Letter Carriers (Postal Service)

National Labor Relations Board - Board Decisions

Apr 21, 1995

316 N.L.R.B. 1294 (N.L.R.B. 1995)

1294
316 NLRB No. 197
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In view of the disposition of this case, we find it unnecessary
to pass on the Respondent’s motion to strike certain portions of the
Charging Party’s brief which are allegedly not supported by the
record.
2 The Charging Party and the Respondent have implicitly excepted
to some of the judge’s credibility findings. The Board’s established
practice is not to overrule an administrative law judge’s credibility
resolutions unless a clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
3 The Respondent excepts, inter alia, to par. 1(a) of the judge’s
recommended Order and the corresponding unnumbered paragraph in
the Notice to Members. The Respondent contends that these para-
graphs are overly broad because they extend beyond the geographi-
cal situs of the violation found and they infringe on a union’s right
to agree to legitimate restrictions on employee distribution and post-
ing of union literature. We find merit in this exception and have ac-
cordingly modified the Order and substituted the attached notice for
that of the judge. In addition, we have substituted the standard
cease-and-desist language in the Order and notice.
Branch 9, National Association of Letter Carriers
(United States Postal Service) and Beverly
Berg. Cases 18–CB–3372(P) and 18–CB–3415(P)
April 21, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On November 3, 1994, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Charging Party filed exceptions and a supporting
brief.1 The Respondent filed cross-exceptions, a sup-
porting brief, and a brief in opposition to the Charging
Party’s exceptions and in support of the judge’s deci-
sion. The Charging Party filed a reply brief to the
cross-exceptions and a reply brief to the brief support-
ing the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Branch 9, National Association of Letter Carriers,
Minneapolis, Minnesota, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraphs 1(a) and
(c).
‘‘(a) Entering into an agreement with the United
States Postal Service affecting the Nokomis Station
that impermissibly restricts an employee’s right to post
and distribute union-related literature.’’
‘‘(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT enter into an agreement with the
United States Postal Service affecting the Nokomis
Station that impermissibly restricts an employee’s right
to post and distribute union-related literature.
WE WILL NOT deprive employees of the right to dis-
seminate literature by failing to advise them that the
literature they distributed was confiscated by manage-
ment.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
BRANCH 9, NATIONAL ASSOCIATION OF
LETTER CARRIERS
Joseph N. Bornong, Esq., for the General Counsel.
Susan J. Panepento, Esq. (Cohen Weiss and Simon), of New
York, New York, for the Respondent.
Beverly Berg, of Minneapolis, Minnesota, pro se.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Minneapolis, Minnesota, from July 26 to 29, 1994. The
initial charge was filed on November 23, 1993, by Beverly
Berg, an individual. Thereafter, an additional charge in Case
18–CB–3415(P) was filed on March 30, 1994, and that
charge was amended on April 15, 1994. On May 27, 1994,
the Regional Director for Region 18 of the National Labor
Relations Board (the Board) issued an order consolidating
cases, amended and consolidated complaint and notice of
hearing alleging violations by Branch 9, National Association
of Letter Carriers (the Respondent or the Union) of Section
8(b)(1)(A) of the National Labor Relations Act (the Act).
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
1295LETTER CARRIERS (POSTAL SERVICE)
1 It should be noted that there is no contention by the Respondent
here that any of the material distributed or posted by Berg is of such
a nature that it exceeds the bounds of propriety or constitutes unpro-
tected activity. Accordingly, it appears unnecessary to describe the
literature.
2 ‘‘UMPS’’ is an acronym for ‘‘Union Management Pairs’’; if a
grievance or complaint is not resolved through this process, the mat-
ter may progress to the formal grievance procedure.
3 In about March 1992, Berg had announced her candidacy for na-
tional business agent from her region, an office then occupied by
Gene McNulty, who, in addition to Branch 9 union leaders, was
criticized in Berg’s literature. The election for national business
agent was not to be held until November 1994.
4 The parties appear to agree that Berg’s Sec. 7 rights in distribut-
ing and posting literature are the same regardless of whether she was
campaigning for a union position or whether such campaigning oc-
curred during an officially recognized campaign period.
have been received from counsel for the General Counsel,
from counsel for the Union, and from the Charging Party,
Beverly Berg. On the entire record, and based on my obser-
vation of the witnesses and consideration of the briefs sub-
mitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The United States Postal Service provides postal service
for the United States and operates various facilities through-
out the United States in the performance of that function, in-
cluding various facilities in Minneapolis, Minnesota. The
Board has jurisdiction over the Postal Service and this matter
by virtue of Section 1029 of the Postal Reorganization Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is, and at all times
material has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the
Union, in violation of Section 8(b)(1)(A) of the Act, has re-
strained and coerced Beverly Berg in the exercise of the
rights guaranteed her by Section 7 of the Act, namely, by
interfering with her right to engage in union activity, and by
suspending her from membership because of such activity.
B. The Facts
1. Background
Beverly Berg, a letter carrier, works for the Postal Service
at the Powderhorn Station. She was hired in December 1988.
She is a self-proclaimed union activist and dissident, and has
been active in distributing and posting literature, much of it
highly critical of the current union officers and representa-
tives, at virtually all of the approximately 35 stations within
the jurisdiction of the Respondent herein, Branch 9 of the
National Association of Letter Carriers (NALC). She ran for
the office of shop steward at the Powderhorn Station in No-
vember 1991, and at times material was running for the posi-
tion of national business agent. In addition, she was a paid
delegate from her branch to the 1992 union convention in St.
Louis.
2. Incidents at the Nokomis Station
On April 27, 1993, after regular working hours, Berg went
to the Nokomis Station and requested permission from Sta-
tion Supervisor Sue Robison to distribute literature by plac-
ing it on each of the carriers’ ‘‘cases’’ where they sort the
mail each day. Berg advised Robison that she was running
for election and that the literature she wanted to distribute
was campaign literature. Robison gave her permission to do
so. The leaflets were highly critical of the Union’s leader-
ship,1 and Berg believed that the carriers would be more
likely to read or look at the leaflets if they were placed on
the carriers’ cases rather than on the wall near the timeclock
where notices were customarily posted.
On the following day, when Nokomis Station Union Stew-
ard Debra Enger became aware of Berg’s distribution of the
flyers, she checked with and received permission from Union
President Leonard Larson to file an ‘‘UMPS Worksheet’’2
which is essentially the first step of an informal grievance
procedure. Enger stated on the UMPS worksheet that man-
agement allowed Berg to enter the Nokomis Station and dis-
tribute material that was ‘‘deflamatory’’ (sic) of the current
local union officers and National Business Agent Gene
McNulty. Enger alleged that this activity of Berg was con-
trary to law, and that Berg should not have been permitted
to distribute such literature during a nonelection year.3 Enger
proposed that the station management resolve the matter by
furnishing a letter of apology to both the Union and the na-
tional business agent and pay the Union $500 in damages.
Management’s initial counteroffer, as noted on the UMPS
form, was as follows: ‘‘As a show of good faith, in the fu-
ture we will require union notification before any literature
is distributed to the carriers.’’ On May 15, 1993, the Union
dropped its request for monetary damages, and stated that it
was willing to settle for a letter of apology. On May 27,
1993, the parties agreed to an ‘‘UMPS Settlement.’’ The set-
tlement defines the issue as: ‘‘Distribution of Union cam-
paign literature during non-election year.’’4 It resolves the
issue as follows:
Any literature distributed within Nokomis station
concerning (NALC) Union business/or elections will
meet the following conditions:
—Anyone desiring to distribute literature must state
their purpose to supervisor.
—Materials will be given to supervisor who will
give to station steward for distribution or posting on
Union Bulletin Board.
Berg had previously filed an unfair labor practice charge
against the Postal Service alleging that the management of
the Powderhorn Station, where she is based, had unlawfully
interfered with her right to post and distribute literature at
that location. In exchange for withdrawal of her charge, the
Postal Service furnished Berg with a letter dated June 14,
1993, assuring her of her right to utilize the informal posting
area at the Powderhorn Station for her material, and further
assuring her that ‘‘prior management approval based on con-
tent will not be necessary or required.’’ Further, the letter
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 At this point Station Manager Bergquist apparently did not know
anything about the aforementioned letter to Berg from the Postal
Service.
6 The flyer in question was a letter to Berg dated December 1,
1992, from National Business Agent Gene McNulty, in which
McNulty makes the statement to Berg that, ‘‘Either you intentionally
distort things which people say to you or your thought processes are
so irrational that you are incapable of understanding what is being
said to you.’’
permits Berg to post material on her locker at the station.
Regarding the distribution of material, the letter states that
Berg may distribute literature at the Powderhorn Station on
the workroom floor during workroom hours and, ‘‘With re-
spect to Ms. Berg’s access to other stations to distribute lit-
erature, permission to enter and distribute will not be denied
based on the content of the material.’’
Following receipt of the aforementioned letter, Berg
sought permission to again distribute literature at the
Nokomis Station. She was refused permission by Station
Manager Roxanne Bergquist, who simply stated, according to
Berg, that as a result of the aforementioned UMPS settlement
with the Union, Berg’s distribution of literature at that station
would not be possible. Thus, Berg was not told that, in con-
formity with the UMPS settlement, she would be permitted
to deliver the material to management, who in turn would
deliver it to the steward at that station, for posting or dis-
tribution.5 Berg complained to Bergquist’s superiors, and
shortly thereafter Berg was informed by the Postal Service
that the policy enunciated in the letter from the Postal Serv-
ice preempted the UMPS arrangement at the Nokomis Sta-
tion. Thereafter, on about July 26, 1993, Berg was permitted
to distribute literature by placing it on the carriers’ cases at
the Nokomis Station during a period when the carriers were
not present. In addition, on the same day she distributed the
same flyers on the carriers’ cases at the Richfield and
Normandale Stations. Earlier, on July 21, she had distributed
this same literature at the Minnehaha Station.
3. Incidents at the Normandale Station
As noted above, Berg placed her literature on the carriers’
cases at the Normandale Station on July 26, 1993. Wanting
to make sure that the carriers at that station actually received
the flyers, she phoned Jeana Watts, a carrier at the station,
on the evening of July 26, 1993, and asked if Watts would
let her know whether the flyers were on the carriers’ cases
the following morning when they came to work. Berg again
called Watts 3 days later, on July 29, and Watts informed
her that neither Watts nor any of the other carriers had seen
or heard of Berg’s flyers. Watts said that she would talk to
Union Steward Jan Wild about the matter. The following
day, July 30, Watts phoned Berg and stated that she had
talked to Wild and to the station manager, and found out that
the flyers had been collected from the carriers’ cases by the
station manager, that the station manager had given them to
Wild, and that Wild had thrown them away; however, Watts
told her that one of the flyers had been posted in the
breakroom.
Jeana Watts corroborated Berg’s foregoing testimony, and
testified that Union Steward Wild told her that Wild and Sta-
tion Manager Maureen McKenna had a meeting about the
flyers and had decided that the distribution of the flyers was
not appropriate; further, Wild told her that the flyers had
been discarded. Later in the day, according to Watts, Wild
approached her and said that a copy of the flyer was posted
on the wall in the swing room. Watts testified that the flyer
had not, prior to her initial conversation with Wild, been
posted at the station, as she had specifically looked for such
a posting.
Jan Wild, currently a union steward, was president of the
Respondent in 1990 and 1991. Wild testified that Station
Manager McKenna brought a stack of the flyers in question
to her one morning and said that she had removed them from
the cases the preceding evening because, although she had
previously granted permission to someone, whom she as-
sumed was Berg, to distribute them, she had not looked at
them. On looking at them she had second thoughts about the
propriety of permitting such a distribution, and collected
them from the cases. McKenna speculated to Wild that per-
haps she should not have collected them and that she should
place them back on the cases. Wild told McKenna that it
would not be appropriate for McKenna to appear to be pass-
ing out such literature, critical of the union officers and rep-
resentatives, to the carriers. McKenna apparently agreed, and
left the matter to the discretion of Wild, in her capacity as
steward.
Wild testified that she immediately took it on herself to
post the flyer on the wall of the breakroom where other ma-
terial is customarily posted, and did so prior to about 10:30
that morning when she went out on her route.
Wild testified that at first she wasn’t going to post the
flyer because it contained statements that were derogatory,
critical, and embarrassing for Berg,6 and she was not certain
that Berg was the individual who had distributed the flyers.
Thus, Wild testified that she did not know for certain that
they were Berg’s flyers until she was approached by Watts
and asked about the flyers. Then, according to Wild, she as-
sumed that Berg had initially distributed them.
4. President Larson’s remarks at the officers’ and
stewards’ meeting
On August 3, 1993, Berg attended an officers’ and stew-
ards’ meeting, attended by the union officers and the stew-
ards from the various stations. There were about 50 individ-
uals in attendance. Berg, who was not a steward, made it a
practice of attending all of these meetings as an interested
union member. At the meeting President Leonard Larson and
Vice President Charles Peasha spoke about a new written
policy that was being instituted by management. The policy,
issued by Minneapolis Postmaster Rochelle Eastman and ad-
dressed to all station managers, begins as follows:
There have been several questions lately regarding
access to the workroom floor in carrier stations. I wish
to reaffirm the existing policy on this question.
The policy memo then goes on to recount the rules for ac-
cess to the premises and the workroom floor, and states:
Electioneering and campaigning by union officials
and challengers are not official union duties. Employees
may campaign or distribute literature for themselves or
in behalf of others if they:
1297LETTER CARRIERS (POSTAL SERVICE)
7 The latter two directives appear to be inconsistent with the afore-
mentioned June 14, 1993 letter from the Postal Service to Berg,
which permitted Berg’s access to other stations for the purpose of
distribution of literature.
8 Berg testified that there were at least three other occasions when
material she had posted at the Powderhorn Station had been removed
and discarded by unknown individuals.
9 Kerry was not asked and therefore did not state the approximate
date when the incident allegedly occurred.
(a) Are on non-work time. (Official break and
lunch periods are considered non-work times.)
AND
(b) Are in a non-work area. (This includes parking
lots, break areas, and swing rooms.)
Access to facilities should not be denied based upon
the content of any material to be distributed.
Attached to this memo was a four-page addendum entitled,
‘‘Do’s and Don’ts for Postal Supervisors,’’ setting forth the
rules for handling ‘‘Campaigning and Electioneering by Em-
ployees.’’ Among the directives in this addendum, are:
DO NOT permit an employee from another post of-
fice or postal facility to enter your facility for the pur-
pose of campaigning.
. . . .
DO NOT allow distribution of literature of any kind
on the work room floor.7
Berg testified that during the meeting President Larson
stated that, ‘‘There has been a member who has been spread-
ing flyers at the stations with false accusations against me
and the assistant business agent, that has cause the Post-
master to issue a directive to all the station managers con-
cerning distribution on the work room floor.’’ Larson stated,
according to Berg, that the flyers have caused both manage-
ment and union members to doubt the Union’s effectiveness
and have thus interfered with good-faith bargaining with
management and good relations between the Union and its
members. Then Larson said, according to Berg, that ‘‘Bev
Berg has ruined it for us all. We have always had a local
agreement that at election times we could enter the stations
freely and distribute campaign literature. Now we can’t.’’
Then he pointed at her and asked, ‘‘Bev, what is your prob-
lem?’’ Berg then was given time to reply to Larson’s ques-
tion and spoke about her concerns regarding the Union’s rep-
resentation of its members.
A week after the officers’ and stewards’ meeting, Berg
phoned Larson and asked if he had received prior notification
from management about implementation of the aforemen-
tioned policy, and Larson said no. Berg then suggested that
this was a unilateral action on the part of management and
asked whether Larson was going to file a grievance over the
matter. Larson, according to Berg, agreed that it was a uni-
lateral action, but that he had no intention of filing a griev-
ance over the matter.
Leonard Larson, president of the Respondent, testified that
the Minneapolis postmaster was fairly new and that she ap-
peared to be attempting to enforce more stringent checks on
people going in and out of the stations. During the course
of the officers’ and stewards’ meeting, Larson explained the
more stringent rules that the postmaster was attempting to in-
stitute, which limited electioneering and campaigning by
members. Someone asked the identity of the individual who
was out distributing campaign literature when there was no
ongoing official campaign for any union office. Larson then
identified Berg as the individual who was responsible for the
campaigning and the more stringent rules. Larson denies stat-
ing that Berg ‘‘ruined it for all of us’’; nor did he ask Berg
what her problem was. The minutes of this meeting state as
follows with regard to this matter:
It looks like there will be a new policy on handing
out fliers at the stations. If you are not on the clock
and/or not on official union business, management does
not have to allow you access to the workroom floor.
There has been a problem with literature that has been
distributed in the past.
Larson testified that he does not recall a phone call from
Berg following the meeting, and denies telling her that the
Union was in agreement with the restrictions set forth in the
postmaster’s new policy, or that he did not intend to file a
grievance over it.
5. Incidents at the Powderhorn Station
On about September 28, 1993, at about 3 p.m., Berg post-
ed a handwritten notice above the timeclock at the
Powderhorn Station having to do with the possibility that the
United Parcel Service’s (UPS) employees may strike and the
relationship between the interests of UPS employees and
Postal Service employees. The notice did not bear Berg’s
name. It remained posted the following day, at least until 1
p.m. However, Berg observed that it was no longer posted
at 2:45 p.m. that day. Berg asked Supervisor Phil Sazenski
about her missing sign, and said that she was tired of people
taking down the material she posted.8 As Berg was leaving
the station that afternoon, Sazenski approached her with a
rumpled piece of paper and said that he found it in the
wastebasket; it was the notice she had posted.
Berg happened to ask a fellow worker, Duane Kerry, if he
knew who was taking down her signs, and Kerry said that
it was Union Steward Jerry Morey. He told Berg that Morey
had said that the sign had been posted long enough, and that
Morey had removed it and had discarded it in the waste-
basket. Berg spoke to another letter carrier who also con-
firmed that Morey had removed her notice from the wall.
Duane Kerry testified that on one occasion9 Union Stew-
ard Morey was waiting to punch out and looked up on the
wall and saw a ‘‘typewritten page’’ and said, ‘‘This has been
up there long enough.’’ He took it down and threw it in the
wastebasket. According to Kerry, Berg had posted it the day
before; he was certain that it was typewritten. When, at the
hearing, he was proffered the handwritten document in ques-
tion, written in large 1-inch block letters, he stated that he
had seen it, but that it was not the one Morey had removed.
Kerry indicated that he had observed more than one such in-
cident when someone other than Berg had removed literature
that Berg had posted on the wall.
Morey testified that he has never seen the handwritten
document in question and never removed it from the wall.
According to Morey, on about September 30, 1993, Berg ap-
proached him and accused him of removing some notice of
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 It appears from various incidents specified in the record that
none of the Powderhorn stewards wanted to have anything to do
with Berg, and that they attempted to avoid her insofar as possible.
11 On the fourth and final day of the hearing, the General Counsel
moved to amend the complaint based on this testimony by Bedor.
The motion was denied. The General Counsel renews the motion in
his brief. Thus, the General Counsel would amend the complaint to
allege that Respondent has violated Sec. 8(b)(2) of the Act by caus-
ing or attempting to cause the Postal Service to discriminate against
Berg in violation of Sec. 8(a)(3) of the Act by reporting alleged mis-
conduct by Berg and requesting the Postal Service to stop it. I ini-
tially disallowed the amendment, which introduced new violations
based on sections of the Act not previously alleged in the complaint,
as being untimely. I reaffirm my ruling in this regard. In addition,
this matter has apparently been resolved to Berg’s satisfaction, and
thus litigation of such an issue would not significantly affect the
remedy here. Further, Bedor’s testimony indicates that he simply
asked Supervisor Sazenski whether Berg had requested permission to
use the PA system in conformity with established policy, and Berg
testified that the current policy, which she accepts, requires prior
permission to use the PA system.
hers from the wall. Morey denied it and said that he didn’t
want to have anything to do with her.10
In March 1994, Berg heard Steward Joe Bedor’s voice
over the public address (PA) system at the Powderhorn Sta-
tion. He announced that Union Steward Ron St. Clair was
going to the Mayo Clinic for a heart transplant, and that St.
Clair would have to remain there perhaps 3 or 4 months
waiting for a donor. He said that Union Steward Morey had
resigned, and that he had been appointed to the position of
alternate steward.
Immediately after Bedor’s comments, Berg, without asking
permission from management, used the PA system to address
the carriers at Powderhorn. She explained to the carriers that
Bedor had made a misstatement and that Bedor could not be
an interim steward as there was no such thing as an interim
steward, and that in fact Morey had not resigned and contin-
ued to be the alternate steward. She then pointed out that it
could be determined whether Morey had indeed resigned, as
he would have submitted a letter of resignation. At this point,
Supervisor Sazenski came over to the PA system and pulled
the plug.
Berg then approached Sazenski and asked to see the cer-
tification record that management receives from the Union
when a steward is documented as the representative.
Sazenski produced a letter from President Larson to the post-
master dated March 17, 1994, stating that Bedor was being
certified as the interim steward to take St. Clair’s place while
he is in the hospital.
On reading this document, Berg got back on the PA sys-
tem and announced to the carriers that it was just as she had
suspected, as the letter from Larson stated that Bedor was
being appointed as interim steward, and there is no such
thing as interim steward, and that management had told her
that Morey had not resigned. At this point Sazenski again
came over and pulled the plug on the PA system while Berg
was in midsentence. Then Berg heard Bedor yell out, ‘‘That
a way, Phil [Sazenski].’’
Berg again approached Sazenski, and asked why he pulled
the plug. Sazenski said that he had told her she could not
make announcements without prior permission.
Berg testified that she cared about the situation ‘‘Because
rules aren’t being followed. Our branch makes up their own
rules, whatever they want to do, they do. They don’t follow
the . . . by-laws . . . and the by-laws haven’t been followed
in the past.’’
Berg filed a grievance over the matter and about the first
week in April 1994, she observed, through a glass window,
a meeting between Powderhorn Station Manager Ed Jensen
and Union Steward Bedor. Bedor walked out of the meeting
and said, ‘‘This is all Bev Berg’s fault.’’ About five carriers
were present. At this point Station Manager Jenson came up
to Berg and said he had come to a resolution on her griev-
ance, namely, that ‘‘nobody can use the PA system for any
reason, including the stewards for the Union announcements,
or for any reason. It will be limited to business.’’ He also
indicated that the next morning there would be an announce-
ment to this effect. Berg said that unless this proposed rule
was rescinded, she would be filing another unfair labor prac-
tice charge against the Postal Service for retaliation against
her. At the end of the day, Jenson apparently had reevaluated
the matter and said that anybody could use the PA system
for whatever reason they wanted, provided that management
received advance notice and that the use of the system did
not interfere with business.
Joe Bedor testified that in March 1994, he had recently
been appointed interim steward in place of St. Clair who had
been admitted to the hospital for a heart transplant procedure.
Bedor announced this over the PA system at the Powderhorn
Station, and went out on the dock for a cigarette break.
Shortly thereafter, someone came out to the dock and told
him that Berg was using the PA system. Bedor went back
inside the building to find out what was going on. He ap-
proached Supervisor Phil Sazenski, and asked if Sazenski
was aware of the policy regarding the use of the PA system.
Sazenski said that he was aware of the policy, that Berg had
not asked for permission to use the microphone, and that it
had happened so quickly that he didn’t have time to respond.
He said that it would not happen again.11
A short time later, Bedor heard Berg’s voice on the PA
system once again, and all of a sudden the system went dead.
Bedor learned that Sazenski had pulled the plug on the sys-
tem. Berg told Bedor that she wanted to file a grievance over
management’s refusal to permit her to use the PA system,
and Bedor explained to her that there was no merit to such
a grievance. Bedor testified that there has been a long-estab-
lished unwritten policy at the Powderhorn Station regarding
the use of the PA system: Only the steward and station man-
agement are to have access to the system, and if the steward
needs to address an issue he must receive permission from
management. Customarily, the steward will ask permission to
use the system every 2 weeks, in order to give the carriers
a synopsis of the biweekly union meetings. Only occasion-
ally, according to Bedor, will some carrier use the system to
perhaps sing happy birthday to someone, or to announce that
there are doughnuts available.
Bedor denied that he made any comments about the inci-
dent, such as stating ‘‘That a way Phil,’’ or ‘‘This is Bev
Berg’s fault.’’
Sazenski was formerly supervisor and acting manager at
the Powderhorn Station. Sazenski testified that the general
practice with regard to the use of the PA system was to per-
mit the union steward, after requesting permission from man-
agement, to use the system the day after union meetings to
1299LETTER CARRIERS (POSTAL SERVICE)
12 St. Clair testified that, in addition to being a letter carrier, he
is also a job instructor, and that during the time Berg alleged that
he was standing around talking and being unproductive, he was
training a new letter carrier and was standing off to the side watch-
ing him case mail. During this time, he was chatting with Gbala, an-
other carrier, who was casing mail, and this conversation did not
interfere with the work of either St. Clair or Gbala. I credit St.
Clair’s testimony.
13 Berg attached the aforementioned routing slip to the letter to
Postmaster Lindsey.
make relevant announcements. On occasion, when someone
would bring sweet rolls or doughnuts for the work force,
they would frequently, but not always, request permission to
make a brief announcement that refreshments were available.
Once, someone sang happy birthday and on the same occa-
sion announced that there were sweet rolls available.
Sazenski testified that on about March 21, 1994, after he
advised Station Manager Jensen about Berg’s unauthorized
use of the PA system, Jansen made an emotional response,
out of frustration, that no one should use the PA system
again. Sazenski left the station shortly thereafter, and was not
aware of any meetings involving Berg’s grievance over the
matter.
6. Berg’s suspension from membership
On April, 19, 1994, after an investigatory hearing and vote
of the local branch membership, Berg was suspended from
membership in the Union for 5 years for actively exposing
fellow union members to possible discipline. On July 13,
1994, the National Association of Letter Carriers denied
Berg’s appeal, but reduced the suspension to 1 year; thus,
Berg will be reinstated as a member on July 13, 1995. The
facts underlying Berg’s suspension are as follows.
On September 8, 1993, at the Powderhorn Station, Berg
allegedly observed that Ron St. Clair, a fellow union member
and union steward, was not doing his work and was talking
to another carrier when he should have been working.12 Berg
believed that management had a practice of favoring certain
carriers over others, and that she was not among the favored
group. Thus, according to Berg, ‘‘at my station some carriers
are picked on and others have lots of privileges, and I feel
it is unfair that some people are allowed to get away with
lots of things and other people, for doing minuscule things,
are attacked. And I am one of those people that is attacked
by management.’’ Further, management had previously cau-
tioned her about excessive talking, and Berg wanted to make
a record of the fact that other employees were permitted to
talk with impunity as ‘‘this would be useful to protect me
. . . if I was picked on.’’ With these beliefs in her mind,
Berg immediately wrote the following ‘‘Routing Slip’’ to
then Station Manager Phil Sazenski:
Ron St. Clair was at Doris Gbala’s case chatting
from 6:00 a.m. to 6:55 a.m. w/ Supervisor Rick
MacDermott’s knowledge. He strode by them 3 times
& engaged in their conversation twice. The subject of
the conversation ranged from politics to sweet corn.
I pointed out to Rick MacDermott at 6:54 of the situ-
ation & that all (Powderhorn) carriers have the same
privileges management allows them. Rick did not re-
spond.
Berg put a copy of the routing slip on Sazenski’s desk, and
also posted a copy on the wall above the timeclock in order
to substantiate that the incident had happened and also so
that other carriers could perhaps use it to their advantage if
they were ever warned by management for talking.
The following month, on October 23, 1993, Berg wrote a
letter to Postmaster Rich Lindsey in Milwaukee, Wisconsin,
in support of the grievance of a close friend and fellow union
dissident, Andy Crowbridge, who had been discharged by the
Postal Service for misconduct. The body of the letter is sim-
ply a testimonial to Crowbridge’s affability and character. As
a postscript to this letter, Berg wrote the following:
P.S. If pokiness can be construed as delay of the
mail, that in turn management considers grounds for re-
moval, then some removals are in order here in Min-
neapolis. Note attached documentation of a ‘‘favored’’
carrier who cased less mail than Andy (0 letters in 55
minutes), without as much as a mention by manage-
ment.13 If you’re interested in whether like standards
apply to management, I can provide documentation of
management delaying dozens of feet of first class mail,
then concealing it from their reports.
Barry Weiner is the regional administrative assistant for
the Minneapolis region of the NALC. He is assistant to Gene
McNulty, one of the regional national business agents. He is
also a member of the Respondent here, namely, Branch 9 of
the NALC. One of his responsibilities as administrative as-
sistant is to represent employees at step three of the griev-
ance procedure. Thus, Weiner was assigned to represent
Andy Crowbridge who had been discharged by the Postal
Service in Milwaukee. On reviewing the file in that matter,
Weiner happened to read the letter and the attached routing
slip that Berg had submitted to the Milwaukee postmaster in
Crowbridge’s behalf. Weiner testified that he was ‘‘out-
raged’’ by Berg’s conduct in seemingly ‘‘ratting out two fel-
low union members.’’
In December 1993, during the ‘‘Good and Welfare’’ por-
tion of a Branch 9 membership meeting, which meetings
Weiner, as a Branch 9 member, customarily attended, Weiner
explained to the membership what Berg had done and excori-
ated her for, as Weiner characterized it, ‘‘ratting out a couple
of brother and sister Union members’’ He said that her con-
duct was reprehensible and that he felt that it probably vio-
lated the NALC constitution. Weiner testified that as a union
official he believed it was incumbent on him to speak out
in such situations, as there are standards of conduct to which
union members should be held accountable.
According to Berg, Weiner told the membership that he
learned about the situation during his handling of a grievance
regarding Crowbridge, a carrier in Milwaukee, and that the
Union believed that management had a weak case and that
the Union could get Crowbridge reinstated with full backpay.
However, he wanted to bring to the members’ attention a
document that he came across as he was reviewing
Crowbridge’s file, namely, a letter written by a Branch 9
member protesting Crowbridge’s discharge, and advocating
the discharge of certain Branch 9 union members. Weiner
produced the aforementioned letter and routing slip, identi-
fied Berg as the author, and said:
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The letter contains a second paragraph, similarly worded, in ref-
erence to the letter Berg sent to Postmaster Lindsey in Milwaukee,
and states that Berg, in the letter to Lindsey, ‘‘maintained that the
activities which she accused Brother Ron St. Clair and Sister Doris
Gbala of engaging in could be grounds for their removal from the
Postal Service.’’
15 The committee report is attached hereto as Exh. 1 [found in
App. B].
I find this morally and ethically reprehensible to put
fellow members, to put their situation in jeopardy. Sis-
ter Doris Gbala, who is a single—a struggling single
working mother, and brother St. Clair, who had recently
had heart surgery . . . I condemn this and I think we
all should. I feel this is a violation of the constitution
and I am not going to file charges, but if anybody else
wants to, please do.
Weiner testified that as a result of his comments at the
meeting, Vice President Charles Peasha told him that his
wife felt very strongly about the matter and wanted to file
charges against Berg for her misconduct, ‘‘but was really un-
certain as to what provisions of the constitution to go by,
what the procedures were, or even how to draft charges.’’
Weiner offered to help, and subsequently ‘‘drafted up, in
handwriting, just a draft of possible charges,’’ and sent them
to Charles Peasha to give to his wife. However, Weiner
never had any direct communication with Emelyn Peasha.
As a result of Weiner’s comments, internal union charges
were filed against Berg by Emelyn Peasha, who is a carrier
at the Lake Street Station, an assistant union steward, and
Charles Peasha’s wife. Emelyn Peasha testified as follows re-
garding her reasons for bringing the charges against Berg:
I was upset at what had gone on through the years
and this was basically after hearing testimony from
Barry [Weiner] at the December membership meeting,
I felt that had been the last straw and I wanted to let
Ms. Berg know that I for one wasn’t going to stand for
her behavior any more and I wanted to do something
about it.
Emelyn Peasha testified that no one directed her to file the
charges against Berg, and that she voluntarily did so. Further,
while she may have seen something drafted by Weiner, she
was not influenced by it as she had already drafted the
charges using the Union’s constitution ‘‘and just thoughts
that I had in my head and then going through it again and
rewriting it and going through a thesaurus and looking up the
kinds of words I wanted to use.’’ Thus, Peasha was insistent
that she had no assistance in drafting the charges. Her hus-
band typed the charges for her as she had drafted them, and
she then submitted them in the form of a letter, dated Feb-
ruary 11, 1994, to Lenny Larson, president of the Respond-
ent. The charges state as follows:
Pursuant to article 10 of the Constitution for the
Government of Subordinate and Federal Branches, I
hereby prefer the following charges against Sister Bev-
erly Berg.
(1) In a written communication to Postal Supervisor
Phil Sazenski, dated September 8, 1993, Sister Berg al-
leged that, on that date, letter carriers Ron St. Clair and
Doris Gbala, both of whom were at the time and are,
as of this date, members in good standing in NALC
Branch 9, had spent 55 minutes engaged in nonproduc-
tive, nonwork-related activities. Sister Berg subse-
quently posted a copy of this written communication in
a conspicuous location at the workplace of these em-
ployees. These actions exposed Brother St. Clair and
Sister Gbala to potential adverse actions by postal man-
agement. By these acts, Sister Berg violated Article 1,
Section 5 of the NALC Constitution which provides, in
pertinent part, that: ‘‘The objects of the Association
shall be to unite fraternally all letter carriers and other
employees of the postal career service for their mutual
benefit . . . and to strive at all times to promote the
safety and welfare of every member.’’14
Emelyn Peasha testified that she was aware of materials
that Berg had distributed at stations or union meetings that
contained negative statements about the officers of the Union
and about the Union in general, and agreed that this literature
may have entered into her determination to file the charges.
She also recalled that at one membership meeting Berg at-
tempted to ‘‘bring up old business or dirty laundry and at
times people would boo her off the floor or tell her to sit
down and shut up,’’ and on this occasion Peasha found a
way, within Robert’s rules of order, to ‘‘bring that kind of
stuff to a halt.’’
On April 19, 1994, at a union meeting during which the
charges were debated, infra, Emelyn Peasha spoke up and
said that she believed that ‘‘turning in a fellow letter carrier
was the last straw.’’ Explaining what she meant by that re-
mark, she testified that Berg was ‘‘Very negative. And we’re
a union. We all stick together to do what’s best for the mem-
bership and I didn’t feel that’s what she was doing. I felt that
she was out for herself and she’ll drag down anybody along
the way that she can. That’s what my feelings were.’’
President Larson, on the receipt of Peasha’s letter, offi-
cially notified Berg of the charges against her and thereafter
appointed a three-member committee, comprised of impartial
members, to investigate the charges. A formal hearing was
conducted by the committee on March 31, 1994. Berg was
represented by a union member, Harold Myklebye. Witnesses
were administered an oath by a certified court reporter and
notary public, and a transcript of the proceeding was taken.
The transcript, consisting of 125 pages and additional attach-
ments, was made a part of the record here. Seven witnesses,
including Berg, gave testimony, and Berg had the oppor-
tunity to call witnesses on her behalf. A careful reading of
the transcript indicates that all ramifications of the matter
were explored, and that Berg was well represented and was
given the opportunity to thoroughly present her defense.
There is no contention that the hearing was other than prop-
erly conducted. Essentially, Berg asserted that in writing the
routing slip and the letter she was not attempting to subject
either St. Clair or Gbala to possible discipline, as she knew
that discipline would not be imposed on them by manage-
ment since they were among the favored carriers.
The committee issued its factual findings and summary of
the witnesses’ testimony in a report and presented this report,
which makes no recommendation as to the merits of the
charges, to the membership at a membership meeting on
April, 19, 1994.15 After the report was presented to the
1301LETTER CARRIERS (POSTAL SERVICE)
16 The day following the December 1993 general membership
meeting, Bedor posted both Berg’s letter to the Milwaukee post-
master and the routing slip on the wall at the Powderhorn Station,
along with a letter signed by Bedor which denounced Berg for ‘‘tell-
ing a Postmaster that both Ron St. Clair and Doris Gbala should be
fired!’’ Bedor’s letter goes on to say that, ‘‘There is no acceptable
excuse or reason for putting a fellow letter carrier at risk in this way,
and as far as I’m concerned, no understanding or forgiveness.’’ In
the letter, Bedor refers to Berg as a self-serving and divisive individ-
ual ‘‘who will do anything to further her own cause regardless of
the damage she might do to others.’’
17 The Respondent has about 2500 members and there were ap-
proximately 150 to 170 members in attendance at the meeting.
18 The vice president of the local in Milwaukee had brought
charges against Crowbridge for engaging in activity critical of local
officers and for forming a rival organization in contravention of the
constitution. These internal union charges were dismissed by the
NALC, and have nothing to do with the Postal Service’s attempt to
dismiss Crowbridge for misconduct.
membership, a motion was made by Joe Bedor, former in-
terim steward at the Powderhorn Station and, from 1986 to
1993, past regional administrative assistant of the NALC,
that Berg be suspended from membership for 5 years.16
The motion was debated. There were six or seven speak-
ers, and Berg was given the opportunity to present her de-
fense. During the debate, Weiner spoke, apparently at some
length, in support of the motion, and attempted to focus the
membership’s attention on the issues in question. Thus, ac-
cording to the unrebutted testimony of Larson and Weiner,
several of the speakers were critical of Berg for things she
had allegedly done in the past, and one speaker even nega-
tively mentioned Berg’s activities as a dissident and her dis-
paragement of union officers and representatives. Weiner,
when it was his turn to speak, stated that Berg’s other activi-
ties that were critical of the Union or of the union officers
and representatives should be disregarded, and that such ac-
tivity was not the issue, as ‘‘politics . . . is part of the terri-
tory.’’ Weiner told the membership that ‘‘the issue really
was whether on not [Berg] ratted out two fellow employees,
two fellow Union members, and if so, did that action violate
the section of the constitution that Emelyn Peasha charged
her with violating.’’ After the debate on the issue a vote was
taken, and Berg was overwhelmingly found guilty of the
charges.17
As noted above, the membership voted to suspend Berg
for 5 years. However, on appeal, in a lengthy letter dated
July 13, 1994, explaining its reasons for upholding the sus-
pension, the NALC committee on appeals concluded as fol-
lows:
The Committee wishes to strongly condemn Berg’s
conduct. Under the circumstances, it was clearly inap-
propriate. At the same time, the Committee finds the
five-year suspension which the Branch ordered to be
excessive. Accordingly, the Committee on Appeals de-
nies Beverly Berg’s appeal, but reduces the suspension
to one year effective from the date of this decision.
David Noble is currently a letter carrier in Washington,
D.C. For 12 years he served as an assistant to the president
at NALC headquarters, and was indefinitely suspended from
that position in August 1993. He is currently pursuing inter-
nal union charges against NALC’s entire executive board for
embezzlement of union funds, and has filed a charge with
the Board regarding his subsequent suspension, which
charges have resulted in the issuance of a complaint. In addi-
tion, he has filed a Federal lawsuit under Section 501 of the
LMRDA claiming that NALC’s officers breached their fidu-
ciary duties to NALC’s membership by embezzling funds,
and he is spearheading a dissident group for reformation of
the NALC.
Noble testified that in early June 1993, at an NALC arbi-
tration training seminar held near Baltimore, Maryland, he
happened to be having lunch with Weiner, who was also at-
tending the seminar. There were a total of four people at the
table, according to Noble, and the matter of Andy Crow-
bridge came up. Weiner mentioned that he had been involved
in planning and drafting internal union charges against
Crowbridge.18 During the course of the conversation, accord-
ing to Noble, Weiner said that he had been waiting for 12
years to have a shot at running for national business agent,
and ‘‘that in order to insure that no real stumbling blocks
were placed in the way of his effort to be elected in the elec-
tion of 1994, that he was going to ‘squash a few dissident
bugs.’’’ Emphasizing this, Noble added, ‘‘[A]nd that is a
quote.’’ Weiner further said, according to Noble, that he had
gotten the Milwaukee local to uphold charges against
Crowbridge, and ‘‘that he was going to search for a suitable
reason or suitable pretext to have charges filed against Bev
Berg, the leading dissident in Minneapolis’s Branch 9.’’
Noble also testified on behalf of Berg during the investiga-
tory hearing on the charges against Berg that was held on
March 31, 1994. Noble testified that during lunch with
Weiner and another fellow, the subject of Andy Crowbridge
came up. Weiner acknowledged that he was involved in the
planning and drafting of the internal union charges against
Crowbridge. When asked whether the subject of ‘‘Sister Berg
and Branch 9’’ arose within the framework of that conversa-
tion, Noble testified:
Yes. Barry [Weiner] said that he was looking for an
opportunity to file charges against Bev Berg or to have
similar charges filed against Bev Berg.
On this occasion, Noble did not testify that Weiner
said he was going to insure that no stumbling blocks
(i.e., dissident members) were placed in the way of his
being elected national business agent, or that he was
going to ‘‘squash a few dissident bugs.’’
Michael Zagaros, whom Noble identified as being at the
luncheon table during the discussion, is the Respondent’s
treasurer and also occupies the position of NALC representa-
tive to the UMPS process. Zagaros testified that at no point
did Weiner make the statements attributed to him by Noble.
However, according to Zagaros, Noble invited the Branch 9
representatives to his home for a barbecue during the semi-
nar, and on this occasion there was general conversation re-
garding many union-related matters. Zagaros recalled that at
one point, Weiner said, without specifically mentioning Berg,
that, ‘‘We have our own ‘fruitcake’ in Branch 9.’’
Weiner denied that there was any discussion of
Crowbridge or Berg during the aforementioned luncheon
conversation. However, according to Weiner, at a barbecue
at Noble’s home, there was general talk of local union poli-
tics. Weiner mentioned that in Milwaukee, Crowbridge was
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
continuing to file internal charges against the union officers,
and the vice president of the local had filed charges against
Crowbridge. The conversation then turned to politics within
Branch 9. During the course of this discussion Weiner stated
that, ‘‘I think we got another fruitcake, like Crowbridge, in
Minneapolis now.’’ That, according to Weiner, was the only
reference to Berg, and Weiner testified that although it was
possible, he did not believe he mentioned Berg by name.
Weiner testified that although he was interested in running
for the position of national business agent, Berg posed no
challenge to him. Thus, he has never been certain that Berg
ever actually intended to run for that position, and believed
that by prematurely announcing her candidacy for national
business agent to management, rather than to the Union, she
was just trying to bring herself under some umbrella of pro-
tection that might flow from such candidacy. Moreover, ac-
cording to Weiner, Berg would have had to obtain the en-
dorsement of five individuals from five different locals, and
Weiner doubted that Berg, who ‘‘is exceedingly unpopular
amongst the membership in Branch 9,’’ could obtain five
signatures. Weiner testified that he has had 14 years of expo-
sure as assistant to the national business agent and has thus
had an opportunity to establish a record, and that although
there might be other viable candidates for the position, he
did not regard Berg as one of them.
C. Analysis and Conclusions
The complaint alleges that on about May 27, 1993, the Re-
spondent entered into a grievance settlement with the
Nokomis Station management that prevented employees from
distributing literature critical of the Respondent’s leadership.
The evidence shows that on that date an UMPS settlement
was agreed on between the Union and management at the
Nokomis Station which did not prevent employees from hav-
ing their union-related literature distributed, but which re-
quired that the literature first be provided to management and
that management would, in turn, give it to the steward ‘‘for
distribution or posting.’’ The settlement is vaguely worded
and was revoked before it could be tested, and it is unknown
whether a steward would have the right to determine whether
the literature should be distributed or posted, or whether the
steward would have the right to refuse to post certain mate-
rial. In any event, whatever the interpretation of this lan-
guage, it is clear that it interferes with the right of an em-
ployee to personally distribute his or her own literature at a
time he or she chooses. There appears to be no valid reason
for a steward to handle the material and thus to place this
limitation on employees’ rights to distribute literature. In-
deed, it appears that such a limitation had never been pre-
viously imposed on the employees at the Nokomis Station.
I agree with the contention of the General Counsel that this
is an impermissible restriction on employees’ Section 7
rights to engage in union activity, and is violative of Section
8(b)(1)(A) of the Act.
The Respondent argues that the restrictions were never en-
forced and were, in fact, rescinded shortly thereafter, and that
no employee, including Berg, was significantly affected;
moreover, the employees at the Nokomis Station were never
made aware of the settlement. Therefore, the Respondent
maintains that this entire matter should be considered to be
de minimis and that no remedial order is warranted. I do not
agree, particularly as this is not isolated behavior but is simi-
lar to conduct which, I find infra, is also violative of the Act.
Regarding the alleged discarding of Berg’s literature at the
Normandale Station on about July 26, 1993, I find that
Union Steward Wild, after conferring with the station man-
ager, assumed the duty to responsibly deal with material that
Berg had distributed and that management had collected
from the carriers’ cases because of its questionable content.
Having assumed such responsibility, it appears that Wild,
who believed that Berg was the person who had distributed
the letters in the first instance, had an obligation to contact
Berg and advise her of what had happened; namely, that
management had collected the letters. The fact that Wild may
have deemed the letters to be uncomplimentary and perhaps
embarrassing to Berg did not give her the right to ignore
Berg’s attempt to distribute them. I credit the testimony of
Watts, and find that Wild did not post a copy of the letter
until several days later, after her conversation with Watts. By
failing to advise Berg that management had confiscated the
letters, and by destroying the letters rather than offering to
give them back to Berg, I find that the Respondent has inter-
fered with Berg’s right to distribute literature and has vio-
lated Section 8(b)(1)(A) of the Act.
The complaint alleges that on August 3, 1993, at an offi-
cers’ and stewards’ meeting, President Larson told those in
attendance that Berg had caused the Postal Service to restrict
employees from distributing literature. Assuming arguendo
that Berg’s account of the meeting is accurate, I fail to see
that any opinion expressed by Larson regarding manage-
ment’s reaction to Berg’s activities, unaccompanied by any
restraint or coercion by the Union, is violative of the Act.
Thus, Section 8(c) of the Act provides as follows:
The expressing of any views, arguments, or opinion,
or the dissemination thereof, whether in written, print-
ed, graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no
threat of reprisal or promise of benefit.
Further, even assuming arguendo Berg’s account of the sub-
sequent alleged telephone conversation with Larson, it does
not appear that advising an employee that the Union does not
intend to file a grievance over a matter is violative of the
Act. Accordingly, I shall dismiss these allegations of the
complaint.
Regarding the complaint allegation that Union Steward
Morey, at the Powderhorn Station, removed literature that
Berg had posted on September 29, 1993, the record evidence
shows that the document in question was handwritten by
Berg in large block letters and was thus readily identifiable.
The General Counsel’s primary witness to this incident, how-
ever, was certain that he observed a typewritten document
being removed from the wall by Steward Morey. In addition,
the evidence shows that many documents posted by Berg had
been removed by unidentified persons prior to this event.
Steward Morey denied that he removed the document in
question. I conclude that the record evidence is insufficient
to warrant the finding of a violation here, and I shall dismiss
this allegation of the complaint.
Assuming arguendo the accuracy of Berg’s account of the
events at the Powderhorn Station on about March 21, 1994,
1303LETTER CARRIERS (POSTAL SERVICE)
19 See Sec. 8(c) of the Act, supra.
20 It appears unnecessary, under the circumstances, to make a
credibility determination regarding the directly conflicting testimony
of Weiner and Noble. However, it should be pointed out that, as set
forth above, Noble’s testimony at the hearing here differs from his
testimony given to the union investigatory committee. Thus, before
the union investigatory committee, Noble made no reference to
Weiner’s alleged intent to ‘‘squash a few dissident bugs.’’
21 The General Counsel points out that the routing slip was posted
by Berg at the Powderhorn Station, and yet that no charges were
filed against Berg until some 5 months later. While the Respondent
has presented no direct evidence to explain why such charges were
not filed by some interested party at an earlier date, the record evi-
dence suggests various possible reasons for this, such as, for exam-
ple, the reluctance of many individuals to have anything to do with
Berg.
22 While this is much easier said than done, and while the 150 to
170 members in attendance may have had a variety of reasons for
voting to uphold the charges, nevertheless a good-faith attempt was
made to focus the attention of the membership on the specific
charges under consideration.
23 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 403 (1983).
24 During the investigation and debate of this matter, the harm or
potential harm to the employees involved was considered at length,
and it appears that the union membership, having on-the-job experi-
ence with the vicissitudes of the workplace and the degree to which
they may be subject to discipline by management, is uniquely suited
to decide such a matter.
regarding the use of the PA system, such facts do not make
out a violation of the Act. Thus, Steward Bedor was alleg-
edly expressing his opinion that Berg’s insistence on using
the PA system for the dissemination of her views had caused
management to formulate a more restrictive rule regarding
the use of the PA system. This new rule had the effect of
limiting the long-established practice of permitting stewards
to utilize the PA system for giving periodic summaries of
union meetings to the carriers. The mere expression of opin-
ion by Bedor, without any accompanying restraint or coer-
cion, does not constitute a violation of the Act.19
Regarding Berg’s suspension from membership, the record
evidence is abundant that Berg had, for an extended period
of several years, engaged in a variety of union-related activi-
ties, including the promulgation of literature that questioned
the integrity of union officials, and that such activities caused
the leadership of the Union to regard her with suspicion and
ill feelings. Further, on November 23, 1993, Berg filed the
initial unfair labor practice charge here against the Union.
Clearly, the candid testimony of various union officers and
representatives readily discloses that they harbored signifi-
cant animus toward Berg for a variety of reasons, and were
not reluctant to openly characterize her in uncomplimentary
terms.
Nevertheless, Berg’s abundant activities did not result in
the bringing of internal union charges against her until after
Berg had written the aforementioned routing slip and letter,
which documents demonstrated that she had voluntarily re-
ported alleged work infractions to management, and had, at
least indirectly, advocated that fellow union members be dis-
charged for such infractions. Emelyn Peasha, who brought
the charges against Berg, characterized this conduct as ‘‘the
last straw,’’ and was candidly critical of all Berg’s past ac-
tivities. While it certainly appears from the sophisticated lan-
guage used in the wording of the charges that Emelyn
Peasha, wife of the vice president of the Union, had consid-
erably more help in drafting them than she admitted, never-
theless, I find that she, admittedly in response to the en-
treaties from Regional Administrative Assistant Weiner who
openly advocated the bringing of such charges,20 elected to
bring them of her own free will because, as she stated, Berg
appeared to be an individual who was ‘‘out for herself and
she’ll drag down anybody along the way that she can. That’s
what my feelings were.’’21
Following the bringing of the charges, the Union engaged
in a lengthy, formal, democratic process, during which Berg
was given the opportunity to explain to the investigative
committee and to the membership her rationale for authoring
and submitting the routing slip and the letter to management.
The matter was debated by the membership and, during such
debate, the members were urged to ignore Berg’s political
activities and confine themselves to the specific charges be-
fore them.22 There was no lack of due process, and the offi-
cers of the Union, who were particularly upset with Berg,
comprised only an insignificant minority of the voting mem-
bership.
Assuming arguendo that the General Counsel has pre-
sented a prima facie case that the bringing of charges and
the suspension of Berg was motivated by unlawful consider-
ations, I find that the Respondent has sustained its burden of
proof under Wright Line,23 and has demonstrated that the en-
tire process, culminating with Berg’s suspension from mem-
bership, resulted from her activities which were potentially
detrimental to the job security of her fellow workers,24 rather
than from political or other activities in which Berg may
have been engaged.
The General Counsel argues that the entire process of
bringing charges and subsequently suspending Berg from
membership is per se unlawful, as Berg’s activity was in fur-
therance of her right to protect herself from potential future
retaliation by management and, in addition, was undertaken
in support of the grievance of a fellow union member who
had been discharged by management. Thus, it is argued,
Berg’s alleged attempts to protect herself and a fellow union
member take precedence over the potential harm to other em-
ployees who may suffer as a result of her actions.
In Carpenters Local 22 (Graziano Construction), 195
NLRB 1 (1972), the Board, quoting Scofield v. NLRB, 394
U.S. 423, 429–430 (1969), states as follows:
It is by now well settled that although Section
8(b)(1)(A) ‘‘leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest’’
and ‘‘impairs no policy Congress has embedded in the
labor laws,’’ it does not permit enforcement, by fine or
expulsion, of a rule which ‘‘invades or frustrates an
overriding policy of the labor laws . . . .’’
Regarding the General Counsel’s contention that Berg may
not be suspended for attempting to protect herself from pos-
sible discipline by management, the Board, in Communica-
tions Workers Local 5975 (Western Electric), 192 NLRB 556
(1971), sustained the dismissal of a similar complaint. Thus,
the Board determined that the fining of a union member for,
in effect, attempting to protect herself from potential dis-
cipline by reporting the discovery of a liquor bottle to super-
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Scofield v. NLRB, supra.
26 Id.
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
28 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.’’
vision, and implicating others by suggesting the name of the
bottle’s owner, was not violative of Section 8(b)(1)(A) of the
Act. See also Transit Union Local 1225 (Greyhound Lines),
285 NLRB 1051, 1059–1060 (1987).
The Board has found that in the context of a grievance
process, a union may not discipline an employee for provid-
ing a statement, requested by the employer, in support of dis-
ciplinary action against a fellow employee, as such conduct
is intimately related to the grievance machinery. Oil Workers
Local 7-103 (DAP, Inc.), 269 NLRB 129 (1984). See also
Amalgamated Transit Union (Transport of New Jersey), 240
NLRB 1267 (1979).
In contrast to the factual context in the above-cited cases,
Berg’s involvement with the grievance of Crowbridge is ex-
ceedingly tenuous: she was not a witness to any incidents
that resulted in Crowbridge’s termination, her participation in
the matter was never solicited by management, and her testi-
monial letter in Crowbridge’s behalf to the Milwaukee post-
master, in which she informs on fellow employees, was a
voluntary undertaking. Thus, Berg was neither required nor
requested to become involved in the Crowbridge grievance
by either the Postal Service or the NALC; rather, she gratu-
itously involved herself in the matter. Unlike the cir-
cumstances in the cited case, I do not find that Berg’s in-
volvement with the grievance process is the type of involve-
ment that should preclude the Union’s suspension of Berg
for violating its aforementioned constitutional provision.
On the basis of the foregoing, I do not find that the Re-
spondent’s action against Berg ‘‘invades or frustrates an
overriding policy of the labor laws.’’25 Further, it is clear
that the constitutional provision which she was found to have
violated, namely, ‘‘[T]o unite fraternally all letter carriers
and other employees of the postal career service for their
mutual benefit. . . . and to strive at all times to promote the
safety and welfare of every member,’’ is a provision which
‘‘reflects a legitimate union interest.’’26 As the union mem-
bership had reasonable grounds for finding that Berg’s con-
duct was violative of her obligations as a union member, and
as the suspension of Berg is not per se unlawful as con-
tended by the General Counsel, I shall dismiss this allegation
of the complaint.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Employer, the
United States Postal Service, and this matter by virtue of
Section 1209 of the Postal Reorganization Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(b)(1)(A) of the
Act by conduct which interferes with the rights of employees
to post and distribute literature.
4. The Respondent has not violated the Act with respect
to any other matters.
THE REMEDY
Having found that the Respondent has violated the Act by
conduct which interferes with the rights of employees to post
and distribute literature, the Respondent shall be required to
cease and desist from such or related conduct and shall be
required to post an appropriate notice attached hereto as Ap-
pendix A.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Branch 9, National Association of Letter
Carriers, Minneapolis, Minnesota, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Entering into any agreement with any postal station
management which limits the right of employees to engage
in the lawful posting or distribution of union-related lit-
erature.
(b) Failing to advise employees that the literature they dis-
tributed had been confiscated by management.
(c) In any like or related manner interfering with the right
or opportunity of employees to distribute or post union-relat-
ed literature at any postal station.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices, meeting halls, and station bulletin
boards, copies of the attached notice marked ‘‘Appendix
A.’’28 Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by the Re-
spondent’s representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
EXHIBIT 1
REPORT OF COMMITTEE ON CHARGES AGAINST
SISTER BEVERLY BERG
The committee conducted a hearing on March 31, 1994,
to investigate the charges against sister Beverly Berg. The
committee heard testimony from the following witnesses:
Barry Weiner Wade Chilton
David Noble Doris Gbala
Lenny Larson Beverly Berg
Karen Schneider
Harold Myklebye acted as sister Berg’s representative.
1305LETTER CARRIERS (POSTAL SERVICE)
The committee found the following facts regarding charge
#1. A buck slip authored by sister Berg dated 9–8–93 was
placed on Acting Station Manager Phil Sazensky’s desk. A
carbon copy was posted above the timeclock at Powderhorn
Station. A carbon copy was sent to the Milwaukee Post-
master with a letter concerning letter carrier Andy
Crowbridge. A final copy was retained by sister Berg. These
facts were obtain[ed] after testimony from the witnesses
working on 9–8–93 at Powderhorn Station. Sister Berg ad-
mitted that she was the author and testimony from Wade
Chilton, Karen Schneider, and Doris Gbala confirmed the
fact that it was posted above the timeclock. A statement from
Ron St. Clair and testimony from Doris Gbala confirmed that
fact that brother St. Clair was confronted by Acting Station
Manager Phil Sazensky with the buck slip. When brother
Myklebye asked Karen Schneider, ‘‘Does that sound to you
like an attempt to get carriers in trouble?’’ She answered
‘‘Yes.’’ Wade Chilton characterized the note as, ‘‘Slan-
derous, malicious, and vicious.’’ Doris Gbala said the tone
of the note was ‘‘it’s attacking.’’ When sister Donato asked
Beverly Berg about how other carriers were interpreting her
message, she answered, ‘‘They can have any feeling they
want over how they perceive what I do. That doesn’t mean
that I don’t have a legal right to communicate whatever opin-
ion I have.’’
Barry Weiner, Lenny Larson, and David Noble all had ex-
perience in the area of discipline. The committee asked each
for their opinion regarding the possibility of discipline could
have resulted from one carrier volunteering information con-
cerning another carrier, but each had differing opinions as to
the likelihood of that discipline being sustained.
The committee found the following facts regarding charge
#2. Sister Berg admitted to being the author of the letter to
the Milwaukee postmaster concerning Andy Crowbridge’s re-
moval. Sister Berg also admitted to attaching a copy of the
previously mentioned buck slip to that letter.
Again, Barry Weiner, Lenny Larson, and David Noble
were viewed as expert witnesses in the area of discipline.
Each agreed that ‘‘delay of the mail’’ has been grounds for
discipline. The committee asked each if discipline could re-
sult from the information provided by a carrier to a higher
level of management even if management at its lower level
did not initially pursue any discipline. All agreed that higher
level management might pursue discipline even though it
was not pursued at a lower level.
In her defense sister Berg stated she was being facetious
when she suggested in the postscript that, ‘‘some removals
are in order here in Minneapolis.’’ Sister Berg also stated
that she neither intended nor believed that brother St. Clair
or sister Gbala would be subject to adverse actions by man-
agement because of her actions because in her opinion, they
are ‘‘favored’’ carriers.