by
Wright's involvement in protected activity in his expression
201 note in any event that there is a dispute between the parties with
respect to the extent of the settlement of Wright's discharge grievance, with
Wright testifying that it applied only to the discharge while Dowdy testified
that it applied not only to Wright's discharge but included his grievances on
Wright's earlier unresolved grievances on his suspensions in October and
November. The language of the "settlement" itself is ambiguous. I credit
Wright's testimony that it was applicable only to the discharge grievance. At
the least, there was no "meeting of the minds" on the extent of the "settle-
ment."
2 U. S. Postal Service, 234 NLRB 820 (1978) cited by Respondent, in my
opinion is distinguishable, because the issue there, unlike here, was whether
the terms and conditions of the settlement agreement itself violated the Act.
910
U. S. POSTAL SERVICE
of complaints to management on behalf of himself and
other employees and his filing of the EEO complaint. Hav-
ing considered the harsh treatment of Wright by Respon-
dent, I am not persuaded that a preponderance of the evi-
dence establishes that any disparity in the treatment of
Wright was based on his protected. concerted activity.
True, the denial of breaks to Wright and the requirement
that he work overtime or provide a doctor's certificate for
each failure to work overtime was so unreasonable and
without precedent as to indicate that Wright was the object
of special attention. Likewise, I have previously found that
Respondent's failure to call or check on Wright when he
failed to appear for work on September 28 reflected addi-
tional disparity in treatment.
On the other hand, the placing of Wright on restricted
sick leave in September appears to be consistent with Re-
spondent's policy of policing abuse of sick leave and plac-
ing employees on restricted sick leave when their use of sick
leave was extensive. While one may argue with the policy of
disciplining employees for the legitimate but extensive use
of sick leave, Respondent appears to have applied its policy
in this regard uniformly. The language of the official warn-
ing letters used by Respondent reflects its concern that even
legitimate sick leave can have an unfavorable impact on
Respondent's mission and operations. Thus, a standard "of-
ficial warning letter," received by Wright on August 2,
1976,'" and signed by Melville prior to Wright's involve-
ment in protected, concerted activity states as follows:
Your lack of dependability based on you absenteeism
continues to create a hardship on the efficient opera-
tion of this post office unit. You were officially coun-
seled regarding this deficiency on October 10, 1975,
and the situation has not improved to an acceptable
standard as of this date. Every consideration has been
extended to assist you, and while I am sympathetic to
your problem, the needs of the service cannot be satis-
factorily maintained unless you are present and able to
handle your duties.
The record contains similar warning letters to employees
Ector" and Wiggs" in 1977, and to employee R. L. Miller
in 1976.25 The record also contains documents reflecting im-
position of restricted sick leave on numerous employees in
1975, 1976, and 1977. During the same period Respondent
conducted a large number of counselings of employees on
abuse of sick leave.
It is not disputed that Wright had an unenviable attend-
ance record?2 That record shows that he missed several
days of work during the period in 1977 when he was on
"light duty" assignment, and had missed I day the week
prior to his being put on restricted sick leave on September
15. In view of this, and because Respondent appears to
have followed a uniform policy in imposing restricted sick
leave, I conclude that the imposition of restricted sick leave
on Wright in September did not in itself constitute dispa-
rate treatment. For the same reasons, and because Wright
Resp. Exh. 80.
2' Resp. Exh. 58.
U Resp. Exh. 85.
25 Rep. Exh. 109.
X' See G.C. Exh. 19.
continued to have a significant number of absences after he
was put on restricted sick leave and up until he was given
notice of his proposed dismissal in December as well as
when he received his final warning letter in May 1978, 1
conclude that the proposed dismissal and the "final warning
letter" did not in themselves constitute disparate treatment.
Considering Respondent's motivation with respect to all
its alleged discriminatory actions against Wright, I must
observe that Wright had his difficulties with Phagan and
Melville long before he became involved with complaints
about parking, early reporting times, or EEO actions. Thus,
it is undenied that Wright received a letter of warning for
excessive absences on August 2, 1976, after having been
counseled by Phagan on July 10, 1975. He had also been
disciplined for refusal to work overtime on August 6, 1975.
In light of this background, as well as Phagan's counseling
of Wright again on June 3 for excessive absences, Respon-
dent's subsequent actions with respect to Wright appear to
be logical steps in view of his admitted and continuing ab-
sentee record and refusals to work overtime.
One can be sympathic with Wright's health problem
while at the same time recognizing that Respondent had an
operation to maintain and an ongoing production that re-
quired dependable manning. Wright's absences and his pe-
riodic refusal to work overtime represented a burden to Re-
spondent as Wright's health was a burden to him.
Callousness and impatience on Respondent's part, under
these circumstances, is more understandable.
The existence of such callousness also appears to have
predated Wright's protected, concerted activity. In an at-
tachment to a statement given the Board, Wright" related
that on August 8, 1975, he was accused and later suspended
because foreman Phagan refused to listen to or consider his
medical problems. On August 9, 1976, Melville, according
to Wright's attachment, told Wright to "get well or get
gone." Finally in another attachment to the same state-
ment,2' Wright alleged that on February 3, 1977, Melville
harassed and intimidated Wright saying that Wright was
"undesirable, unconcerned, unreliable, undependable," and
a "damn hard head."
Clearly then, the record substantiates the existence of
animosity between Wright on one hand and Phagan and
Melville on the other, and I have no doubt that animosity
contributed to the callous and insensitive treatment of
Wright. But since that animosity preceded Wright's in-
volvement in protected, concerted activity, it makes more
difficult the General Counsel's burden of establishing that
Respondent's actions against Wright were based, at least in
part, upon his protected activities.
I have found no credible evidence to prove that Respon-
dent's actions against Wright were linked in any way to his
complaints about parking, about early reporting times. or
his having filed an EEO complaint. I have found no threats
were made by Melville to Wright or other employees re-
lated to Wright's concerted activities. Considering all of the
foregoing, I cannot conclude that Respondent would have
treated Wright differently but for his protected, concerted
activity. Accordingly, and notwithstanding the harsh treat-
17 Resp. Exh. 3, attachment 18.
2 Resp. Exh. 3. attachment 8(c).
911
12DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment accorded Wright, I find that the necessary preponder-
ance of evidence has not been established with respect to
any of the violations alleged with respect to Wright, and I
shall recommend that those allegations of the complaints
alleging 8(aXl) violations in Respondent's treatment of
Wright be dismissed.
C. The Denial of Union Representation to Wright
The complaint in Case 10-CA 13363(P) alleges that Re-
spondent on or about November 21. 1977. denied a request
for union representation to Wright before the commence-
ment of a disciplinary interview. In support of this allega-
tion Wright testified that on November 21. foreman Phagan
asked Wright to come to his office, that he wanted Wright
to sign "something." Wright asked to have a union repre-
sentative present, but Phagan replied that Wright did not
need one because all he was interested in was Wright read-
ing and signing a letter. Wright then followed Phagan to
Phagan's office where Phagan gave Wright his notice of a
14-day suspension for his failure to work overtime or pro-
vide a doctor's statement on November 18 and 19. Wright
testified that after he signed the notice of suspensions Pha-
gan asked Wright "something" about the day before the
overtime request and the doctor's statement. Wright re-
minded Phagan that he had promised not to talk about the
doctor's statement or anything else. Phagan responded
"O.K." adding that he would get a letter to union steward
Jones.
Phagan did not specifically contradict Wright's testimony
in the foregoing particulars. Wright's testimony is credited.
The General Counsel contends that when Phagan called
Wright to his office Wright knew that he had not brought in
the doctor statements for his failure to work overtime and
was in reasonable fear that discipline would result from the
meeting. This was shown by Wright's refusal to answer
Phagan's questions. Accordingly, the General Counsel and
counsel for the Charging Parties argue that the discipline
imposed during the meeting, in the context of the question-
ing of Wright, constituted a violation of Wright's rights un-
der the Act as defined in N.L.R.B. v. J. Weingarten, Inc.,
420 U.S. 251 (11975).
It is well established that an employee has a right to
request representation as a condition of participation in an
interview where the employee reasonably believes that the
interview will result in a disciplinary action. N.L.R.B. v. J.
Weingarten, Inc., supra. However as the Board noted in
Amoco Oil Company, 238 NLRB 551 (1978), an employee's
right under such circumstances "does not impose upon em-
ployers the absolute obligation to comply with all requests
of that nature." Id. sl. op., p. 3.
In the instant case I concur with the General Counsel
that in view of his prior failure to follow Phagan's instruc-
tions to work overtime, as well as his difficulties generally
with Phagan, Wright had a reasonable expectation that an
office interview with Phagan might result in a disciplinary
29 The complaint alleged that Respondent also violated Section 8(aX I} of
the Act by issuing a counseling report on Wright on October 20. My search
of the record reveals no evidence on this point and it was not argued in either
the General Counsel's or Charging Parties' briefs. In the absence of evidence,
I find this allegation to be without merit.
3°G.C. Exh. 14.
action. However, on Phagan's assurance that all he wanted
was for Wright to sign a paper, Wright, following the denial
of his request for representation, proceeded to the office
where he did in fact sign the suspension notice signifying
his receipt of such notice. It is obvious that the suspension
decision had already been made and the notice letter pre-
pared prior to Wright's entering Phagan's office. Moreover,
it must also have been prepared prior to Wright's request
for representation before entering the office. Thus, as I view
the evidence, Phagan was simply informing Wright of a
previously reached disciplinary decision. The Weingarten
decision does not prohibit the denial of union representa-
tion where the purpose of the meeting with the employee is
to announce, without more, a previously reached disciplin-
ary decision. See Amoco Oil Company, supra. Cf. Certi ed
Grocers of CaliJbrnia, Ltd. 227 NLRB 1211 (1977), enforce-
ment denied 587 F.2d 449 (9th Cir. 1978).
It is true that after Wright had already signed the suspen-
sion notice Phagan asked him "something" about the sub-
ject matter on which the suspension was based. However,
Wright refused to answer. and Phagan acquiesced in this
refusal indicating he would take it up with the union stew-
ard. Wright thus freely exercised his legitimate option to
dispense with any interview in the absence of union repre-
sentation, and the office meeting concluded. There was no
evidence the November 21 suspension notice was in any
way based on, or related to, Wright's November 21 request
for union representation in his office meeting with Phagan.
Nor was there any evidence that any subsequent action by
Respondent against Wright was based on his request for
union representation on November 21.
Considering the foregoing. I find the evidence does not
establish a violation of Section 8(a)(I) of the Act in Pha-
gan's denial of Wright's request for representation on No-
vember 21.
D. The Alleged Discriminatory Suspension of Wiggs
Roy Wiggs was employed by Respondent in 1968. Wiggs
was a Viet Nam war veteran and received highest employ-
ment preference points because of his service-related inju-
ries to his legs. While his physical examination prior to em-
ployment by Respondent revealed no limitations on his
capacity to work, Wiggs continued to have difficulties with
his legs which were subject to swelling and, according to
Wiggs' testimony, caused him substantial pain from time to
time. His legs played a significant part in his absentee rec-
ord, and Wiggs testified that he sometimes used his sick
leave in order to maintain his ability to continue working.
Wiggs' involvement in complaints to Station Manager
Melville regarding parking problems has already been re-
ferred to, as has been his involvement in the early report-
ing-time issue. Wiggs testified that he telephonically con-
tacted a Mrs. Turnipseed in Respondent's EEO branch
"around" March 1977 concerning the parking problem
which he felt was the result of radical discrimination. Tur-
nipseed interviewed Wiggs according to his testimony
sometime thereafter, at the station, but Wiggs was uncer-
tain when it was."
1 Because Wiggs' testimony on this poinx was s vague I am unable to
ascertain from it the time when Respondent's station supervisors may have
become aware of Wiggs' verbal complaint to Turnipseed.
912
l. S. POSI AL SERVICE
Wiggs also expressed his beliefls about the existence of
racial discrimination at the Northside Station in a letter to
President Carter on March 24, 1977. In that letter he also
referred to a warning letter he had received that date from
Respondent concerning absences which he attributed to his
legs and war wounds. That letter was referred to Respon-
dent for reply. Respondent, through its Washington office,
replied by letter dated April 21. 1977. explaining its attend-
ance rules and procedures. and further explained that if
Wiggs were not satisfied with having been put on the re-
stricted-leave list he could file a grievance.
Wiggs was also signatory, along with several other em-
ployees, to Wright's letter to Respondent's EEO branch
dated September 13. 1977.
Wiggs testified that in March, after he received his warn-
ing letter on his absences, he had a discussion with Melville.
In the discussion Melville told him that Melville would feel
better if Wiggs got mad and "cussed" because Melville did
not understand why Wiggs could be concerned about things
that happened to other people but was not concerned about
things that related to Wiggs personnally. Melville added
that Wiggs had his own problems and should not worry
about other people. Wiggs could recall neither his reply or
the context of the remarks he attributed to Melville. I credit
that portion of Wiggs' statement regarding Melville's asser-
tion that Wiggs should not worry about other people be-
cause it is similar to statements attributed to Melville by
Wright and employee Henry Hines. However, because the
remainder of the remarks attributed to Melville by Wiggs
appear illogical in the absence of the full context in which
they were uttered, I do not accept them as accurate.
In December 14. 1977, Wiggs was issued a 14-day sus-
pension for abuse of sick leave. The suspension was to be-
gin on December 17. It is this 14-day suspension which is
alleged in the complaint in Case 10-CA- 13645(P) to be in
retaliation to Wiggs' protected, concerted activities. In sup-
port of this contention the General Counsel urges that there
were other employees whose use of sick leave was as great
or greater than Wiggs' and they were not disciplined."
Moreover. the suspension followed very shortly after the
alleged threats of Melville in his November and December
speeches. Counsel for the Charging Parties echoes this argu-
ment.
Respondent argues that Wiggs' suspension was not dispa-
rate, and, in any event, was not motivated by Wiggs' in-
volvement in protected, concerted activity. Respondent
notes that Wiggs filed a grievance on his suspension. but the
Union refused to take the issue to arbitration.
In considering the discriminatory nature of the suspen-
sion, Wiggs' absentee record must be reviewed. This record
reveals that he was initially counseled on abuse of sick leave
by a supervisor named Bell on September 16. 1972.1 He
refused to work overtime, claiming illness, and was coun-
seled therefor on January 10, 1974.-7 He was placed on re-
)2 While the General Counsel's brief does not specify which employees he
is referring to with higher absence records it is presumed he is referring to the
absentee records of employees Burdett and Clark which he submitied In
evidence
) Resp. Exh. 87.
x Resp. Exh. 89.
stricted sick leave on February 6. 1976.' On October 3.
1976. he was again counseled about abuse of sick leave.'6
On March 21, 1977, he was issued a warning letter concern-
ing his absenteeism and setting forth the dates of his ab-
sences from April 1. 1976. through March 21. 1977. totaling
about 102 hours." Still Wiggs continued to have absences
until the time of his December 14 suspension. I'he notice of
suspension reveals Wiggs took 134 hours oft'sick leave sub-
sequent to March 21. The last such absence prior to the
December 14 suspension occurred on December 3. \'iggs'
suspension coincided with that of emplosce R. I. Miller.
who has used 202 hours of sick lea\,e subsequent to March
21.'A
Comparing Wiggs' absentee record ithl that of empiloee
E. K. Burdett, it appears that Burdett used approximatel>
tne same total number of sick-leave hours over the same
period noted above for Wiggs.'" Employee JI.. Clark's total
use of sick leave wais significantly less than "Wiggs' o,ver the
same period.' The record does not clearly shou, howexer.
that either Burdett or Clark were ever counseled or put on
restricted sick leave or had received prior warning letters as
had Wiggs. A counseling frm signed b,, Melville in Juls
1978 does show that an earlier "foriial discussion 'with Bur-
dett had not resulted in improvement" and that Mel.ille
was initiating "progressive discipline."4 Ihere is record e\ -
dence. on the other hand. establishing that cmployeess re-
ceived warning letters tor approximately the same or less
yearly totals of sick-leave hours used than had been used b,
Wiggs following his March 23 warning letter."'
The foregoing establishes some fiexibilit' in Respon-
dent's susper'ision entforcing Respondent's policies against
sick-leave abuse. but I am not persuaded that it reveals
disparate treatment of Wiggs. As noted bh the Uinion in
refusing to take Wiggs' grievatnce on his suspension t arbi-
tration, Wiggs' "unscheduled abscnces" (sick lea.e) had not
changed after he receil\d his arning letter. [hat salient
fact tforcef'ully detracts tronl a conclusion of dispar.te Ireat-
ment.
Accordingl. and considering all the foregoing. I am not
persuaded that Wiggs' December 14 suspension constituted
disparate treatment. Rather. I conclude that the suspension
was a logical step in the disciplinary process.
Moreover. I find no credible evidence that the suspension
was based on Wiggs' involvement in protected activities.
Wiggs was counseled and warned about his abuse of sick
leave long prior to his involvement in the EEO or other
protected activity. Yet his absenteeism continued. I nvole-
ment in protected activity cannot serve to insulate an em-
ployee from legitimate discipline.
Finally, there is nothing in the timing of Wiggs' uspen-
sion which tends to support a conclusion that the suspen-
sion 'aas unlawful. Wiggs' complaints about parking and
early reporting times occurred 9 months earlier. His EEO()
acti itv to Melville's knowledge was 2 to 3 months earlier.
3' Resp Exh 86
'" Resp. ixh 0
U Resp Ixh
' Resp EIxh 45
' C(; ( Ixh 27 and 28
(;(' iC xh 0
4' Resp I-xh 2
42 See. e g . Resp Ehs 22 i,. id 31
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And while Melville did refer to the EEO activity in his talks
to the assembled employees in November or early Decem-
ber, I have found he made no unlawful threats in connec-
tion therewith.
Under these circumstances, and considering the record as
a whole, I conclude that the General Counsel has not estab-
lished that Respondent violated Section 8(a)( ) with respect
to the suspension of Wiggs.
Upon the basis of the foregoing findings of fact, and
upon the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
I. The Board has jurisdiction over these cases by virtue
of section 1209 of the PRA.
2. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening employees with repri-
sal for engaging in protected, concerted activities.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Sec-
tion 8(a)( I) of the Act with respect to any actions alleged in
the complaints in Cases 10-CA-13363(P) and 10-CA-
13827(P) concerning its employee Aaron Wright.
4. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Sec-
tion 8(a)( I) of the Act in the suspension of its employee Roy
Wiggs as alleged in the complaint in Case 10 CA-13745(P).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDER 43
It is ordered that the complaints herein be. and they
hereby are, dismissed in their entirety.
"5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
914