NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,601, NATIONAL ASSOCIATION OF LETTER CARRIERS, BRANCH 86, AFL-CIO (United States Postal Service) and MICHAEL DAVIS., (Dec. 30, 1994), National Labor Relations Board, (Dec 30, 1994)

NATIONAL ASSOCIATION OF LETTER CARRIERS, BRANCH 86, AFL-CIO (United States Postal Service) and MICHAEL DAVIS.

315 NLRB No. 138.Case No. 34-CB-1477(P). December 30, 1994 Wallace H. Nations, Administrative Law Judge..

Before Stephens, Browning and Cohen.

Thomas E. Quigley, Hartford, Connecticut for General Counsel. Michelle Dunham Guerra, New York, New York, for Respondent.

Union Restraint and Coercion--Threats--Resignations from Union--Reporting Improper Breaks.--A union steward’s threat to inform a supervisor that an employee was not taking his breaks as required, in response to the employee’s statement that he intended to resign from the union, was unlawful. The threat immediately followed the employee’s expressed intent to resign, and could not be considered the union’s mere expression of a consistent position on breaks. Section 8(b)(1)(A).

Back reference: ¶4350.627.

Union Restraint and Coercion--Threats--Resignations from Union--Loss of Overtime Work.--A union unlawfully threatened an employee with the loss of his overtime work and requested the employer to stop scheduling the employee for overtime work when the actions were taken in response to the employee’s stated desire to resign from union membership. Although the loss of overtime work did not occur until approximately one month after the employee expressed his desire to leave the union, circumstances indicated that the employee’s resignation was a motivating factor in the union’s request to the employer to cease scheduling the employee for overtime.

Back reference: ¶4350.627.

From Text of Board’s Decision

On January 8, 1993, Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief.

The National 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, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions only to the extent consistent with this Decision and Order.

1. The Respondent represents the letter carriers at the United States Postal Service’s (the Employer) Murphy Road facility in Hartford, Connecticut. The facility is split into three discrete zones which have separate seniority lists for full-time regular (FTR) employees. These lists control bidding on routes, overtime, other work assignments, and vacations.

Michael Davis is a part-time flexible (PTF) employee. PTF employees are guaranteed only 4 hours of work per pay period but many work at least 56 hours a week. Davis is a member of the Respondent but he has been critical of it. He placed an article in the Respondent’s June/July 1990 newsletter complaining that the Respondent failed to represent PTF employees fairly, given that they paid the same dues to the Respondent as the FTR employees. [2]

Davis normally worked the day shift from 7:30 a.m. to 4 p.m. By the end of 1990, Davis had averaged 40 hours or more weekly for a 6-month period. [3] However, during the first 3 months of 1991, [4] Davis noticed that he was not being assigned his customary overtime hours. At this time, Davis complained to Chuck Corso and Mike Bedard, the Respondent’s two stewards for his shift and zone. In April, Davis also sought permission from his supervisors to work on his off day, Tuesday, in order to accumulate overtime hours. Subsequently, the Employer scheduled Davis for work every Tuesday.

On April 23, Davis informed Corso and Bedard that he was working on Tuesdays and that “[he] thought [he] could do better on [his] own than with the union and [he was] thinking about getting out of the union.” Bedard referred Davis to a bulletin board posting about scabs and said Davis would be a scab “if [Davis] were to get out of the union.” Davis repeated that he thought he would get out of the Union since he was a PTF employee, and maybe when he became a FTR employee he would think about rejoining the Union. Bedard responded by saying he had no respect for those who did this. Bedard then said that he would tell Davis’ supervisor that Davis “[took his] breaks at the end of the day, not when [he was] supposed to.” Davis responded by saying that “[he was] going to get out of the union, and [he would] take care of [himself].” Corso was present during this exchange.

The judge found that Bedard’s threat about Davis’ breaks did not violate the Act. He noted that the Respondent, as the employee representative, consistently maintained the position that employees must take their breaks as scheduled and that the Respondent neither did nor could threaten employer disciplinary action based on this issue. We disagree. We find that Bedard’s threat about Davis’ breaks would tend to restrain and coerce employees in the exercise of their right to resign from the Union.

It is clear that Steward Bedard’s remarks were a response to Davis’ stated contemplation of leaving the Union. Davis told the Respondent’s stewards that he planned to relinquish his membership in the Respondent. Steward Bedard respondded by implying that Davis was a “scab,” a term of opprobrium, and by saying that he would lose respect for Davis if he left the Union. Steward Bedard then said that he would tell the Employer that Davis did not take his breaks at the scheduled times. This immediate sequence of events--Davis’ threat to resign from the Union and the Union’s prompt statement that it would report Davis’ break conduct--take this conduct well beyond the Union’s mere expression of a consistent position on breaks, as found by the judge. Contrary to the judge, the Respondent’s threat cannot be deemed noncoercive merely because the Respondent had previously agreed with the Employer that employees must take breaks at the designated times. Regardless of the Respondent’s general position on breaks, an individual employee could reasonably fear that the Employer, armed with particular information about the individual that it would not have but for the Respondent’s action, might take disciplinary measures. Further, an employee could reasonably believe that the Employer would act with respect to conduct to which it might otherwise turn a blind eye if the conduct were officially brought to its attention by the bargaining representative. True, the Respondent itself could not impose Employer discipline for breaks not taken at the correct time. However, the Respondent’s threat to bring the information to the attention of the party that could impose discipline is coercive. In these circumstances, the Respondent’s threat to Davis, in response to Davis’ statement about resignation, would tend to chill him in the exercise of his statutory right to resign from the Union. This threat violates Section 8(b)(1)(A) of the Act. See, generally, Steelworkers Local 1397 (U.S. Steel Corp.), [1978-79 CCH NLRB ¶15,570] 240 NLRB 848, 849 (1979).

2. The judge found that the Respondent violated Section 8(b)(1)(A) of the Act by threatening Davis with the loss of his overtime work and requesting the Employer to stop scheduling Davis for overtime work. We agree. The judge also found that the Respondent violated Section 8(b)(2) of the Act by causing the Employer to stop scheduling Davis for overtime work. The judge’s theory was that the Respondent’s conduct in this respect violated its duty of fair representation. In its exceptions, the Respondent argues that this theory of violation was neither alleged in the complaint nor litigated at the hearing. We agree with the Respondent. We nonetheless reach the same result as the judge. We note that the General Counsel alleged a Wright Line [5] theory in the complaint [6] and that the judge’s findings satisfy the analytical objectives of Wright Line. [7] As detailed below, the judge found that the Respondent’s conduct was prompted by animus toward Davis arising from Davis’ contemplated exercise of his Section 7 right and that the Respondent’s defense was “pretextual.” The General Counsel alleges that Davis’ stated intention to withdraw from the Respondent was a motivating factor in the Respondent’s request to the Employer to curtail Davis’ overtime work. The Respondent asserts that it merely sought to ensure that the Employer abided by applicable rules regarding overtime.

As discussed in section 1, supra, Michael Davis engaged in protected activity on April 23, when he announced his intention to withdraw from the Respondent. On that date the Respondent, as we have found, unlawfully threatened to tell the Employer that Davis did not take his breaks at the prescribed times, in violation of Section 8(b)(1)(A) and thus displayed its animus toward Davis’ protected activity. Thereafter, Davis and Steward Chuck Corso were involved in a series of incidents which reflected a growing animosity between the two men. In a conversation with employee Sylvie Gervais, that was relayed to Davis by Gervais, Corso said he would “get [Davis’] ass” if Davis mistakenly used his jeep, unlike his reaction to another employee’s use of the jeep. Corso then complained to the Employer’s supervisors about Davis drawing “happy faces” on forms and about Davis’ inadequate “casing” [8] of Corso’s route. [9] Finally, on May 27 or 28, Davis was “casing” Corso’s route which that day included samples of the cereal “Cheerios.” Davis wrote addresses for the deliveries on a slip of paper and concluded by repeating “Cheerios” three times. When Corso saw this, he told Davis that Davis was just trying “to aggrevate” him. Corso then said that “[he] wasn’t going to do anything before, but because of these Cheerios, Cheerios, Cheerios, [he was] going to put an end to [Davis’] overtime on Tuesdays.” Corso then reported to Steward Tom Cronin that Davis was working overtime and asken Cronin to check into it. Cronin told Superintendent Robert Pilkington that the Respondent would file a grievance over Davis’ overtime. Subsequently, Pilkington informed Davis that he would no longer be working overtime.

The evidence thus shows that the personal animosity between Corso and Davis and the animosity toward Davis’ protected activity became inextricably intertwined. [10] The Respondent’s April threat unequivocally displayed its animus toward Davis’ protected activity. Only a month later, the Respondent again threatened Davis. Despite the passage of time and the intervening clashes between Corso and Davis, the totality of the circumstances warrant an inference that the Respondent’s motivation was unlawful in May just as it was in April. The General Counsel thereby made a prima facie showing that Davis’ protected conduct was a motivating factor in the Respondent’s request to the Employer to cease scheduling Davis for overtime. [11] . Moreover, in this context, Corso’s statement to Davis that “[he was] going to put an end to [Davis’] overtime on Tuesdays” was coercive and in violation of Section 8(b)(1)(A) of the Act. The judge so found and we agree.

Finally, like the judge, we find that the Respondent failed to demonstrate that it would have taken the same actions against Davis and his overtime even in the absence of his protected activity. The judge found that the Respondent’s explanations were pretextual. [12] We agree. The Respondent did not complain about Davis’ performing the overtime prior to the end of May even though Davis had been performing this work for about a month. Moreover, the Respondent asserted that it merely sought to require that the Employer abide by applicable rules. Yet those rules applied to FTR employees rather than PTF employees like Davis. Further, despite the Respondent’s contentions, no documentary evidence was produced to support the existence of the alleged agreement to maximize the hours of FTR employees before the Employer used PTF employees. Indeed, the documentary evidence showed that the Employer could use PTF employees, like Davis, just as it had. [13]

We find that this analysis of the judge clearly satisfies the analytical test of Wright Line, supra, and establishes the 8(b)(1)(A) and (2) violations. See Limestone Apparel Corp., [1980-81 CCH NLRB ¶18,046] 255 NLRB 722 (1981).