Postal Service

National Labor Relations Board - Board Decisions

Oct 25, 2005

345 N.L.R.B. 1203 (N.L.R.B. 2005)

UNITED STATES POSTAL SERVICE
345 NLRB 100
1203
United States Postal Service and Kathy O’Toole
National Rural Letter Carriers’ Association and
Kathy O’Toole. Cases 28–CA–19175(P), 28–CA–
19618(P), and 28–CB–6075(P)
October 25, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 17, 2005, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Respondent Union and the Respondent Postal Service,
each filed exceptions and a supporting brief. The Gen-
eral Counsel filed cross-exceptions, and a supporting
brief. The Respondent Union and the General Counsel
each filed an answering brief and a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified2 and set forth in full below.
The Respondent Union (the Union) represents rural
letter carriers employed by the Respondent Postal Ser-
vice (the Postal Service) in a nationwide bargaining unit.
The Postal Service operates training academies through-
out the country where new hires learn how to perform the
duties of a carrier. The instructors at these academies are
carriers who teach several 3-day training sessions annu-
ally and who otherwise perform regular carrier duties.
The Postal Service posts instructor vacancies at Postal
Service facilities within commuting distance of an acad-
emy. The Postal Service and the Union jointly select the
instructor from among the carriers who apply for the
vacancy.
In the early 1990s, the Postal Service and the Union
negotiated a guideline applicable throughout the nation-
wide bargaining unit whereby only union members could
be selected as instructors. The judge found that the Re-
spondents violated the Act by maintaining the guideline
and by enforcing the guideline against two employees,

1 The Union has implicitly excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 In addition to the modifications discussed below, we shall modify
the judge’s recommended Order to conform to the requirements of
Indian Hills Care Center, 321 NLRB 144 (1996), as revised in Excel
Container, Inc., 325 NLRB 17 (1997).
Kathy O’Toole and Jeffrey Houlter. We affirm these
findings.3
The judge’s recommended Order requires that the Re-
spondents offer O’Toole reinstatement to the instructor
position and offer Houlter appointment to the instructor
position. We affirm these provisions in the recom-
mended Order.4
The judge’s recommended Order also provides a rein-
statement-appointment remedy for any other employees
at the Kachina station who were removed from the in-
structor position or were denied appointment to the in-
structor position because they were not union members.
For the reasons set forth below, we do not affirm this
provision in the recommended Order.
A prerequisite for the finding and remedying of an un-
fair labor practice is that the unfair labor practice either
be alleged in the complaint or fully and fairly litigated.
See Cibao Meat Products, 338 NLRB 934, 935 (2003),
enfd. mem. 84 Fed. Appx. 155 (2d Cir. 2004), cert. de-
nied 543 U.S. 986 (2004), and cases cited therein. Here,
the complaint alleged discrimination against O’Toole,
but did not allege discrimination against any other Ka-

3 We also affirm the judge’s findings, for the reasons set forth in his
decision, that the Respondent Postal Service violated Sec. 8(a)(1) of the
Act by interrogating its employees, by threatening its employees, and
by informing them that (1) they could reapply for a position as an in-
structor if they rejoined the Union and (2) that they must be members
of the Union in order to be selected for, or retain, the instructor posi-
tion. There are no exceptions to the judge’s dismissal of allegations that
the Postal Service discriminated against O’Toole by denying an annual
leave request and by threatening O’Toole regarding the annual leave
request.
We agree with the judge, for the reasons cited in his decision, that
the matter of assignment to the instructor position is a term of employ-
ment so that the Respondents’ discrimination against O’Toole and
Houlter regarding assignment to the instructor position violates Sec.
8(a)(3) and 8(b)(2). In affirming the judge’s conclusion that assign-
ment to the instructor position is a term of employment, we also note
that assignment to the instructor position constitutes work assignment
and that work assignment is a term of employment. See E. I. du Pont &
Co., 303 NLRB 631 (1991) (removing overtime clerk duties that consti-
tuted only one percent of employees’ total work hours is change in
employment terms); Christopher Street Owners Corp., 294 NLRB 277
(1989), enfd. mem. 926 F.2d 1215 (D.C. Cir. 1991) (adding distribution
of postal service packages to apartment house porter’s duties is change
in employment terms); Flatbush Manor Care Center, 316 NLRB 201,
202–204 (1995) (minor changes in porter’s duties in retaliation for
union activity violates Sec. 8(a)(3)).
4 In contending that the Board should not have ordered Houlter’s ap-
pointment to the instructor position, the Union asserts that, when Houl-
ter applied for the instructor vacancy, Houlter was on limited duty due
to an injury that restricted the amount of weight he could lift. How-
ever, as the judge noted, the Postal Service did not cite this lifting re-
striction and instead cited only Houlter’s nonmembership in the Union
when it rejected Houlter’s application for the instructor position. We
also note that the evidence does not show that an instructor’s duties
included lifting heavy weights or that Houlter could not have performed
the duties of an instructor with or without a reasonable accommodation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
china station employees.5 Furthermore, the record estab-
lishes discrimination against O’Toole, but does not estab-
lish discrimination against any other Kachina station
employee. Indeed, there is no evidence regarding the
issues of whether, during the 6-month 10(b) period pre-
ceding the filing of the first unfair labor practice charge,
any Kachina station employees (other than O’Toole)
were removed from the instructor position or any Ka-
china station employees applied for any instructor vacan-
cies. Accordingly, the existence of additional Kachina
station discriminatees was neither alleged nor fully liti-
gated and we therefore modify the judge’s recommended
Order to limit the reinstatement-appointment remedy to
O’Toole and Houlter.6
In providing a reinstatement-appointment remedy for
additional unidentified Kachina station discriminatees,
the judge relied upon his finding that the complaint
sought a reinstatement-appointment remedy for such
discriminatees. However, even assuming arguendo that
the judge’s finding were correct, that finding addressed
only the issue of what remedy the complaint sought and
did not address the threshold issue of what unfair labor
practices the complaint alleged. As noted above, inquiry
regarding the finding and remedying of an unfair labor
practice is premature until it has first been determined
that the unfair labor practice was alleged in the complaint
or fairly litigated. Here, as explained above, the unfair
labor practice of discrimination against additional uni-
dentified Kachina station employees was neither alleged

5 O’Toole worked at the Kachina station. Houlter worked at the
Fountain Hills station.
6 For similar reasons, we reject the General Counsel’s request that
the recommended Order be modified to provide a nationwide rein-
statement-appointment remedy. The issue of such additional removal-
denial unfair labor practices was neither alleged in the complaint nor
fully and fairly litigated.
Member Schaumber agrees with his colleagues that the issue of
similarly-situated discriminatees nationwide was neither alleged in the
complaint nor fully and fairly litigated. With respect to similarly-
situated discriminatees at the Kachina station, Member Schaumber
notes that the judge informed the parties at the hearing that he inter-
preted the complaint as seeking reinstatement-appointment for simi-
larly-situated Kachina discriminatees. The Respondents did not object
to that interpretation. Assuming arguendo that the judge’s statements
satisfied due process requirements by placing the Respondents on no-
tice to defend against an allegation of similarly-situated Kachina dis-
criminatees, Member Schaumber would find that the allegation was not
litigated. As stated above, there is no evidence whether any Kachina
station employees other than O’Toole applied for or were removed
from the instructor position during the 10(b) period, or that any instruc-
tor vacancies were even posted during the 10(b) period at the training
facility that serves the Kachina station, other than the posting that
prompted Houlter to apply. Therefore, Member Schaumber agrees with
his colleagues that the existence of additional Kachina discriminatees
was not fully litigated, and he joins his colleagues in rejecting the
judge’s reinstatement-appointment remedy for unnamed Kachina sta-
tion discriminatees.
in the complaint nor fairly litigated. Accordingly, the
judge’s finding regarding what remedy the complaint
sought—that is, that the complaint sought a reinstate-
ment-appointment remedy for additional unidentified
Kachina station discriminates—is not a sufficient basis
for granting that remedy.7
ORDER
The National Labor Relations Board orders that:
A. The Respondent Employer, United States Postal
Service, Scottsdale, Arizona, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing any agreement, including
the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” to the extent that it
requires that an employee be a member of the National
Rural Letter Carriers’ Association (the Union) in order to
serve as a rural letter carrier academy instructor.
(b) Interrogating its employees about their union
membership.
(c) Threatening its employees with removal from the
position of rural letter carrier academy instructor because
they had resigned their membership in the Union.
(d) Informing its employees that they could reapply for
a position as a rural letter carrier academy instructor if
they rejoined the Union.
(e) Informing its employees that they must be mem-
bers of the Union in order to be selected for, or to retain,
the position of rural letter carrier academy instructor.
(f) Removing its employees from the position of rural
letter carrier academy instructor because they are not
members of the Union.
(g) Denying appointment of its employees to the posi-
tion of rural letter carrier academy instructor because
they are not members of the Union.
(h) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:

7 By analogy to refusal-to-hire cases (FES, 331 NLRB 9 (2000)),
Member Liebman would decline to provide an appointment remedy for
additional unidentified Kachina station discriminatees. In FES, the
Board held that , in refusal to hire cases in which backpay and instate-
ment are sought, litigation of certain issues (e.g., the number of avail-
able vacancies, whether the alleged discriminatees had the experience
and training relevant to the position, and whether the respondent would
have selected better-qualified applicants even absent the alleged dis-
criminatees’ union status) may not be deferred to compliance proceed-
ings. Id. at 12, 14. Provision of an appointment remedy for additional
unidentified Kachina discriminatees would defer litigation of analogous
issues to compliance proceedings.
UNITED STATES POSTAL SERVICE 1205
(a) Rescind the rule that rural letter carrier academy in-
structors must be members of the Union, remove such
rules from any and all employee publications or docu-
ments to which it is a party, including the “National
Guidelines for the Quality of Work Life/Employee In-
volvement Process,” and advise its employees in writing
that this rule is no longer being maintained or enforced.
(b) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the removal of
Kathy O’Toole from her position as a rural letter carrier
academy instructor, and any reference to the failure to
award the same position to Jeffrey Houlter, because they
were not members of the Union, and within 3 days there-
after notify O’Toole and Houlter in writing that this has
been done.
(c) Within 14 days from the date of the Board’s Order,
offer to Kathy O’Toole and Jeffrey Houlter full and im-
mediate reinstatement to, or award of, the position of
rural letter carrier academy instructor.
(d) Within 14 days after service by the Region, post at
each of its facilities located throughout the United States
and its territories, where members of the bargaining unit
set forth in the complaint are employed, copies of the
attached notice marked “Appendix A.”8 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Postal Service’s
authorized representative, shall be posted by the Postal
Service and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Postal Service to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Postal Service has gone out of business
or closed any of its facilities where members of the bar-
gaining unit set forth in the complaint are employed, the
Postal Service shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current and former em-
ployees employed by the Postal Service at such closed
facilities at any time since May 24, 2003.
(e) Post at the same places and under the same condi-
tions copies of “Appendix B” as soon as it is forwarded
by the Regional Director.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

8 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.”
testing to the steps that the Postal Service has taken to
comply.
B. The Respondent National Rural Letter Carriers’
Association (the Union), Alexandria, Virginia, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining or enforcing any agreement, including
the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” that requires that
an employee of the Respondent Postal Service (the Postal
Service) be a member of the Union in order to serve as a
rural letter carrier academy instructor.
(b) Causing the Postal Service to remove its employees
from, or denying them appointment to, the position of
rural letter carrier academy instructor based on their
membership in the Union.
(c) In any like or related manner restraining, or coerc-
ing the Postal Service’s employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule that rural letter carrier academy in-
structors must be members of the Union, remove such
rules from any and all employee publications or docu-
ments to which it is a party, including the “National
Guidelines for the Quality of Work Life/Employee In-
volvement Process,” and advise the Postal Service’s em-
ployees in writing that this rule is no longer being main-
tained or enforced.
(b) Notify the Postal Service in writing that it has no
objection to the reinstatement of Kathy O’Toole to the
position of rural letter carrier academy instructor and the
award to Jeffrey Houlter of the same position with copies
to the affected employees.
(c) Within 14 days after service by the Region, post at
each of its business offices and meeting halls located
throughout the Unites States and its territories copies of
the attached notice marked “Appendix B.”9 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Union’s author-
ized representative, shall be posted by the Union and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Furnish to the Regional Director signed copies of
the aforesaid notice for posting by the Postal Service.
Copies of the notice to be furnished by the Regional Di-

9 See fn. 8, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
rector shall, after being signed by the Union be forthwith
returned to the Regional Director.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Union has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything that interferes with these
rights. Specifically:
WE WILL NOT maintain or enforce any agreement, in-
cluding the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” to the extent that it
requires that you be a member of the National Rural Let-
ter Carriers’ Association (the Union) in order to serve as
a rural letter carrier academy instructor.
WE WILL NOT interrogate you regarding your or other
employees’ union or concerted activities, such as
whether or not you are a member of the Union.
WE WILL NOT threaten you with removal from your po-
sition as a rural letter carrier academy instructor because
you resign from, or refuse to join, the Union.
WE WILL NOT inform you that you must be a member
of the Union in order to be selected for, or to retain, the
position of rural letter carrier academy instructor.
WE WILL NOT remove you from, or deny you appoint-
ment to, the position of rural letter carrier academy in-
structor because you resigned from, or refused to join,
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the rule that rural letter carrier acad-
emy instructors must be members of the Union, remove
such a rule from any and all employee publications, in-
cluding the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” and advise you in
writing that such a rule is no longer being maintained or
enforced.
WE WILL remove from our files any reference to the
removal and/or rejection of Kathy O’Toole and Jeffrey
Houlter from or for the position of rural letter carrier
academy instructor because of their nonmembership in
the Union; and WE WILL notify each of them in writing
that this has been done.
WE WILL offer Kathy O’Toole and Jeffrey Houlter full
and immediate reinstatement to, or award of the position
of rural letter carrier academy instructor.
UNITED STATES POSTAL SERVICE
APPENDIX B
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything that interferes with these
rights. Specifically:
WE WILL NOT maintain or enforce any agreement that
requires that you be a member of the National Rural Let-
ter Carriers’ Association (the Union) in order to serve as
a rural letter carrier academy instructor, including, but
not limited to, such a rule as set forth in the “National
Guidelines for the Quality of Work Life/Employee In-
volvement Process.”
WE WILL NOT cause the United States Postal Service to
remove you from, or deny you appointment to, the posi-
tion of rural letter carrier academy instructor because you
resigned from, or refused to join, the Union.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights set forth above.
UNITED STATES POSTAL SERVICE 1207
WE WILL rescind the rule that rural letter carrier acad-
emy instructors must be members of the Union, remove
such a rule from any and all employee publications, in-
cluding the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” and advise you in
writing that such a rule is no longer being maintained or
enforced.
WE WILL notify the United States Postal Service in
writing that we have no objection to the reinstatement of
Kathy O’Toole to the position of rural letter carrier acad-
emy instructor and the award to Jeffrey Houlter of the
same position; and WE WILL send copies of that corre-
spondence to those employees.
NATIONAL RURAL LETTER CARRIERS’
ASSOCIATION
Mara Louise Anzalone, Esq., for the General Counsel.
Nicole Decrescenzo, Esq., of Long Beach, California, for the
Respondent Employer.
Michael J. Gan, Esq. and Jean Marc Favreau, Esq., of Wash-
ington D.C., for the Respondent Union.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard these cases in Phoenix, Arizona, on Sep-
tember 28, 29, and 30, and November 15 and 16, 2004. Kathy
O’Toole, an individual (the Charging Party or O’Toole), filed
an original and an amended unfair labor practice charge in Case
28–CA–19175(P) on November 24 and December 24, 2003,
respectively. O’Toole filed an unfair labor practice charge in
Case 28–CB–6075(P) on January 8, 2004. On August 30,
2004, O’Toole filed an unfair labor practice charge in Case 28–
CA–19618(P). Based on those charges as amended, the Re-
gional Director for Region 28 of the National Labor Relations
Board, issued a Third Amended Consolidated Complaint and
Notice of Hearing (the complaint). The complaint alleges that
the United States Postal Service (the Postal Service, the Em-
ployer, or the Respondent Employer) violated Section 8(a)(1),
(3), and (4) of the National Labor Relations Act (the Act).
Further, the complaint alleges that the National Rural Letter
Carriers’ Association1 (the Letter Carriers’, the Union, or the
Respondent Union) violated Section 8(b)(1)(A), and 8(b)(2) of
the Act. The Respondent Employer and the Respondent Union
(collectively called the Respondents) each filed a timely answer
to the complaint denying the commission of the alleged unfair
labor practices of which they were, respectively, accused.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based upon the record, my consideration
of the briefs filed by counsel for the General Counsel, counsel
for the Postal Service, and counsel for the Union, and my ob-

1 The correct name of the Union appears as amended at the hearing.
servation of the demeanor of the witnesses,2 I now make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent Employer provides postal services for the
United States of America and operates various facilities
throughout the United States in the performance of that func-
tion, including its facility located at 7339 East Williams Drive,
Scottsdale, Arizona, herein called the Respondent Employer’s
facility. The Board has jurisdiction over the Respondent Em-
ployer and this matter by virtue of Section 1209 of the Postal
Reorganization Act, 39 U.S.C. § 1209. Also, the complaint
alleges, the Respondents’ answers admit,3 and I find that the
Postal Service is an employer subject to the jurisdiction of the
Board.
Further, the complaint alleges, the Respondents’ answers
admit, and I find that the Respondent Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
It is the position of the General Counsel that the Respondents
are parties to a “contract clause,” which gives preferential
treatment to union members in violation of Section 8(a)(1),
8(b)(1)(A), and (b)(2) of the Act. This clause is contained in
successive “National Guidelines,” which are agreements that
the Respondents have entered into entitled “Quality of Work
Life/ Employee Involvement Process” (QWLEI). As part of
this process, the Respondents have established “Rural Carrier
Academies” for the principal purpose of training substitute
rural carriers. The National Guidelines require that any em-
ployee selected as an academy instructor be not only a “rural
craft employee,” but also, “a member of the NRLCA” (the
Union). The General Counsel contends that by requiring union
membership as a condition for selection and retention of em-
ployees as academy trainers,4 that the Respondents are giving
preferential treatment to those employees who are union mem-
bers, and, as such, encouraging membership in the Union, in
violation of the Act.
It is undisputed that employee Kathy O’Toole was removed
from her position as an academy trainer because she resigned
her membership in the Union, and that employee Jeff Houtler
was denied consideration for a position as an academy trainer
because of his nonmembership in the Union. The General

2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
3 All pleadings reflect the General Counsel’s complaint and the Re-
spondents’ answers as those documents were finally amended at the
hearing.
4 The terms trainers or instructors are used interchangeably through-
out this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
Counsel contends that such conduct constituted a violation of
Section 8(a)(1) and (3), and 8(b)(2) of the Act. Further, the
complaint alleges that certain statements and threats made by
the Employer’s supervisors and agents in support of the re-
quirement that academy trainers be union members, and the
interrogation of employees to determine their union member-
ship status were violative of Section 8(a)(1) of the Act.
Also, it is the General Counsel’s contention that the Em-
ployer violated Section 8(a)(1) and (4) of the Act by refusing to
grant a request of Kathy O’Toole for annual leave, because she
filed an unfair labor practice charge with the Board and cooper-
ated with the investigation into this matter. Finally, the General
Counsel alleges that the Employer’s supervisors threatened
O’Toole with the denial of annual leave and the loss of other
unspecified benefits, because she engaged in concerted activi-
ties, all in violation of Section 8(a)(1) of the Act.
It is the position of the Union that the rural letter carrier
academies are a product of the collective-bargaining process
between the Union and the Employer. These academies were
the creation of the QWLEI process, used by the Union and the
Employer in a “cooperative spirit” designed to address a wide
variety of work place problems. One of those problems is the
hiring and retention of qualified substitute carriers, who fill in
for absent regular carriers. The academies are designed to give
new substitute carriers sufficient instruction to enable them to
function comfortably in their new jobs, thus, increasing the
likelihood that they will be successful. It is the Union’s conten-
tion that the academy trainers are an integral part of the collec-
tive-bargaining process. They allegedly function as the “eyes
and ears” of the Union, bringing to the Union’s attention mat-
ters that need to be addressed through the collective-bargaining
process. They are also, allegedly, the employees who are most
knowledgeable in the details of the collective-bargaining
agreement and the various other documents to which the Union
and the Employer are parties. As such, they are the most quali-
fied employees to instruct the new substitute carriers through
the academies. It is for these reasons that the Union claims the
requirement that academy trainers be union members serves a
legitimate purpose, and is not violative of the Act. The Em-
ployer joins in support of the position taken by the Union.
Further, the Employer denies that any of the statements made
by its supervisors or agents in connection with the requirement
that academy trainers be union members in any way constituted
the unlawful encouragement of membership in a labor organi-
zation, or the interrogation of employees about their union
membership.
Regarding O’Toole’s request for annual leave, the Employer
takes the position that any failure to immediately grant the re-
quest was based on legitimate business reasons, specifically the
absence of a qualified substitute rural carrier who could service
O’Toole’s route. The Employer denies any connection between
O’Toole’s conduct in filing the unfair labor practice charge
with Board, and the failure to approve her request for annual
leave. Concomitantly, the Employer denies that its supervisors
or agents threatened any employees with either a denial of an-
nual leave or a denial of unspecified benefits, because they
engaged in concerted activity or filed a charge with the Board
and cooperated in the investigation of that charge.
B. Background Facts
For the most part, the background facts in this case are not
disputed. The Respondents have had a long collective-
bargaining relationship. That relationship has been embodied
in successive collective-bargaining agreements, the most recent
of which is effective from February 3, 2002, through November
20, 2004, and unless terminated, for successive annual periods.
(Jt. Exh. 5.) The Respondents are also parties to a series of
other documents, memoranda of understanding, and agree-
ments, the most significant of which, for purposes of this case,
are “National Guidelines” entitled “Quality of Work
Life/Employee Involvement Process” (QWLEI). During the
relevant period in this case, there were two such National
Guidelines in effect, the most recent of the two bearing a revi-
sion date of March 2004. (Jt. Exhs. 1, 2.) The earlier of the
guidelines contains the following clause:
Rural Carrier Academies: The DJSC must monitor all rural
carrier academy training and, to the extent possible, should
monitor all training given to rural carriers in the district. The
DJSC must ensure that the selection of rural carrier academy
instructors conforms with the guidelines as provided in EL-
710-97-2 Standard Training Program for Rural Letter Carri-
ers, course 44503-00, issued March 18, 1997. In particular,
the full committee must review applicant resumes and be in-
volved in the interview process, ensuring that the selectee is a
rural craft employee and a member of the NRLCA. Selectees
must be advised that they cannot act in a managerial capacity
as long as they retain the trainer position. [Emphasis added.]
The more recent of the two National Guidelines contains a
clause very similar to that quoted above, and specifically con-
tains identical language regarding “ensuring that the selectee is
a rural craft employee and a member of the NRLCA.” The
DJSC referenced above is the District Joint Steering Commit-
tee, comprised of representatives of both the Union and the
Employer.
It is necessary to have some historical prospective in order to
understand the QWLEI process. This process was established
as a joint effort by the Postal Service and the Union to work
toward improving and providing more satisfying and effective
jobs and better work environments for members of the bargain-
ing unit. It provides for equal representation by management
and labor at all levels, including a National Joint Steering
Committee (NJSC), six Area Joint Steering Committees
(AJSCs), and the DJSCs. There are in excess of 100,000 em-
ployees in the bargaining unit represented by the Union, com-
prised of both regular rural letter carriers and substitute carriers.
Further, the collective-bargaining agreement between the par-
ties is a national agreement. There are no local agreements.
Article 19 of the national contract between the Respondents
makes reference to other “handbooks, manuals, and published
regulations of the Postal Service, that directly relate to wages,
hours or working conditions. . . .” It is undisputed that one of
those publications is a document entitled “Rural Carrier Duties
and Responsibilities,” which is also referred to as “Handbook
PO-603,” dated June 1991. (Jt. Exh. 3.) As the name implies,
this handbook is a detailed manual setting forth the specific job
requirements for the position of rural letter carrier. It was the
UNITED STATES POSTAL SERVICE 1209
undisputed testimony of Scottie Hicks, a former president of
the Union, that the collective-bargaining agreement, the Na-
tional Guidelines for the QWLEI process, and the handbook
PO-603 are all interrelated, and have a direct affect on the
wages, hours, and working conditions of the members of the
bargaining unit.
According to Hicks, the rural letter carrier academies were
originally developed through the QWLEI process. The Postal
Service has historically had difficulty in the hiring and retention
of substitute carriers. The academies were developed with the
intent of providing substitute carriers with sufficient training in
the duties of rural carriers, which, it was anticipated, would
result in higher retention rates for the substitutes. Under the
terms of the collective-bargaining agreement, the regular rural
carriers are entitled to take leave in accordance with their per-
sonal wishes. If a regular carrier has accumulated leave, the
only restriction on that carrier’s ability to take the leave as he
desires is the availability of a substitute carrier to cover the
route. The contract provides that every rural route is to have a
substitute carrier assigned to it. (Jt. Exh. 5, art. 30.) This es-
sentially means that each regular carrier is to be assigned a
specific substitute carrier, who can service the route when the
regular carrier is on leave. Specifically, the contract provides
that “[t]he Employer shall make every effort to expeditiously
fill leave replacement vacancies when they occur. Regular
rural carriers shall have the right to require that a leave re-
placement be assigned to their route.” However, as noted
above, frequently the Postal Service has had difficulty in the
hiring and retention of substitute carriers, who work under a
different wage structure than the regular rural carriers, and
largely without benefits.
According to the testimony of various union officials, at any
given time there are numerous routes throughout the country
without an assigned substitute carrier. It is, therefore, obvi-
ously to the benefit of both the Union and the Employer to
increase the retention rate for those substitute carriers who are
hired. With that goal in mind, the rural carrier academies were
established. Hicks testified that the requirement that academy
instructors be union members was negotiated through the col-
lective-bargaining process.
The Union’s argument that union members are best able to
explain to the newly hired substitute carriers the “intricacies” of
the collective-bargaining agreement and the specific duties of a
rural carrier will be discussed later in the analysis section of
this decision. However, I would simply note now, that the
Union contends that members have available to them sources of
information not available to nonmembers in the form of the
union magazine, union web site, and through the national and
state conventions. Further, the Union’s contention that the
academy instructors are part of the administration of the con-
tract, as they allegedly function as the “eyes and ears of the
Union,” will also be discussed later in the analysis section.
The Postal Service publishes a training manual for use by the
academy instructors entitled “Standard Training Program for
Rural Letter Carriers,” the most recent of which is dated July
2003. (U. Exhs. 4, 5.) The preface to these manuals indicate
that they are the result of a “multi-disciplinary task force”
working in conjunction with the Union through the NJSC in the
QWLEI process. It is undisputed that the Employer “operates”
the rural academies. Sylvia Knisley, a former human resources
specialist for the Post Office, testified that she “oversaw” the
rural carrier academy in the Phoenix metropolitan area (the Rio
Salado Academy). She was responsible, along with a union
member of the DJSC, for the selection of applicants to the in-
structor position. Further, Knisley had overall responsibility
for the training program including both the instructors and the
newly hired substitute carriers.
The academy class lasts for a period of 24 hours, over 3 8-
hour days. In the Phoenix metropolitan area, the class is held at
the Employer’s Rio Salado facility. The position of instruc-
tor/trainer is totally voluntary. The position is announced
through a job posting, and requires a minimum of 1 years ex-
perience as a rural carrier, with employment at an office within
commuting distance of the training facility. (GC Exh. 4.)
There is no mention in the posting of any requirement that an
applicant be a member of the Union. According to Knisley,
carriers who are selected for the position serve for a period of 3
years. However, reappointment occurs regularly, and at any
given time approximately 300 instructors are serving nation-
ally. Locally, there may be a new class every few months as
needed. When not serving as trainers, the carriers perform their
regular rural letter carrier duties. Knisley and other witnesses
testified that the trainer position is not considered a promotion,
and it does not provide any extra pay or benefits for selected
individuals. A number of witnesses testified that typically a
carrier will apply for the position from a desire to assist new
employees in becoming proficient at the craft, from which the
trainer derives a feeling of self-satisfaction. Also, it is undis-
puted that the addition of “trainer” on an employee resume may
help a carrier advance to a managerial position within the
Postal Service.
Knisley testified that she and usually a union representative
on the DJSC would determine whom to select for the instructor
position from the group of applicants. In order to do so, they
would conduct interviews for the candidates.5 According to
Knisley, the candidates being interviewed were not asked any
questions about their knowledge of the collective-bargaining
agreement, or to determine their union membership status.
However, she candidly admitted that as union membership was
a “requirement” for the position, nonmembers who applied
would not be considered or interviewed.
In the fall of 2001 Knisely and her union DJSC partner se-
lected Kathy O’Toole for the position of academy trainer. At
the time, O’Toole met all the requirements for the position,
including being a member of the Union. O’Toole is a rural
letter carrier employed at the Employer’s Kachina facility in
Scottsdale, Arizona. At the time of the hearing, she had been
employed by the Postal Service for approximately 13 years.
She first joined the Union in approximately the early part of
1996. O’Toole testified that following an interview, she was

5 While Knisley testified that she conducted certain of these inter-
views without a union representative being present, these instances
were apparently anomalies. As the union witnesses pointed out, the
“National Guidelines” provide for union involvement in the interview
and selection process for the position of academy trainer. (Jt. Exh. 2.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
selected for the position of academy trainer in September 2001,
at a time when she was still a member of the Union. According
to O’toole, her training to become an academy instructor con-
sisted of viewing a class being taught by an experienced in-
structor. While viewing the experienced instructor, O’Toole
never heard any discussion about the collective-bargaining
agreement, the grievance filing process, the Union, or the
QWLEI process.
During O’Toole’s time as an instructor, she received the
“Principles of Success” award for her performance as an in-
structor. It is undisputed that O’Toole was an excellent instruc-
tor. She testified that while acting as an instructor she never
talked about the Union, discussed the collective-bargaining
agreement, or the QWLEI process with her students. In any
event, in July of 2002, she resigned from the Union, effective
December 10, 2002.
Knisley testified that at some time Henry Garcia, an assistant
human resources specialist, informed her that O’Toole had
resigned from the Union. According to Knisley, she did not
want to lose O’Toole as an instructor, but understood that
O’Toole could not remain in the position if she was no longer a
union member. She asked Garcia to make certain of O’Toole’s
status. Later he called back to say that O’Toole had in fact
resigned, having indicating to him that she did not know that to
be an instructor she had to be a union member.6 According to
O’Toole, Garcia first questioned her about whether she was still
a union member in early September 2003. She told him that
she had resigned. However, she made it clear to Garcia that she
wanted to continue to instruct, and that she would get back to
him as to whether she would rejoin the Union. Garcia admits
that after questioning O’Toole about her union status, he in-
formed her that all instructors had to be union members. Sub-
sequently, O’Toole called Garcia and told him that while she
still wanted to teach, she had decided not to rejoin the Union.
Within a short period of time, Knisley called O’Toole di-
rectly. Knisley testified that she told O’Toole she “hated to
lose” her, because O’Toole was “one of the best instructors”
she had. According to O’Toole, Knisley informed her that if
she wanted to be an instructor again, “you’ll have to reapply,
join the Union first and reapply.” It was Knisley’s testimony
that she ended the conversation by telling O’Toole that she
would be getting a letter from the DJSC stating that “she was
being pulled as a instructor.”
Kenneth Ohman is the Employer’s manager of operations
programs support. For a time, he served on the DJSC under the
QWLEI process. Management and labor representatives from
the DJSC had determined that as O’Toole was no longer a
member of the Union, she did not meet the requirement for the
academy trainer position. The DJSC had received a letter from
O’Toole dated September 22, 2003, in which she stated her
belief that requiring membership in the Union in order to be a
trainer was a violation of the law. She advised the DJSC that
unless she was reinstated as an instructor, she would seek assis-
tance from the “labor department.” (GC Exh. 12.) As the

6 For the most part, there is little variance in the testimony of
O’Toole, Knisley, and Garcia. Credibility is not an issue between
them.
DJSC cochair, Ohman responded by letter dated October 17,
2003. In his letter, Ohman pointed out that the National Guide-
lines for the QWLEI process required that rural academy in-
structors must be members of the Union. Further, he indicated
in his letter that it was the position of the DJSC that such a
requirement was lawful. (GC Exh. 13.)
Regarding O’Toole’s letter to the DJSC dated September 22,
2003, it is important to note that she had help in preparing that
letter. Lorenzo Scruggs is a supervisor in the Kachina station.
During the events in question, he was O’Toole’s immediate
supervisor. According to O’Toole, after she was contacted by
Henry Garcia and informed of the requirement that academy
instructors be union members, she explained her situation to
Scruggs. He was very sympathetic, telling her that requiring
union membership to teach was not right, and he offered to call
the Board on her behalf. Within a short period of time, Scruggs
returned, indicated he had made the call, and informed O’Toole
that the Board agent had said that requiring union membership
was a violation of the law and she should file an unfair labor
practice charge. Scruggs recommended that she file such a
charge. In the meantime, he helped her draft the letter to the
DJSC dated September 22, 2003, in which she advised that
unless she was reinstated as an instructor, she would seek assis-
tance from the “labor department.”
Scruggs’ testimony regarding this matter was very similar to
that of O’Toole. He made it clear by his testimony that he
“personally” believed that “it was unfair” of the Postal Service
to require union membership in order to be an academy instruc-
tor. Apparently Scruggs felt so strongly about this matter that
he was willing to “represent” O’Toole, and asked his postmas-
ter, George Niedner, whether he could do so. However, ac-
cording to Scruggs, Niedner recommended against it because of
Scruggs’ “position” as a supervisor. In any event, after ex-
plaining to O’Toole that he could not “represent” her, Scruggs
promised that he “would still work with her with anything that
came up” in connection with her charge.
Jeffrey Houlter is a rural letter carrier employed at the Foun-
tain Hills, Arizona post office. He has never been a member of
the Union. Houlter testified that he has applied twice to be an
academy instructor. The first time he applied was in 2001.
(GC Exh. 4.) After an interview with Sylvia Knisley, he was
accepted. However, at the time his facilitator instructor work-
shop was to begin, Houlter spoke with both Knisley and Henry
Garcia and was told that unless he joined the Union, he could
not serve as an instructor. He refused to join, and was required
to leave the program.7
Houlter applied a second time to be an instructor. By letter
dated September 25, 2003, he submitted his application to Syl-
via Knisley.8 (GC Exhs. 7, 8.) Houlter testified that about one
week later, he received a call from Knisley.9 They discussed
the requirement that academy trainers be union members.

7 This incident occurred outside the 10(b) period, and is not alleged
as a violation in the complaint.
8 The complaint incorrectly gives the date of Houlter’s application as
October 24, 2003.
9 This places the incident on about October 2, 2003, rather than Oc-
tober 24, 2003, as alleged in the complaint.
UNITED STATES POSTAL SERVICE 1211
Houlter informed Knisley that he had decided to become a
union member, and to that end he had submitted the “paper-
work” to the Union. However, since he was not yet a union
member, Knisely informed him that he was “disqualified” from
applying for the position. Knisley testified substantially in
conformity with Houlter. She added that she made a notation
on Houlter’s application that he was “not a member.” (GC
Exh. 8.) Knisley testified that this was simply her way of not-
ing on the application that Houlter did not meet the requirement
that academy trainers be members of the Union. As an aside,
Houlter never did actually join the Union.
There is essentially no dispute that O’Toole was removed
from her position as an academy trainer and Houlter was denied
the opportunity to so serve only because they were not mem-
bers of the Union. Neither Respondent seriously argues that
either O’Toole or Houlter were otherwise unqualified for the
positions.10 However, the Respondent Employer strongly de-
nies that it took any action against O’Toole, because she filed
an unfair labor practice charge with the Board over her removal
as an academy trainer.
O’Toole filed her first charge with the Board on November
24, 2003. As Lorenzo Scruggs had encouraged her to file the
charge, she informed him that she had done so, and kept him
informed on an “ongoing” basis of the status of the case. Ac-
cording to O’Toole, she spoke with Scruggs “at least a dozen
times” about the charge. Although Scruggs was discouraged by
the postmaster from “representing” O’Toole, Scruggs went so
far as to tell O’Toole that he was “willing to testify” in her
behalf. They last spoke about the case approximately the mid-
dle of May 2004. It was at about that time that the hearing
before the Board on O’Toole’s first charge was postponed.
O’Toole testified that she interrupted a conversation between
Scruggs and Georgia Martin, Kachina station manager, to in-
form Scruggs of the postponement. O’Toole asked whether
Martin was aware of the status of her Board charge, and
Scruggs responded that he had kept Martin “updated with eve-
rything.” Martin was Scruggs’ immediate supervisor.
According to O’Toole, for the past eight and a half years she
has taken vacation every August, generally being gone from
work for between two weeks to one month. Previously, she had
never had any problem getting her annual leave request ap-
proved. On July 10, 2004, O’Toole filled out a leave request
for August 9 through 31, 2004, and presented it to Wayne
Wilber, the floor supervisor. The following day she had a con-
versation with Wilber in which she asked him whether he
thought she would have any problem having her leave request
approved. O’Toole testified that Wilber indicated he did not
think so, as “[w]e have a bunch of new subs coming in, and
they should be trained by then.”

10 At the time of his second application for the trainer position, Houl-
ter was working “limited duty” as a result of a health condition. In his
posthearing brief, counsel for the Union in passing mentions Houlter’s
alleged physical inability to perform the duties of an instructor. How-
ever, Houlter’s unrebutted testimony was that at the time of his rejec-
tion the only reason given was his nonmembership in the Union. Ac-
cordingly, there is not a scintilla of evidence to support such a position
by counsel for the Union, and I view his reference to Houlter’s physical
problem as merely gratuitous.
As noted earlier, under the terms of the collective-bargaining
agreement, a regular rural letter carrier has the right to have
leave approved on demand. However, that requires that the
route have a substitute carrier assigned to it. As of the time she
submitted her request for annual leave, there was no substitute
carrier assigned to O’Toole’s route. The previous substitute
carrier for this route had been released by the Postal Service in
March 2004. O’Toole testified that she had immediately re-
quested that a new substitute carrier be designated, but that had
still not occurred as of the date she submitted her leave request.
According to Georgia Martin, the last substitute for
O’Toole’s route prior to O’Toole submitting her leave request
was fired by the Postal Service. Apparently, O’Toole’s route
was particularly difficult. Martin testified about the problems
the Postal Service has in hiring and retaining a sufficient num-
ber of substitute carriers to have all the routes in Scottsdale,
Arizona covered. Although the collective-bargaining agree-
ment requires that a substitute carrier be designated within 120
days of a request by a regular carrier, the Employer is simply
unable to meet that requirement, at least for the Kachina sta-
tion.
Martin testified that this shortage sometimes results in regu-
lar carriers not being able to take their requested leave. She
candidly acknowledged that while the contract provides for
leave on demand for regular carriers, she has “got to get the
mail delivered and business taken care of,” which might mean
denying leave requests. According to both Martin and Scruggs,
without a substitute of record, a regular carrier’s leave request
is automatically disapproved, pending the scheduling. The
schedules are posted at the Kachina station every Wednesday.
Martin and Scruggs testified that even without a substitute of
record, every effort is made to accommodate the leave request
of the regular carrier, and, if it can be done, to post the schedule
with the requested leave ultimately being granted. Sometimes a
substitute can be used to cover a route, even when it is not the
substitute’s primary route of record. Also, a regular carrier
may improve her own chances of having a leave request ap-
proved if the carrier can arrange her own replacement carrier, at
least for those days, such as Saturday, which are particularly
difficult to cover. In any event, a disapproved leave request
may ultimately be granted and the leave posted on the schedule,
as long as coverage of the route can be obtained.
O’Toole testified that about July 27, 2004, she heard from
Martin that Ken Ohman, the Employer’s manager of operations
programs support, was asking about her work performance.
O’Toole, who had never been disciplined by the Postal Service,
found this inquiry odd. At the time, her first charge with the
Board was pending. On about the same date, while she was
busy working at her case, Scruggs approached and told her,
“There might be a problem with your vacation time.” How-
ever, she did not respond. She had still not received a written
response to her leave request. A few days latter, she happened
to check the “120-day log” posted near the floor supervisor’s
desk, which recorded the dates when regular carriers had re-
quested that substitute carriers be named for their routes. She
was dismayed to find that her name was not on the list, and
immediately went to see Georgia Martin. O’Toole testified that
Martin looked at a newer list kept in her office, and said that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1212
there was only one person on the list ahead of O’Toole. This
was allegedly a copy of the official list, which was maintained
at the Fountain Hills postal station. In any event, a substitute
carrier of record for O’Toole’s route still had not been desig-
nated by the date her requested annual leave was to begin.
On about August 3, 2004, O’Toole went to see Scruggs and
asked him whether she was going to be able to get off on the
days she had requested. Scruggs responded that he was “work-
ing on it.” Apparently not being satisfied with that answer,
O’Toole went to Martin’s office and told her that she needed
the time off. Martin responded that “[i]t doesn’t look like
you’re going to get it.” O’Toole asked why one of the new
substitutes coming to the station could not cover her route. In
reply, Martin indicated that she was not going to assign substi-
tute carriers to O’Toole’s route, even before they had learned
their primary route. They then discussed other options for cov-
ering the route, but Martin was not satisfied with any of them.
A day or two later, on about August 5, 2004, O’Toole no-
ticed that the schedule normally posted on Wednesday was not
yet available. She approached Scruggs and asked whether he
had finished the schedule. He responded that he had not even
looked at it yet. According to O’Toole, she was afraid to press
the issue, and instead told Scruggs that if it were still a problem
to grant her the leave, she would be willing to take only the last
two weeks, instead of the three requested. However, Scruggs
failed to respond.
At about this time, O’Toole approached union steward
Elaine Spearman concerning her problem getting her leave
request approved. She and Spearman discussed some alterna-
tives to present to management, and Spearman approached
Scruggs. According to Spearman, ultimately management ac-
cepted a suggestion that she made that if O’Toole were granted
the leave, a substitute carrier who had a primary route, but not a
secondary or tertiary route, could be trained on O’Toole’s route
in her absence.11
Spearman candidly testified that regular carriers without a
designated substitute are frequently denied requested leave.
Also, she indicated that regular carriers enhance their chances
of having leave approved, even if they have no designated sub-
stitutes, but are willing to find their own replacements. This
was something O’Toole was not willing to do, testifying that
she felt that obtaining a replacement was the responsibility of
management.12 Further, Georgia Martin offered numerous
examples of regular carriers whose requests for leave were also
denied, pending scheduling. (Emp. Exh. 3.)
Fearing that her request for annual leave was not going to be
approved, O’Toole began to consider other options. She testi-
fied that her father was seriously ill, and was scheduled to have
medical treatments at the same time that she had planed to visit

11 It should be noted that the substitute carrier who was ultimately
assigned to cover O’Toole’s route in her absence was fired by the
Postal Service, because of an inability to properly service the route.
12 Substitute carrier Cynthia Bickman did speak with Martin on be-
half of O’Toole, suggesting that O’Toole’s route be “split” between a
number of carriers. However, Martin rejected the idea, saying that the
station was “too short-handed” for that idea to work.
him during the period of her requested leave.13 Therefore,
O’Toole decided to apply for leave under the Family Medical
Leave Act (FMLA), which she felt she was entitled to do, as
she intended to take her father for his scheduled medical treat-
ments. She submitted this request for FMLA leave on August
9, 2004, which was the date her leave was to have started under
her previous request for annual leave. The FMLA requested
leave was to start 1 week later, on August 16, 2004. (Emp.
Exh. 5.) This leave was approved, pending the submission of
medical documentation, and O’Toole took the leave requested
through the FMLA. However, it should be noted that Georgia
Martin testified that had O’Toole not applied for FMLA leave,
an effort would have still been made to grant her request for
annual leave.
At approximately the same time that she applied for FMLA
leave, O’Toole filed a grievance under the terms of the collec-
tive-bargaining agreement over the failure of the Postal Service
to grant her request for annual leave. (GC Exh. 30.) Subse-
quently, Lorenzo Scruggs returned the grievance, with his re-
sponse, in the form of a “Post-It” note, attached to the griev-
ance. (GC Exh. 31.) Scruggs and O’Toole then had a discus-
sion about why her original request for leave had not been
granted. While there was no significant variance between the
testimony of Scruggs and O’Toole, his version was more com-
plete and explained each of the items noted in the “Post It.”
Scruggs testified that he explained to O’Toole that as “she
didn’t have a sub of record,” he “couldn’t guarantee the leave.”
He told her that was “the way the system [was] set up,” and that
he couldn’t “play favorites.” In any event, as she had now filed
for FMLA leave, the matter was out of his hands, and he no
longer had the authority to process her original request for an-
nual leave. However, Scruggs continued to explain why certain
carriers had leave approved ahead of O’Toole, either because
they had subs of record or because they were close to working
the maximum number of hours permitted.14 He reminded
O’Toole that not only did her route not have a substitute carrier
assigned to it, but that no substitute had chosen her route as
either a secondary or tertiary route. Scruggs brought the con-
versation to an end by insisting that he had continued to work
on finding coverage for the route, at least for the last 2 weeks of
the requested leave, which O’Toole had earlier told him that
she would be satisfied to receive. Now, with her request for
FMLA leave, the earlier leave request for annual leave was no
longer within his authority to grant.
O’Toole contends in her version of the conversation that
while discussing the contract provisions regarding annual leave,
Scruggs indicated, “If I go by the book, it’s going to be hard on
everyone.” As noted above, Scruggs contends that he refer-
enced the “system” and indicated he couldn’t “play favorites.”
To the extent that this variance exists, I credit Scruggs’ version
of the conversation as more credible. His version reasonably

13 In her original request for annual leave, O’Toole had indicated in
the remarks section of the form that she needed the time off for her
“Aunt’s 90th birthday reunion [and] must help [her] 87 year old dad
(Please).” (Emp. Exh. 5.)
14 This is what is customarily referred to as a “2080 problem.”
UNITED STATES POSTAL SERVICE 1213
fits into the context of the conversation, while O’Toole’s ver-
sion seems more contrived.
As previously mentioned, a substitute carrier, who had a
primary but no secondary or tertiary route, was assigned to train
on O’Toole’s route in her absence. It was apparently in that
manner that the route was covered. O’Toole took 19 days of
leave under the FMLA. Although not totally clear from the
record, I assume that O’Toole’s grievance is still pending.
The witnesses are unanimous that the issue of the filing of an
unfair labor practice charge by O’Toole over her removal as an
academy trainer was never brought up in connection with the
issue of her leave request. Scruggs, Martin, O’Toole, and
Spearman all testified that there was no discussion of the re-
quirement that academy trainers be union members in connec-
tion with O’Toole’s difficulty in getting her request for annual
leave granted. O’Toole testified that she was never verbally
threatened with the denial of leave because she filed a charge
with the Board. Further, she testified that neither Scruggs nor
Martin ever said anything to her that indicated either supervisor
was unhappy with her for filing the original charge with the
Board. Scruggs testified that as he helped O’Toole prepare the
original charge against the Postal Service, the actual filing of
that charge certainly did not upset him. Martin testified that
although she had the ultimate responsibility to grant or deny
leave requests, she had decided not to reconsider Scruggs’ ac-
tion in denying O’Toole’s request for annual leave, pending
scheduling. According to Martin, she was at the time aware
that O’Toole had filed a charge with the Board, but “never gave
it a thought” in connection with O’Toole’s request for leave.
In a final effort to connect the Postal Service’s failure to
grant O’Toole’s annual leave request with her filing of a charge
with the Board, counsel for the General Counsel called Kenneth
Green15 to testify. At the time he testified, Green was a rural
letter carrier assigned to a postal station in Parker, Arizona, but
who until very recently had been employed at the Kachina sta-
tion. It was very obvious from his testimony that Green har-
bored considerable animosity toward the management of the
Kachina station. He acknowledged that he had requested a
transfer from the Kachina station in part because of his percep-
tion that management did not apply the rules fairly, treating
certain employees in a preferential way. In any event, he testi-
fied that 2 or 3 months earlier, he had a conversation with
Scruggs, during which Scruggs mention O’Toole, and indicated
that she “was causing him trouble again,” or “words to that
effect.” Green could not recall the context of that comment.
However, he was certain that he had never discussed with
Scruggs the fact that O’Toole had filed a charge with the
Board. Further, he was able to place the comment by Scruggs
at about the same time that “a day off . . . had been asked for”
by O’Toole.
In my opinion, Green was not so much an incredible witness
as he was a rather weak witness, who was obviously biased
against the Employer’s management at the Kachina station.
Green’s vague testimony does not help connect the filing of
O’Toole’s charge, with management’s denial of her leave re-

15 In her posthearing brief, counsel for the General Counsel mistak-
enly refers to Green as Ken Brown.
quest. At most, Green supports an argument that could be
made that O’Toole’s efforts to have her request for annual
leave approved were causing problems for Scruggs. Such a
conclusion could reasonably be reached, assuming Green’s
recollection of Scruggs’ comment was accurate. However, it
would not in my view reasonably support counsel for the Gen-
eral Counsel’s argument that the comment refers to O’Toole’s
filing of a charge with the Board.
C. Analysis and Conclusions
1. The Academy instructor issue
The General Counsel’s theory in this case is simple and
straightforward. It is alleged that the position of rural carrier
academy instructor is a term or condition of employment. Fur-
ther, the General Counsel contends that by requiring as a pre-
requisite that a candidate for that position be a member of the
Union, the Employer is interfering with, restraining, and coerc-
ing employees in the exercise of their Section 7 rights, while,
concomitantly, the Union is also restraining or coercing those
employees. The Union’s action is also alleged as an attempt to
cause the Employer to discriminate against its employees by
encouraging membership in the Union. On the other hand, the
Respondent Union argues that the instructor position is a volun-
tary, ad-hoc position, which does not constitute a term or condi-
tion of employment. According to counsel for the Union, it,
therefore, follows that requiring union membership, as a pre-
requisite for applying for the position, cannot constitute a viola-
tion of the Act.
The threshold issue remains the nature of the instructor posi-
tion. In this regard, I agree with the General Counsel and con-
clude that the position is a term or condition of employment.
The position of rural academy instructor is sought after, at least
by some employees. It is competitive, and requires an applica-
tion process including an oral interview. The postings for the
position in the Phoenix metropolitan area indicated that appli-
cants “must submit” a “PS Form 991, Application for Promo-
tion or Assignment.” (GC Exh. 4; Jt. Exh. 8.) This is appar-
ently the same form used by applicants applying for any work
related promotion within the Postal Service.16
It is undisputed that the instructor position pays only the
amount the instructor earns for the performance of his/her rural
letter carrier duties. There is no extra pay. However, I am
convinced that those who apply for the position view it as a
“perk.” When questioned at the hearing by the undersigned,
the witnesses were uniform in suggesting that employees apply
for the position because they derive self-satisfaction in being
able to teach new employees the proper way to perform the job
of rural letter carrier. Further, former and current instructors
indicated that the position is “fun,” allows them to meet “inter-
esting people,” and, of course, is an alternative to delivering the
mail. Even more significant, all of those witnesses who com-
mented on the subject at the hearing acknowledged that having

16 While the PS Form 991 has clearly been used in the Phoenix met-
ropolitan area, there exists certain internal “Management Instructions”
that indicate the DJSC “should” use an application process “other than
the formal Form 991 procedures” when advertising for the instructor
position. (Jt. Exh. 7, p. 4; Jt. Exh. 2, p. 15.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
performed the position of academy instructor would contribute
to a resume offered by a candidate for a managerial position
within the Postal Service.
Realistically, the position of academy instructor is as much a
benefit to the selected employee as is providing air conditioning
or access to vending machines for employees. In my view, it is
clearly a term or condition of employment for which the em-
ployee derives a benefit. As such, the Respondents’ contractual
clauses, which give preferential treatment to union members in
applying for the position, are discriminatory on their face. See
Radio Officers’ Union v. NLRB, 347 U.S. 17, 40, 47–48 (1954)
(unlawful for employer to grant retroactive wage and vacation
benefits based upon employee’s union membership); Vanguard
Tours, 300 NLRB 250, 253 fn. 15, 267 (1990), enfd. 981 F.2d
62, 67 (2d Cir. 1992) (unlawful for labor contract to provide for
pension benefits only for union members); Dairylea Coopera-
tive, Inc., 219 NLRB 656 (1975).
However, not every benefit awarded to employees based on
union membership is unlawful, and may in fact be valid if it is
necessary to the effective performance of the union’s collec-
tive-bargaining function. It is the burden of the Respondents to
justify what I have concluded is the facially discriminatory rule
found within the “National Guidelines” and associated docu-
ments. See Electrical Workers Local 48 (Oregon-Columbia
NECA), 342 NLRB 101 (2004). Counsel for the Union spends
the majority of his posthearing brief arguing this very point.
It is the position of the Respondent Union that academy in-
structors are “agents” of the Union who facilitate the admini-
stration of the collective-bargaining agreement. At the hearing,
Randy Anderson, union director of labor relations, and Scottie
Hicks, former national president of the Union, testified at great
length about the alleged “integral” part that academy instructors
play in the collective-bargaining process.
Much is made of the compensation system for rural letter
carriers, which, according to the Union, is highly complex. I
would certainly agree that the salary system for rural letter
carriers is somewhat unique. Salaries vary widely based on an
annual mail count to determine the estimated amount of time it
takes for a carrier to deliver her route each week. Assigned
time and money values are given to 32 standards affecting rural
routes, such as the number of boxes, miles traveled, and types
and classes of mail delivered and collected. Once a route is
evaluated at a set number of hours, the carrier is paid the
evaluation rate for the route, even if it takes her more or less
hours to deliver the mail on a given day.
Another rather unusual aspect of the parties collective-
bargaining agreement is the requirement that the Employer
provide each regular rural letter carrier with a designated sub-
stitute carrier, so that the regular carrier can be awarded leave
on demand. However, as was noted above, this contractual
requirement is not always achieved since the Postal Service has
had significant difficulty with the hiring and retention of substi-
tute carriers.
The Union contents that because of these unique aspects of
its contract with the Postal Service, it is necessary for the acad-
emy instructor to function as an agent of the Union. Allegedly,
only in this way can the complexity of the contract be properly
brought to the attention of the newly hired substitutes in the
academy classes, and, in return, can “feedback” from the train-
ees be properly brought to the attention of the Union.
The Union’s argument is premised on the QWLEI process,
which is a product of collective bargaining. According to the
Union, the QWLEI process created the concept of the rural
academies, and also the requirement that those academy in-
structors be members of the Union. As testified to by the union
witnesses, the parties realized the importance of improving the
recruitment and retention of substitute carriers, and created the
academies as a means of doing so. Allegedly, it was felt that
union members, as agents of the Union, would be most likely to
achieve this goal by fully imparting the complexities of the
contract on the trainees, and by returning useful information to
the Union. This information could then be used by the parties,
through the collective-bargaining process, to make necessary
changes and further improve the recruitment and retention rate
for substitute carriers.
In my opinion, this argument by the Union is highly attenu-
ated and simply “does not hold water.” At best, it is merely
theoretical. It does not demonstrate a legitimate, real basis
upon which requiring academy trainers to be union members
assists the Union in the performance of its collective-bargaining
function. In his posthearing brief, counsel for the Union cites a
number of Board cases that stand for the proposition that a
union has the right to designate its choice as union steward,
collective-bargaining representative, or union policy maker,
without interference by the employer.17 However, these cases
are all factually distinguishable from the matter at hand.
The academy instructors do not engage in collective bargain-
ing. They do not make suggestions about working conditions
that may end up in the parties’ contract any more or less than
do any other employees. To the extent that instructors may
convey to union officials the sentiments of trainees, this can
still be done by the instructors, whether they are union mem-
bers or not. Although Randy Anderson testified that this “fil-
ter[ing] up” of information by instructors does occur, he was
unable to offer even a single specific example. Again, the ad-
vantage to the Union’s collective-bargaining role appears only
theoretical. In any event, if the Union believes it is important
for it to retain this capability, there certainly would be no im-
pediment to the Union encouraging its members to apply for
the position of academy instructor.
The academy instructors do not assist in administering the
contract. They are not stewards or grievance persons. Em-
ployees, including trainees at the academy, do not normally
seek out their assistance to resolve a problem at work. They are
not consulted about possible violations of the contract any more
than any other employees. Further, they are certainly not au-
thorized by the Union to seek to resolve grievances with man-
agement, nor do they speak on behalf of the Union, or establish
policy on behalf of the Union.

17 In his brief, counsel for the Union cites several Advice Memo-
randa from the NLRB General Counsel’s Division of Advice. Such
memoranda are intended to serve as internal instruction for use by the
Office of the General Counsel, and have no precedential value or au-
thoritative weight for administrative law judges.
UNITED STATES POSTAL SERVICE 1215
As a sort of alternate theory, the Respondent Union argues
that the position of academy instructor, as a distinct entity, is a
part of the collective-bargaining agreement, and, thus, requires
an agent of the Union, in the form of a union member, to teach
the course. In her posthearing brief, counsel for the General
Counsel characterizes the Union’s approach as the “part and
parcel theory.” In my view, this is an accurate description of
the Respondent Union’s argument that as the material taught in
the academy comes from the Rural Carrier Duties and Respon-
sibilities Handbook (Jt. Exh. 3, handbook PO-603), which in
turn is an extension of the collective-bargaining agreement (Jt.
Exh. 5), that the instructor is administering the contract.
This is a rather specious argument. There is one employer
here, namely the Postal Service. Of course, any labor related
publication by the Employer has some interrelationship with
other labor related publications. The Postal Service publishes
the Standard Training Program for Rural Letter Carriers, In-
structor’s Guide (U. Exh. 4) for use by the academy instructors,
which in turn is based on the Rural Carrier Duties and Respon-
sibilities Handbook. (Jt. Exh. 3.) Ultimately both documents
draw their authority from the parties collective-bargaining
agreement. However, I fail to see how any of this confers upon
the academy instructors some role in the collective-bargaining
process. All the bargaining unit jobs are creatures of the con-
tract, but that does not make every employee an administrator
of the contract, or part of the collective-bargaining process. In
my view, the Respondent Union is really “grasping at straws”
with this argument.
A number of the union witnesses testified that the academy
instructor functions as the “eyes and ears” of the Union, and,
therefore, must be a union member. Allegedly, the academy
instructors hear from the trainees about issues or problems that
the Union should consider in preparing collective-bargaining
proposals. It is suggested that only union members would feel
comfortable or be in a position to pass such information on to
union officials. There were no specific examples given of such
issues brought to instructors’ attention by trainees. However,
even assuming trainees did raise such issues, surely regular
rural letter carriers voice concerns every day over the terms and
conditions of their employment. Such concerns are undoubt-
edly raised by nonmembers as well as members and are re-
ceived by union officials in all sorts of ways. It is simply dis-
ingenuous to suggest that academy instructors need to be union
members in order for trainee complaints to reach union offi-
cials.
It was clear from the testimony of the union witnesses that
they uniformly held the belief that union members were more
qualified to serve as academy trainers than were nonmembers.
While not expressed as a “last ditch,” final theory, I view this
argument in such a fashion. Being qualified to serve in the posi-
tion certainly does not mean that the instructor is either an
agent of the Union or part of the collective-bargaining process.
In any event, counsel for the Respondent Union argues in his
posthearing brief that the union members possess detailed
knowledge in the complexities of the collective-bargaining
agreement, specifically in the compensation system and use of
substitute carriers, necessary to properly instruct the trainees.
A number of union witnesses testified that union members
have available to them resources not available to nonmembers.
Examples given were the national monthly magazine, The Na-
tion Rural Letter Carrier, the union web site, and local, State,
and national conventions. According to these witnesses,
changes to the contract and related documents made by the
parties through the collective-bargaining process may not ap-
pear in a Postal Service publication for some time after agree-
ment. However, such changes will be reported almost immedi-
ately on the union web site, and usually within the month in the
national magazine. Discussions of these changes will also oc-
cur during the year at regular union conventions. None of these
vehicles of information would normally be available to non-
members, who would be ignorant of the changes until formally
notified in a Postal Service publication.
Additionally, certain of the union witnesses testified that un-
ion members tend to be the best-informed employees. Alleg-
edly, they are more knowledgeable than nonmembers concern-
ing the various documents that the academy instructor needs to
be familiar with including the collective-bargaining agreement
(Jt. Exh. 5), the Standard Training Program for Rural Letter
Carriers, Instructor’s Guide (U. Exh. 4), and the Rural Carrier
Duties and Responsibilities Handbook (Jt. Exh. 3, handbook
PO-603). It is argued that such knowledge of these documents,
including recent changes made through the collective-
bargaining process, makes union members better able to in-
struct trainees in their duties and responsibilities than nonmem-
bers.
However, these assumptions are not necessary valid. There
is no demonstrable evidence that union members are any more
knowledgeable in the details of the contract and related docu-
ments than nonmembers. Certainly knowledge in such matters
varies from individual to individual. Sylvia Knisley, formally
human resources specialist for the Postal Service, testified that
Kathy O’Toole was one of the best academy instructors she
had, and was given awards for her superior participation as a
trainer. As discussed earlier, O’Toole was for some of the pe-
riod of time she served as a trainer no longer a union member.
Further, a number of the union witnesses candidly testified that
there are certainly union members who, despite the best efforts
of the Union, do not keep informed. Having available the na-
tional magazine, union web site, and union conventions does
mean that every member is availing him or herself of those
resources.
In my opinion, there is simply no direct correlation between
union membership and knowledge of the contract and related
documents. It is the Postal Service’s responsibility to ensure
that information regarding changes to the contract are made
available to all rural carriers, regardless of their union member-
ship status. Further, O’Toole credible testified, largely without
contradiction, that there were no discussions about the Union,
the processing of grievances, or the collective-bargaining proc-
ess during the academies at which she instructed. Kinsley sup-
ported O’Toole’s testimony, and indicated that instructors were
specifically told not to discuss the Union during academy time.
Therefore, when considering the skills and knowledge neces-
sary to perform the position of academy instructor, there is no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
logical reason why union membership must be a prerequisite
for selection to the position.
I have reached the conclusion that requiring union member-
ship as a prerequisite for the position of academy instructor
constitutes unlawful favoritism based on union membership.
The membership requirement is not necessary for the perform-
ance of the Union’s collective-bargaining or representational
function. It serves no lawful, legitimate purpose. By maintain-
ing that requirement, employees who might otherwise prefer to
remain nonunion and who were interested in applying for the
instructor position would certainly feel unwarranted pressure to
join the Union. The clause is question is, therefore, unlawful
both on its face and as applied to applicants for the position.
Accordingly, the clause as contained in successive “National
Guidelines” between the Respondents entitled “Quality of
Work Life/Employee Involvement Process,” and all related
documents, which clause requires membership in the Union as
a prerequisite for the position of rural letter carrier academy
instructor is unlawful. Therefore, I conclude that by maintain-
ing that clause the Respondent Union has been restraining and
coercing employees in the exercise of their Section 7 rights in
violation of Section 8(b)(1)(A) of the Act, as alleged in para-
graphs 6(a) and 11 of the complaint. Further, in maintaining
that clause, the Respondent Union has violated Section 8(b)(2)
of the Act by attempting to cause and causing the Employer to
discriminate against its employees by encouraging membership
in the Union in violation of Section 8(a)(3) of the Act, as al-
leged in paragraphs 6(a) and 12 of the complaint. Also, I con-
clude that by maintaining the clause in question, the Respon-
dent Employer has been interfering with, restraining, and coerc-
ing its employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act, as alleged in paragraphs
6(a) and 8 of the complaint.
Of course, as discussed above, because union membership
was a prerequisite for the position of academy instructor, the
Employer on September 11, 2003, removed O’Toole from her
instructor position, and on October 2, 2003, denied Houlter’s
application for an instructor position. I conclude that by this
conduct, the Respondent Employer has been discriminating in
regard to the terms or conditions of employment of its employ-
ees, thereby encouraging membership in the Union in violation
of Section 8(a)(1) and (3) of the Act, as alleged in paragraphs
7(e), (f), (h), and 9 of the complaint. Further, I conclude that
by this same conduct the Respondent Union has violated Sec-
tion 8(b)(2) of the Act, as it attempted to cause and did cause
the Employer to discriminate against its employees because of
their nonmembership in the Union, as alleged in complaint
paragraphs 6(a), 7(e), (f), and (h), and 12.
In connection with the removal of O’Toole from her instruc-
tor position and the denial of Houlter’s application for an in-
structor position, the Employer’s supervisors and agents en-
gaged in a course of conduct alleged in the complaint as consti-
tuting violations of the Act. Based on the witness testimony,
there is no dispute that these actions occurred. However, the
Employer denies that they constituted violations of the Act, as
they were incidental to the requirement that instructors be union
members, which the Respondents argue is not unlawful.
Complaint paragraph 6(b) alleges that on about September 4,
2003, the Respondent Employer, by Henry Garcia, interrogated
its employees about their union membership. Both Garcia and
O’Toole testified that on about that date Garcia called O’Toole
and inquired whether O’Toole remained a member of the Un-
ion, or words to that effect. At the time she was still classified
as an academy instructor, but had earlier resigned from the
Union. While there was a slight variance in their testimony, it
is clear that the information Garcia was seeking was O’Toole’s
union membership status.
The Board looks to the “totality of the circumstances” in de-
termining whether a supervisor’s questions to an employee
about her union activity were coercive under the Act. Ross-
more House, 269 NLRB 1176 (1984), affd. sub nom. Medcare
Associates, Inc., 330 NLRB 935 (2000), the Board listed a
number of factors considered in determining whether alleged
interrogations under Rossmore House were coercive. These are
referred to as “Bourne factors,” so named because they were
first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964). These factors include the background of the parties
relationship, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
the truthfulness of the reply.
Based on the totality of the circumstances, I believe that
Garcia’s questioning of O’Toole about her union membership
status constituted unlawful interrogation. These were questions
by an acknowledged supervisor designed to determine whether
O’Toole had exercised a basic right protected by Section 7,
namely a decision whether she wished to belong to the Union
or not. Although O’Toole apparently was not aware of the
consequences of her answer at the time, the result of her candid
admission that she was no longer a union member was her re-
moval from the position of academy instructor. As has been
demonstrated by this proceeding, the academy instructor was a
position of great importance to O’Toole. Certainly, Garcia’s
conduct interfered with, restrained and coerced O’Toole in the
exercise of her decision of whether to continue in her choice of
nonmembership, or whether to rejoin the Union in order to
retain her instructor position. Accordingly, I conclude that the
Respondent Employer, by Henry Garcia, unlawfully interro-
gated Kathy O’Toole in violation of Section 8(a)(1) of the Act,
as alleged in paragraphs 6(b) and 8 of the complaint.
Complaint paragraph 6(c) alleges that on about September 4,
2003, the Respondent Employer, by Garcia, threatened its em-
ployees with removal from the position of academy instructor,
because they had resigned their membership in the Union. This
allegation is merely an extension of the conversation mentioned
above between Garcia and O’Toole. Again, there is very little
variance between the versions of the conversation as told by the
two witnesses. Both Garcia and O’Toole testified that after
hearing that O’Toole was no longer a union member, Garcia
informed her that in order to retain the instructor position, she
must rejoin the Union. O’Toole informed Garcia that she
would decided whether or not to rejoin, and would so inform
him.
I conclude that Garcia’s statement regarding the requirement
that instructors be union members, and the demand that
O’Toole rejoin the Union in order to retain her instructor posi-
UNITED STATES POSTAL SERVICE 1217
tion constituted an unlawful threat, which certainly affected her
Section 7 right to refrain from engaging in union activity. Ac-
cordingly, I find that the Respondent Employer, by Henry Gar-
cia, threatened O’Toole in violation of Section 8(a)(1) of the
Act, as alleged in paragraphs 6(c) and 8 of the complaint.
It is alleged in paragraph 6(d) of the complaint that on about
September 11, 2003, the Respondent Employer, by Sylvia
Knisley, informed its employees that they could reapply for a
position as an academy instructor if they rejoined the Union.
This allegation relates to a conversation between Knisley and
O’Toole, when Knisley, after learning that O’Toole was no
longer a member of the Union, told O’Toole that she hated to
lose O’Toole as an instructor, but that if O’Toole wanted to be
an instructor in the future, O’Toole would need to rejoin the
Union. Both witnesses appeared to agree on the substance of
this conversation.
Once again, a supervisor of the Employer has interfered
with, restrained, and coerced O’Toole in the exercise of her
Section 7 right to resign from the Union. If there had been any
doubt in O’Toole’s mind regarding the issue, Knisley, the Em-
ployer’s human resources specialist, certainly made it clear that
nonmembership in the Union was incompatible with serving as
an academy instructor. Accordingly, I conclude that the Re-
spondent Employer, by Sylvia Knisley, interfered with
O’Toole’s right to refrain from union activity in violation of
Section 8(a)(1) of the Act, as alleged in paragraphs 6(d) and 8
of the complaint.
Paragraph 6(e) of the complaint alleges that on about Octo-
ber 23, 2003, the Respondent Employer, by letter from Ken
Ohman, informed its employees that they must be members of
the Union in order to be selected for, or to retain, the position of
academy instructor. Ohman is the Employer’s manager of
operations programs support. For a time, he served on the
DJSC under the QWLEI process. As I noted earlier, it was in
this capacity that Ohman responded to a letter received from
O’Toole in which she advised the DJSC of her belief that the
requirement that academy instructors be union members was a
violation of the law. In his reply letter dated October 17, 2003,
Ohman pointed out that the National Guidelines for the QWLEI
process required that rural academy instructors must be mem-
bers of the Union. Further, he indicated in his letter that it was
the position of the DJSC that such a requirement was lawful.
(GC Exh. 13.)
By his letter, Ohman was once again informing O’Toole of
what she was now well aware, namely that union membership
was a prerequisite for selection to the position of academy in-
structor. As I have already held a number of times, I find that
such a statement by a supervisor and agent of the Employer
served to interfere with, restrain, and coerce O’Toole in the
exercise of her Section 7 right to refrain from belonging to the
Union. Accordingly, I conclude that by Ohman’s letter, the
Respondent Employer violated Section 8(a)(1) of the Act, as
alleged in paragraphs 6(e) and 8 of the complaint.
2. The denial of annual leave issue
The General Counsel alleges that the Respondent Em-
ployer’s failure to grant O’Toole’s request for annual leave
constituted unlawful retaliation under the Act. Section 8(a)(4)
of the Act prohibits an employer from discharging or otherwise
discriminating against an employee for filing charges or giving
testimony under the Act. Seven Seventeen HB Denver Corp.,
325 NLRB 534, 543 (1998). Obviously, in the case at hand,
O’Toole first filed an unfair labor practice charge against the
Employer on November 24, 2003, alleging that the Respondent
Employer had discriminated against her because of her non-
membership in the Union.18 To establish a violation, the Gen-
eral Counsel must produce evidence, either directly or by infer-
ence, that the Employer took some adverse action against
O’Toole, which action was motivated by the filing of her
charges or by her participation in Board proceedings. Wayne
W. Sell Corp. 281 NLRB 529, 534 (1986). Violations of Sec-
tion 8(a)(4) of the Act are analyzed using the Wright Line test.
See McKesson Drug Co., 337 NLRB 935, 936 (2002).
In Wright Line 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 98 (1982), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of 8(a)(1) turning on em-
ployer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. This showing must be by a preponderance of the
evidence. Then, upon such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The
Board’s Wright Line test was approved by the United States
Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393
(1983).
In the matter before me, I conclude that the General Counsel
has not made a prima facie showing that O’Toole’s protected
activity, namely her filling of an unfair labor practice charge
with the Board against the Employer, was a motivating factor in
the Employer’s decision to disapprove her request for annual
leave. The Board in Tracker Marine, L.L.C., 337 NLRB 644
(2002), affirmed the administrative law judge who evaluated
the question of the employer’s motivation under the framework
established in Wright Line. Under that framework, the General
Counsel must establish four elements by a preponderance of the
evidence. First, the General Counsel must show the existence
of activity protected by the Act. Second, the General Counsel
must prove the respondent was aware that the employee had
engaged in such activity. Third, the General Counsel must
show that the alleged discriminatee suffered an adverse em-
ployment action. Fourth, the General Counsel must establish a
link, or nexus, between the employee’s protected activity and
the adverse employment action. In effect, proving these four
elements creates a presumption that the adverse employment
action violated the Act. To rebut such a presumption, the re-
spondent bears the burden of showing that the same action
would have taken place, even in the absence of the protected
conduct. See Mano Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996); Farmer Bros. Co., 303 NLRB 638, 649 (1991).
It is axiomatic that filing a charge with the Board constitutes
protected activity. Larry Blake’s Restaurant, 230 NLRB 27, 39
(1977); Portsmouth Ambulance Service, 323 NLRB 311, 325

18 GC Exh. 1(a).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
(1997). Further, there is no doubt that the Employer’s supervi-
sors were well aware that O’Toole had filed an unfair labor
practice charge against the Postal Service. As was noted above,
Lorenzo Scruggs had encouraged and assisted O’Toole in the
filing of that charge with the Board. He had informed Georgia
Martin of what had transpired. Also, Ken Ohman knew, as of
the date of his receipt of O’Toole’s letter of September 22,
2003, that she was upset with her removal as an academy in-
structor. (GC Exh. 12.) Ohman responded by letter dated Oc-
tober 17, 2003. (GC Exh. 13.) According to O’ Toole, about
July 27, 2004, she was told by Martin that Ohman had been
asking what kind of carrier she was and about her work per-
formance.
The ability to take annual leave is certainly a term or condi-
tion of employment. O’Toole requested annual leave, and that
request was disapproved, pending scheduling. (Emp. Exh. 5.)
This was, for all practical purposes, at least a temporary denial
of her vacation request. As such, it constituted an adverse em-
ployment action.
Based on the above, it would seem that the General Counsel
has established three of the elements necessary to establish a
prima facie case under Tracker Marine, supra. However, I am
of the view that the General Counsel has failed to establish the
necessary fourth element, that of animus by the Employer to-
ward O’ Toole because she engaged in protected activity. It is
here that the General Counsel’s theory becomes unsupportable.
There is no probative evidence that the Employer harbored
any animosity toward O’Toole because she filed the charge
objecting to the requirement that academy instructors be union
members. Instrumental in the filing of that charge was her
immediate supervisor, Lorenzo Scruggs. He suggested she file
the charge, contacted the Board in her behalf, helped her with
the forms she received from the Agency, and drafted the letter
of protest that O’Toole sent to Ohman. She repeatedly con-
sulted Scruggs about the charge. He offered to appear as a
witness in support of her claim, and went so far as to inquire of
his postmaster whether he could serve as her representative
before the Board. As O’Toole’s immediate supervisor, Scruggs
was the person who denied her request for annual leave. It is
totally illogical to conclude that Scruggs’ action was in retalia-
tion for the filing of the very unfair labor practice charge,
which he had so strongly encouraged O’Toole to file. As far as
I am concerned, counsel for the General Counsel has never
satisfactorily explained this alleged glaring contradiction in
Scruggs’ behavior.
In complaint paragraphs 6(f) and (g) it is alleged that
Scruggs made certain threats against employees because of
their protected concerted activity. Counsel for the General
Counsel argues in her posthearing brief that by this alleged
conduct Scruggs “revealed his darker side once [O’Toole’s]
Board charge began troubling him.” It is, therefore, appropriate
at this time to consider those allegations.19

19 In her posthearing brief, counsel refers to complaint pars. 12(a)
and (b) as alleging “Scruggs’ Threats.” There are no such numbered
paragraphs, and I believe that the reference was inadvertent and counsel
meant pars. 6(f) and (g).
Specifically, complaint paragraph 6(f) alleges that on about
July 28, 2004, the Respondent, by Scruggs, threatened its em-
ployees with denial of annual leave requested, because they
filed a charge against the Employer and gave testimony to the
Board. It appears from counsel’s posthearing brief, that the
only evidence in support of this allegation is O’Toole’s testi-
mony. She testified that about July 27, while she was “busy
working,” Scruggs came over to her and said, “There might be
a problem with your vacation.” She did not respond, and
Scruggs walked away. Assuming this testimony to be credible,
I fail to see how Scruggs’ statement constituted a threat of any
kind, let alone a threat of retribution for filing an unfair labor
practice charge. There was a real problem with her request for
annual leave, as O’Toole had no designated substitute carrier
and all such requests were denied, pending scheduling. In other
words, until arrangements could be made for a substitute carrier
to cover the route, O’Toole’s request would be denied.
Scruggs, Martin, and even union steward Spearman all testi-
fied as to the difficulty the Postal Service had at the Kachina
station in hiring and retaining enough substitute carriers to
honor the contractual requirement that regular carriers be per-
mitted to take leave as requested. According to Scruggs, Mar-
tin, and Spearman, requests for leave from regular carriers
without designated substitutes were usually initially denied.
Spearman candidly testified that “everybody” with this “prob-
lem” is “in the same boat.” They have their leave request de-
nied, and “don’t find out if it’s approved until days before [it is
scheduled to begin].” The leave request forms from numerous
other regular carriers for this same general period of time sup-
ports this position. (Emp. Exhs. 2, 3.) As these other carriers,
whose leave requests were denied pending scheduling, had
apparently not filed charges with the Board, the General Coun-
sel is hard pressed to demonstrate disparate treatment toward
O’Toole. Accordingly, I shall recommend that complaint para-
graph 6(f) be dismissed.
Regarding complaint paragraph 6(g), it is alleged that on
about August 14, 2004, the Employer, by Scruggs, threatened
its employees with the denial of unspecified benefits because
they engaged in concerted activities. In her posthearing brief,
counsel for the General Counsel indicates that this allegation is
based on a statement directed to O’Toole by Scruggs. Follow-
ing O’Toole’s filing of a grievance over the denial of her re-
quest for annual leave, she complained about not being treated
fairly and in conformity with the collective-bargaining agree-
ment. Scruggs is alleged to have responded, “If I go by the
book, it’s going to be hard on everyone.”
Scruggs credibly testified to a somewhat different statement
than that alleged by O’Toole. However, even assuming
Scruggs made the statement attributed to him by O’Toole, I do
not believe it was reasonable for her to have construed the
statement as a threat to deny her, or others, benefits because she
engaged in protected activity. When placed in the context of
the conversation between O’Toole and Scruggs where he was
trying to explain to her why he had denied her leave request
pending scheduling, the statement does not appear threatening.
Scruggs had responded to the grievance with the information
contained on the “Post It” note. (GC Exh. 31.) In the discus-
sion that ensued, Scruggs explained to O’Toole what he had
UNITED STATES POSTAL SERVICE 1219
written. In part, he explained that the reference to 2080 per-
sonnel was to those carriers whose hours for the year were in
danger of exceeding the acceptable limit under the contract.
Such carriers are given priority for leave requests among those
without designated substitutes. When O’Toole questioned
Scruggs about the precise language in the contract, his response
was apparently intended to mean that flexibility was needed in
interpreting the agreement. While his words may have been
somewhat inarticulate, there was no connection, which might
reasonably be inferred, with any concerted activity in which
O’Toole had engaged. Accordingly, I shall recommend that
complaint paragraph 6(g) be dismissed.
In the various conversations between O’Toole and Scruggs
and O’Toole and Martin during which the issue of her leave
request was discussed, there was never any reference to
O’Toole having filed charges with the Board. O’Toole admit-
ted in her testimony that neither Martin nor Scruggs ever said
anything to her that would indicate they were unhappy with her
for filling charges with the Board. Further, she candidly admit-
ted when being cross-examined by counsel for the Postal Ser-
vice that she had “not been verbally threatened” with the denial
of leave because she filed charges with the Board. Further,
union steward Spearman testified that when trying to resolve
O’Toole’s complaint about her leave request with Scruggs and
Martin, the issue of O’Toole’s charge with the Board was never
discussed.
Both Martin and Scruggs credibly denied that there was any
connection between the denial of O’Toole’s request for leave
and her filing of unfair labor practice charges over her removal
as an academy instructor. According to Martin, at the time the
leave request was disapproved pending scheduling, she “never
gave it [the charges] a thought.”
Scruggs’ testimony was particularly credible. It appeared
genuine and sincere, and was certainly supported by “common
sense.” When asked by counsel for the Postal Service whether
he was upset with O’Toole for filing charges with the Board
over her removal as an instructor, he replied, “Why would I be
upset at something that I believed in? Well, no I’m not upset. I
helped her do it.” Of course, the answer was both direct and
accurate. He had been instrumental in encouraging O’Toole to
file charges with the Board. She consulted with him about the
charges as many as a dozen times, and not only was Scruggs
prepared to testify in her behalf, but he had even sought per-
mission to represent her. His testimony that there was no con-
nection between the filing of charges with the Board by
O’Toole and his processing of her leave request certainly had
“the ring of authenticity” to it.
The only evidence in support of the contention that the de-
nial of O’Toole’s request for annual leave was related to her
Board charges was the solely speculative testimony of O’Toole
herself. Suspicion alone cannot sustain the General Counsel’s
burden of proof. Western Lace & Line Co., 105 NLRB 749,
751 fn. 3 (1953) (suspicion alone cannot sustain an 8(a)(4)
charge). While Martin mentioned to O’Toole that Ohman was
asking about her job performance around July 27, 2004, I do
not find this particularly unusual, as the Postal Service was
certainly concerned at the time with defending against those
charges that O’Toole had filed with the Board. There is abso-
lutely no evidence that Ohman was in any way involved with
the decision to deny O’Toole’s request for annual leave. Nor is
there any evidence that Martin’s decision not to overrule
Scruggs was related to O’Toole’s filing of Board charges. Mar-
tin and Scruggs merely followed the normal procedures in dis-
approving a leave request for a carrier without a designated
substitute, pending scheduling.
The probative evidence does not support the suggestion that
O’Toole was treated in a disparate fashion. To the contrary, the
testimony of knowledgeable, credible witnesses, Scruggs, Mar-
tin, and Spearman, as well as the documentary evidence, sup-
ports the Employer’s defense that at the time in question not
only O’Toole but also other similarly situated carriers without
designated substitutes were denied leave, pending scheduling.
(Emp. Exhs. 2, 3.) Such evidence certainly does not sustain the
General Counsel’s theory of the case. See Dayton Tire & Rub-
ber Co., 216 NLRB 1003 (1975) (employer’s defense is aided
by evidence that employees inside and outside of protected
categories were treated the same).
A final reference should be made to the testimony of Ken-
neth Green. Green, a former carrier at the Kachina station,
testified about a conversation he allegedly had with Scruggs 2
or 3 months earlier, where Scruggs mentioned that O’Toole
“was causing him trouble again.” Green acknowledged that the
Board charge was never mentioned, and he believed the refer-
ence was in connection with O’Toole asking “about a day off.”
In fact, I found Green’s testimony to be worthless. He was
clearly biased against management at the Kachina station, hav-
ing testified that he requested a transfer from that station be-
cause he disliked certain management policies. Further, he
could not even recall with any certainty the context during
which the reference to O’Toole causing trouble was allegedly
made. In any event, even assuming the comment was made by
Scruggs to Green, it would indicate only that Scruggs was frus-
trated with O’Toole’s response to the disapproval of her request
for leave, and not any alleged animus toward O’Toole because
she filed charges with the Board.
Based on the above, I am of the opinion that the General
Counsel has failed to establish the necessary element of animus
by the Respondent Employer. Therefore, the General Counsel
has also failed to make a prima facie case, and meet his burden
of proof for a violation of Section 8(a)(4) of the Act. Tracker
Marine, supra. Accordingly, I shall recommend that complaint
paragraphs 7(g), (i), and 10 be dismissed.
3. Summary
As is reflected above, I find that the Respondent Employer
has violated Section 8(a)(1) of the Act as alleged in paragraphs
6(a), (b), (c), (d), and (e) and (8) of the complaint; and Section
8(a)(3) and (1) of the Act as alleged in paragraphs 7(e), (f), and
(h) and (9) of the complaint. Further, I find that the Respon-
dent Union has violated Section 8(b)(1)(A) of the Act as al-
leged in paragraphs 6(a) and (11) of the complaint; and Section
8(b)(2) of the Act as alleged in paragraphs 6(a), 7(e), (f), and
(h) and (12) of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
CONCLUSIONS OF LAW
1. The Respondent Employer, United States Postal Service,
is an employer over which the Board has jurisdiction pursuant
to Section 1209 of the Postal Reorganization Act.
2. The Respondent Union, National Rural Letter Carriers’
Association (NRLCA), is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent Em-
ployer has violated Section 8(a)(1) of the Act.
(a) Maintaining in a document entitled, “National Guidelines
for the Quality of Work Life/Employee Involvement Process” a
clause requiring that an employee selected for the position of
rural letter carrier academy instructor be a member of the Re-
spondent Union.
(b) Interrogating its employees about their union member-
ship.
(c) Threatening its employees with removal from the posi-
tion of rural letter carrier academy instructor because they had
resigned their membership in the Respondent Union.
(d) Informing its employees that they could reapply for a po-
sition as a rural letter carrier academy instructor if they re-
joined the Respondent Union.
(e) Informing its employees that they must be members of
the Respondent Union in order to be selected for, or to retain,
the position of rural letter carrier academy instructor.
4. By the following acts and conduct the Respondent Em-
ployer has violated Section 8(a)(3) and (1) of the Act.
(a) Removing Kathy O’Toole from her position as a rural let-
ter carrier academy instructor, because she had resigned her
membership in the Respondent Union.
(b) Denying Jeffrey Houlter’s application for a position as a
rural letter carrier academy instructor, because he was not a
member of the Respondent Union.
5. By the following acts and conduct the Respondent Union
has violated Section 8(b)(1)(A) of the Act.
(a) Maintaining in a document entitled, “National Guidelines
for the Quality of Work Life/Employee Involvement Process” a
clause requiring that an employee selected for the position of
rural letter carrier academy instructor be a member of the Re-
spondent Union.
6. By the following acts and conduct the Respondent Union
has violated Section 8(b)(2) of the Act.
(a) Maintaining in a document entitled, “National Guidelines
for the Quality of Work Life/Employee Involvement Process” a
clause requiring that an employee selected for the position of
rural letter carrier academy instructor be a member of the Re-
spondent Union.
(b) Causing the Respondent Employer to remove Kathy
O’Toole from her position as a rural letter carrier academy
instructor, because she had resigned her membership in the
Respondent Union.
(c) Causing the Respondent Employer to deny Jeffrey Houl-
ter’s application for a position as a rural letter carrier academy
instructor, because he was not a member of the Respondent
Union.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including the posting of ap-
propriate notices.
In her posthearing brief, counsel for the General Counsel ar-
gues that in order to remedy a violation of the Act caused by
the unlawful clause in the “National Guidelines for the Quality
of Work Life/Employee Involvement Process,” which is a na-
tionwide document, it will be necessary to require a nationwide
posting of the Board’s notices. Counsel for the Union argues in
his posthearing brief that, assuming a violation of the Act is
found, it is limited on its facts to the Phoenix metropolitan area,
and, therefore, any notices need only be posted locally. I agree
with counsel for the General Counsel. As the name implies, the
“National Guidelines” are made available to employees in the
recognized bargaining unit throughout the United States, and it
certainly potentially affects all such employees. Under these
circumstances, “employerwide” and “unionwide” national post-
ings are appropriate in order to ensure that all the employees in
the nationwide bargaining unit are made aware of their rights
under the Act. See Postal Service, 303 NLRB 463, 463 fn. 5
(1991).
As a further remedy, I shall require the Respondent Em-
ployer and the Respondent Union to rescind and cease giving
effect to the “National Guidelines for the Quality of Work
Life/Employee Involvement Process,” and any similar docu-
ments to which the Respondents are parties, anywhere such
documents apply in the United States of America and its territo-
ries, insofar as such documents require that any employee se-
lected for the position of rural letter carrier academy instructor
be a member of the Respondent Union.
In order to remedy the discrimination against them by the
Respondents, my recommended order further requires the Re-
spondent Employer to reinstate Kathy O’Toole to her former
position as a rural letter carrier academy instructor, and to
award that same position to Jeffrey Houlter. Further, I shall
order the Respondent Employer to reinstate or award the rural
letter carrier academy instructor position to any bargaining unit
member employed at the Kachina station and similarly dis-
criminated against by the Respondents since May 24, 2003.20
However, I decline to order such a remedy “nationwide” for
any unidentified employees allegedly detrimentally affected by
the operation of the Respondents’ union member only rule.
Counsel for the General Counsel requested such a remedy in
her posthearing brief, and had previously raised the matter at
the hearing in connection with a subpoena issue. During the
trial, counsel for the Union opposed expanding the complaint
beyond those discriminatees named in the complaint. At the
time, I ruled that the complaint clearly sought a “nationwide”
remedy regarding the rescision of the union member only rule,
but that the remedy sought for discriminatees was limited to the
two individuals named in the complaint and those employed at

20 This date is 6 months prior to the filing of the original charge in
this case.
UNITED STATES POSTAL SERVICE 1221
the Kachina station.21 That location was the only facility spe-
cifically named in the complaint, which appeared to be nar-
rowly drafted only so far as concerned the remedy for individ-
ual discriminatees. I continue to take that position. Unlike the
requested remedy for the union member only rule, which seeks
recision “anywhere the Guidelines apply in the United States of
America and its territories,” the complaint does not seek an

21 The complaint does not actually name the “Kachina station,” but
rather refers to it in paragraph 2(a) of the complaint by its address, 7339
East Williams Drive, Scottsdale, Arizona.
“employerwide” remedy for individual employees discrimi-
nated against by that rule. No evidence was taken regarding
affected employees beyond O’Toole and Houlter. Accordingly,
a more expansive remedy would not be appropriate.22
[Recommended Order omitted from publication.]

22 The case cited by counsel for the General Counsel, Electrical
Workers Local 48 (Oregon-Columbia NECA) 342 NLRB 101 (2004), is
distinguishable on its facts, as I have found that in the matter before
me, the requested remedy is “beyond the scope of the complaint.”