United States Postal Service

National Labor Relations Board - Board Decisions

Dec 16, 2019

368 N.L.R.B. 153 (N.L.R.B. 2019)

368 NLRB No. 153
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United States Postal Service and National Association
of Letter Carriers. Case 02–CA–219434
December 16, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On May 3, 2019, Administrative Law Judge Jeffrey P.
Gardner issued the attached decision. The Respondent
filed exceptions with supporting argument, the General
Counsel filed an answering brief, and the Respondent filed
a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision in light of the
exceptions and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions and to adopt the rec-
ommended Order, except that the attached notice is sub-
stituted for that of the administrative law judge.3
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders

1 Chairman Ring is recused and took no part in the consideration of
this case.
2 In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(1) by refusing to permit employee Chris-
topher White to speak with a representative prior to continuing his April
6, 2018 investigatory meetings with management. See NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975).
The Respondent excepts to the judge’s factual finding that New Ro-
chelle Postmaster Edward DiPasquale knew of White’s request to speak
with a representative before discharging him on April 6. We find no
merit in this exception because, based on the record as a whole, the Gen-
eral Counsel established that the Respondent had sufficient knowledge
of White’s protected activity at the time DiPasquale discharged him for
it to have motivated his decision.
Member Kaplan would find that the General Counsel established the
requisite knowledge through White’s requests for a representative in his
meetings with supervisor Anthony Bardis and manager Angela Cail and
their attendance at his subsequent meeting with DiPasquale. See, e.g.,
Amoco Oil Co., 278 NLRB 1, 8 (1986); Lennox Industries, Inc. v. NLRB,
637 F.2d 340, 345 (5th Cir. 1981), enforcing 244 NLRB 607, 608 (1979).
Accordingly, he finds it unnecessary to pass on the judge’s suggestion
that White’s question to DiPasquale—“if there is anybody I can . . .”—
was an effective Weingarten request.
The judge, applying Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), concluded
that the Respondent violated Sec. 8(a)(1) by discharging White. As the
judge found, the Respondent failed to demonstrate that, in the absence of
White’s protected activity, it would have discharged him anyway be-
cause its other rationales for his discharge were “plainly pretext.” In fact,
the judge made explicit findings—which the Respondent did not except
to—discrediting the Respondent’s assertion that White had attendance
and performance issues, much less that the Respondent actually relied on
that the Respondent, United States Postal Service, New
Rochelle, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, except
that the attached notice is substituted for that of the admin-
istrative law judge.
Dated, Washington, D.C. December 16, 2019
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
them in discharging him. We note that the same conclusion would be
warranted under Atlantic Steel, 245 NLRB 814 (1979). Given the
judge’s implicit discrediting of testimony regarding White’s alleged mis-
behavior at the April 6 meeting with DiPasquale and his related finding
that “nothing of significance occurred between [White’s] request for a
union representative and his discharge except for his insistence that he
was entitled to that,” the record shows that White was discharged for
requesting a Weingarten representative and did nothing to lose the pro-
tection of the Act.
Member Kaplan would find a violation based only on Atlantic Steel
and would not rely on the judge’s application of Wright Line, including
his finding of pretext. DiPasquale’s testimony that White’s misconduct
during their April 6 meeting was the “real reason” for his discharge did
not itself invalidate the attendance and scheduling issues cited in the dis-
charge letter as supplemental grounds for discipline. The fact that an
employer has multiple reasons for a discharge but does not subsequently
emphasize all of them does not necessarily show shifting reasons indic-
ative of pretext. See, e.g., River Ranch Fresh Foods, LLC, 351 NLRB
115, 116–117 (2007); Volair Contractors, Inc., 341 NLRB 673, 677
(2004); Vulcan Basement Waterproofing v. NLRB, 219 F.3d 677, 689
(7th Cir. 2000). And although the judge discredited testimony that White
failed to show up for work on several prior occasions, the Respondent’s
displeasure with White’s attendance/scheduling issues on the morning of
April 6 was apparent before the related investigatory meeting that led to
his discharge. In any event, because the Respondent’s predominant rea-
son for discharging White was his alleged misconduct in asserting his
Sec. 7 rights, Member Kaplan would find Wright Line inapplicable. See,
e.g., Entergy Nuclear Operations, Inc., 367 NLRB No. 135, slip op. at 1
fn. 1 (2019).
3 We shall substitute a new notice to conform to the Board’s standard
remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT refuse your requests for union represen-
tation during investigatory meetings that you reasonably
believe may result in discipline.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in activity protected by Section
7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Christopher White full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Christopher White whole for any loss of
earnings and other benefits resulting from his discharge,
less any interim earnings, plus interest, and WE WILL also
make such employee whole for reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL compensate Christopher White for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Christopher White, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

1 Mr. White’s full name is Christopher Kenneth White, Jr.
2 Abbreviations used in this decision are as follows: “Tr.” for the Tran-
script, “Jt. Exh.” for joint exhibits, “GC Exh.” for the General Counsel's
exhibits and “R. Exh.” for Respondent's Exhibits. Specific citations to
the transcript and exhibits are included only where appropriate to aid re-
view, and are not necessarily exclusive or exhaustive.
UNITED STATES POSTAL SERVICE
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-219434 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Gregory B. Davis, Esq., for the General Counsel.
Roderick D. Eves, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JEFFREY P. GARDNER, Administrative Law Judge. The charge
in Case 02–CA–219434 was filed on April 30, 2018. The first
amended charge was filed on May 29, 2018. The complaint was
issued on September 27, 2018.
The complaint alleges that on or about April 6, 2018, Re-
spondent United States Postal Service violated Section 8(a)(1) of
the Act by denying employee Christopher White1 his repeated
requests to speak with a Union representative during an inter-
view. The complaint further alleges that Respondent violated
Section 8(a)(1) by continuing the April 6, 2018 interview with
White without a representative, and then terminating White’s
employment that same day because he had requested a repre-
sentative. (GC Exh. 1).2 Respondent denies the substantive alle-
gations of the complaint.3
Beginning January 14, 2019, and ending January 15, 2019, I
conducted a trial at the Board’s New York Regional Office, at
which all parties were afforded the opportunity to present their
evidence. On February 12, 2019, the General Counsel and Re-
spondent each filed timely briefs. Upon consideration of the en-
tire record and the briefs filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
Based on the pleadings herein, Respondent admitted and I find
that the Board has jurisdiction over Respondent by virtue of Sec-
tion 1209 of the Postal Reorganization Act, 39 U.S.C. Section
3 In its Answer, Respondent had inadvertently admitted to Paragraph
5(e) of the Complaint, alleging Respondent had terminated White be-
cause of his concerted activities. Respondent intended to have admitted
only Paragraph 5(d), acknowledging merely that it had terminated White,
but denying its alleged motive. Respondent moved without objection to
amend its Answer to correct that inadvertent error, and I granted that
amendment.
3
101 et seq. (hereinafter “PRA”). Respondent further admitted,
and I find, that the Charging Party, National Association of Let-
ter Carriers (hereinafter “the Union”) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent provides postal services for the United States and
operates various facilities throughout the United States in per-
forming that function, including its facility at 255 North Ave.,
New Rochelle, NY (hereinafter “the New Rochelle Main
Branch”). Respondent’s city letter carriers, including its city car-
rier assistants (hereinafter “CCAs”) are represented by the Un-
ion, and are covered by a collective bargaining agreement, the
most recent of which is the 2016-2019 National Agreement be-
tween the Union and Respondent. (Jt. Exh. 1).
Christopher White was employed as a CCA from approxi-
mately January 6, 2018, until his discharge on April 6, 2018.
White testified at the hearing regarding his employment with Re-
spondent, and the events leading up to his discharge. Also testi-
fying at the hearing for the General Counsel was the Union’s Lo-
cal Branch 137 President, Joseph DiStefano. Testifying for Re-
spondent were White’s supervisor Anthony Bardis, Bardis’s
manager Angela Cail and New Rochelle Postmaster Edward
DiPasquale.
White’s Training and Employment
White began a paid training program with Respondent in or
about late December 2017, ahead of his official January 6, 2018
start date as a CCR.4 The training took place in two locations,
part in White Plains, NY and part in upstate New York. Among
the subjects covered at the training was the instruction that CCAs
were not required to answer their personal phones outside of
working hours. The training also included a presentation by the
Union, during which that instruction was reiterated.5
White’s primary duty was to deliver mail. From the time he
began working until his discharge, White was primarily assigned
to work out of the New Rochelle Main Branch, but on occasion
he would be assigned to work out of other locations in the region,
including White Plains, Larchmont and Mt. Vernon, New York.
He traveled to those locations without incident. At all relevant
times, White was living in Mt. Vernon, and relied on public
transportation to travel to and from work at the New Rochelle
Main Branch. His supervisors were aware of his reliance on pub-
lic transportation, and Cail acknowledged at the trial that this was
not a problem.
White’s typical work hours were Monday through Saturday,
from 10:30 a.m. to 6:00 p.m. or 7:00 p.m., depending on the
workload. Some weeks, he also worked on Sunday delivering
packages. There were other weeks when he earned additional

4 It is nevertheless undisputed that based on his January 6, 2018 offi-
cial start date, White was still within the 90-day probationary period ap-
plicable to CCAs on the date he was terminated.
5 Not having to answer personal phones outside of working hours was
the product of a grievance settlement reached by the Union in response
to an alleged pattern of CCAs being called for business purposes during
off hours. (GC Exh. 2).
overtime as well. Because he relied on public transportation to
get to work, he normally left his home at 9:30 a.m. to catch the
bus, which was about a 15-minute ride to New Rochelle. His
normal total commute was about 30 minutes door to door, but
varied on days when he was assigned to other than his usual lo-
cation.
Typically, White received his work location assignment be-
fore leaving at the end of the prior day. There was no posted
schedule, so he would have to receive his assigned location each
day directly from his supervisor.6 Ordinarily, he would get this
assignment in person, but there were times when his supervisor
would call or text him with this assignment later that evening.
Sometimes, if he had not heard from his supervisor, White would
initiate the call to find out where to arrive the following morning.
On still other occasions, White would arrive to work at the New
Rochelle Main Branch and be sent elsewhere to work that day.
White was not issued a work phone by Respondent. When
communicating with his supervisor for work matters, whether
sending or receiving calls and/or messages, he used his personal
phone. Notwithstanding the fact that CCAs were not required to
answer their personal phones outside of working hours, it is un-
disputed that Respondent’s supervisors routinely continued to at-
tempt to communicate with CCAs outside of working hours.
The Events Leading up to White’s Termination
On the day of his termination, April 6, 2018, White was as-
signed to work at his regular facility, the New Rochelle Main
Branch. The previous day, White had not received his next day’s
assigned location in person, but instead, received this assignment
after hours on April 5 by text from Bardis.
On the morning of April 6, White observed that he had multi-
ple missed calls from Bardis and Cail. While on the bus en route
to New Rochelle, he called back and spoke to Bardis, who ad-
vised that he wanted White to report to Respondent’s Scarsdale
facility that day, rather than to New Rochelle where he was
scheduled.7 White had never been assigned to this facility be-
fore, and he did not know where it was located. So, White told
Bardis that since he was already on his way to New Rochelle, he
would speak to him when he got there. According to White,
Bardis seemed fine with that plan, and said it was okay. Bardis
did not ask where the bus was or tell White where the Scarsdale
facility was located. He also did not advise or ask how White
would get to the Scarsdale facility by bus.
According to Bardis, when he spoke with White on the phone
to give him his changed assignment, White told him that he did
not want to go to the new location, and that he would not go
there. Bardis maintains that White told him he was coming to
pick up his check at New Rochelle, and that was where he was
going to work that day. When Bardis told White he could disci-
pline him for refusing an assignment, White just insisted that he
was coming to New Rochelle. In a subsequently prepared
6 Usually, the assignments would come from Bardis, although at times
Cail also contacted White and other employees about their assignments.
7 Respondent’s witnesses clarified that the specific assignment for that
day was to its Hartsdale facility, one of multiple facilities located in
Scarsdale, NY. There is not a dispute over what location White was to
be assigned to that day, and I will refer to it as the Scarsdale facility
herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
statement by Bardis, echoed second-hand in a separate statement
by Cail, both allege that White insisted he would not work in
Scarsdale and that he said they could suspend him for refusing
but it would not change his mind.8
When White arrived to New Rochelle, he went directly to
speak to Bardis about his assignment, but when he met him,
Bardis asked White why he was not at Scarsdale. White told
Bardis that since he was already on the bus to New Rochelle, he
just came in, but that he was fine with going to Scarsdale. It was
not unusual for White to be sent to work at a different location
after arriving to New Rochelle, and there is no suggestion that he
was ever resistant to working at any other location.
However, at that point, Bardis told him it was too late, and that
White was already in trouble. Bardis told White that they would
have to speak with Postmaster DiPasquale, and so they went to-
gether to a private office which was separated from the Postmas-
ter’s office by a conference room. Once there, Bardis closed the
door and the two men were alone in the room.
While they were alone in the office, Bardis told White again
that he was in trouble, and that he was either going to be termi-
nated or assigned to a rural route as punishment. Bardis gave
White a paper to sign which White glanced over briefly. White
remembers the paper as being typewritten, with a space for his
signature, but with no handwriting.9
At that point, White told Bardis that he needed someone to
help him review the document before signing it. White did not
specifically say he needed a Union representative, but Bardis ap-
parently understood the request, and responded by telling White
he was only a CCR and did not have that right. White refused to
sign the document.
The two men then left that office and went to a conference
room next door where Cail was present. Cail testified that she
was there because she and DiPasquale could hear the two men
yelling from the Postmaster’s office, although not the exact
words, and she was going to bring them to meet with her and
DiPasquale. While in the conference room, in Cail’s presence,
White reiterated his request to speak to someone who can help
him, but neither of the supervisors responded to his request.
Postmaster DiPasquale entered a few minutes later, and White
began to tell him that he was not refusing to go to Scarsdale, just
that he was already on the bus en route to New Rochelle. White
asked again for someone to speak to, but DiPasquale told White
that this was not his time to talk. White responded saying that “I
have rights, and I want to talk to somebody,” to which
DiPasquale replied, “You have no rights.” White insisted that
“I’m an American, and I know I do,” but DiPasquale just told
him at that point that he was terminated, and told Cail to call the
police.

8 I credit White’s version of this interaction. He testified with a sin-
cere and honest demeanor, and his version was far more plausible. He
frequently worked at locations other than New Rochelle, and there was
nothing that would prevent him from picking up his paycheck and then
traveling, on the clock, to his newly-assigned location. Additionally, I
generally did not find Bardis to be a reliable or credible witness through-
out his testimony. He appeared to be testifying more from a rehearsed
script than from his actual recollection. To the extent White and Bardis
offered conflicting or inconsistent testimony, I credit White, as I found
him to be a more forthright and reliable witness.
White told the managers that he was not leaving until he was
allowed to speak to someone, whereupon he called the Union and
spoke to DiStefano. At this point, Bardis was still present, but
DiPasquale had left and Cail had gone to call the police. White
explained to DiStefano over the phone what had happened, in-
cluding the fact that White had requested assistance, and that
DiPasquale had ordered him out of the building. DiStefano told
White over the phone that he needed to leave, and White then
left the office before any police arrived. In total, about five
minutes had passed from the time DiPasquale told White that he
was terminated until the time White had left the facility.
All three managers maintain that White was belligerent from
his first interaction with Bardis and continuing until after he was
terminated, and shouting about having unspecified rights as an
American, loudly using the “F” word as he shouted. White de-
nies raising his voice at any point during the meeting with Bardis
alone and acknowledges only that he did get a little upset when
he repeatedly called attention to what he believed was a denial
of his rights. He denies using the “F” word at any time that day.
After speaking with White, DiStefano called DiPasquale and
asked what happened. DiPasquale advised that he was removing
White from service and that he was going to call the police if he
did not leave.10 DeStefano asked DiPasquale why he did not
give White a Union representative when he asked, and
DiPasquale told him that CCAs on probation do not have the
right to a representative. DiPasquale later apologized to DeSte-
fano for saying this, acknowledging he was mistaken about
CCA’s rights, but then maintaining that White’s request came
after he was already terminated.
By letter dated April 7, 2018, White was advised that he had
been terminated for refusing to follow instructions, attendance
related issues and insubordination. (GC Exh. 5). At trial,
DiPasquale acknowledged that neither the alleged refusal to fol-
low instructions nor the alleged attendance issues were the real
reason for his termination, but that the real reason for White’s
termination was the alleged insubordination at the April 6 meet-
ing.
White’s Performance and Attendance
For the first two months of White’s employment, he was not
issued a time card to record his hours worked. Instead, his su-
pervisor would record his hours manually. Upon receiving a
time card, for the final few weeks of his employment, he would
punch in to record his hours. At no time prior to the day of his
termination was White disciplined or counseled in any way for
attendance or timeliness issues.11
White remembers shadowing another employee for a few
weeks in January as part of his training, although his first day of
9 It appears that the document which White remembers is an “Em-
ployee Evaluation and/or Probationary Report,” which Bardis acknowl-
edges presenting to him at that time. (R. Exh. 8).
10 At this point, DiPasquale had left the conference room and was not
aware that White had also left the premises.
11 Bardis testified that White had been AWOL on one of more occa-
sions, but that he just let it go because White was a good employee.
However, there was no documentary evidence produced to substantiate
Bardis’s claim, and I do not credit this testimony.
5
work for purposes of calculating his probationary period was
January 6, 2018. The parties’ CBA provides for performance
evaluations to be given to probationary employees at the 30, 60
and 80 day points of their probationary period. White never re-
ceived a performance evaluation for any of these periods. White
also never received any discipline for performance prior to the
day of his termination.
On the day of his termination, during the initial meeting when
only White and Bardis were present, Bardis claims to have pre-
pared an evaluation for White, and reviewed it with him. The
report contained notations purporting to have been made on prior
dates, but with no signature from White, or any indication that
White refused to sign. Bardis admitted that he had not actually
evaluated White at the 30-day point, but maintained that he had
done so at the 60-day point, after which he had given the report
to Cail. Cail testified this was not the case.
I do not credit Bardis’s testimony regarding the alleged per-
formance notations he claims to have made for White on his Em-
ployee Evaluation and/or Probationary Report. Bardis displayed
confusion with Respondent’s own evaluation process and ap-
peared to be testifying based not on his recollection, but rather,
from the documents presented to him, which he appeared barely
to recognize.
Analysis
A. Respondent violated 8(a)(1) of the Act on April 6, 2018,
when it refused to permit White to speak with a representative
prior to continuing the meeting with management.
An employee in a unionized workplace has the right, under
Section 7 of the Act, to refuse to submit, without union represen-
tation, to an investigatory interview by his employer that may
reasonably lead to discipline. NLRB v. J. Weingarten, Inc., 420
U.S. 251, 256–257 (1975); IBM Corp., 341 NLRB 1288 (2004).
As the Supreme Court observed in Weingarten, this is an im-
portant right that “safeguard[s] not only the particular employ-
ee's interest, but also the interests of the entire bargaining unit by
exercising vigilance to make certain that the employer does not
initiate or continue a practice of imposing punishment.” Id. at
260.
An employee’s Weingarten rights apply only to investigatory
interviews. Those rights do not extend to a meeting held solely
for the purpose of communicating to an employee a final deci-
sion to impose a certain discipline, which was made prior to the
meeting. Baton Rouge Water Works Co., 246 NLRB 995 (1979).
In addition, in order to invoke the right to have a union repre-
sentative present for a meeting with their employer, an employee
must reasonably believe that the investigation could result in dis-
ciplinary action being taken against them. Weingarten, at 257.
Here, there can be no doubt that this was an investigatory in-
terview which White would reasonably have believed could re-
sult in disciplinary action. Indeed, upon White’s initial arrival to
the New Rochelle facility, Bardis told him he was in trouble and
needed to speak with the Postmaster. And, Bardis took White to
a private office to discuss with him the events of that day and his
performance. In addition, Respondent maintains that the

12 DiPasquale admitted to DeStefano only after the fact that he had
mistakenly believed that CCRs were not entitled to a representative.
decision to terminate White was made during the meeting, not
before. So, this was not a meeting held merely for the purpose
of communicating a final decision.
Significantly, the right to a representative arises only when the
employee requests representation. Weingarten, at 257. A failure
to request representation would defeat a Weingarten allegation.
Kohl’s Food Co., 249 NLRB 75, 78 (1980). However, there is
no precise language which must be used. The request merely
must be sufficient to put the employer on notice that the em-
ployee wishes to have union representation. Consolidated Edi-
son, 323 NLRB 910 (1997); see also Houston Coca-Cola, 265
NLRB 1488, 1496-1497 (1982) (“No magic or special words are
required to satisfy this element of the Weingarten rationale”).
So, for example, questioning an employer as to whether a rep-
resentative should be obtained – “Do I need to get somebody in
here?” - has been held sufficient to trigger Weingarten rights.
General Die Casters, 358 NLRB 742 (2012). Similarly, an em-
ployee request that “someone” be present is sufficient to invoke
Weingarten rights. Circuit-Wise, 308 NLRB 1091, 1108-
1109)(1997), enf’d. 992 F.2d 319 (2d Cir. 1993). Even a remark
as simple as “Do I need a witness?” has been found to be a valid
request for union representation. Bodolay Packaging Machinery,
263 NLRB 320, 325-26 (1982).
Here, I credit White’s testimony that he specifically requested
to speak to someone to assist him in his initial meeting with
Bardis, and that Bardis told him there was no one to speak to,
and that as a CCA, he was not entitled to that. I also credit
White’s testimony that he reiterated his request to Bardis and
Cail, but was ignored. I do not credit either Bardis or Cail in
their denials about White’s request.
Moreover, I credit White’s testimony that he asked for some-
one immediately upon DiPasquale’s arrival, which is consistent
with the fact that he had already asked both Bardis and Cail for
someone to speak to and had his request denied and/or ignored.
And I credit White’s testimony that DiPasquale dismissed his re-
quest, as it is consistent with DiPasquale’s admitted belief that
White was not entitled to one.12
Finally, I do not credit DiPasquale’s claim that White did not
ask for a representative until after he was terminated. Both he
and Cail acknowledge that White was speaking from the moment
DiPasquale entered the room, before any action was taken. Ad-
ditionally, it is undisputed that White repeatedly told all three
supervisors that he had rights, and I find that having already re-
quested a representative from each of them, it was plain to all
three managers what rights he was referencing.
Accordingly, I find that Respondent violated 8(a)(1) of the Act
on April 6, 2018, when it refused to permit White to speak with
a representative prior to continuing his meeting with manage-
ment.
B. Respondent violated Section 8(a)(1) of the Act on April 6,
2018, when it terminated White because of his protected con-
certed activity.
The discharge in this case presents a separate question, and
compels a Wright Line analysis for determining when an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
allegedly discriminatory action violates the Act. Under Wright
Line, the General Counsel must first make a prima facie showing
sufficient to support an inference that protected conduct was a
motivating factor in the employer’s terminating of the alleged
discriminatees. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462 U.S.
393, 399-403 (1983).
The General Counsel must initially show the employee’s pro-
tected activity was a motivating factor in the decision to termi-
nate. See Coastal Sunbelt Produce, Inc. & Mayra L. Sagastume,
362 NLRB No. 126, slip op. at 1 (2015). Establishing unlawful
motivation requires proof that: “(1) the employee engaged in
protected activity; (2) the employer was aware of the activity;
and (3) the animus toward the activity was a substantial or moti-
vating reason for the employer’s action.” Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467
(2d Cir. 2009).
If the General Counsel makes that 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.” Septix
Waste, Inc., 346 NLRB 494, 496 (2006). An employer “cannot
simply present a legitimate reason for its action, but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected ac-
tivity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993).
Further, if the employer’s proffered reasons are pretextual -
either false or not actually relied on - the employer fails by defi-
nition to meet its burden of showing it would have taken the same
action for those reasons absent the protected activity. See
Boothwyn Fire Co. No. 1, 363 NLRB No. 191, slip op. at 7
(2016); Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); and
Hays Corp., 334 NLRB 48, 49 (2001).
Here, I find White clearly engaged in protected activity by vir-
tue of his initially requesting a union representative in his meet-
ing with Bardis, reiterating that request in his meeting with
Bardis and Cail, asking again at the start of his meeting with
Bardis, Cail and DiPasquale, and when he insisted during that
meeting that he “had rights” to that requested assistance.13 As
discussed in the previous section of this decision, I find that Re-
spondent was aware of White’s activity.
As for animus, I find the Employer’s formal letter of dis-
charge, attributing White’s termination first to a refusal to follow
instructions, then to attendance related issues, and finally to in-
subordination, to be pretextual excuses designed to avoid liabil-
ity and therefore, evidence of Respondent’s animus. Accord-
ingly, I find that White’s concerted activity was a substantial and
motivating reason for his discharge, and as such, I find the Gen-
eral Counsel has met its initial prima facie burden.
With the burden shifted to Respondent to demonstrate that it
would have taken the same action even in the absence of the pro-
tected conduct, I find that Respondent has failed to meet its bur-
den. First, as noted above, I find that Respondent’s attempt to
supplement and bolster the rationale for White’s termination

13 I note that, although not asserted by the General Counsel, the entire
chain of events leading up to White’s termination began with the Em-
ployer calling White on his personal phone outside of working hours, to
with additional bases that even DiPasquale acknowledged were
not real reasons was plainly pretext. See Inter-Disciplinary Ad-
vantage, Inc., 349 NLRB 480, 509 (2007).
Moreover, I find that Respondent would not have discharged
White had he not requested the assistance of a union representa-
tive for his interview with management on April 6, 2018, and
insisted that it was his right to have that assistance. I find nothing
of significance occurred between his request for a union repre-
sentative and his discharge except for his insistence that he was
entitled to that. That timing, given the totality of the circum-
stances in this case, cannot be ignored.
Therefore, I find that Respondent has not met its burden under
Wright Line, and that it cannot prove it would have taken the
same action against White even in the absence of his protected
conduct. Indeed, I find that it would not have discharged White
but for the intervening act of his asserting his Weingarten rights.
Accordingly, I find that Respondent violated Section 8(a)(1)
of the Act when it terminated White on April 6, 2018, and there-
fore, recommend that White be made whole for the unlawful ac-
tions taken by Respondent.
Conclusions of Law
1. On or about April 6, 2018, Respondent violated Section
8(a)(1) of the Act by denying Christopher White his right to have
a union representative present for an investigatory interview
which he reasonably believed could result in discipline, in viola-
tion of his Weingarten rights.
2. On or about April 6, 2018, Respondent violated Section
8(a)(1) of the Act by unlawfully terminating White’s employ-
ment in retaliation for his protected concerted activity, specifi-
cally, his assertion of his Weingarten rights.
3. The above violations are unfair labor practices within the
meaning of the Act.
Remedy
As I have concluded that the Respondent engaged in certain
unfair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Respondent, hav-
ing discriminatorily discharged Christopher White, must rescind
its unlawful discipline, offer White reinstatement and make him
whole for any loss of earnings and other benefits resulting from
that discrimination.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). The Respondent shall also file a report with the
Social Security Administration allocating backpay to the appro-
priate calendar quarters and shall also compensate the discrimi-
natee for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than
1 year. Latino Express, Inc., 359 NLRB No. 44 (2012).
In addition, Respondent is ordered to reimburse White for all
search-for-work-related expenses regardless of whether he
which White objected based on the prior settlement between the Union
and the Employer that covered the entire bargaining unit, which objec-
tion was arguably protected concerted activity in itself.
7
received interim earnings in excess of these expenses overall or
in any given quarter. King Soopers, Inc., 364 NLRB No. 93
(2016).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, United States Postal Service, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing the requests of employees for union representa-
tion during investigatory meetings which they reasonably be-
lieve may result in discipline;
(b) Discharging or otherwise discriminating against any em-
ployee for engaging in activity protected by Section 7 of the Act;
(c) In any like or related manner, interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Christopher White full reinstatement to his former job, or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Christopher White whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision, plus reasonable search-for-work and interim employ-
ment expenses regardless of whether those expenses exceed his
interim earnings.
(c) Compensate Christopher White for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 2, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appro-
priate calendar year.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Christopher
White and, within 3 days thereafter, notify him in writing that
this has been done and that neither those disciplines nor dis-
charge will be used against him in any way.
(e) Preserve, and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(f) Within 14 days after service by the Region, post at its Main
Branch location in New Rochelle, NY the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
by the Regional Director for Region 2 after being signed by the
Respondents’ authorized representatives, shall be posted by the
Respondents and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. In addition to the physical posting of paper
notices, the notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondents customarily communicate with
its employees by such means. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondents have gone
out of business or closed the facility involved in these proceed-
ings, the Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondents at the New Rochelle
Main Branch facility at any time since April 6, 2018.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
Dated; Washington, D.C. May 3, 2019
APPENDIX
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 violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT refuse the requests of employees for union rep-
resentation during investigatory interviews they reasonably be-
lieve may result in discipline.
WE WILL NOT discharge or otherwise discriminate against
any employee for engaging in protected concerted activities.
WE WILL NOT n any like or related manner, interfere with,
restrain or coerce employees in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of this Order, offer
Christopher White full reinstatement to his former job, or, if that
15 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Christopher White whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against him, plus reasonable search-for-work and interim em-
ployment expenses regardless of whether those expenses exceed
his interim earnings.
WE WILL compensate Christopher White for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 2, within 21 days
of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to the ap-
propriate calendar years.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Chris-
topher White, and WE WILL within 3 days thereafter, notify him
in writing that this has been done.
UNITED STATES POSTAL SERVICE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-219434 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.