United States Postal Service

National Labor Relations Board - Board Decisions

Mar 10, 1983

266 N.L.R.B. 467 (N.L.R.B. 1983)

UNITED STATES POSTAL SERVICE
United States Postal Service and Joseph Eiche.
Cases 22-CA-10738 (P) and 22-CA-11280 (P)
March 10, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On September 30, 1982, Administrative Law
Judge James F. Morton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions 2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United States
Postal Service, Jersey City, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's Decision, Member
Hunter notes that no party at the hearing or thereafter in exceptions
urged deferral to the grievance/arbitration procedures of the relevant
collective-bargaining agreement. Member Hunter further notes that his
affirmance of the Administrative Law Judge's decision in the circum-
stances herein does not imply acceptance or reliance on the Administra-
tive Law Judge's discussion of the majority holding in US. Postal Service,
227 NLRB 1826 (1977).
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: On
March 27, 1981, Joseph Eiche, filed the unfair labor
practice charge in Case 22-CA-10738 (P). All dates
hereinafter are for 1981 unless specified otherwise. On
May 22, a complaint issued in that case alleging that the
United States Postal Service (hereinafter called Respond-
ent), violated Section 8(a)(1), (3), and (4) of the National
Labor Relations Act, as amended (herein called the Act).
Respondent filed an answer which denied certain of the
266 NLRB No. 70
factual allegations in that complaint and also the conclu-
sionary assertions therein that it violated the stated sec-
tions of the Act. On November 12, Eiche filed the
charge in Case 22-CA-11280 (P) which was consoli-
dated with Case 22-CA-10738 (P) on December 30. An
amended complaint also issued that day. I heard the con-
solidated cases on various days in January, February,
April, and May 1982.
The issues to be resolved turn on credibility for the
most part.' They are:
(I) Whether Respondent, by acting Supervisor Cooke,
threatened employees with discharge or discriminated
against Charging Party Eiche, because of his testimony
in Case 22-CA-10489 (P) or his union activities.
(2) Whether Respondent, also by Cooke, threatened
employees that their overtime work assignments would
be eliminated if they filed or processed grievances with
the New York Metro Area Local of the American Postal
Workers Union, AFL-CIO (herein called the Union).
(3) Whether Respondent, by its acting Supervisor
Meadows, threatened the charging party, Joseph Eiche,
with bodily harm to discourage him from performing his
duties as a union steward.
(4) Whether Respondent eliminated overtime for cer-
tain employees because of Eiche's union activities.
Upon the entire record in this case,2 including my ob-
servation of the demeanor of the witnesses and after due
consideration of the briefs filed by the General Counsel
and by Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND THE UNION'S STATUS
As established in the pleadings, as amended, the Board
has jurisdiction over Respondent as provided for in the
Postal Reorganization Act. The Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Eiche's Activities as Steward
Respondent maintains a facility located in Jersey City,
New Jersey, known as the New York International Bulk
Mail Center where it has approximately 4,000 employees,
About 500 of them work in the maintenance department
and they are represented by the Union.
The Charging Party, Joseph Eiche, is employed at Re-
spondent's New York International Bulk Center as a gen-
eral mechanic. He entered Respondent's employ in
August 1973, and has been a shop steward for the Union
since September 1980.
On December 9, 1980, one of Eiche's coworkers,
Marvin Hodges, filed an unfair labor practice charge
In its answer. Respondent asserted as an affirmative defense that the
complaint should be dismissed as the alleged violations can best be re-
solved via the arbitration procedures of the applicable collective-bargain-
ing agreement. In view of the nature of the alleged violations and as it is
evident that no recourse to those procedures has been had. I find no
merit to that affirmative defense. See US Postal Service, 227 NLRB 1826
(1977).
2 The General Counsel's unopposed motion to correct various parts of
the transcript is granted.
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Regional Office of the National Labor Relations
Board (herein called the Board). On December 14, 1980,
Eiche and Hodges met with Gregory Cooke, an acting
supervisor at the Jersey City facility, who was in charge
of a maintenance crew which included Eiche and
Hodges. Eiche showed Cooke evidence submitted by
Hodges as to various disciplinary steps taken against him
in the preceding year. Eiche sought to have Hodges'
slate made clean. Cooke told Eiche he could not resolve
that grievance. Eiche told him that he would then "take
all the evidence . . . to the Board." On December 23,
1980, Eiche pressed this same matter with a labor rela-
tions specialist of Respondent and when his effort proved
unproductive, he informed the specialist that he would
bring the evidence to the Board's attention.
Eiche cooperated in the investigation of the charge
filed by Hodges. Respondent was aware of that fact as
Eiche was given time off by Cooke to comply with a
letter he received from the Board's Regional Office to go
there on January 2.
The unfair labor practice charge filed by Hodges al-
leges that he had been unlawfully prevented by Re-
spondent from meeting with Eiche to pursue his griev-
ances. A complaint issued in that case. Cooke's name ap-
peared in that complaint as an agent of Respondent. That
case was settled before hearing.
It is undisputed that Hodges did not receive any fur-
ther discipline from Respondent after he filed that
charge. In fact, Hodges testified for Respondent against
Eiche in the instant case, as discussed below.
It is also undisputed that Eiche had never been disci-
plined by Respondent from the time he began working
for Respondent in 1973 until after he assisted Hodges.
B. The Conflicting Testimony
The General Counsel contends that, almost immediate-
ly after Respondent was charged in the prior case with
interfering with the rights of employees to meet with
Eiche as their shop steward, Eiche became the object of
a vendetta by his supervisor, Cooke. In that regard, the
General Counsel has asserted that Eiche's disciplinary
record, unblemished for his first 7-1/2 years, was marred
by numerous disciplinary notices issued him within sev-
eral months of the filing of the prior unfair labor practice
case. The General Counsel argues that Respondent's dis-
cipline of Eiche was all discriminatorily motivated. Re-
spondent urges that the evidence establishes that the dis-
cipline it meted out to Eiche was based solely on nondis-
criminatory considerations. The determination of that
issue rests in good part on resolutions as to the credibil-
ity of witnesses at the hearing before me.
i. Alleged threat to fire Eiche
Eiche testified that soon after he had gone to the
Board with respect to the charge filed by Hodges, he
discussed the matter with Respondent's supervisor, Greg-
ory Cooke. As noted earlier, Cooke was named in the
complaint which issued on January 21 in Case 22-CA-
10489 (P). According to Eiche, Cooke told him in the
course of a conversation in early 1981 that he, Cooke,
was going to fire him because he helped Hodges file that
charge. Eiche testified that he asked Cooke what army
he had to help him and that Cooke responded that he
was going to do it all by himself. Eiche testified that that
discussion took place at Cooke's desk and that there was
no one else near them then. Cooke testified for Respond-
ent and denied that he threatened Eiche with discharge;
I infer from this that he denies having had the discussion
with Eiche at his desk, as Eiche recounted. The discus-
sion of the credibility issue raised by their conflicting ac-
counts is set out in a separate section below, where relat-
ed issues are also discussed.
2. Eiche's first disciplinary action
On February 5, Eiche received the very first disciplin-
ary notice issued him since he began working for Re-
spondent in 1973. That notice related that Eiche, during
working time on February 4, had persisted in reading
papers related to his duties as union steward without
having obtained authorization to do so and that when
Supervisor Cooke informed him on February 4, that a
"recurrence of that infraction will result in further cor-
rective action," Eiche responded by telling Cooke "to go
ahead and write me the fuck up; I don't care." Eiche tes-
tified that he did not, on February 4, read any papers
pertaining to union matters and he denied that he ever
told Cooke to "write him the fuck up." Eiche filed a
grievance and therein contended that Cooke had "fabri-
cated the whole incident." Eiche testified that he with-
drew that grievance as he elected to pursue the matter
via the instant case, rather than via the grievance proce-
dures in the applicable collective-bargaining agreement.
Respondent called Cooke to testify as to the foregoing
matter; his account tracks the report contained in the
February 5 warning letter. In addition, Cooke testified
that he regularly made entries in a memorandum note-
book he uses in performing his job and that he made an
entry therein on February 4, respecting the incident that
day that gave rise to the issuance to Eiche of the Febru-
ary 5 disciplinary notice. According to Cooke, the en-
tries in the notebook were made in chronological order.
That notebook was received in evidence. The first entry
therein is dated August 21, 1980. There is then an entry
for September 4 followed by one for September 19 and
then two others dated September 23. The following sev-
eral pages in that book have notes and dates which do
not follow a consistent pattern. Next in the book, it ap-
pears a page had been torn out. Entries then resume but
not in regular chronological order. Thus, there appear
three entries for October 28, followed by two for Octo-
ber 10, then one for October 20, two for October 22, one
for October 27, one for October 29 and then an entry
dated November 18, 1980. The November 18 entry indi-
cates that Cooke spoke to Eiche about his conducting
union business on working time without written authori-
zation. No testimony was offered to explain why no en-
tries had been made in the notebook by Cooke between
October 27 and that one on November 18. The next
entry appears on the reverse side of that page and is
dated January 15, 1981, and it also notes that Eiche had
been working on union business without authorization.
The next entry is dated February 4, 1981, and it reads,
468
UNITED STATES POSTAL SERVICE
"0950 caught him again" "go ahead write me the fuck-
up." On the following page, the entries are dated No-
vember 18, 1980. The last number in that entry, the "0,"
was written over with the letter "1." Following that
were entries, for October 22, November 15, and February
4, each with the word "Same" alongside. The next entry
is dated March 6, 1981, and quotes abusive language by
Eiche. The next page is blank. The next entry is dated
February 13, 1981, followed by others dated March 10,
1981. Numerous entries were made from March 16 to
April 28, mostly stating that Eiche had engaged in var-
ious forms of misconduct. The last entries in the note-
book are dated June 15, July 7, and August 19 and 20,
1981. My examination of the notebook reveals that
Cooke began in late August 1980 to make regular work
entries in it, that he stopped doing that for a period in
mid-September 1980, that he used it in a disjointed
manner for the rest of 1980, and that for 1981 he noted
principally incidents involving Eiche. Further, the entries
at the beginning appear to have been made in chronolog-
ical order on a fairly regular basis but not those after Oc-
tober 1980.
3. Alleged threats to discharge Eiche and to
eliminate overtime work assignments
Eiche testified that on March 5 he was at Cooke's desk
discussing an earlier grievance meeting pertaining to the
February 5 warning letter Eiche had received, as related
above. According to Eiche, he told Cooke that Cooke
had no case whatsoever against him and that there was
no evidence that he, Eiche, had cursed Cooke. Eiche tes-
tified that he asked Cooke to withdraw the warning
letter so that they could resolve any differences between
them. Eiche testified further that, instead, Cooke re-
sponded that he was going to continue to give Eiche
"disciplinary actions until it resulted in [Eiche's] removal
from the Postal Service." Cooke denies having had any
such discussion with Eiche.
An incident which relates to a relevant credibility
issue occurred on March 6. Eiche testified as follows as
to the events that day. On the morning of March 6, Su-
pervisor Cooke talked to him and other members of
Cooke's maintenance crew respecting overtime assign-
ments for the following weekend. Eight of the ten mem-
bers of that crew were then scheduled to work such
overtime. About an hour later, Eiche asked Cooke for a
pass to speak to "labor relations." Cooke asked him why
he was going there and Eiche answered that he wanted
to speak with labor relations about Cooke's failure to
schedule step-one grievance meetings with him. Cooke
gave him the pass and Eiche then saw Helen Dolby, ap-
parently one of Respondent's labor relations specialists.
Eiche returned to his work area. It appears that he then
was able to take up two step-one grievances with Cooke
and that one of them involved a threat by another super-
visor to cut overtime out if certain grievances were pur-
sued. Cooke said that was a good idea and that he would
do the same. That meeting ended. Eiche observed that
afterwards Cooke talked to the crew and "he went right
on down the line" to inform them that the overtime to
which they were assigned that morning was postponed.
The overtime assignments were then canceled.
The General Counsel called two mechanics to testify
as to that event. The first, Inocencio Delgado, testified as
follows. Cooke asked him that day if he would work
weekend overtime and that, when he said he would,
Cooke made a notation in a pad he was carrying. Later
that day, Cooke told him that overtime was canceled. He
asked Cooke to tell him why and was told simply to ask
his shop steward. A week later Delgado asked Cooke
why he was not being assigned overtime; Cooke told
him he could thank his shop steward. Delgado did not
receive another weekend assignment for the next 7
months. The second mechanic, Matthew Coppola, testi-
fied along the same line.
Cooke testified during Respondent's case as follows re-
garding the events on March 6. Eiche discussed with
him a "class grievance" which "was sort of pertaining to
overtime" in other work areas; the grievance was based
on a claim that, in those areas, overtime was being with-
held because grievances were being filed. After investi-
gating it, Cooke informed Eiche that the grievance was
denied. Cooke was asked if he had ever told Eiche that
overtime should be curtailed because of the filing of
grievances and he answered that he never did. Cooke
stated that on March 6 he asked his crew to work over-
time on the following day and that that overtime work
was canceled after he spoke with the superintendent of
building equipment maintenance. Cooke testified that the
superintendent asked him how his crew was doing on the
overhaul work and that he responded that they were far
ahead. Cooke testified that the superintendent then told
him not to schedule overtime.
Respondent called four mechanics to testify respecting
the March 6 overtime discussions. The first, Marvin
Hodges,3 testified that Cooke told each member of his
crew on March 6 that there would be no more overtime
because "there was nothing to justify" overtime. Hodges
responded in the negative when asked if Cooke had said
that the Union was responsible for the cancellation of
overtime. The second mechanic, William Smith, testified
essentially the same as Hodges. The third mechanic, An-
tonio Diaz, testified that no reason was given for the
cancellation of overtime and that he did not hear anyone
say that cancellation was the fault of the Union. The
fourth mechanic, Ernest Boyd, testified that he did not
know why overtime was canceled in March.
4. Alleged threat on March 9 by Acting Supervisor
Meadows
Eiche testified that on March 9 he handled a grievance
with then acting supervisor, Joseph Meadows, respecting
his refusal to grant an employee an extra 15 minutes
after lunch to enable him to pick up his daughter. Eiche
testified that, in investigating that grievance, he learned
that Supervisor Meadows had once given his entire crew
an extra long lunchbreak to enable them to attend a re-
tirement party. Eiche testified he asked Meadows how
he could justify refusing an employee's request for an
3 He is the same person who filed the charge in Case 22-CA-10489
(P), discussed above, and upon which a complaint issued in January 1981,
alleging that Respondent had unlawfully prevented employees from
seeing Eiche as their shop steward.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extra 15 minutes to pick up his daughter in light of his
once having given extra time to the whole crew. Ac-
cording to Eiche, Meadows became incensed and threat-
ened to punch him. Eiche related further that, on the fol-
lowing day, Meadows and Cooke falsely accused him of
having made racial slurs.
Meadows testified for Respondent as follows. He con-
ducted a step-one grievance meeting with Eiche on
March 9 pertaining to an employee's lunch hour. When
he told Eiche that the grievance was denied, Eiche
became abusive to him and called him a "porch monkey
baboon . . . [who has] no fucking sense." Meadows re-
sponded by telling Eiche to report back to work. Mead-
ows did not threaten Eiche with physical harm. Mead-
oWs made an immediate report of the March 9 incident.
Meadows did not, in his direct testimony, refer to the
testimony of Eiche that he, Meadows, had on one occa-
sion let his crew have a long lunch hour for a retirement
party. On cross-examination, Meadows testified that
there had been an occasion when some employees were
allowed to take an early lunch because a coworker was
retiring. He also acknowledged then that Eiche had in
some manner brought that matter to his attention but
that Meadows did not get upset over it.
5. Denial of Eiche's request for annual leave
Eiche testified that he did not work on March 11, 12,
or 13 because of his wife's serious illness then. He testi-
fied also that he spoke with Cooke on March 16 about
the matter and was told that his leave slip for those dates
would be approved. Eiche's account is that his wife has
had recurrences of her illness since 1979 and that, prior
to March, his leave requests to take care of his wife had
been approved routinely. On March 17, he was asked by
Cooke to furnish substantiation of his wife's illness. This
was the first time such a request was made, according to
Eiche. He furnished Cooke with data thereon. On March
18, his request for annual leave for March 11, 12, and 13
was denied by Cooke on the ground he had not provided
the requested substantiation. On March 23, he obtained a
report bearing on his wife's illness and gave it to Cooke
who told him that it was not acceptable as it was handed
in too late. Eiche testified he later received doctor's bills
covering treatment given his wife on March 11, 12, and
13; it appears he never showed them to Cooke.
Eiche was recorded as AWOL on March 11, 12, and
13. The General Counsel offered testimony that, in mid-
February 1981, an employee of Respondent was record-
ed as AWOL. Eiche was not successful in persuading the
supervisor of that employee to take the employee's word
that he was out due to illness. However, 2 weeks latter,
that employee furnished a doctor's note and he was re-
corded as having been on sick leave; the AWOL notice
was rescinded for that employee.
The complaint in this case alleges that Eiche was also
discriminatorily denied leave for a half day on March 18.
He testified that on March 17 he filled out a slip to take
a half day's leave on the following afternoon in order to
meet with his wife's doctor and a caseworker respecting
her illness and that he gave the slip to Cooke. He testi-
fied he told Cooke that he would also get the necessary
documentation to support his earlier leave request for
March 11, 12, and 13. Eiche testified that Cooke told
him that he, Cooke, would fill out the leave slip on the
following day and that Eiche can attend the meeting. In-
stead, according to Eiche, he was given a 7-day notice of
suspension. On March 18, he was told by Cooke that his
request for a half day leave was denied and was advised
that he was being given an AWOL for March 11, 12,
and 13.
Cooke testified for Respondent that on March 18
Eiche said to him about 3:45 p.m. that he would like a
half day's leave for the following afternoon and he,
Cooke, responded, "Okay, we'll fill out the stuff in the
morning on our way downstairs." He further testified
that, on the following day, Eiche came to him at lunch-
time and asked what had happened to his half-day leave
slip. He testified that he told Eiche he had forgotten all
about it and asked if he still wanted to go. According to
Cooke, Eiche said that he did not as it was too late.
There is an allegation in the complaint that another re-
quest by Eiche for annual leave was discriminately
denied. Eiche testified as follows as to that incident. He
was granted annual leave for July 6 because the transmis-
sion in his car broke down and needed repair. He bor-
rowed a car to get to and from work for the rest of that
week except that for several hours on July 8 the bor-
rowed car was not made available to him. As a result, he
reported for work on July 8, 3 hours after his normal
starting time. He "called in" about 6:30 a.m.; i.e., before
his shift began. It then appears that he was testifying that
he notified Respondent before his shift started that he
would be late because he could not have a car to get to
work on time. His supervisor, Cooke, asked him on July
8 who he spoke to when he called in early that morning
and he responded that he did not get the name of that
person. Eiche related that annual leave was routinely
granted where an employee had "car trouble." The Gen-
eral Counsel placed in evidence bills for transmission re-
pairs which disclose that Eiche's car had a defective
transmission on July 6 and that a replacement transmis-
sion had been installed within the following 2 weeks.
Respondent denied Eiche's request for annual leave for
those 3 hours and marked him AWOL. The leave slip
contains a note by Cooke that Eiche did not name the
person who took his call early on July 8.
Cooke testified for Respondent that there was no
record that Eiche had called in on July 8. He also testi-
fied that he told Eiche on the preceding day that he
could no longer be absent from work because of car
trouble.
6. Eiche's 7-day suspension
On March 17, Eiche was given a written notice that
he was to be suspended from April 6 to April 13. The
stated reasons for that suspension were (a) Supervisor
Meadows' version of an incident of March 9, and (b) Su-
pervisor's Cooke's account that Eiche on March 10 had
cursed him. The testimony as to the March 9 incident in-
volving Eiche and Meadows has been discussed above;
the conflicting versions as to the events on March 10 are
set out below.
470
UNITED STATES POSTAL SERVICE
Eiche summarily denied making any such comments to
Cooke. Cooke, in giving his testimony, read the suspen-
sion notice and then recounted the statements therein
which recite that Eiche stated to him on March 10,
"You're so fuckin smart you don't even know where the
parts are, you fuckin jerk off." Cooke testified that Eiche
made those remarks after Eiche and he had been unable
to locate certain parts that Eiche wanted.
7. Eiche's 10-day suspension
On March 25, Eiche was given a notice of suspension
dated March 24 which stated that he was to be suspend-
ed from May 14 to May 24 because of an incident on
March 19, as recounted by Cooke. The complaint alleges
the March 19 incident was violative of the Act. Eiche
testified as follows as to the events of March 19. Cooke,
with another supervisor, Don Carnevale, present, direct-
ed him to remove his briefcase from the work area.
Eiche was performing his regular work at that time. He
informed Cooke that the briefcase contained a number of
"Union" documents and asked if Cooke wanted him to
bring it to his car. Cooke told him "to bring it off the
working floor." Eiche declined to do so. Instead he told
Cooke he would not bring it into the work area on the
following day.
Cooke testified that, on March 19, Eiche twice refused
his direct order to remove his briefcase from the work
area. Cooke testified he gave his order as, both times,
Eiche had the briefcase open, that he was looking in it
and that he was not doing his work. On that basis, Eiche
was suspended. Cooke conceded that Eiche had been
bringing the briefcase to his work area every day since
January.
Respondent called Supervisor Donald Carnevale to
testify as to this incident. He stated that he was visiting
in Cooke's area and observed that a briefcase was on the
floor next to Eiche's work table. Eiche was doing his
regular work then. According to Carnevale, Cooke in-
structed Eiche to remove the briefcase from the area.
Carnevale heard Eiche reply that he would not do so.
The notice of suspension issued Eiche by Cooke reads as
follows, respecting the March 19 incident:
On March 19, 1981, at approximately 2:40 p.m. in
the Penthouse Office area I called you over to the
office and gave you a direct order, saying this was a
direct order for you to remove your briefcase from
the Penthouse work area floor. Your reply was,
"No, is this a discussion." I then again said this is a
direct order, remove your briefcase from the Pent-
house work area floor. You again replied "No, I
want it in writing." Once again I said this a direct
order, remove your briefcase from the Penthouse
work area floor. I received no reply as you walked
back to your work bench and your briefcase was
never removed.
8. The 5-minute rule and the related allegation
Respondent has a provision in its administrative
manual that requires employees to be charged with leave
time for every minute, beyond five, that they do not
work in a normal 8-hour workday. It appears that that
rule was designed so that employees would still receive
full pay if they punched in a minute late or punched out
a minute early. If the total of those minutes exceeds five,
the 5-minute rule is applicable, according to Respondent.
The General Counsel alleges that it was discriminatorily
applied to Eiche, that Respondent threatened to penalize
Eiche's coworkers to force Eiche to withdraw a related
grievance and that Respondent discriminatorily required
Eiche to tender a payment of $125 before it would honor
his request for copies of time records he sought in con-
nection with his grievance. Respondent asserts that the
5-minute rule was routinely applied to Eiche; it denies
that it threatened any employees respecting his griev-
ance; and it contends that it was required to inform
Eiche of the costs involved in handling his requests for
payroll data.
The relevant testimony is as follows. On March 24, ac-
cording to Eiche, he punched out with other employees
about 5 minutes before the normal lunchtime and, on the
following day, he was the only one required to submit a
leave slip for having punched out early. He submitted
such a slip and he was charged with 5 minutes of annual
leave. He filed a grievance thereon and asked Respond-
ent to furnish him with relevant documents. He was ad-
vised that the cost of furnishing those documents would
be about $125. Eiche further testified that Cooke told
him on April 1 that, if he continued to push the griev-
ance, he, Cooke, would stop the practice of allowing em-
ployees to leave work 5 minutes early in order to avoid
the usual traffic jam. According to Eiche, a number of
his coworkers told him that they were upset that he was
pursuing the grievance and he then withdrew it. Eiche
also testified that, in his experience, no employee had to
submit a leave slip when he was only 5 minutes short on
his timecard. On cross-examination, Eiche stated that,
while he did not know of any formal rules, he had heard
of an informal policy under which employees could
punch out several minutes early but would be charged
with annual leave if they punched out early by 5 minutes
or more. He stated that he requested the documentation
to verify such a policy.
Cooke, in testifying, related that he was notified by the
timekeeper that Eiche had punched out for lunch 5 min-
utes early on March 24, and that, in accordance with
regular practice, he asked Eiche for, and received, a
leave slip for 5 minutes to cover that incident. He testi-
fied also that Eiche did not file a grievance and that he,
Cooke, never threatened any of the employees that their
release time would be changed if Eiche pursued the
matter.
Respondent also called its manager of accounting and
reporting systems who described the procedures set out
in the appropriate manual for furnishing information re-
quested by bargaining representatives. She estimated the
cost of retrieving and furnishing the data sought by
Eiche to be 1 13. Respecting the material Eiche received
without charge in 1981, it appears that the costs therefor
were nominal and were thus waived. Respondent also
put in evidence records to establish that the Union had
been charged moneys for copies of documents it request-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed; those records indicate that the Union on those occa-
sions had obtained a sizeable number of papers.
9. The alleged threat to arrest Eiche
On March 27, Eiche filed the charge in the instant
case. He testified that, before he left work that day to go
to the Board's Regional Office, Cooke told him that he
felt that someone was rifling through his desk. Eiche fur-
ther testified that, when he reported for work on the fol-
lowing Monday, Cooke told him that he was going to
have Eiche arrested by the security guard. Eiche denied
touching Cooke's desk.
Cooke testified that he asked all the employees under
him "if anybody was going through [his] desk, and [all]
said no." He testified that an important piece of paper
was missing from his desk. Cooke denied threatening to
report Eiche to Respondent's security service.
No one else testified on this point.
10. Eiche's 14-day suspension
On July 8, Eiche was given a written notice that he
was to be suspended from July 22 to August 5. The rea-
sons given for that suspension, as stated in that notice,
were that he was absent without authorization from his
work area for a 22-minute period on July 7 and that,
when Supervisor Cooke asked him why he was absent,
he replied, in the presence of employees Smith and
Hodges, "None of your fucking business, boy."
Eiche testified as follows as to the events on July 7.
Cooke assigned him a job and told him to take only his
screwdriver. In doing the job, it became evident that he
also required the use of vise grip pliers. None of the em-
ployees in the vicinity had one available. He had to get
one from his toolbox, about an 8-minute walk distant. On
his return, he was asked by Cooke where he had gone
and he told him that he had to get the pliers. Eiche
denied cursing Cooke, as had been stated in the suspen-
sion notice.
When Cooke testified, he read the suspension notice.
His account then tracked the substance of that report.
Respondent called employee Hodges to corroborate
Cooke's account. He did so. He also testified that he
heard Eiche on another occasion call Cooke a "yellow
nigger"; there was no testimony to that effect from
Cooke. Again, Hodges testified that Eiche called em-
ployee William Smith "a black fuck." Smith testified for
Respondent, as noted below, but did not corroborate that
statement by Hodges. Hodges also denied that he had
discussed his testimony with anyone, including Respond-
ent's counsel, prior to the hearing.
William Smith, who was named in the suspension
notice, testified for Respondent. His account paralleled
the report in the notice of suspension given Eiche. He
also testified that, in March, Eiche had called Cooke in
the work area a "yellow nigger." Smith also testified that
Eiche used racial slurs in talking to other employees at
Respondent's facility in Jersey City.
Eiche is white; Cooke, Meadows, Hodges, and Smith
are black. The General Counsel called as a witness a
shop steward who testified that he has known Eiche for
2 years and never heard him make a racist remark.
11. Alleged interference with Eiche's grievance-
handling functions
The General Counsel contends that, beginning in
March, Respondent discriminatorily began to prevent
unit employees from using its paging system to talk to
Eiche by telephone about a matter they wanted to grieve
and that Respondent has continued to so discriminate.
Respondent's position is that there is an established pro-
cedure set up by Respondent and the Union for releasing
stewards for grievance matters and that that procedure
was routinely followed with Eiche and all other stew-
ards.
Eiche testified that "normally" any employee at Re-
spondent's facility can dial the paging extension to ask
that another individual be paged and that that person is
then paged. He further testified that, in March and since,
he was told by other employees that they were not al-
lowed to page him, Eiche, and that they had to, in
effect, follow the contract procedure to have Eiche re-
leased.
The General Counsel called as a witness Thomas Min-
goia, an employee at Respondent's Jersey City facility.
He testified that, on March 26, he requested that Eiche
be paged and was told that this could not be done with-
out the permission of Eiche's supervisor. Mingoia further
testified that, on April 28, he had shop steward Neil
Graham paged three times without having any of his re-
quests cleared by Graham's supervisor. One of Respond-
ent's supervisors testified, during his cross-examination,
that employees at the Jersey City facility occasionally
have paged other employees directly and without having
to obtain clearance from management.
Cooke testified that he knew of no special paging rules
applicable to only Eiche and acknowledged that employ-
ees have paged one another at the Jersey City facility.
12. Eiche's periodic wage increase
Eiche's periodic wage increase was delayed several
months. The General Counsel attributes that delay to the
discriminatory discipline given him; Respondent con-
tends that the delay was an appropriate remedial meas-
ure.
13. Incident report by Meadows
The complaint alleges that on March 12 Respondent,
by Supervisor Joseph Meadows, discriminatorily issued
an incident report on March 12 to Eiche. That report is
the one which was discussed earlier under the subsection
about the grievance Eiche handled with Meadows on
March 9.
C. Credibility Resolutions
Critical to a determination of many of the issues in this
case is whether Eiche's accounts thereon are or are not
credited as against the conflicting testimony by Cooke.
This is obvious from their respective versions on the first
issue-whether Cooke told Eiche he was going to fire
Eiche all by himself because Eiche helped Hodges file an
unfair labor practice charge involving Cooke. The credi-
bility issues pertain to whether or not Eiche made racist
472
UNITED STATES POSTAL SERVICE
comments to supervisory personnel and was insubordi-
nate.
One relevant consideration bearing on credibility is
that Eiche had not been disciplined in 7-1/2 years of
service with Respondent and then was repeatedly disci-
plined after he followed through with his warning to Re-
spondent that he would present evidence, bearing on
Hodges' grievances, to the Board's Regional Office. I
note too that Eiche was issued his first disciplinary warn-
ing by Cooke on February 5 and that a complaint had
issued on January 21, in Case 22-CA-10489 (P) which
alleged that Respondent had refused since October 22,
1980, to permit Hodges to see Eiche about grievances.
That complaint named Cooke, the supervisor of Eiche
and Hodges, as an agent of Respondent. Yet, it is possi-
ble that Eiche may have gotten carried away with the
fact that he became shop steward in September 1980, and
was instrumental in having that complaint issue, by
reason of the cooperation he gave to the Board's Region-
al Office in that case. That seems unlikely, however. Es-
sentially, Respondent asserts that Eiche repeatedly re-
sorted to crude racist remarks which would indicate a
great hostility on his part towards black people. I find it
difficult to reconcile that contention with the fact that he
assisted Hodges, who is a black, by presenting his griev-
ances aggressively. Yet again, Hodges himself has testi-
fied for Respondent against Eiche, as did another black
employee, Smith. It may well be that Hodges had recon-
ciled any differences he had with Cooke as I note that he
has not been disciplined since he filed the charge in the
prior case but, earlier in 1980, he had been the recipient
of a number of disciplinary actions.
In any event, I am not persuaded of the objectivity of
the accounts of Hodges and Smith. Hodges failed to im-
press me with his statement at the hearing that he had
never discussed his testimony with anyone prior to the
hearing. More significantly, he and Smith both testified
that Eiche told Cooke that he, Cooke, was a "yellow
nigger" when they were on the work floor. Yet, Cooke
never alluded to any such incident and it is most unlikely
that Cooke would have overlooked such a remark.
I was impressed with the testimony of a union steward
who related that Eiche never used racial remarks and
that he does not even curse well. The fact that Eiche
was entrusted with a steward's position lends credence to
that testimony.
Another objective factor is that, on a significant point,
the testimony of one of Respondent's supervisors directly
corroborates Eiche's version and controverts Cooke's.
Thus, Cooke testified that twice on March 19 he found
Eiche looking into his briefcase and disciplined him for
refusing to heed his orders to stop doing so and for re-
fusing to remove his briefcase. Eiche testified that he
was working and not looking in his briefcase when sub-
jected to discipline that day. Respondent called its super-
visor, Carnivale, to testify as to that incident. His testi-
mony was that Eiche was working and that his briefcase
was closed and was laying on the floor alongside his
work table.
A further objective factor is the format of Cooke's
memorandum book. His testimony was to the effect that
he made regular business entries in it. The entries were
not regularly made and, for 1981, were overwhelmingly
concerned with Eiche's performance.
Additionally, I note that on the matter of the discon-
tinuance of overtime work, Cooke's explanation of why
overtime was discontinued is not persuasive. After
having made overtime assignments, he testified that he
advised the superintendent of maintenance that his crew
was "far ahead" in their work and that the superintend-
ent then told him that overtime was not needed. It seems
illogical that Cooke would have assigned overtime to his
crew in the first place if it was so far ahead in its work.
Last, I note that two employees testified convincingly
that, when they asked Cooke why overtime was can-
celed then, he told them in essence that they had Eiche
to thank for it.
There is still the testimony of Meadows to consider. I
am not persuaded that his account is accurate. For such
a crude racist remark to have been made as the one he
attributed to Eiche, he took it too calmly if he is to be
believed. Second, there was a lapse of over a week
before Eiche was notified that Respondent considered
such a remark as a matter of serious consequence. Third,
the evidence indicates that Eiche had Meadows in a dif-
ficult situation as he was grieving Meadows' having
cracked down on one employee for having punched out
to lunch early and was pressing Meadows to justify that,
in light of Meadows' having let his whole crew punch
out early for lunch on another occasion. I was not im-
pressed when Meadows testified that he was not upset
over that matter.
I note also that the evidence on a point collateral to
the racist issue suggests that Cooke's actions were, as the
General Counsel contends, discriminatorily motivated.
Cooke denied Eiche's request for annual leave on March
18, on the ground that he had not furnished substantia-
tion. When Eiche later offered independent documenta-
tion thereon, Cooke rejected it as "too late." No explana-
tion of that reason was offered despite the evidence of-
fered by the General Counsel of clear disparate treat-
ment thereon. Another employee was allowed to offer
late documentation to have his leave request approved.
Last, Cooke's testimony on material points was devel-
oped through leading questions.
I credit Eiche's account.
D. Analysis
The credited testimony of Eiche discloses that Cooke
and Meadows directly threatened him and others, that
the reasons offered for having disciplined Eiche were
clearly pretextual and designed to conceal its discrimina-
tory motives and that Eiche was accorded disparate
treatment as to his requests for leave since his confronta-
tion with Cooke began with the processing of Hodges'
unfair labor practice case. I thus find that Respondent,
by Cooke:
(a) Threatened Eiche on two occasions with discharge
to discourage him from participating in the investigation
of an unfair labor practice charge by the Board's Region-
al Office and from performing his duties as a union stew-
ard.
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatened to eliminate overtime assignments to
discourage employees from filing grievances.
(c) Threatened Eiche with arrest to discourage him
from cooperating in the investigation of an unfair labor
practice charge and from supporting the Union.
(d) Issued Eiche a written warning on February 5; sus-
pended him three times; denied his leave requests for
March 11, 12, 13, and 18 and July 8; and deferred his pe-
riodic wage increase because he cooperated in the unfair
labor practice charge investigation and supported the
Union.
(e) Discontinued overtime assignments to discourage
employees from filing grievances.
I further find that Respondent, by Meadows, threat-
ened Eiche with physical harm to discourage Eiche from
processing a grievance and filed an incident report on
March 12 against Eiche because Eiche cooperated in a
Board investigation and because of his union activities.
I do not find that Respondent's 5-minute rule was un-
lawfully applied to Eiche. While he did punch out with
the other employees and they apparently were not re-
quired to submit leave slips, the evidence fails to estab-
lish that the timecards of the other employees were, like
Eiche's, in violation of the 5-minute rule. At least, the
testimony offered by the General Counsel was countered
by that offered by Respondent; the General Counsel
could but did not obtain or submit the timecards them-
selves to establish any disparate treatment of Eiche. The
evidence is also insufficient to establish that Respondent
discriminatorily denied employees access to Eiche via its
paging system; one instance does not prove an alleged
discriminatory policy. I also find that the evidence is in-
sufficient to establish that Respondent unlawfully notified
Eiche that it would cost him $125 to honor his request
for grievance data as that figure in fact approximated the
authorized costs and as there is no evidence of disparate
treatment thereon.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent pursu-
ant to the provisions of the Postal Reorganization Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent, in violation of Section 8(a)(1) of the
Act, interfered with, restrained, and coerced its employ-
ees with respect to the rights guaranteed them under
Section 7 of the Act by the threats, warnings, disciplin-
ary reports, and notices issued by Cooke and Meadows
as found above and by the conduct specified below in
paragraphs 4 and 5.
4. Respondent, in violation of Section 8(a)(3) of the
Act, discouraged its employees from supporting the
Union by having, through Cooke and Meadows, issued a
written warning to Eiche on February 5, discontinued
overtime assignments as of March 6, issued disciplinary
warnings, notices, incident reports, and suspensions to
Eiche, denied him leave requests for March 11, 12, 13,
and 18 and July 8, and deferred Eiche's periodic wage
increase.
5. Respondent, in violation of Section 8(a)(4) of the
Act, discriminated against Eiche because he cooperated
with the investigation of an unfair labor practice charge,
by the Board's Regional Office by having issued a warn-
ing to Eiche on February 5, by having an incident report
filed on him by Meadows on March 12, by suspending
him three times, by denying his leave requests as afore-
said, by threatening his arrest, and by deferring his peri-
odic wage increase. 4
6. Respondent did not violate the Act as alleged in
paragraphs 19, 22, 23, and 24 of the amended complaint
or threaten arrest in violation of Section 8(a)(3) as al-
leged in paragraph 21 of the amended complaints
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act. To remedy its discriminatory conduct toward
Eiche, as found above, Respondent shall be required to
make him whole for all lost earnings suffered by reason
of that conduct with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977), and shall restore his leave time for
March 11, 12, 13, and 18 and July 8. Further, all employ-
ees who were unlawfully denied overtime assignments
on and since March 6 by Cooke's order shall be made
whole therefor in the same manner as set forth above for
Eiche.
Respondent will also be required to expunge all refer-
ences to the warnings, notices, reports, and suspensions
issued to Eiche and to any reference to such discipline in
any other document, including those on which he was
denied a timely periodic wage increment. s
The facts of this case do not warrant a broad remedial
order. 7
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 8
The Respondent, United States Postal Service, Jersey
City, New Jersey, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or arrest to
discourage them from cooperating in investigations con-
ducted by the National Labor Relations Board or from
supporting the North Jersey Area Local, American
Postal Workers Union, AFL-CIO (herein the Union).
The threat of discharge set out in par. 7 of the amended complaint
was not alleged as a separate violation of Sec. 8(aX4).
I Pars. 17 and 18 were withdrawn at the hearing. Paragraph 23 alleges
in substance an evidentiary fact which relates to the unlawful 10-day sus-
pension of Eiche.
e Sterling Sugars, Inc., 261 NLRB 472 (1982).
' Ibid.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
474
UNITED STATES POSTAL SERVICE
(b) Threatening employees with loss of overtime work
assignments to discourage the filing or processing of
union grievances.
(c) Threatening employees with physical harm to dis-
courage the processing of union grievances.
(d) Issuing warnings, incident reports, suspension no-
tices, or other disciplinary documents to discourage em-
ployees from supporting the Union or to discourage
them from cooperating in a Board investigation of unfair
labor practice charges.
(e) Suspending employees, denying leave requests, or
deferring periodic wage increases to discourage employ-
ees from cooperating in Board investigations or to dis-
courage their support for the Union.
(f) Discontinuing overtime work assignments to dis-
courage employees from filing union grievances.
(g) In any like or related manner interfering with, re-
straining, or coercing employees as to their rights under
Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Joseph Eiche whole, by paying him, with in-
terest accrued, for all wages lost by him as a result of his
having been discriminatorily suspended three times in
1981, by his having been discriminatorily denied leave on
four dates that year and by having his periodic wage in-
crement withheld.
(b) Make all employees, including Eiche, who were
discriminatorily denied overtime assignments on and
since March 7, 1981, whole for all wages lost thereby
with interest thereon.
(c) Revoke and expunge from its records all reference
to discipline issued to Joseph Eiche in 1981 and notify
him in writing that this has been done and that evidence
of such unlawful discipline will not be used as a basis for
personnel actions against him.
(d) Post at its International Mail Bulk Center in Jersey
City, New Jersey, copies of the attached notice, marked
"Appendix."9 Copies of that notice, on forms provided
by Region 22, after being signed by Respondent's author-
ized representative, shall be posted by it immediately
upon recieving them and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that those notices are not altered, defaced, or cov-
ered by any material.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, personnel records, and other documents
needed to calculate the amount of backpay due under the
terms of this order and to ensure that all references to
unlawful discipline have been expunged.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days of the date of this Order, what
steps Respondent has taken to comply with it.
" In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board"
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as the matters set out in paragraph 6 of
the Conclusions of Law section herein are concerned.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT threaten employees with discharge
or arrest to discourage them from cooperating in in-
vestigations conducted by the National Labor Rela-
tions Board or from supporting the North Jersey
Area Local, American Postal Workers Union,
AFL-CIO.
WE WILL NOT threaten employees with loss of
overtime work assignments to discourage the filing
or processing of union grievances.
WE WILL NOT threaten employees with physical
harm to discourage the processing of union griev-
ances.
WE WILL NOT issue warnings, incident reports,
suspension notices, or other disciplinary documents
to discourage employees from supporting the Union
or to discourage them from cooperating in a Board
investigation of unfair labor practice charges.
WE WILl NOT suspend employees, deny leave re-
quests, or defer periodic wage increases to discour-
age them from cooperating in Board investigations
or to discourage their support for the Union.
WE WILL NOT discontinue overtime work assign-
ments to discourage employees from filing union
grievances.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees as to
their rights under Section 7 of the Act.
WE WILL make Joseph Eiche whole, by paying
him, with interest accrued, for all wages lost by him
as a result of his having been discriminatorily sus-
pended three times in 1981, of his having been dis-
criminatorily denied leave on four dates that year,
and of his periodic wage increment being withheld.
WE WILL make all employees, including Eiche,
who were discriminatorily denied overtime assign-
ments on and since March 7, 1981, whole for all
wages lost thereby with interest thereon.
WE WILL revoke and expunge from our records
all references to discipline issued to Joseph Eiche in
1981, and WE WILL notify him in writing that this
has been done and that evidence of such unlawful
discipline will not be used as a basis for personnel
actions against him.
UNITED STATES POSTAL SERVICE
475