U.S. Postal Services

National Labor Relations Board - Board Decisions

Feb 26, 1999

327 N.L.R.B. 759 (N.L.R.B. 1999)

POSTAL WORKERS (POSTAL SERVICE) 759
American Postal Workers Union, AFL–CIO (U.S.
Postal Service) and Alan C. Haungs. Cases 3–
CB–6901(P) and 3–CB–7089(P)
February 26, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On August 21, 1998, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Ameri-
can Postal Workers Union, AFL–CIO, its officers,
agents, and representatives, shall take the action set forth
in the Order, as modified below.
1. Substitute the following for paragraph 2(a).
“(a) Request the United States Postal Service (USPS)
to consider favorably Alan C. Haungs’ grievances con-
cerning USPS’s refusal to furnish him a copy of the
evaluation of Haungs sent to its Hawaii facility, and
USPS’s allegedly unfair and retaliatory evaluations,
which allegedly caused Haungs to not be rehired at the
USPS’s facilities in Washington, D.C., St. Paul, Minne-
sota, and Atlanta, Georgia, and if it refuses to do so,
promptly pursue the remaining stages of the grievance
procedure, including arbitration, in good faith with all
due diligence.”

2. Substitute the following for paragraph 2(c).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s finding that the Respon-
dent did not unlawfully refuse to process a grievance concerning Alan
C. Haungs’ alleged constructive discharge.
2 In accordance with our recent decision in Iron Workers Local 377
(California Iron Workers Employers Council), 326 NLRB 375 (1998),
we shall modify the make-whole remedy set forth at sec. 2(c) of the
judge’s recommended Order.
As set forth in his partial dissent in California Iron Workers Em-
ployers Council, Member Hurtgen would order a full make-whole
remedy in the event that the General Counsel can meet his evidentiary
burden at compliance regarding the merits of the grievances.
“(c) In the event that it is not possible for the Respon-
dent to pursue, on Alan C. Haungs’ behalf, grievances
that Haungs sought to file concerning his supervisory
evaluations, and if the General Counsel shows in compli-
ance proceedings that a timely pursued grievance on that
issue would have been successful, make Haungs whole
for any increase in damages he suffered as a consequence
of the Respondent’s refusal to process the grievances,
with interest.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to file and/or to process griev-
ances on behalf of any employee because that employee
filed charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL request the United States Postal Service
(USPS) to consider favorably Alan C. Haungs’ griev-
ances concerning the USPS’ refusal to furnish him a
copy of the evaluation of Haungs sent to its Hawaii facil-
ity, and the USPS’ allegedly unfair and retaliatory
evaluations, which allegedly caused Haungs not to be
rehired at the USPS’ facilities in Washington, D.C., St.
Paul, Minnesota, and Atlanta, Georgia, and if it refuses
to do so, WE WILL promptly pursue the remaining
stages of the grievance procedure, including arbitration,
in good faith with all due diligence.
WE WILL permit Alan C. Haungs to be represented
by his own counsel in the grievance and arbitration pro-
cedure, and WE WILL pay the reasonable legal fees of
such counsel.
327 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
WE WILL, in the event that it is not possible for us to
pursue, on Alan C. Haungs’ behalf, the grievances that
he sought to file concerning his supervisory evaluations,
and if the General Counsel of the National Labor Rela-
tions Board shows in compliance proceedings that a
timely pursued grievance on that issue would have been
successful, make Haungs whole for any increase in dam-
ages he suffered as a consequence of our refusal to proc-
ess the grievances, with interest.

AMERICAN POSTAL WORKERS UNION, AFL–
CIO

W. Francis Trezevant, Esq., for the General Counsel.
Andrew P. Fleming, Esq. (Walsh, Fleming & Chiacchia, P.C.),
of Blasdell, New York, for the Respondent.
Peter Gallaudet, Esq., of Windsor, Connecticut, for U.S. Postal
Service.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges filed in the above cases by Alan C. Haungs, an individ-
ual, the Regional Director for Region 3 issued an order consoli-
dating cases, amended consolidated complaint on February 27,
1997, alleging that the American Postal Workers Union, AFL–
CIO (the Respondent or the Union) violated Section 8(b)(1)(A)
of the Act, by failing and refusing since December 1995 to
process grievances filed by Haungs concerning his constructive
discharge, and since June 20, 1996, concerning Haungs’ rejec-
tion by the U.S. Postal Service (the Employer or USPS) for
employment, based on his personnel folder and supervisory
evaluation, because Haungs engaged in dissident union activity,
because Haungs was not a member of the Union, and for other
arbitrary, and invidious reasons, and with respect to the griev-
ance concerning Haungs’ rejection for employment, because
Haungs filed an unfair labor practice charge against the Re-
spondent in Case 3–CB–6901(P).
The trial with respect to the allegations in the above com-
plaint was held before me in Buffalo, New York, on September
22 and 23 and December 3 and 4, 1997. Briefs have been filed
and have been carefully considered. Based on the entire re-
cord,1 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
USPS provides postal services for the United States and op-
erates various facilities throughout the United States, including
facilities located at 1200 William Street and 55 Monsignor
Valente Drive, in Buffalo, New York. The Board has jurisdic-
tion over the USPS and the Respondent by virtue of Section
1209 of the Postal Reorganization Act (PRA).

1While every apparent or nonapparent conflict in the evidence may
not have been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of their
testimony. Therefore, any testimony in the record which is inconsistent
with my findings I hereby discredit.
The Respondent is and has been a labor organization within
the meaning of Section 2(5) of the Act.
II. FACTS
Haungs began his employment at USPS in April 1987 as an
electronic technician at its facility on William Street in Buffalo.
He was a member of Respondent for the first 6 years of his
employment.
At some point undisclosed by the record, Haungs was ap-
pointed shop steward for the Respondent. In April 1993, he
was demoted to alternate shop steward based on the recom-
mendation of Craig Marcheson, the Respondent’s craft director.
According to Haungs, after he was informed of the demotion,
he asked Marcheson why he was demoted. Haungs asserts that
Marcheson replied that Haungs would go “over my head, you
call Washington,” referring to Haungs’ habit of calling Randy
Sutton, Marcheson’s superior at the national office.
Marcheson denies that the decision to demote Haungs had
anything to do with Haungs’ calls to Sutton, and asserts that he
demoted Haungs because in Marcheson’s view, Haungs was
not able to settle any grievances. Marcheson adds that he never
criticized Haungs for speaking to Sutton or “going over his
head,” but admits that he did ask Haungs to keep him informed
of what Sutton and Haungs discussed.
Additionally, according to Marcheson, undenied by Haungs,
at some point after Haungs was demoted to alternate shop
steward, Haungs changed his shift, and Marcheson was respon-
sible for Haungs being reappointed as shop steward.
On November 11, 1993, Haungs gave a letter to the Respon-
dent’s president, Frank Resetarits, explaining why he was re-
signing as shop steward. In the letter he made only positive
statements about his experiences as shop steward, and indicated
to Resetarits that he was resigning primarily to spend more time
with his family. Haungs made no reference in this letter to any
of his prior disagreements with Marcheson, or his prior demo-
tion to alternate steward. Haungs testified that he did not do so
because “it was not a burning issue that I and Mr. Marcheson
had disagreements” and further admitted that the disagreements
were “not a big deal.”
On December 18, 1993, a USPS employee Art Lonczak
threatened fellow employee Tom Dunford that he (Lonczak)
would kill Dunford and his family and burn his house down.
Two days later, Lonczak told Dunford that he was going to kill
Dunford and his brother Michael Dunford. Lonczak added that
he had no family, or wife and that if he killed Dunford, he had
nothing to lose. On or about December 29, Lonczak in the
course of an argument with Tom Dunford indicated that he
knew how to make bombs that work.
POSTAL WORKERS (POSTAL SERVICE) 761
In early 1994, Lonczak informed Haungs that he had told
Dunford that he was going to rape Dunford’s wife, burn his
house, and kill his dog. On or about April 14, 1994, Haungs
discovered a comment written in the logbook under one of his
entries, “why don’t you track a dummy.” Haungs then asked a
group of his coworkers whether any of them had written this
remark. Lonczak responded, “I wrote it, and everybody knows
you’re a fucking dummy.” Later in the day, another employee,
Lou Barnas asked Haungs whether he was going to tell the
postal inspectors about the log book entry. Haungs replied that
if he was threatened before witnesses, then he would tell the
postal inspectors about it. Lonczak, who was present at the
time, interjected, “You’re not going to live long enough to have
witnesses.” Haungs responded, “That sounds like a threat to
me,” and the conversation ended.
Haungs did not immediately report this incident, since the
post office has a zero tolerance policy for threats, but after a
week and a half, he decided to report the conversation to Main-
tenance Manager William Fulcher. Fulcher instructed Haungs
to report the incident to the postal inspectors. Haungs complied
with Fulcher’s request, and a week and a half later was able to
reach a postal inspector named Moehring. Haungs related the
incident to Moehring over the phone, and furnished the name of
the other employees who were present at the time. Haungs
added that he did not think that the witnesses, Barnas and
Brenner, would be of much help because they are friends with
Lonczak. Moehring took the information, but never informed
Haungs of the results of the investigation.
Fulcher also reported to Haungs’ accusations against Lonc-
zak to the postal inspection service. Subsequently Fulcher
received a call from Inspector Barney Morrison who was as-
signed the case, and Fulcher related the details of Haungs’ as-
sertions concerning Lonczak, including the names of the al-
leged witnesses. Shortly thereafter, Inspector Morrison called
Fulcher and informed him that the charges had not been sub-
stantiated.
In June 1994, Haungs resigned as a dues-paying member of
Respondent. Sometime in mid-June 1994, Fulcher convened a
meeting of all maintenance employees. Fulcher began the
meeting by stating that there had been recent reports of threats
in the department, and that he had gotten the postal inspectors
involved. Fulcher added that if this doesn’t stop he would fire
people who are engaging in such conduct. Haungs brought up
the incident with the logbook and Lonczak and asked why
nothing was done about it. Supervisor Art Adamczyk inter-
jected that he had spoken to Lonczak about it and that he had so
informed Haungs. Haungs denied that he had been so informed
by Adamczyk, and they argued back and forth about that sub-
ject.
On June 22, 1994, Haungs was referred to the post office’s
employee assistance program (EAP) by management. The
referral reflects that the post office had received complaints
from other employees about Haungs. Haungs was not pleased
about this referral, and he approached the Respondent’s shop
steward Miranda to file a grievance over this action. Miranda
filed a grievance over the matter as requested.
In management’s step one response to the grievance, it as-
serts that it received many complaints about Haungs from other
employees, including from two union representatives. The two
union representatives were Marcheson and Tom Kaczmarek,
who informed Supervisor Rick Adams that they had received
complaints from other employees about Haungs’ behavior.
Eventually the post office agreed to destroy the memorandum
referring Haungs to the EAP, and notified Haungs by memo
dated August 30, 1994, that the memo was shredded.
In October 1994, Lonczak approached employee Paul Schulz
and said, “I can put you in the ground, I can run you down with
my car, I can take you out.” Lonczak then added, “I can take
them people out too.” Schulz testified that although Lonczak
did not identify who he meant by “them people,” Schulz be-
lieved that Lonczak was referring to Haungs and employee
Bruce Adams. According to Schulz, in the past Lonczak had
made statements while employees were sitting around, that he
did not like Haungs and Adams. Based on these prior com-
ments, Schulz asserts that he believed that Lonczak was refer-
ring to Adams and Haungs.
Schulz immediately reported Lonczak’s comments to
Marcheson. Marcheson told him to calm down and indicated
that he would speak to Lonczak about the matter. Marcheson
also told Schulz that if he carried “this too far, this guy could
lose his job.”
Subsequently, when Bruce Adams arrived at work, he heard
in the shop that Lonczak had threatened to kill Adams,
Haungs, and Schulz. On further inquiry, Adams found out that
the alleged threat was made directly to Schulz. Adams then
confronted Schulz who informed Adams that Lonczak had said
to Schulz, “I’m going to kill you first, and then I’m going to go
after those other two guys.” Adams asked Schulz if he reported
Lonczak’s conduct to management. Schulz replied that he had
not done so, because he was afraid that Lonczak might get
fired. Adams asked if Schulz had any objections to Adams
reporting it to management, and Schulz agreed.
Adams then spoke to Fulcher and reported what Schulz had
related about Lonczak’s conduct. Fulcher stated to Adams,
“I’ll fire him if he said that.” Fulcher added that he would
check the matter out. Fulcher immediately spoke to Schulz and
asked him if Lonczak had threatened him. Schulz replied not
exactly. Fulcher specifically asked if Lonczak had threatened
to kill him. Schulz answered, “no, but I could tell by the look
in his eyes.” Fulcher then told Schulz that since he had re-
ceived a report of a threat, he was going to turn the matter over
to the inspection service.
Later on that day, Fulcher informed Adams that he had spo-
ken to Schulz and that Schulz had not confirmed that Lonczak
had threatened to “kill” him as Adams had related. Adams then
went back to Schulz and asked why he had not confirmed to
Fulcher what he had related to Adams about Lonczak’s con-
duct. Schulz replied that he did not want to tell Fulcher exactly
what happened, because Schulz was afraid that Lonczak would
get fired and he (Schulz) did not know what Lonczak would do
if that happened.
In fact Fulcher did report the matter to the inspection service.
Subsequently a postal inspector reported to Fulcher that the
service had conducted an investigation and found no substantia-
tion of any threat made by Lonczak.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
Meanwhile, after the incident, Schulz tried to stay out of
Lonczak’s way and asked his supervisors Henry Ciemoch and
Rick Adams if he could be separated from Lonczak. Both of
these supervisors informed Schulz that it was post office policy
not to separate employees, and that if they separate one em-
ployee, they would have to separate others as well. Since that
time Schulz continued to work in the same building with Lonc-
zak on numerous occasions, including several times in the de-
tached mail unit (DMU). From 1994 to November 1995,
Schulz worked directly with Lonczak on the same project on
approximately a half dozen occasions.
Haungs found out about the Lonczak-Schulz discussion from
Bruce Adams, who reported to Haungs what Schulz had related
to him. According to Haungs, he was sure that Lonczak was
referring to himself and Adams, although their names were not
mentioned by Lonczak, since it was clear that Lonczak did not
like them. Haungs also adds that Lonczak had threatened him
before as related above in April 1994. Therefore, Haungs was
very upset about this report and immediately went to see Su-
pervisor Art Adamczyk. Haungs told Adamczyk that Lonczak
had “threatened me and Paul Schulz.” Adamczyk replied that
Fulcher is aware of it and is taking care of it.
In November 1994, Haungs was assigned to work in the
DMU along with Lonczak. Since the DMU is a separate build-
ing from the main building (GPO) where most of the work is
performed, Haungs protested this assignment. He spoke to
Supervisor Rick Adams and told him that he did not want to
work in the same building with Lonczak, because Lonczak had
threatened Haungs twice. Adams instructed Haungs to call
Fulcher which he did. Fulcher did not change the assignment,
but did call the postal inspectors, who interviewed Haungs on
that day. The inspectors also interviewed Lonczak, but accord-
ing to Haungs the inspectors did not interview Schulz, because
Schulz did not come to them.
The next day, Haungs was again assigned to the DMU along
with Lonczak. Haungs again protested the assignment to Su-
pervisor Adams, and told Adams that he did not want to work
with Lonczak. Adams replied he could not accommodate
Haungs’ request, and that assignments are based on the needs
of the postal service. Subsequent to this refusal of the postal
service to change his assignment, Haungs filed an EEO com-
plaint protesting this action, and asking that he be separated
from Lonczak and or mediation.
In January 1995, Haungs spoke to Shop Steward Thomas
Kaczmarek about the situation. Haungs informed Kaczmarek
that he felt unsafe working with Art Lonczak at the DMU, be-
cause Lonczak had previously had threatened him. He also told
Kaczmarek that he was unhappy about the progress of the post
office’s investigation of his allegations. He asked Kaczmarek
to file a grievance about management’s failure to separate him
from Lonczak. Haungs did not furnish Kaczmarek with any
specific details as to when and how Lonczak had threatened
him. Kaczmarek replied that he would investigate Haungs’
complaints and would notify Haungs of the results.
On January 28, 1995, Haungs followed up his oral request of
Kaczmarek with a written memo relating that he had notified
management of two threats by Lonczak to “kill” him, and that
he wanted information as to the results of the post office’s
and/or the inspection service’s investigation.
Kaczmarek investigated Haungs’ complaints by speaking to
several employees including Lonczak, as well as Supervisor
Rick Adams. None of the employees with whom he spoke
confirmed that they had heard or were aware of any threats
made by Lonczak to Haungs. 2 He also spoke to Lonczak, who
denied making any threats to Haungs. Supervisor Adams also
informed Kaczmarek that he had conducted an investigation,
which also included speaking to Lonczak, and came up with
nothing to substantiate Haungs’ allegations of threats. Adams
also informed Kaczmarek that the Postal Inspectors had also
previously conducted an investigation of Haungs’ assertions,
and had found no substantiation of any threats made by Lonc-
zak. Kaczmarek therefore provided a memo to Haungs, dated
February 2, 1995, stating “upon completion of an investigation
concerning your complaints, there is no contractual violation.”
Haungs then sent a letter to Marcheson, asking him questions
about the status of the investigation of his complaints by man-
agement, and making reference to Kazcmarek’s response to
him, which Haungs did not consider satisfactory, and accusing
Kazcmarek of refusing to speak to management on Haungs’
behalf.
Marcheson responded to Haungs by letter dated February 13,
1995. This letter asserts that Marcheson asked Kaczmarek if
Kaczmarek and management investigated Haungs’ claims and
was informed that in fact Kaczmarek had investigated his con-
tentions. The letter also asserts that Marcheson reviewed
Haungs’ claims, and finds that Kaczmarek was correct by tell-
ing Haungs that there was no contractual violation.
On February 21, 1995, Haungs wrote two letters, one to
Marcheson and one to Fulcher, asking similar questions about
the status of the various investigations concerning his com-
plaints.
By letter dated March 3, 1995, Marcheson responded to
Haungs. The letter essentially reiterated Marcheson’s earlier
response that Haungs’ concerns were previously investigated,
and he was given written notice that the Union concluded that
there was no contract violations.
Haungs’ letter to Fulcher resulted in a meeting between them
on or about March 10, 1995. Haungs repeated his accusations
against Lonczak to Fulcher, as well as his request to be sepa-
rated from Lonczak. Fulcher informed Haungs that the inspec-
tion service had been informed of both incidents that he had
reported, and found no substantiation of the threats. Therefore
Fulcher could not keep Haungs and Lonczak separated due to
the postal service’s work duties. Fulcher added that he would
again report Haungs’ allegations to both the postal inspectors
and to labor relations, and suggested that if he had any proof of
his allegations, he should submit same to the postal service.
Fulcher, immediately after the meeting, reported Haungs’ alle-
gations to both labor Relations and to the postal inspectors on
March 13 and 14, respectively.

2Kaczmarek admits that he did not speak to Paul Schulz. However,
there is no evidence that Kaczmarek was aware that Haungs had as-
serted that the threat made by Lonczak to harm Haungs was made
directly to Schulz.
POSTAL WORKERS (POSTAL SERVICE) 763
Haungs at that point spoke to various employees in an at-
tempt to obtain the “proof” that Fulcher requested. After ob-
taining statements from David Needham, Michael Dunford, and
Bruce Adams, Haungs submitted these statements, along with
his own statement of the relevant events, to Fulcher. Need-
ham’s statement, dated March 19, 1995, asserted that Paul
Schulz was so upset over a “then recent threat to his life” by
Lonczak, that he (Schulz) couldn’t perform his duties.
Dunford’s statement reflected that he had heard Schulz say
that Lonczak had threatened to kill Schulz and to run him down
with his car. Bruce Adams submitted a statement essentially
reflecting how he testified in this proceeding.
After reading the additional “proof” submitted by Haungs,
Fulcher concluded that there was still no substantiation of
Haungs’ allegations, since all these statements contained
strictly “hearsay” information. Fulcher did however forward
these statements to the Inspection Service.
In May 1995, Mike Dunford the older brother of Tom Dun-
ford met Lonczak at a local bar. Dunford told Lonczak to leave
his brother alone at work. Lonczak replied, “Your brother’s a
fucking asshole.” The conversation concluded. A few minutes
later, while Dunford was drinking a beer, Lonczak grabbed
Dunford’s ear, and attempted to pull his head down. Dunford
slapped Lonczak’s hand off his ear, and slapped Lonczak
across the head a few times. Dunford then pushed Lonczak up
against the bar, and other people then got between them and
broke up the scuffle.3
On or about May 1, 1995, Haungs filed another EEO com-
plaint alleging “reverse age discrimination,” claiming that the
postal service discriminated against him by failing to separate
him from Lonczak as he requested, while at the same time al-
lowing other named and presumably “older” employees to
work in “preferred areas.”
On or about July 14, 1995, Haungs and Lonczak were again
both assigned to work at the DMU. Haungs approached Super-
visor Mike Sloan and informed him that Lonczak had threat-
ened him twice before, and he did not want to work with Lonc-
zak at the DMU. Sloan responded in a joking manner, “I’m
here, I’ll protect you don’t worry.” Two hours later Sloan left
the DMU. Haungs worked the remainder of the shift. Haungs
did not recall how long Lonczak remained at the DMU on that
day.
Haungs immediately filed another EEO complaint against
Sloan, for failing to assign Haungs to a different building than
Lonczak. In his statement of incident activity attached to this
complaint, he accused Sloan of leaving the building (DMU)
while Lonczak was still there at 2:30 p.m., and asserting that
Sloan failed to provide for Haungs’ safety. The statement adds
that Sloan is a friend of Lonczak and resents previous EEO
activity against him by Haungs. Finally the report states that
Sloan “is hoping that Art Lonczak will kill me.”
Sometime in September 1995, Haungs and Lonczak were
once again assigned to work at the DMU. Once more Haungs
stated to Sloan that he did not want to work with Lonczak at the
DMU. Sloan instructed Haungs that if he was so afraid to work
with Lonczak, to “punch out and leave the building.” Haungs
did so and requested the presence of a union steward. Eventu-
ally, Kathy English, a union steward for the custodians, spoke
to Haungs about his situation. English then made several at-
tempts to speak to various officials of the post office on

3Dunford is much bigger and stronger than Lonczak.
Haungs’ behalf, but was unsuccessful in persuading them to
allow Haungs to go back on the clock or to be separated from
Lonczak.
However, after this incident, Haungs was not assigned to
work with Lonczak at the DMU for several months, until No-
vember 15, 1995, when such an assignment was again made.
When Haungs could not find his supervisor to protest this ac-
tion, he complained to William Downes, plant manager of the
post office Williams Street facility. Downes instructed Haungs
to report to Supervisor Heimoch, whereupon, Heimoch as-
signed Haungs to work at the GPO.
Two hours later, Haungs was called into a meeting in Dow-
nes’ office. Present were Lonczak, Fulcher, Marcheson, and
Downes. Downes stated that the objective of the meeting was
to clear up the issue between Lonczak and Haungs. Downes
asked Lonczak if he had threatened Haungs. Lonczak emphati-
cally denied ever threatening Haungs and stated that he was not
a violent person. Downes responded that he did not know
whether Lonczak threatened Haungs or not,4 but “I’m telling
you right now, if you do anything like that, I’m going to fire
you, pure and simple.” Downes then turned to Haungs and told
him that he expected Haungs to work with Lonczak from now
on. Haungs continued to insist that Lonczak had threatened
him and requested that he not be assigned to work with Lonc-
zak at the DMU. Downes replied that he could not have people
picking and choosing where they’re going to work, and in-
structed Haungs that he was going to work where he’s told to
work just like everyone else.
Haungs was then told to leave the meeting, and Downes reit-
erated to Lonczak that if he ever threatened anyone he would be
fired, as well as telling Lonczak that he should not be criticiz-
ing the work of other employees.
On November 29, 1995, Haungs reported to work and was
assigned to the DMU. He asked Supervisor Ceimoch whether
Lonczak was going to be assigned there as well. Ceimoch said
yes. Haungs responded that he couldn’t work there because
Lonczak had threatened him, and added that he would not go to
the DMU if Lonczak was there. Ceimoch called in Supervisor
Miller, who in turn called Fulcher. A long discussion ensued
between Haungs, Miller, and Fulcher, during which Haungs
continued to insist that he would not work with Lonczak be-
cause of the threats, and Miller or Fulcher refusing to resched-
ule Haungs and informing him that he must perform the job
assigned to him. Finally, Haungs was asked whether he was
defying a direct order. Haungs replied, “I’m not going to work
with this guy.” He was then told to punch out and leave the
building. Haungs complied and left work.
4Downes testified that he had previously been made aware of
Haungs’ allegations of threats by Lonczak, and had checked with the
postal inspectors and was informed that Haungs’ allegations had been
investigated, and found not to have been substantiated and consisted of
alleged threats several years back.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
The next day, November 30, 1995, Haungs reported to work
and his timecard was missing. He was told that he was marked
AWOL for the prior day. When he received his assignment for
that day, he again was told that he would be working at the
DMU along with Lonczak. Once again he refused to work with
Lonczak, and once again Supervisor Miller was called in and
ordered Haungs to work where he was assigned. According to
Haungs, he then requested to speak to a union steward. Miller
called over Shop Steward Dave Spanitz, and Haungs asserts
that he asked Spanitz to file a grievance for him because he
couldn’t work with Lonczak. According to Haungs, Spanitz
refused to file a grievance on his behalf, telling him that the
threats occurred a long time ago and he (Lonczak) didn’t mean
it. While they were talking, Miller came over and told Haungs
to leave the building.
Spanitz has a somewhat different recollection of the events.
According to Spanitz, Haungs did not either ask for a steward
or ask him to file a grievance. Spanitz asserts that he became
involved when Miller summoned him and told him to tell
Haungs that he had 15 minutes to get out of the building or
return to work. Spanitz transmitted this message and added that
Haungs must be responsible for his own actions.
Under either version, it is clear that Haungs left the building.
According to Haungs, as he was leaving the facility and starting
to drive home, he thought that the post office was going to con-
tinue to assign him to work with Lonczak, and since he was not
going to work with him, he would be fired anyway. Therefore,
he turned his car around, drove back to the facility, and re-
signed. The resignation form that he submitted reads as fol-
lows: “Technician Art Lonczak has threatened to kill me twice
on the clock, so to prevent Art Lonczak from killing me I am
quitting my job.”
Prior to submitting the form he spoke to Fred McNamara, a
labor relations official of the post office, who tried to talk
Haungs out of his decision to resign. However, Haungs testi-
fied that he was determined to quit, and McNamara wasn’t
going to talk him out of it. Haungs added, “I could see this I
was not paranoid, these people were mad at me, a group of
people were mad at me and this whole situation fell right into
their hands, this is perfect for them. I’m going to give them
what they want, I’m out of here, it’s not worth it to work with
this guy, it’s not worth it.”
Haungs also had a conversation on that day, prior to resign-
ing, with William Cummings who had been previously craft
director of the Union, and who had appointed Haungs as shop
steward. Haungs informed Cummings that he did not want to
work at the post office anymore because they were continuing
to assign him to work at the DMU with Art Lonczak. Cum-
mings urged Haungs not to resign and suggested various other
options that he could follow. Cummings suggested talking to a
steward, filing a grievance, calling the union president or call-
ing a union representative in Washington if he did not want to
talk to the craft director.5 Cummings also suggested that
Haungs could go out on compensation for job-related stress.
Cummings emphasized that if Haungs quit it would be a big
step, and if he resigned he would be giving up his right to be
represented because the Union represents employees but not
people off the street who are no longer postal employees. The

5Haungs had made many previous complaints to Cummings about
his dissatisfaction with the local union leadership.
conversation ended, without Haungs telling Cummings whether
or not he was going to resign.
According to Haungs, the next morning, December 1, 1995,
he received a call from William Trezevant of the Labor Board,
who allegedly told him that “I had to tell a Union steward to
file a constructive discharge grievance for me.”6 In that con-
nection Haungs further testified that he first was told about the
term “constructive discharge” by a fellow union member Ro-
land Johnson on the day that he quit. Haungs admitted that he
had “never heard of this. I figured you quit, you’re dead.”
Therefore on December 1, 1995, Haungs spoke to Marche-
son outside the facility. Haungs informed Marcheson that the
Labor Board has told him to tell Marcheson that he must file a
constructive discharge grievance on Haungs’ behalf.
Marcheson replied that since Haungs had resigned he was no
longer a post office employee, the APWU only represents em-
ployees of the post office, and therefore the Respondent could
not represent him. Marcheson testified that he had never heard
the term constructive discharge and did not know what it
meant. He also admits that he did not ask the union president
about the issue of a constructive discharge, and whether he
knew what it meant, since he (Marcheson) had gotten an exten-
sion of time from management, and felt that the Respondent
could deal with it if the Labor Board determined that the Union
had to represent him.
Marcheson then went to speak to Supervisor Miller.
Marcheson informed Miller that he had been asked by Haungs
to file a grievance and he had told Haungs that it was the Un-
ion’s position that it could not file a grievance on his behalf.
However, Marcheson added that he knew that Haungs is going
to the Labor Board and the Labor Board had in the past come
up with some decisions that Marcheson did not understand.
Therefore, Marcheson said to Miller that if the Labor Board
tells the Respondent that it is supposed to file a grievance for
him, he did not want the post office to raise the time limits
issue. Miller replied that he felt that the Union was right in
what it was doing, and he had no problem with not raising time
limits.
The next day, Marcheson spoke with Fulcher. He told Ful-
cher that he had asked for an extension from Miller because he
was unsure of what the Labor Board would do, and went
through the same discussion that he had with Miller. Fulcher
responded yes that it was okay and he had no problem with an
extension.7
6 Haungs provided no explanation as to why Trezevant would be
calling him, since he had not filed any charges as yet.
7 I credit Marcheson’s testimony that he received oral agreements
from both Miller and Fulcher for an extension of time to file a griev-
ance. I note that Fulcher could not recall whether he so agreed, but did
not deny that he had done so. Miller did not testify.
POSTAL WORKERS (POSTAL SERVICE) 765
On December 1, 1995, Haungs filed the charge in the instant
case against the Respondent, alleging that it violated Section
8(b(1)(A) by refusing to file a grievance over Haungs’ con-
structive discharge.8
Subsequently Marcheson and the Union’s president had
several conversations with the board agent, who explained to
them what constructive discharge meant. Finally on May 31,
1996, the Respondent decided to file a grievance on Haungs’
behalf alleging a “constructive discharge, in order to protect
ourselves.”9 During the processing of this grievance, the postal
service consistently took the position that the grievance was
untimely, and that Haungs was not an employee because he
resigned. In Fulcher’s step 2 response to Stiegler dated May
31, 1996, he states “this grievance is filed on behalf of a former
employee who tendered his resignation on November 30, 1995.
Given that he ended his postal employment effective that day,
this grievance is improper in that Mr. Haungs is not an em-
ployee in the regular work force as per article I of the National
Agreement and cannot be represented by the APWU as such.”10
The letter also alleges that the grievance was untimely and
that on the merits, there was no evidence presented to substan-
tiate Haungs’ contention that an unsafe condition existed on
either November 29 or 30, 1995.
The Union thereafter filed for arbitration, which was held on
June 11, 1997. The arbitrator’s decision was issued on July 17,
1997, finding the matter not to be arbitrable, because it was not
timely filed.
The arbitrator recited the history of the dispute, including the
Respondent’s refusal to initially process the grievance because
Haungs had resigned. The arbitrator noted specifically that
both the post office and the Union initially concurred that the
grievant had no standing to file a grievance since the parties
believed that Haungs had resigned of his own free will. The
arbitrator then noted that several arbitration decisions cited by
the Union supported such a position, one of which the arbitrator
quoted. The arbitrator then noted that the matter was compli-
cated by the admitted lack of knowledge of the Union of the
theory of constructive discharge.
The arbitrator recited the conflicting testimony given at the
arbitration, as to whether an oral extension of time had been
agreed to by the parties. The Respondent presented Marcheson,
who testified to having obtained such an oral extension, sup-
ported by the union president, who asserted that he had been
told by Marcheson that such an extension had been agreed to by
management. The president also testified therein that after the
NLRB informed him about the theory of a constructive dis-
charge, he consulted an attorney who advised him to file a
grievance on Haungs behalf. Fulcher also testified at the arbi-
tration, and denied having agreed to any extension of time.11
The arbitrator, after reviewing the conflicting testimony, ob-
served, “while the Union may initially have sought an exten-
sion of time to file a grievance, and management may have

8 Haungs also filed a charge against the post office in Case 3–CA–
1969(P) on the same date.
9 By this time John Stiegler had replaced Marcheson as craft direc-
tor.

10 In this regard, Downes testified that this had always been the posi-
tion of the post office, and that this position had been sustained in sev-
eral arbitrations.
11 Note that in this proceeding, Fulcher did not deny having so
agreed, and testified that he did not recall whether he had done so.
concurred, no actual proof of such events other than the con-
flicted testimony of the witnesses was presented.”
The arbitrator then concluded that since the Respondent had
not obtained any extensions in writing, and had not made any
prior written claim concerning such an extension at earlier steps
of the grievance procedure, that he could not find that such an
extension had been agreed upon by management. Therefore he
found the grievance not to be arbitrable.
The General Counsel presented evidence that it believed es-
tablished the Respondent’s animus towards nonunion members.
Bruce Adams testified that sometime in 1988 he received train-
ing to be a shop steward from Union President Frank Resetarits.
According to Adams, Resetarits told him at that time, that with
regard to nonmembers, “generally, we represent them less
strenuously than we do the members, but we do what we have
to.” Resetarits denies ever making such a statement to Adams
and further denies that he was ever involved in training of Ad-
ams as shop steward.
The Respondent produced uncontradicted evidence that it
has processed numerous grievances of nonmembers, including
many on behalf of both Bruce Adams and Haungs after they
became nonmembers, and that some of these grievances re-
sulted in the granting of the relief requested by the grievant.12
The General Counsel also introduced copies of the Buffalo
Bison, a newspaper published by the Local Union in 1994
which contains criticism of employees for not being members
of the Union and referring to them as “Scabs.” Also introduced
was “Scab Dart Board” from the paper, which contained the
names of various nonmembers, including Haungs and Bruce
Adams.
At various times in 1996, Haungs testified that he applied to
various positions at a number of other post office facilities.
According to Haungs, after having submitted resumes to those
facilities, he was rejected for employment because of poor
evaluations from supervisors, which he considered to be unfair.
He received letters from these facilities stating that he could not
get along with others. Haungs then sent a letter to John
Stiegler, craft director, dated June 20, 1996, which asserts that
the post office is retaliating against Haungs for having filed a
grievance and an NLRB and EEO complaint regarding his con-
structive discharge. Haungs relates that several post offices had
shown interest in hiring him, but rejected hiring him because of
supervisory evaluations or material in his personnel folder.
Haungs asked Stiegler to get his personnel folder and all super-
visory evaluations, and file a grievance against the post office
for its retaliation.
12 For example the Union was successful in convincing the post of-
fice to destroy the EAP referral about which Haungs filed a grievance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
According to Haungs, after sending this letter to Stiegler, he
spoke to Stiegler about the request. Stiegler allegedly told
Haungs that because he is no longer an employee, Stiegler does
not have to file grievances for him. At around the same time,
Haungs asserts that he had another conversation with Stiegler,
during which Stiegler allegedly said, “because you have filed a
charge with the National Labor Relations Board; we are not
going to file a grievance for you.”
On November 14, 1996, Haungs filed a charge in Case 3–
CB–7089, alleging that the Respondent violated Section
8(b)(1)(A) of the Act by refusing to file a grievance for Haungs
because he filed a charge under the Act against the Respondent.
Subsequently Haungs sent two more letters to Stiegler, one
on March 1, 1997, and the other not dated, wherein Haungs
makes specific comments about unsatisfactory evaluations that
he had received copies of which had been sent to the post of-
fice’s St. Paul, Minnesota, Washington, D.C., and Atlanta,
Georgia facilities. Haungs also noted that the Honolulu, Ha-
waii facility refused to send him a copy of his evaluation that it
allegedly received. In these letters, Haungs requested that the
Respondent grieve the allegedly defamatory comments in the
evaluations sent to the three facilities, and to grieve the fact that
the post office failed to provide him with the evaluation con-
cerning him sent to the Honolulu facility.
The Respondent adduced no evidence of what efforts, if any
it made on Haungs’ behalf with respect to these letters, or why
it did not file a grievance on his behalf, as he requested.
Stiegler did deny that he told Haungs that Respondent would
not file grievances for Haungs because he filed a charge with
the National Labor Relations Board. Stiegler however did ad-
mit that he told Haungs that Haungs was “suing” the Union and
that he did not know if he had to file a grievance on his behalf.
According to Stiegler, this conversation related to an assertion
by Haungs that two other employees Beck and Bazzone had
been separated because of a problem between them, which
related to Haungs’ constructive discharge grievance. Stiegler
asserts that Haungs wanted the Respondent to file another
grievance against the post office alleging disparate treatment by
separating these employees and not allowing the same privilege
to Haungs. Stiegler further testified that he investigated
Haungs’ claim and concluded that the two employees were not
separated because of any problems between them, but that they
were normally rotated.
III. ANALYSIS
A. The 10(b) Issue
The Respondent argues that the instant complaint should be
dismissed insofar as it relates to the charge in Case 3–CB–
6901(P) because it was not filed within 6 months of the alleged
unlawful conduct. The Respondent recognizes that the com-
plaint allegation that it violated the Act on December 1, 1995,
by refusing to process the grievance of Haungs concerning his
alleged constructive discharge is related to a timely charge filed
on or about that date.
However, the Respondent asserts that since the National La-
bor Relations Board focuses on the date of the alleged unlawful
act, rather than the date its consequences became effective, the
instant charge is untimely. The Respondent argues in this re-
gard that the unlawful acts that are the focus of Haungs’ com-
plaint occurred in January through March 1995, when he first
brought his complaints about Lonczak’s alleged threats to him,
and the post office’s failure to properly respond to these threats,
to the Union. Thus when the Respondent notified Haungs in
February and March 1995 that it would not file a grievance on
Haungs’ behalf, this is the operative date, according to the Re-
spondent, for measuring the 10(b) period. I do not agree.
It is true that the General Counsel did introduce evidence of
the Respondent’s conduct in dealing with Haungs in early
1995, and does assert that the Respondent acted improperly at
that time. However, the General Counsel does not seek a find-
ing that the Respondent violated the Act in 1995, and seeks
only to utilize evidence of such conduct as background to shed
light on the Respondent’s motivation for conduct within the
10(b) period, i.e., the refusal to process Haungs’ constructive
discharge grievance. Since a finding that such action is unlaw-
ful is warranted without “giving independent and controlling
weight” to events occurring more than 6 months before the
filing of the charge, it is appropriate to consider such events as
background to assess the Respondent’s motivation within the
10(b) period. Grimway Farms, 314 NLRB 73, 74 (1994); and
Douglas Aircraft Co., 307 NLRB 536 fn. 2 (1992).
I therefore reject the Respondent’s 10(b) defense and shall
decide the case on the merits.
B. The Refusal to Process Haungs’ Constructive
Discharge Grievance
Before discussing this allegation it is appropriate to consider
an allegation raised by the General Counsel for the first time in
his closing argument. He argued therein that the Respondent
also violated Section 8(b)(1)(A) of the Act by the conduct of
Shop Steward Spanitz in allegedly refusing to process Haungs’
grievance on November 30, 1995, based on the post office’s
refusal to separate him from Lonczak. I have serious questions
as to the propriety of deciding such a contention, inasmuch as
the complaint neither makes any reference to such an allega-
tion, nor asserts that Spanitz is an agent of the Respondent.
However, I need not decide the procedural aspect of this is-
sue, since I do not credit Haungs’ testimony that he requested
or that Spanitz refused to process his grievance on November
30, 1995. I was not overly impressed with Haungs’ testimonial
demeanor. He was frequently argumentative or evasive, and
exhibited a tendency to fail to answer the question put to him,
and instead to relate what he felt was significant. In this in-
stance, I also found Spanitz’ version of events to be more be-
lievable and reliable. Thus I agree with the Respondent’s ar-
gument that had Spanitz blatantly refused to process Haungs’
grievance as Haungs asserted that Haungs would not have sim-
ply accepted this action. Based on Haungs’ personality and his
prior actions, I conclude that he would have gone over Spanitz’
head to Marcheson or the union president or even to the na-
tional office if Spanitz had engaged in such conduct.
POSTAL WORKERS (POSTAL SERVICE) 767
Therefore, since I credit Spanitz that Haungs never asked
him and he therefore did not refuse to process Haungs’ griev-
ance on November 30, 1995, I shall recommend dismissal of
this contention.
Turning to the “constructive discharge” grievance, the Gen-
eral Counsel contends and the complaint alleges that the Re-
spondent failed and refused to process this grievance for arbi-
trary, unfair, and invidious reasons, such as Haungs’ nonmem-
bership in the Union and because Haungs engaged in dissident
union activity.
I find that the General Counsel has fallen far short of estab-
lishing that the Respondent’s decision not to process Haungs’
grievance was motivated by either his nonmembership in the
Union or his alleged “dissident” activity. The only evidence of
any conceivable “dissident” activity, engaged in by Haungs was
his prior disputes with Marcheson when Haungs was shop
steward, which included Haungs going over Marcheson’s head
to speak to Marcheson’s superiors about certain matters.
While Haungs’ testimony would support the conclusion that
Marcheson may have demoted Haungs to alternate shop stew-
ard because he engaged in such conduct, it does not establish
that there was any connection between this activity13 of Haungs
and the Respondent’s decision not to process his grievance. I
note in that regard that the “demotion” occurred in April 1993,
some 2-1/2 years before the refusal to process Haungs’ griev-
ance, and that shortly after the demotion, Marcheson reap-
pointed Haungs as shop steward on another shift.
I therefore conclude that the General Counsel has not shown
any casual connection between any perceived hostility towards
Haungs by Marcheson because of Haungs’ alleged “dissident”
activity, and the Respondent’s decision on December 1, 1995,
not to process his grievance. Local 751 Machinists (Boeing
Co.), 270 NLRB 1059, 1066 (1984).
I find similarly with respect to the contention that the Re-
spondent’s decision was motivated by the fact that Haungs was
not a union member. The General Counsel has presented no
probative evidence of any animus towards Haungs for his non-
membership in the Union, or for that matter towards non-
members. While in its publications, Respondent made critical
comments about nonmembers and referred to them as scabs,
such evidence has little significance. American Postal Workers
(Postal Service), 269 NLRB 995, 998 (1984). Such statements
were a legitimate method of attempting to organize, and do not
suggest any intent not to process grievances of nonmembers.14
I do not credit the vague and unconvincing testimony of
Bruce Adams that while in shop steward training, the Respon-
dent’s president, Resetarits, made statements to him indicating
that it represents nonmembers not as vigorously. Even if cred-
ited, this comment made in 1987, is hardly sufficient to estab-
lish that the Respondent’s actions in 1995 were motivated by
Haungs’ nonmembership.
Most importantly of all is the unrefuted evidence that the Re-
spondent presented that it has processed numerous grievances
of nonmembers, including several for both Bruce Adams and
Haungs and some of them resulted in the relief requested by the
grievant. Molders Local 256 (U.S. Pipe & Foundry), 253
NLRB 969, 972 (1980).

13 I also need not and do not decide whether this activity of Haungs
can be construed as dissident protected conduct.
14 Indeed these very publications discuss the fact that the Respon-
dent has processed grievances for nonmembers, and that nonmembers
receive the benefits of a union representation without paying for it.
Therefore, I conclude that the evidence fails to establish that
any dissident activity of Haungs or his nonmembership in the
Union played any role in the Respondent’s decision not to
process his grievance. Rather I find the sole reason for the
Respondent’s initial refusal was the reason stated by
Marcheson, Respondent’s belief that it could not represent
Haungs because he had resigned from the post office.
That brings me to the crucial issue in the instant matter, and
in fact the issue that the General Counsel concentrated on in its
brief. The General Counsel argues therein that this decision by
the Respondent was so arbitrary and unreasonable that it
breached its duty of fair representation. Mine Workers District
5 (Pennsylvania Mines Corp.), 317 NLRB 663, 664–665
(1995); and Service Employees Local 87 (Cervetto Mainte-
nance), 309 NLRB 817, 820 (1992). The General Counsel
further asserts that the Respondent was required in order to
meet its duty of fair representation to conduct some minimal
investigation into Haungs’ grievance. Service Employees Local
579 (Beverly Manor Convalescent Center) 229 NLRB 692,
695–696 (1977); and Cervetto Maintenance, supra.
I disagree. In my view the instant case is controlled by Gov-
ernment Employees Local 888 (Bayley-Seton Hospital), 323
NLRB 717 (1997). There the Board, reversing the administra-
tive law judge, found that the Union therein had not acted arbi-
trarily by refusing to continue processing of a grievance, be-
cause it reasonably believed that its actions were fully consis-
tent with established law. Id.
Here as in Bayley-Seton, I conclude that the Respondent rea-
sonably believed that it could not file a grievance on Haungs’
behalf, because he had quit his employment with the post of-
fice, and therefore was ineligible to file a grievance. I note that
this is the position taken by the post office, and was clearly a
position that the Respondent reasonably believed to be correct.
Indeed the arbitrator who subsequently decided the timeliness
issue, expressed support for that view, and cited other arbitra-
tion decisions which also so concluded.
Thus, the General Counsel’s cases which deal with the obli-
gation to conduct a minimal investigation are not applicable,
since the Respondent acted on the reasonable belief that it
could not represent Haungs, there was no need to conduct an
investigation of the merits of the grievance. The General
Counsel argues in this connection that since Marcheson admit-
tedly was not familiar with the term “constructive discharge,”
he was obligated to go back to his Union president to find out if
such a grievance might be an exception to the general rule. I
cannot conclude that Marcheson’s failure to do so was so un-
reasonable or arbitrary to constitute a breach of the Respon-
dent’s duty of fair representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
While Marcheson may not have immediately checked with
his president, he did consider the possibility that the “construc-
tive discharge” grievance might result in a different answer to
the obligation to represent Haungs, since he was told that
Haungs had been to the Labor Board. Therefore Marcheson in
order to protect the Union’s rights, obtained oral extensions of
time to file grievances from two supervisors of the postal ser-
vice. While it certainly would have been a better procedure for
Marcheson to have obtained these extensions in writing, in my
view his failure to do so can only be construed as mere negli-
gence, and or poor judgment and not arbitrary or unreasonable
conduct. Pacific Maritime Assn., 321 NLRB 822, 823–824
(1996); Teamsters Local 337 (Swift-Eckrich), 307 NLRB 437,
438 (1992); and Teamsters Local 692 (Great Western Uni-
freight System) 209 NLRB 446, 447–448 (1974).
Moreover, even assuming that the Respondent’s initial the
Respondent cured that initial refusal by obtaining an extension
of time to file a grievance, and then subsequently filing a griev-
ance and taking the issue to arbitration. While the Respondent
was unable to convince the arbitrator that it had obtained an
extension, resulting in a dismissal of the grievance based on
timeliness, I again attribute this result to at most poor judgment
or negligence on the part of the Respondent, and not arbitrary
or unreasonable conduct.
Accordingly, based on the foregoing analysis and authorities
I conclude that the Respondent has not violated Section
8(b)(1)(A) of the Act by refusing to process Haungs’ grievance
concerning his alleged constructive discharge and shall recom-
mend dismissal of this allegation.15
C. The Refusal to Process Haungs’ Grievance
Concerning Supervisory Evaluations
The evidence is undisputed that Haungs made several re-
quests of the Respondent to file grievances against the post
office protesting what Haungs believed to be unfair evaluations,
which in his view hampered his ability to obtain jobs at other
post office facilities to which he had applied.
It is also clear that the Respondent adduced no testimony or
other evidence as to what efforts if any it made to process these
grievances, or why it failed to take any action concerning
Haungs’ requests.
Therefore, in evaluating the Respondent’s actions with re-
spect to this issue, it is necessary to consider the testimony of
Haungs and Stiegler concerning their conversations about
Haungs’ requests. I credit in this instance the testimony of
Haungs as to such discussions, and conclude that Stiegler fur-
nished him with two reasons for failing to process his griev-
ances. First, Stiegler told Haungs that because Haungs was no
longer an employee, Stiegler does not have to file grievances
for him. If Stiegler had consistently maintained that position, I
would conclude, as discussed above concerning the construc-
tive discharge grievance, that such a reason was neither arbi-
trary nor unlawful. Bayley-Seton, supra.
However, Stiegler also informed Haungs in another conver-
sation that the Respondent would not file a grievance for
Haungs because he filed a charge with the National Labor Rela-
tions Board.16 In that connection, it is well settled that a union

15 In view of this finding I need not and do not make any finding
concerning whether or not Haungs’ grievance had any merit or whether
it was more than “frivolous.”
16 While Stiegler denied making this comment to Haungs, he did
admit that he told Haungs that since Haungs was “suing the Union,” he
violates Section 8(b)(1)(A) of the Act when it refuses to proc-
ess a grievance of an employee because the employee filed
unfair labor practice charges with the Board. Chemical Workers
Local 5–114 (Colgate-Palmotive Co.), 295 NLRB 742, 743 fn.
4 (1989); ITO Corp., 246 NLRB 810, 812 (1979); Graphic Arts
Union 96B (Williams Printing), 235 NLRB 1153 (1978); and
Penn Industries, 233 NLRB 928, 942 (1977).
Here based on the evidence set forth above, I conclude that
the Respondent refused to process Haungs’ grievance concern-
ing his evaluations for two reasons, one lawful (Haungs having
resigned his employment) and one unlawful (Haungs’ protected
conduct of filing charges with the Board). In such circum-
stances, the burden is on the Respondent to disentangle the
lawful from the unlawful reason, and establish that it would
have taken the same action, absent Haungs’ protected conduct.
Wright Line, 251 NLRB 1083 (1980). Since the Respondent
has adduced no evidence whatsoever as why it did not process
Haungs’ grievance, it has clearly failed to meet its burden of
proof in this regard.
I therefore conclude that the Respondent has violated Section
8(b)(1)(A) of the Act by failing and refusing to process
Haungs’ grievances concerning his supervisory evaluations
because Haungs filed charges with the National Labor Rela-
tions Board.
CONCLUSIONS OF LAW
1. The National Labor Relations Board has jurisdiction over
the United States Postal Service pursuant to the provisions of
the Postal Reorganization Act.
2. The Respondent, American Postal Workers Union, AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent did not violate Section 8(b)(1)(A) of the
Act by refusing to process the grievance of Alan Haungs con-
cerning his alleged constructive discharge.
4. The Respondent violated Section 8(b)(1)(A) of the Act by
failing and refusing to process the grievances of Alan Haungs
concerning his supervisory evaluations because Haungs filed
charges with the National Labor Relations Board.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.

did not know if he had to file grievances on Haungs’ behalf. In the
absence of any explanation from Stiegler as to what he meant by “suing
the Union,” I construe this remark as being related to the National
Labor Relations Board charges and an admission by the Respondent
that the charges were at least in part responsible for the Respondent’s
decision not to process Haungs’ grievance.
POSTAL WORKERS (POSTAL SERVICE) 769
THE REMEDY
Having found that the Respondent committed certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action necessary to effectuate
the purposes of the Act.
In Rubber Workers Local 250 (Mack-Wayne Closures), 290
NLRB 817 (1988), the Board set forth its analysis for assessing
whether a make-whole remedy is appropriate in an unlawful
refusal to represent in violation of the Act. In such cases, the
General Counsel has an initial burden of establishing that the
employee’s grievance was not clearly frivolous in order to be
entitled to a provisional make-whole remedy. If the General
Counsel establishes the nexus between the Union’s unlawful
conduct and the remedy, the burden of proof shifts to the Union
to establish that the grievance was not meritorious. The Union
has the option of in such circumstances, of litigating the merits
of the employee’s grievance at either the unfair labor practice
hearing or at the subsequent compliance stage. Id. at 820–821.
It is therefore appropriate to evaluate the evidence of record
under the standards of Mack-Wayne, supra, to determine the
propriety of issuing a make-whole remedy here.
I conclude that the General Counsel has adduced sufficient
evidence to meet its rather limited burden of establishing that
Haungs’ grievances17 were “not clearly frivolous.” Here, the
unrefuted testimony of Haungs indicates that after his separa-
tion from the Buffalo facility, he applied to a number of other
post office locations throughout the country, and that 9 or 10 of
these facilities responded that they were interested in hiring
him. According to Haungs, after these facilities show interest
in him, they ask for evaluations from supervisors at Haungs’
prior facility. On receipt of these evaluations, Haungs further
testified that these other facilities rejected his applications be-
cause of comments in these evaluations.
Further, as a result of Freedom of Information requests,
Haungs was able to obtain copies of evaluations sent by the
post office to facilities in Washington, D.C., Atlanta, Georgia,
and St. Paul, Minnesota. Haungs subsequently wrote to the
Respondent setting forth his specific complaints about these
evaluations, which contend that many of the complaints set
forth therein did not appear in any of his prior evaluations
which appeared in his office personnel folder.
In view of the above evidence, which stands largely uncon-
tradicted, I find that a reasonable argument can be made that at
least parts of the evaluations were unfair, and that these evalua-
tions may have caused Haungs not be allowed to be rehired at
other post office facilities that had previously shown interest in
doing so. Therefore, the grievances were “not clearly frivo-
lous.”
However, I would also note that the General Counsel faces
another obstacle with respect to this issue, concerning the ques-
tion of whether Haungs’ grievances can be considered or can be
arbitrated, because he had resigned his employment. Indeed
this is the position taken by the post office with respect to his
constructive discharge grievance, and I suspect a similar posi-
tion will be forthcoming concerning these grievances.
While I have concluded above that the Respondent did not
act unlawfully by in effect initially agreeing to this position and

17 Thus, the General Counsel need not show that the grievances are
“prima facie meritorious,” but only that they, are “not clearly frivo-
lous.” Newspaper Guild Local 26 (Buffalo Courier-Express), 220
NLRB 79 (1975).
not immediately filing a grievance on Haungs’ behalf because
he had resigned, that finding is not dispositive of the instant
issue.
Thus, I concluded based on all the circumstances disclosed
above, that the Respondent acted based on a reasonable inter-
pretation of the law, Bayley-Seton, supra, and that it subse-
quently obtained what it believed to be a valid agreement by the
post office to waive the time limits for filing a grievance.
However, I did not conclude above, and I do not conclude here,
that either the Respondent or the post fffice is necessarily cor-
rect that Haungs’ resignation precludes him from filing a griev-
ance or the Respondent from proceeding to arbitration on his
behalf.
I do conclude, however, that the issue is not free from doubt,
and that it is not a “clearly frivolous position,” that Haungs can
file a grievance notwithstanding his resignation from the post
office. This issue, as well as the issue of whether Haungs’
grievances are meritorious can be appropriately determined in
the compliance stage of this proceeding, since the Respondent
has clearly opted to litigate those issues at that time, as it is
permitted to do under Mack-Wayne, supra.
Therefore, I shall issue a provisional backpay remedy under
the standards of Mack-Wayne, supra. See also Letter Carriers
Local 233 (Postal Service), 311 NLRB 541, 542 (1993), and
Service Employees Local 87 (Cervello Maintenance), 309
NLRB 817 (1998). Backpay, if any, is eventually ordered,
shall be computed in the manner described in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest computed according to
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record I issue the following recommended18
ORDER
The Respondent, American Postal Workers Union, AFL–
CIO, Buffalo, New York, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Refusing to file and/or process grievances because the
grievants have filed charges with the National Labor Relations
Board.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Request the United States Post Office (USPS) to con-
sider Alan Haungs’ grievances concerning USPS’ refusal to
furnish him a copy of the evaluation of Haungs sent to its Ha-
waii facility, and USPS’ allegedly unfair and retaliatory evalua-
tions, which allegedly caused Haungs to not be rehired at the
USPS’ facilities in Washington, D.C., St. Paul, Minnesota ,and
Atlanta, Georgia, and if it refuses to do so, promptly pursue the
remaining stages of the grievance procedure, including arbitra-
tion, in good faith with all due diligence.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
(b) Permit Alan Haungs to be represented by his own coun-
sel in the grievance and arbitration procedure, and pay the rea-
sonable legal fees of such counsel.
(c) In the event that it is not possible to pursue the remaining
stages of the grievance procedure resulting in the inability to
resolve the grievances of Alan Haungs on the merits, make
Haungs whole, with interest, for any loss of pay he may have
suffered as a result of its unlawful conduct in failing to process
his grievance.
(d) Within 14 days after service by the Region, post at its of-
fices and meeting halls, copies of the attached notice marked
“Appendix.”19 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the Re-

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material
(e) Within 14 days after service by the Region, deliver to the
Regional Director for Region 3 signed copies of the notice in
sufficient numbers to be posted by United States Postal Service,
if willing, at all places where notices to employees are custom-
arily posted at its facility in Buffalo, New York.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.