Postal Service

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 426 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 26
426
United States Postal Service and American Postal
Workers Union, Local No. 380, AFL–CIO.
Cases 28–CA–19148(P), 28–CA–19149(P), and
28–CA–19327(P)
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 8, 2004, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The Respondent filed exceptions, a supporting brief, and
a reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings, find-
ings,1 and conclusions2 as modified and to adopt the rec-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 There are no exceptions to the judge’s findings that the Respondent
committed violations of Sec. 8(a)(3) of the Act by taking adverse ac-
tions, culminating in discharge, against Union Steward John Orlovsky
because of his union activities and violated Sec. 8(a)(1) by threatening
employees with reprisals because of their union activities, and by tell-
ing employees that the Respondent discharged Orlovsky because of his
union activities. We note that the judge, in discussing the adverse
action violations (II,D,2,(d), par. 10 of her decision), inadvertently
misstated the Board’s holding in Hicks Oils & Hicksgas, Inc., 293
NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991). The Board
there held that in cases where the General Counsel has made a prima
facie showing that an adverse action was motivated by the employee’s
protected activities, the respondent cannot carry its burden of persua-
sion by merely showing that it had a legitimate reason for taking the
action.
The judge found, and we agree, that the Respondent violated Sec.
8(a)(1) on September 9, 2003, and December 4, 2003, by refusing to
permit Orlovsky to speak with his union representative and on Decem-
ber 4, 2003, by failing to notify Orlovsky and his union representative
of charges prior to an investigatory interview. We reject the Respon-
dent’s contention that Orlovsky’s status as a union steward negates his
right as a union-represented employee to the assistance of a union rep-
resentative during an investigatory interview. See Consolidated
Freightways Corp., 264 NLRB 541, 542 (1982) (right to assistance of
union representative during investigatory interview applies to union
steward “regardless of his knowledge of labor law and participation in
the grievance procedure”).
In finding the violation with respect to the December 4, 2003 inci-
dent, Member Schaumber notes that the Respondent does not contest
that the collective-bargaining agreement requires it to provide notice of
charges prior to an investigatory interview.
We do not pass on the allegation that, on September 5, 2003 the Re-
spondent denied union representation to an employee during an investi-
gatory interview. Assuming arguendo that the allegation was meritori-
ommended Order as modified and set forth in full be-
low.3
We affirm the judge’s broad injunctive language, en-
joining the Respondent from “in any other manner” vio-
lating the employees’ Section 7 rights. For the reasons
set forth in our decision today in Postal Service, 345
NLRB No. 25 (2005), we do not agree with our dissent-
ing colleague’s contention that a broad order in this case
is inappropriate under Hickmott Foods, 242 NLRB 1357
(1979), or NLRB v. Express Publishing Co., 312 U.S.
426 (1941). We specifically note that shortly before the
Respondent’s refusals to provide information here, the
U.S. Court of Appeals for the Tenth Circuit had issued a
broad order against the Respondent based upon a settle-
ment agreement resolving information request violations
occurring at the Respondent’s Albuquerque facilities.
(NLRB v. USPS, Case No, 02-9587 (unpub. consent
judgment entered Jan. 8, 2003).) Although that order
was in conjunction with a settlement agreement, that fact
does not diminish the impact of the order. A court de-
cree is binding, whether it be the product of litigation or
consent. It does not lose effectiveness or significance
simply because it was entered upon consent. Similarly,
even if the conduct involved in the Tenth Circuit case
was not “severe,” the fact is that the Respondent agreed
to a broad order and the court entered it.
We also note that the Respondent here unlawfully
threatened, disciplined, and discharged a union steward
in retaliation for his union activity, including his filing of
information requests. The latter conduct is the very con-
duct which the previous order sought to remedy. We
disagree with the dissent’s implicit contention that the
Respondent’s unlawful actions were somehow mitigated
by the fact that the employee against whom the Respon-
dent discriminated was a union steward who pursued his
duties zealously. There is no evidence here that the
steward’s actions crossed the line into unprotected activ-
ity.

ous, we believe that par. 1(b) of our Order remedies such a violation.
That is, the order against the denial of the rights of union representation
would include any future total denials of representation.
3 In order to fully remedy the violations found, we modify the
judge’s recommended Order by revising pars. 1(b) and (i) and by add-
ing a new par. 2(d).
The judge’s recommended Order requires posting at all Respondent
facilities in Albuquerque. However, the Respondent’s unfair labor
practices regarding Orlovsky occurred at the Vehicle Maintenance
Facility (VMF). The Respondent’s unfair labor practices pertaining to
information requests arose at the Auxiliary Service Facility (ASF) and
the main plant. Accordingly, posting the notice at the VMF, the ASF,
and the main plant will insure that all employees who were affected by
the Respondent’s unfair labor practices will have an opportunity to read
the notice.
POSTAL SERVICE 427
We also disagree with the dissent’s assertion that the
Respondent’s unlawful actions were directed “almost
exclusively towards a single employee;” after the Re-
spondent unlawfully disciplined and discharged the
steward, the Respondent unlawfully warned the assem-
bled employees that a similar fate awaited those who
encouraged zealous union action. By these actions, the
Respondent demonstrated a proclivity to respond unlaw-
fully to the employees’ meaningful exercise of their
statutory rights. Based on these circumstances, we find
that a broad order is warranted in this case.4
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Albuquerque,
New Mexico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
because they engaged in union or protected activity.
(b) Denying an employee the rights of union represen-
tation during an investigatory interview that the em-
ployee reasonably believes may result in disciplinary
action.
(c) Refusing to permit an employee to speak with the
employee’s union representative prior to an investigatory

4 Member Schaumber dissents from the issuance of a broad cease-
and-desist order. As fully set forth in his dissenting opinion in Postal
Service, 345 NLRB No. 25 (2005), issued this same day, the Supreme
Court has made clear that broad orders must be reserved for egregious
cases in which the violations are so severe or so numerous and varied
as to truly manifest a general disregard for employees’ fundamental
employee rights. NLRB v. Express Publishing Co., 312 U.S. 426
(1941); Hickmott Foods, Inc., 242 NLRB 1357 (1979). This is not such
a case. The violations here involve conduct directed almost exclusively
towards a single employee, a steward well known for his zealous and
contentious relationship with management. While Member Schaumber
agrees that the conduct was protected, and that Respondent violated the
Act in disciplining the steward, a narrow cease-and-desist order tailored
to that conduct and coupled with the other relief ordered suffices to
remedy the violations found. The decision of the Tenth Circuit issuing
a broad order against the Respondent, relied on by the majority, does
not dictate a contrary conclusion. That broad order involved solely
information requests, which are not the type of severe unfair labor
practices for which broad orders are reserved. See Postal Service,
supra, slip op. at 5–7. Contrary to the implication of the majority, I
recognize that the court’s order is as binding as one procured after
litigation. However, the Respondent’s voluntary agreement to it is, in
my view, conduct which is inconsistent with “a general disregard for
the employees’ fundamental statutory rights.” Hickmott Foods, Inc.,
supra, 242 NLRB at 1357. As stated in my dissenting opinion in Postal
Service, supra, slip op. at 6, only “conduct that demonstrates a general
disregard for fundamental statutory rights and raises the threat of con-
tinuing and varying efforts to frustrate those rights in the future” will
justify a broad cease-and-desist order like that imposed upon the Re-
spondent by my colleagues. In sum, the circumstances present here do
not warrant a broad order restraining the Respondent from committing
“any” conceivable violation of the Act at its Albuquerque facility.
interview that the employee reasonably believes may
result in disciplinary action.
(d) Failing and refusing to inform an employee and the
employee’s union representative of the specific charges
that are to be discussed during an investigatory interview
that the employee reasonably believes may result in dis-
ciplinary action.
(e) Threatening employees that they will be discharged
for their protected or union activities.
(f) Disciplining employees because of their protected
or union activities.
(g) Discharging employees because of their protected
or union activities.
(h) Refusing to bargain collectively with the American
Postal Workers Union, Local No. 380, AFL–CIO by fail-
ing and refusing to provide requested information that is
relevant and necessary to the Union as the collective-
bargaining representative of those unit employees de-
scribed in the existing collective-bargaining agreement
and found appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
John Orlovsky 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 and privileges previously enjoyed.
(b) Make John Orlovsky whole for any loss of earnings
and any other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
discipline issued to John Orlovsky, and within 3 days
thereafter notify John Orlovsky in writing that this has
been done and that the discipline and discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Furnish the Union with the information requested
in the Union’s letters dated June 12 and August 12, 2003,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD428
to the extent that such information has not already been
provided to the Union.
(f) Within 14 days after service by the Region, post at
its Vehicle Maintenance Facility, Auxiliary Service Fa-
cility, and main plant facility in Albuquerque, New Mex-
ico, copies of the attached notice marked “Appendix.”5
Copies of the notice, on forms provided by the Regional
Director for Region 28, after being signed by the Re-
spondent’s authorized 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 employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at such closed facilities at any time since
September 5, 2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with unspecified re-
prisals because they engage in activities in support of the
American Postal Workers Union, Local No. 380, AFL–
CIO (the Union), or any other union.
WE WILL NOT deny our employees the rights of union
representation during an investigatory interview that the
employee reasonably believes may result in disciplinary
action.
WE WILL NOT deny our employees an opportunity to
consult with their union representative before participat-
ing in an investigative interview that an employee rea-
sonably believes may result in disciplinary action.
WE WILL NOT refuse to inform our employees and their
union representative of the specific charges to be dis-
cussed in an investigative interview that an employee
reasonably believes may result in disciplinary action.
WE WILL NOT threaten our employees that they will be
discharged because of their activities in support of the
Union, or any other union.
WE WILL NOT issue a letter or warning, suspend, or
otherwise discipline our employees for engaging in ac-
tivities in support of the Union.
WE WILL NOT discharge our employees for engaging in
activities in support of the Union, or any other union.
WE WILL NOT refuse or fail to provide and furnish in-
formation to the Union that is necessary and relevant to
the performance of its duties as the exclusive collective-
bargaining representative of the unit.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer
John Orlovsky 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
right or privilege previously enjoyed.
WE WILL make John Orlovsky whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to John Or-
lovsky’s unlawful discipline and discharge, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discharge and discipline will
not be used against him in any way.
WE WILL promptly furnish the Union with the informa-
tion requested in the Union’s letters dated June 12 and
August 12, 2003, to the extent that such information has
not already been provided to the Union.
POSTAL SERVICE 429
UNITED STATES POSTAL SERVICE
Liza Walker-McBride, Esq., for the General Counsel.
Kimberly Blanton, Esq. and Elizabeth A. Ramirez-
Washka, Esq., for the Respondent.
Charles Trujillo, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
The original charge in Case 28–CA–19148(P) was filed on
November 17, 2003,1 and the American Postal Workers Union,
Local No. 380, AFL–CIO (the Union), filed an amended charge
on January 9, 2004. The charges in Cases 28–CA–19149(P)
and 28–CA–19327(P) were filed by the Union respectively on
November 17, 2003, and February 23, 2004. An amended
charge in Case 28–CA–19327(P) was filed by the Union on
March 5, 2004. Based upon the allegations contained in Cases
28–CA–19148(P), 28–CA–19149(P), and 28–CA–19327(P),
the Regional Director for Region 28 of the National Labor Re-
lations Board (the Board) issued an Order Further Consolidat-
ing Cases, Second Consolidated Complaint and Notice of Hear-
ing on April 30, 2004. The consolidated complaint alleges that
the United States Postal Service (Respondent) discharged em-
ployee John Orlovsky on January 29, 2004, because of his ac-
tivities on behalf of the Union and in violation of Section
8(a)(3) of the National Labor Relations Act (the Act). The
complaint further alleges that between September 5, 2003, and
Orlovsky’s discharge on January 29, 2004, Respondent issued
the following disciplinary actions to Orlovsky because of his
activities on behalf of the Union: (1) an official discussion on
September 5, 2003; (2) factfinding meetings on September 9,
October 16, and December 4, 2003; (3) a letter of warning on
September 11, 2003; (4) a 7-day suspension on November 20,
2003; and (5) a 14-day suspension November 26, 2003. The
complaint also alleges that during a period between September
5, 2003, and the first 2 weeks of December 2003, Respondent’s
agents engaged in nine incidents of conduct that interfered
with, restrained, and coerced employees in their exercise of
rights guaranteed by Section 7 of the Act and in violation of
Section 8(a)(1) of the Act. The consolidated complaint that
issued on April 30, 2004, also alleged that Respondent has
failed and refused to provide certain information to the Union
in response to the Union’s requests for information on August
12, August 15, September 10, October 6, and November 5,
2003. By motion at trial, the General Counsel amended the
consolidated complaint to allege that Respondent delayed in
providing specific information identified in the original con-
solidated complaint.
This case was tried in Albuquerque, New Mexico, on June
21, 22, 23, and 24, 2004, at which all parties had the opportu-
nity to present testimony and documentary evidence, to exam-
ine and cross-examine witnesses, and to argue orally. The Gen-
eral Counsel and Respondent filed briefs, which I have duly
considered. On the entire record, including my observation of
the demeanor of the witnesses, and after considering the briefs

1 Unless otherwise indicated, all dates herein are 2003.
filed by the General Counsel and Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent provides postal services for the United States
and operates various facilities throughout the United States,
including the facility located in Albuquerque, New Mexico,
which is the subject of this proceeding. The Board has jurisdic-
tion of this matter pursuant to Section 1209 of the Postal Reor-
ganization Act, 39 U.S.C. § 1209. Respondent admits, and I
find and conclude, that the United States Postal Service (the
Respondent), is an employer within the jurisdiction of the
Board. Respondent admits, and I further find that the American
Postal Workers Union Local No. 380, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties’ Bargaining Relationship
In the Order Further Consolidating Cases, Second Consoli-
dated Complaint and Notice of Hearing, it is alleged:
(a) The employees of the Respondent referred to in the
collective bargaining agreement described below in para-
graph 5(b) including the Respondent’s employees em-
ployed at its Albuquerque facilities, herein called the Unit,
constitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act
and Chapter 12 of the PRA.
(b) Since in or about 1971, and at all material times,
the National Union has been the designated exclusive col-
lective-bargaining representative of the Unit and since
then the National Union has been recognized as the repre-
sentative by the Respondent. This recognition has been
embodied in successive collective-bargaining agreements,
the most recent of which is effective from November 21,
2000, through November 20, 2003 and extended by mu-
tual agreement of the parties until November 20, 2005,
herein called the Agreement.
(c) At all material times the National Union, based on
Section 9(a) of the Act and Chapter 12 of the PRA, has
been the exclusive representative of the Unit.
(d) At all material times the National Union has desig-
nated the Union as its designee for the purpose of conduct-
ing certain of its functions as the exclusive collective-
bargaining representative of the Unit, including, but not
limited to, the filing and processing of grievances.
Inasmuch as Respondent admits each allegation described
above with respect to the bargaining relationship, I find that the
Union is the collective-bargaining representative for those em-
ployees employed at Respondent’s Albuquerque facilities as
identified in the existing collective-bargaining agreement.
B. Overview
This case involves Respondent’s conduct toward Union Craft
Director John Orlovsky and the discipline issued to Orlovsky
between September 5, 2003, and the time of his discharge on
January 29, 2004. The case also includes allegations that Re-
spondent either failed to provide or delayed in providing infor-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
mation requested by the Union during the period between Au-
gust 12 and November 5, 2003.
C. The 8(a)(1) and (3) Allegations Relating to John Orlovsky
1. Background
For over 4 years, Thomas C. Smith has held the position of
manager for Respondent’s Vehicle Maintenance Facility in
Albuquerque. The Vehicle Maintenance Facility (VMF), is
responsible for the maintenance of all of Respondent’s motor
vehicles in its Albuquerque District. Michael Quintana has
worked for the VMF for 32 years and has been the VMF super-
visor for the past 2-1/2 years. Michael Quintana (Quintana),
supervises administrative clerks, stock room employees, and
approximately 17 automotive technicians. At all times relevant
to this proceeding, Mathew (Matt) Cordova was the lead auto-
motive technician. In Quintana’s absence, Cordova served as
an acting supervisor.2 Both the stock room employees and
automotive technicians are represented by the American Postal
Workers Union. In addition to president, vice president, secre-
tary, and treasurer, there are also individual directors for the
clerk craft, maintenance craft, and the motor vehicle craft.
Craft directors not only file and process grievances, but also
submit information requests to Respondent and perform other
union steward duties associated with the maintenance of a col-
lective-bargaining agreement.
John Orlovsky began his employment with Respondent in
1988 as a letter carrier. In approximately 1995 or 1996, Or-
lovsky transferred to the VMF. Prior to his discharge in Janu-
ary 2004, Orlovsky had been the motor vehicle craft director
for 2 years. Prior to September 2003, Orlovsky had never sub-
mitted a request to take worktime for union business and he had
filed only one grievance.
2. The events of September 5, 2003
A “stand-up” is a crew meeting or briefing called by man-
agement to address safety issues or other matters designated for
discussion by management. On September 4, Quintana held a
stand-up with all of the VMF employees for all shifts. Or-
lovsky testified that prior to this meeting, there was no estab-
lished policy as to how employees were to dispose of their
soiled uniforms. While some employees placed their soiled
uniforms into a hamper, other employees hung their uniforms
on a rack in the restroom or in their lockers. During the Sep-
tember 4 meeting, Quintana told employees that they were
required to either hang their uniforms in their lockers or to roll-
up their uniforms before placing them in the designated ham-
per. After Quintana distributed a copy of the new policy, he
asked employees to read over it and to sign it. During the
meeting, Orlovsky voiced his concern that rolling up the uni-
forms would take additional cleanup time at the end of an em-
ployee’s shift3 and he also complained that placing his uniform
in his locker would occupy space that he used for other per-
sonal belongings. Orlovsky also raised a concern about

2 The acting supervisory position in the VMF is also referenced as a
204B position.
3 Art. 39 of the CBA provides that vehicle maintenance employees
will be allowed 10 minutes at the end of their shift for changing clothes
and “wash-up.”
Quintana requiring the employees to sign a statement acknowl-
edging the uniform policy. Orlovsky took issue with Quintana’s
action because he perceived the policy to alter the collective-
bargaining agreement by adding duties to the 10 minutes of
designated cleanup time already provided in the contract. He
also took issue with Respondent’s requiring employees to sign
a “company-generated” document.
The following day Orlovsky drafted an information request
seeking “copies of all signed VMF policies dated September 4,
2003.” While making copies of the request in Smith’s office,
Orlovsky encountered both Quintana and Smith. Quintana testi-
fied that he had already learned from human resources that the
employees’ signed documents were not “legal” and he had been
instructed by human resources to either tear up the documents
or return them to the employees. When Quintana received
Orlovsky’s request, he was not sure whether he could give Or-
lovsky copies of other employees’ forms. When Quintana
handed a copy of the information request to Smith, Smith in-
quired as why Orlovsky had submitted such a request. Or-
lovsky explained that the requested information would be used
by the Union to determine whether there was a grievable issue.
Smith responded that such a request was childish and foolish.
Smith added that employees would suffer for his actions and
that Orlovsky was “already in trouble.” Orlovsky told Smith
that because he (Smith) had threatened him, he wanted a union
representative present. Orlovsky recalled that Smith told him
no and directed him to sit down when Orlovsky attempted to
leave the office. When Smith added that he had interrupted
him and asked for his time, Orlovsky explained that it had been
Quintana who had initiated the conversation with Smith and not
Orlovsky. After Quintana confirmed the sequence, Orlovsky
again asked to leave and was allowed to do so. Quintana de-
scribed Orlovsky’s conduct during the conversation as loud and
abusive and acknowledged that he denied Orlovsky’s request
for a union representative because the meeting was not an offi-
cial discussion nor disciplinary in nature.
After leaving Smith’s office, Orlovsky went to the shop
phone and called union officer Jeff Padilla. Orlovsky began
explaining to Padilla what had just occurred. Orlovsky testified
that while he had previously used the telephone without per-
mission, Quintana yelled over to him and told him to discon-
tinue his call because he did not have permission to use the
postal service phone. Section 8 of article 17 of the collective-
bargaining agreement provides the following:
The parties recognize that telephones are for official USPS
business. However, the Employer at the local level shall es-
tablish a policy for the use of telephones by designated Union
representatives for legitimate business related to the admini-
stration of the National Agreement, subject to sound business
judgment and practice.
Quintana testified that because the telephone in the shop is
the supervisor’s main line where all requests are received con-
cerning vehicle repairs or breakdowns, employees are required
to obtain permission to use that telephone. Quintana recalls
that when he told Orlovsky that he did not have permission to
use the telephone, Orlovsky responded that it was union busi-
ness and he had the right to use the telephone. Quintana con-
POSTAL SERVICE 431
tends that he asked Orlovsky twice to get back to work and
when he did not do so, he issued a direct order for him to do so.
Following Orlovsky’s lunchbreak, Quintana called Orlovsky
to the office. Quintana explained that the meeting constituted
an “official discussion” concerning Orlovsky’s conduct in the
earlier meeting with Smith. Quintana testified that he gave
Orlovsky the official discussion because Orlovsky was “border-
line insubordinate” during his earlier meeting with Smith and
Quintana.4 Article 16 of the collective-bargaining agreement
provides “For minor offenses by an employee, management has
a responsibility to discuss such matters with the employee.”
The contract section provides that the discussions are to be
held in private and are considered neither discipline nor griev-
able. The section further provides that while the discussions
may not be cited as “an element of prior adverse record in any
subsequent disciplinary action,” they may be, “where relevant
and timely, relied upon to establish that employees have been
made aware of their obligations and responsibilities.” Orlovsky
questioned how Quintana could conduct an “official discus-
sion” concerning something that occurred on “union time.”
Orlovsky went on to explain to Quintana that the earlier meet-
ing with Smith occurred because Smith questioned him about
his making the union request for information. Quintana re-
sponded that Orlovsky had not been on union time because he
had not been authorized to be on union time.
3. Orlovsky continues with requests for union time
and begins to file grievances
On September 8, Orlovsky submitted a written request to
Quintana for 4 hours to work on union grievances and he was
granted 1 hour at the end of his shift on September 9. On Sep-
tember 9, Orlovsky submitted another request to Quintana for 8
hours for union time to file grievances on contract issues.
Quintana denied the request stating: “Time requested seem[s]
excessive, will authorize less time based on needs of service.”
In addition to his request for 8 hours for union time, Orlovsky
also filed two grievances on September 9. In grievance MVS-
03-05, Orlovsky referenced the September 4, 2003 meeting,
alleging “management forced employees to sign VMF poli-
cies.” Orlovsky also asserted in the grievance that such action
was a clear violation of the collective-bargaining agreement
(CBA), citing a third-step decision in a prior grievance in which
there was an agreement that signing any type of form for man-
agement is optional for employees. In management’s written
response, Quintana denied the grievance and asserted that no
employees were “forced” and added, “No one but John denied
to sign the paperwork.” In grievance MVS-03-06, Orlovsky
alleged that the new uniform procedure affected the CBA con-
cerning cleanup and unilaterally changed conditions of em-
ployment.

4 Quintana acknowledged, however, that insubordination occurs
when an employee is given a direct order or instruction and the em-
ployee does not follow the order. When asked on cross-examination to
explain the nature of Orlovsky’s conduct, Quintana described him as
uncooperative and contentious. While Quintana asserted that such
conduct occurred on a daily basis, he had never previously disciplined
Orlovsky or conducted an official discussion.
4. Orlovsky’s letter of warning
Smith testified that a factfinding interview with an employee
is conducted to determine whether there is any cause or reason
to issue discipline. Normally, the supervisor prepares proposed
questions in advance of the factfinding interview. On Septem-
ber 9, Quintana conducted a factfinding interview with Or-
lovsky. Prior to the meeting, Quintana arranged for union rep-
resentative Chris Fulton to be present. When both Fulton and
Orlovsky asked Quintana for a copy of the factfinding ques-
tions prior to the meeting, Quintana initially declined. Or-
lovsky recalled however, that at some point in the meeting,
Quintana provided a copy of the questions. The written ques-
tions reflect that Orlovsky was questioned about three different
areas. The “facts” listed for discussion with Orlovsky included:
Saturday while picking up 4570’s5 from the Vans, the
B-van which had been used by you was found to be dirty
i.e. Gloves, dirty rags in the Drivers compartment, and
trash on floor.
As I was checking for Work Orders on the shop room
floor, I found your Top and Bottom Tool box unlocked.
(Unsecure Tool Inventory/Company assets.)
While closing out work orders Saturday morning, two
of your work orders were missing Account codes, and
Monday evening you turned in another S/M without the
Account Code.
Quintana testified that Lead Mechanic Matt Cordova nor-
mally checks the vans and verifies whether the toolboxes are
locked. He explained, however, that on September 6, he de-
cided that he would personally check the vans for the 4570
forms. He testified that checking Orlovsky’s toolbox then
came to mind because Orlovsky had held out a work order from
the previous day.
On September 11, Quintana issued a letter of warning to Or-
lovsky for failure to follow instructions. Specifically, the letter
reprimanded Orlovsky for: (1) failing to fully complete the
work orders, (2) failure to clean out the service van, and (3)
leaving his toolbox unlocked. Each of these infractions oc-
curred on September 5. The letter of warning also refers to the
factfinding interview with Orlovsky on September 9 and Or-
lovsky’s demeanor is described in the warning letter as uncoop-
erative and contentious.
5. Orlovsky’s additional grievances and requests
for union time
On September 11, Orlovsky submitted a request for 8 hours
for union time to file grievances. Quintana denied the request
stating: “Too vague, no specific grievance mentioned and 8
hours is too long.” The following day Orlovsky submitted a
new and more detailed request for 8 hours for union time for
September 15. Orlovsky specifically listed five incidents oc-
curring on September 5 as well as incidents occurring on Sep-
tember 10 and 11 that required time for union business. As
Quintana was away, Orlovsky gave the request to Smith. Smith

5 Quintana testified that a 4570 form is a vehicle record of utilization
form that is maintained in each of the VMF service vans showing the
date, time, employee, and mileage for each time the van is utilized.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
responded that the request would be forwarded and handled by
Quintana upon his return to work on September 17.
On September 17, Orlovsky filed grievance MVS03-08. In
the grievance, Orlovsky asserted that Respondent had violated
an established past practice by removing the TV from the em-
ployee breakroom. The corrective action sought was “Make
whole, Repair TV Immediately or replace with equivalent in
the VMF break room.” Orlovsky testified that the TV was
removed from the breakroom sometime around September 15
to 17. Orlovsky acknowledged that he had no discussion with
either Smith or Quintana about the removal of the TV prior to
filing the grievance. He contended however, that he had heard
from Cordova that Smith had stated that the TV was not going
to be repaired or returned to the breakroom because the em-
ployees did not deserve it. The grievance was denied at the
first step and management asserted not only that past practice
did not play a role but also that the TV was removed for repair.
6. Orlovsky’s accident
On September 18, Orlovsky met with Quintana for a step-
one grievance meeting for the four grievances that he filed on
September 9 and 17. Later that same day, as Orlovsky was
moving one of the vans to check the transmission fluid, he
struck the lower portion of the door as he backed out of the
facility. Orlovsky immediately reported the accident and com-
pleted an accident report at Quintana’s direction. For ap-
proximately the next week to 10 days, Orlovsky took sick
leave. Orlovsky testified that he was under a doctor’s care for
work-related stress. When he returned to work, he was in-
formed that his driving privileges for Respondent’s vehicles
were suspended pending his completion of a refresher-training
course.
7. Orlovsky’s additional grievances and requests for
time for union business
On October 2, Orlovsky filed a request for 8 hours of time
for union business to file step-two grievances. He lists the
grievance issues as “phones, TV, signing, and policies.”
Quintana denied the request, stating, “Time requested seems
very excessive. Will allow 2 hours 10/3/03 per John’s agree-
ment. 6:00–8:00 a.m.”6 On October 6, Orlovsky submitted a
request for 3 hours for union time to draft and to send step-two
grievances. Two hours of time were approved.
On October 6, Orlovsky also gave Quintana a new grievance
(MVS0309), alleging that management was contracting out
maintenance work historically performed by the motor vehicle
craft. On October 14, Orlovsky followed by requesting 3 hours
of time to file the union’s step-two response on the contracting
grievance. Quintana allowed the 3 hours to be used over 2
workdays and also confirmed that management would grant an
extension of time for the Union’s step-two response.
8. Orlovsky’s next discipline
Quintana scheduled a factfinding with Orlovsky on October
16 and Jeff Padilla was the first union representative called to
act as a representative for Orlovsky for the 10 a.m. meeting.
Quintana testified that he was only able to cover the first 10

6 Orlovsky testified that he had agreed to the 6 to 8 a.m. timeframe.
questions. He recalled that the meeting ended because Padilla
became really “abusive and vulgar and threatening.” Padilla
testified that when he arrived at the factfinding interview, he
asked for the nature of the charges and to speak with Orlovsky
in private. Padilla testified that Quintana refused his request
and told him to sit down and shut up. Padilla also recalled that
when he told Quintana that he needed a copy of the proposed
questions and an opportunity to speak with Orlovsky in private,
Quintana ordered him to leave the building. Padilla testified
that because he was ordered to leave, he was never present for
any part of the October 16 factfinding.7 Quintana’s factfinding
notes reflect that union representative Chris Fulton replaced
Jeff Padilla at approximately 11:05 a.m. Both Fulton and Or-
lovsky asked for a copy of the proposed questions. Fulton testi-
fied that despite Quintana’s providing a copy of the questions,
he did not explain the basis for the factfinding. Fulton testified
that because he and Orlovsky had not known what the factfind-
ing involved or the consequences involved, he advised Or-
lovsky to respond with “no comment” to the questions.
Quintana’s notes reflect that the questions posed to Orlovsky
during the first October 16 factfinding included the following:
You have publicly made multiple comments recently
that you were going to begin a “work slow-down” and you
were going to make management’s lives miserable. Is that
correct?
You interrupted my September 4, 2003, stand-up brief-
ing, with such comments in the presence of Tour 2 in the
swing-room. Is that correct?
Shortly thereafter, you stated to Lead Automotive
Technician Mathew Cordova, that you were going to enact
a work slow-down to which he replied “No, you are not; I
will not allow you!” Is that correct?
On Thursday, 9/18/03, did you not file a Step 1 griev-
ance with me which stated “Management stated they are
not putting said TV back in the Break-room?
Who specifically of management, made that state-
ment?
Quintana’s notes also reflect that he also asked Orlovsky
about the following: (1) excessive and loud blaring of the horn
when backing a vehicle out of the VMF bay on Thursday, Sep-
tember 11 and (2) causing anxiety/concern to Mathew Cordova
by telling Cordova that fellow employees Oney Montoya was
not in the van with him and then calling back a minute later to
clarify that Montoya was in the van. There were additional
questions on the document that were omitted or not covered
during the interview.
When Quintana asked Orlovsky about his filing of a griev-
ance, Fulton stopped the meeting. Fulton told Quintana that he
was getting into an improper area by questioning Orlovsky
about his union activities. Fulton explained to Quintana that
Orlovsky’s union activities had nothing to do with a discipli-
nary or investigative interview and the factfinding ended. Ful-
ton gave Quintana a written request for every document upon
which he was relying in the factfinding as well as a request for

7 Orlovsky recalled that Quintana ordered Padilla out of one of the
factfinding interviews but he could not recall the exact date.
POSTAL SERVICE 433
a copy of the question sheet completed by Quintana. Quintana
conferred with Smith and then Smith provided Fulton with the
same copy of the questions that had been provided at the begin-
ning of the factfinding.
Fulton testified that when he asked for the opportunity to
confer with Orlovsky, Quintana denied the request and stated
that Orlovsky was scheduled for another factfinding interview.
While Fulton was given an opportunity to confer with Orlovsky
prior to the second factfinding, Orlovsky was unable to tell him
what it might involve. Fulton testified that Quintana seemed to
be going over the same ground in the second factfinding and
asked questions that required only a “yes” or “no” answer.
Fulton finally ended the factfinding and explained that
Quintana appeared to be asking questions designed to trap Or-
lovsky into saying something that he should not say.
Quintana’s notes reflect that at 11:40 a.m., Fulton advised Or-
lovsky to not participate further in the factfinding and they left
the factfinding. Quintana’s worksheet for the second factfind-
ing reflects that “Yes” or “No” answers were requested for 7 of
the 11 proposed questions pertaining to Orlovsky’s accident on
September 18. When Fulton stopped the interview at 11:45
a.m., Quintana had covered four of the questions asking for a
“Yes” or “NO” response.
9. Orlovsky’s 7-day suspension
On November 20, Quintana gave Orlovsky a 7-day suspen-
sion. The suspension was based upon the charges of failure to
follow instructions and unacceptable conduct. Four incidents
were outlined as a basis for Orlovsky’s failure to follow in-
structions. They were described as:
On September 11, 2003, you interrupted employees in
the performance of their duties by blaring a vehicle horn
extensively while backing a vehicle out of a VMF work
bay. You have been instructed in the past to honk twice
while backing up. You failed to follow this instruction in
continuously and excessively honking the horn.
On September 18, 2003, you failed to properly respond
on your two-way radio, as instructed in the past, causing
your supervisor anxiety-concern by electing to provide
false information to him in response to his direct question
to you.
From September 17 through September 23, you had
clocked excessive repair time on work orders and you
failed to consult and receive my prior approval to exceed
the estimated repair.
On October 16, 2003, an investigative interview was
held with you. You were represented by Jeff Padilla.
Prior to me asking you any questions, your representative
requested a copy of the questions that I was going to ask
you. I told him that I would give him a copy after my in-
terview. I then proceeded to ask you the first question.
Even before I could finish the question, Jeff Padilla inter-
rupted and tried asking me a question. I informed him that
he was not to interrupt this interview with questions to me,
but rather, he was there to advise the employee. He got
upset and hollered “bull fucking shit” while slamming his
fist on the table. The investigative interview ended at this
time. Another investigative interview was held with you
on the same date but with Chris Fulton as your representa-
tive. After asking a few questions, and upon advice of the
union, you declined to answer any additional questions,
thereby concluding the interview.
The charge of unacceptable conduct was based upon the fol-
lowing:
On September 4, 2003 you publicly threatened management
to make “Your lives miserable” and advised Mathew Cor-
dova, Lead Automotive Technician, on two separate occasion,
that you were going to enact a work “slow down.” Mr. Cor-
dova responded with “No, you are not” and that he “would
not allow you to enact a “work slowdown.”
10. Orlovsky’s 14-day suspension
By letter dated November 19, 2003, Respondent mailed to
Orlovsky a notice of a 14-day suspension. The letter reflects
that the suspension was based upon the charge of “Failure to
follow instructions when you backed vehicle #4932272 into the
garage door.” Specifically, the letter charged Orlovsky with
causing damage in excess of $1526.13 when he backed out the
vehicle without checking the area and opening the garage door
for clearance. Orlovsky was also charged with failing to docu-
ment the accident damage on the preventive maintenance sheet
attached to the required work order.
11. Orlovsky’s final union activity and final factfinding
On November 26, Orlovsky submitted a written request for
information to Quintana for various reports and receipts con-
cerning the issue of contracting out work. On December 3,
Orlovsky submitted a request for 3 hours for union time for
investigation and to file a grievance. Quintana responded that
he would grant some time to Orlovsky later in the week. The
next day, Orlovsky was called to a factfinding interview.
Padilla testified that he was called as the union representative to
attend the interview with Orlovsky, Quintana, and Smith. At
the onset of the interview, Padilla asked to know the charges
and asked to receive a copy of the proposed questions. Padilla
testified that both Quintana and Smith told him they were not
going to give him a copy of the questions and he was not al-
lowed to know the charges. Padilla told Orlovsky that Respon-
dent was already in a due process violation. While he gave
Orlovsky the option of leaving, Orlovsky declined and re-
mained to answer Quintana’s questions. Respondent’s notes
reflect that Orlovsky responded to all of the proposed ques-
tions. The 15 listed questions concerned two primary incidents.
One of the incidents mentioned involved Lead Mechanic Cor-
dova’s inability to reach Orlovsky for 6 minutes on December 3
because Orlovsky left his radio in the service truck while work-
ing on another vehicle. The second incident involved a charge
that Orlovsky improperly installed push rods in one of the vehi-
cles. The questions also reflect that Quintana also accused
Orlovsky of dropping a bracket into an intake manifold on July
30 and dropping an intake bolt on November 15 that added
excessive time for a work order. In question 15 of the factfind-
ing, Quintana questions whether Orlovsky is “in fact” following
through on his public declaration of a work slowdown. Re-
spondent’s notes reflect that Orlovsky denied making such a
declaration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
12. Orlovsky’s removal
By letter dated December 16, Respondent issued a notice of
proposed removal to Orlovsky. Respondent’s letter states that
the proposed action was based upon two specific incidents of
what was described as his failure to follow instructions. Spe-
cifically, Respondent cites Cordova’s failure to reach Orlovsky
by radio for 6 minutes on December 3 and the improper instal-
lation of push rods. Additionally, the letter states that Respon-
dent considered the September 12 letter of warning as well as
the 7-day suspension on November 20 and the 14-day suspen-
sion on November 26 in arriving at the decision to remove Or-
lovsky. By letter of January 29, Respondent notified Orlovsky
of its final decision of removal.
13. Smith’s meeting with employees
after Orlovsky’s removal
Smith confirmed that approximately a week after Orlovsky
was “formally walked off the floor,” he conducted a meeting
with the VMF employees. As reflected by his written outline,
Smith compared employment to participating in a lifeboat.
Smith told employees that in a lifeboat situation, participants
have “limited alternatives of appropriate behavior available to
them.” The following excerpts8 were included as a part of
Smith’s 6-page written outline:
In ANY specific JOB, the ALTERNATIVES for
APPROPRIATE BEHAVIOR for that job are limited.
When individuals come to work for our company, they
are in fact:
Offering to restrict their selection of alternate behav-
iors to those which we are willing to pay for.
As with a group of any size, we have a miniscule num-
ber amongst us who think THEY should determine the di-
rection of the VMF. That number was reduced this past
Thursday.
A word to the wise: If you are amongst that minute
number, you would do well to:
Reconsider your ways.
If OLD ENOUGH TO PARENT CHILDREN—NEED
TO GROW UP and act as AN ADULT.
Now let me make myself very clear about what I am
about to say:
I am not “union bashing” or speaking ill of the union.
I have absolutely no problems with unions.
They have a job and purpose, just as management has
a job and purpose.
This is not about the union; rather it is about your un-
ion representative’s behavior,
It could well be about any one of you, should you so
choose self-destructive behavior.
Your Craft Director, appears to be under the erroneous
impression:
He is appointed to run the VMF, rather than perform
the work he was hired to do.
I haven’t the foggiest Notion, what role he thinks man-
agement is hired for.

8 The capitalization, underlining, and bold print are shown as appear-
ing in Smith’s notes.
In his failed attempts to deride and ridicule, whine and
complain about virtually everything, he appears to have
forgotten that we rented his behavior for technical repairs:
He climbed in our lifeboat
All he wanted to do was “dance”
It was EXPLAINED to him NUMEROUS TIMES by
MYSELF, MIKE & MATT
He could row, steer, fish, hit seagulls on the head or
catch rainwater—NOT DANCE.
He REFUSED and INSISTED ON “DANCING”
This is self-destructive behavior
It endangers everyone in the boat
Thus, it is unacceptable behavior and management
rightfully dealt with it.
Smith also told the employees that if they were “card carry-
ing” union members and did nothing to address the “selfish
way” that Orlovsky was squandering union dues and wasting
postal funds, they bore a portion of the responsibility for his
conduct. Smith talked about the grievances filed by Orlovsky
and asked: “How many would willingly take, say $60.00 out of
their pocket—use to file such triviality. Collectively–you did!
And for what?” Smith continued the meeting by describing the
ways in which he had improved their working conditions since
his arrival at the VMF in 1999. At the conclusion of the meet-
ing, Smith told employees:
When MIKE, MATT, OR JAMES directs you to:
STEER, ROW, FISH, HIT SEAGULLS on the HEAD
or CATCH RAINWATER
Do NOT, VERBALLY or by your ACTIONS say
JUST WANT TO DANCE”
It is SELF-DESTRUCTIVE BEHAVIOR.
D. Analysis and Conclusions for 8(a)(1)
and (3) Allegations
1. Alleged 8(a)(1)
a. Smith’s actions toward Orlovsky on September 5
Orlovsky testified without contradiction that Smith described
his request for information as childish and foolish and threat-
ened that employees would suffer for his actions and that Or-
lovsky was “already in trouble.” There is no dispute that Smith
denied Orlovsky’s request for a union representative during this
same conversation. As a basis for denying the request,
Quintana recalled that he told Orlovsky that they were just
talking and there was nothing official occurring. Quintana also
recalled:
And he said, well, I don’t want to be here. Then I said, well,
you know, we’re not done with you, we’re having a meeting
here.
Quintana asserted that while he told Orlovsky that the meeting
was not official or disciplinary, Orlovsky became loud and
abusive. Quintana acknowledged that at one point Orlovsky
opened the door to the office and Smith and Quintana told him
to sit down. While I found Orlovsky’s demeanor as somewhat
arrogant and his testimony to be self-serving, his testimony was
POSTAL SERVICE 435
unrebutted9 and overall credible. Accordingly, I find that Re-
spondent threatened Orlovsky with unspecified reprisals be-
cause of his activities on behalf of the Union as alleged in para-
graph 5(a)(1) of the complaint.
In NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the Su-
preme Court upheld the Board’s holding that Section 7 of the
Act protects an employee’s right to have union representation at
an investigatory interview which the employee reasonably be-
lieves might eventually result in disciplinary action. “Weingar-
ten” rights inhere in both “investigatory” and “disciplinary”
interviews. The Court also clarified that the test for determin-
ing whether an employee reasonably believes that the interview
might result in disciplinary action is measured by objective
standards under all the circumstances of the case rather than by
the employee’s subjective motivation. NLRB v. Weingarten,
Inc., supra at 257 fn. 5. While the conversation with Smith
does not fit within the framework of the traditional investiga-
tory or disciplinary interview envisioned by the Board and the
Court, there is credible evidence that Smith not only questioned
Orlovsky about his actions but also threatened Orlovsky with
reprisals because of his actions. Thus, in these circumstances,
Orlovsky could reasonably have believed that the continuation
of the conversation might result in disciplinary action. Accord-
ingly, Respondent’s failure to allow Orlovsky union representa-
tion is also violative of the Act as alleged in complaint para-
graph 5(a)(2).
b. Quintana’s actions toward Orlovsky
Orlovsky testified that Quintana not only interrupted his
telephone call to the union, he also later called him into an offi-
cial discussion concerning his conduct in the earlier meeting
with Quintana and Smith. Orlovsky testified that he had previ-
ously used the telephone without needing permission and he
also referenced a section of the contract that allows use of the
telephones by union representatives for union business subject
to sound business judgment and practice. While Quintana did
not rebut Orlovsky’s allegations with respect to the September
5 phone incident, there is not sufficient evidence to show that
Orlovsky or any other employee or union representative was
given unrestricted use of the shop telephone. Orlovsky’s asser-
tion to Quintana that he had a right to use the telephone for
union business did not give him carte blanche to ignore his
supervisor’s directive to return to work or grant him authority
to override a work directive. Accordingly, I find insufficient
evidence to support complaint allegation 5(b)(1).
Orlovsky testified that when he met with Quintana for an
“official discussion,” Quintana told him that he had been bor-

9 Counsel for Respondent argues in her brief that counsel for the
General Counsel failed to corroborate Smith’s alleged threat to Or-
lovsky on September 5. While Respondent argues that counsel for the
General Counsel did not corroborate this threat by failing to question
either Smith or Quintana about this statement on 611(c) examination, it
is Respondent’s burden to address or rebut the outstanding allegations.
Respondent failed to call Smith at any time during its case in chief and
although it called Quintana as a witness, Quintana was never ques-
tioned about this alleged threat. Accordingly, Orlovsky’s testimony
remains unrebutted with respect to Smith’s alleged threat on September
5.
derline insubordinate in the meeting with Smith and Quintana.
Orlovsky questioned how he could receive an official discus-
sion for what occurred on union time. Quintana denied that the
meeting was union time because Orlovsky had not been author-
ized for union time. Quintana acknowledges that he and Smith
discussed grievances and some of Orlovsky’s other concerns
such as the TV issue during this meeting. Quintana described
Orlovsky as getting really “hot” and “loud” and described his
conduct as “abusive.” The record reflects that Respondent uses
an official discussion as a means of putting an employee on
notice that his or her conduct is not acceptable and it also lays a
foundation for discipline to be given when the employee con-
tinues the same conduct. Based upon the overall record evi-
dence, I find that Quintana’s official discussion with Orlovsky
was based upon Orlovsky’s response to Smith and Quintana
during a meeting that was in itself violative of the Act. By con-
ducting the official discussion and through his statements made
therein, Quintana threatened Orlovsky with unspecified repri-
sals because of his actions on behalf of the Union. Accordingly,
I find merit to complaint paragraph 5(b)(2).
c. Allegations involving the September 9, October 16,
and December 4 factfinding interviews
The Board has long recognized the Supreme Court’s inten-
tion in the Weingarten decision to strike a careful balance be-
tween the right of an employer to investigate the conduct of its
employees at a personal interview, and the role to be played by
the union representative present at such an interview. South-
western Bell Telephone Co., 251 NLRB 612, 613 (1980), enf.
denied 667 F.2d 470 (5th Cir. 1980); Texaco, Inc., 251 NLRB
633, 636 (1980), enfd. 659 F.2d 124 (9th Cir. 1981). In its
decision in New Jersey Bell Telephone Co., 308 NLRB 277,
279 (1992), the Board noted: “It is clear from the Court’s deci-
sion in Weingarten, that the role of the union representative is
to provide assistance and counsel to the employee being inter-
rogated.” The Board went on to observe: “The Court specifi-
cally declared, however, that the presence of the representative
should not transform the interview into an adversary contest or
a collective-bargaining confrontation, and the exercise of the
Weingarten right must not interfere with legitimate employer
prerogatives.”
Paragraph sections 5(c), (d), and (e) allege that during the
investigatory interview on September 9, Respondent denied the
request of Orlovsky and his union representative, Chris Fulton,
to know the subject of the interview and to confer before the
interview. Quintana asserted that while there is a provision in
the supervisor’s handbook as well as in the collective-
bargaining agreement that gives an employee the right to know
the subject of the factfinding, there is no requirement to provide
a copy of the proposed questions to the Union prior to the meet-
ing. Chris Fulton testified that when he asked Quintana what
the September 9 factfinding involved, Quintana told him that he
didn’t have to tell Fulton. Fulton acknowledged however, that
Quintana gave him a copy of the proposed questions prior to
beginning the factfinding. Fulton also asserted that Quintana
denied his request to confer with Orlovsky before the factfind-
ing. While Quintana did not assert that he allowed Orlovsky
the opportunity to consult with Fulton prior to the factfinding,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD436
he maintained that he allowed Orlovsky an opportunity to speak
with Fulton two or three times during the factfinding.
Paragraph sections 5(f), (g), and (h) allege that during the in-
vestigatory interview on October 16, Respondent denied the
request of Orlovsky and Union Representative Chris Fulton to
know the subject of the interviews. Fulton testified that
Quintana again told him that he did not have to tell him the
subject of the inquiry. Fulton acknowledged, however, that
prior to the factfinding, Quintana gave him a copy of the ques-
tions and also gave him an opportunity to speak with Orlovsky.
Complaint paragraph sections 5(i), (j), and (k) allege that
during the investigatory interview on December 4, Respondent
denied the request of Orlovsky to know the subject of the inter-
view and denied Orlovsky an opportunity to confer with his
union representative, Jeff Padilla, before the interview. Padilla
testified that prior to the beginning of the factfinding, he re-
quested not only a copy of the proposed questions but also the
opportunity to speak with Orlovsky. Padilla testified that both
Quintana and Smith denied his requests. While Quintana testi-
fied that it is his practice to tell the employee the subject matter
of the factfinding and to give the employee an opportunity to
confer with his or her union representative, Quintana did not
address his procedure for this particular factfinding.
While Quintana asserted that it is his practice to tell the Un-
ion the nature of the charges prior to the investigatory inter-
view, the record does not support this assertion. Quintana’s
notes from the initial October 16 factfinding indicate that the
meeting was scheduled for 10 a.m. Quintana includes in his
notes:
I started by reading the first comment on my fact-
finding, Jeff interrupted to ask for a copy of my questions
prior to starting.
I responded that I would be happy to give him a copy
after the ff, Jeff insisted by saying that they have to know
before hand what the charges are. I again responded that
after the meeting a copy would be provided. He requested
that I make a note that I refused him a copy. I said okay.
Quintana’s notes reflect that the first line of his inquiry in-
cluded only: “This is a Fact-Finding Investigative Interview
into what I perceive may be considered insubordination and/or
sabotaging of the VMF mission; do you desire union represen-
tation?” Quintana’s notes from the September 9 meeting reflect
no introductory summary. The factfinding notes from the sec-
ond October 16 factfinding include the introductory summary
as: “This is a Fact-Finding Investigative Interview as to the
surrounding facts of a vehicle accident you were involved in on
Thursday, September 18, 2003; do you desire union representa-
tion?” The introductory remarks for the December 4 meeting
include: “This is a Fact-Finding investigative interview into
what I perceive may be considered insubordination and/or
sabotaging of the VMF mission; do you desire union represen-
tation?”
Quintana testified that it is his practice during an investiga-
tory interview to tell the union representative that he will give
the representative a copy of his questions and notes after the
interview. Quintana also asserted that he tells the representa-
tive that he is allowed to ask for time to speak to his client at
any time “just by requesting.” Quintana added that he also
explains to the representative that it is “his” investigative inter-
view and they need to let him ask his questions without inter-
ruption. While he maintains that he gave the opportunity to
consult during the course of the interviews in question, he does
not assert that he allowed an opportunity for the representative
to consult with Orlovsky prior to the interviews.
While Quintana contends that he initially told Orlovsky and
the respective union representatives of the nature of the
charges, the statements he gave imparted little information and
were vague and cryptic. With there being no real information
communicated about the nature of the charges, the prepared
questions were the only alternative source of information for
Padilla and Fulton as they tried to represent Orlovsky during
the factfinding interview. In the September 9 factfinding meet-
ing, Quintana provided a copy of the proposed questions to
Fulton prior to beginning the factfinding. He did not however,
allow Fulton an opportunity to confer with Orlovsky. During
the October 16 factfinding meeting, Quintana not only provided
a copy of the proposed questions to Fulton, but he also allowed
Fulton the opportunity to confer with Orlovsky prior to the
beginning of Fulton’s representation in the factfinding. The
record demonstrates that during the remaining factfinding in-
terviews in issue, Quintana failed to adequately inform the
Union of the charges against Orlovsky and failed to allow Or-
lovsky an opportunity to confer with the representative prior to
the beginning of the factfinding.
The Board has long held that Weingarten rights encompass
the right to prior consultation with the union representative
prior to an investigatory interview. Postal Service, 303 NLRB
463 fn. 4 (1991); Climax Molybdenum Co., 227 NLRB 1189,
1190 (1977). As the Board noted in Colgate-Palmolive Co.,
257 NLRB 130,133 (1981), “Nothing in the rationale of Wein-
garten suggests that, in its endorsement of the role of ‘knowl-
edgeable union representative’ the Supreme Court meant to put
blinders on the union representative by denying him the oppor-
tunity of learning the facts by consultation with the employee
prior to the investigatory-disciplinary interview. Knowledgea-
bly implies the very opposite. The right to representation
clearly embraces the right to prior consultation.” In a recent
case, the Board reviewed a case in which the employer was
alleged to have limited the Weingarten representative’s role to
that of a silent observer. See Barnard College, 340 NLRB 934,
936 (2003), in which the Board, citing Talstol Corp., 317
NLRB 290, 331–332 (1995), enfd. 155 F.3d 785 (6th Cir.
1998), pointed out that the union representative cannot be made
to sit silently like a mere observer. By refusing to give Or-
lovsky the opportunity to confer with his union representative
prior to the beginning of the factfinding sessions on September
9 and December 4 and by failing to inform the Orlovsky and
the union representative of the specific charges that were to be
discussed during the factfinding on December 4, Respondent
interfered with employees in the exercise of the rights guaran-
teed in Section 7 of the Act and in violation of Section 8(a)(1)
of the Act.
POSTAL SERVICE 437
d. Smith’s December meeting with employees
Within a week after Respondent removed Orlovsky from the
job, Smith held a meeting with all employees in the VMF.
Inasmuch as his notes from the meeting were admitted into
evidence, there is no dispute as to what he told employees.
During the speech, Smith talked about Orlovsky’s actions as a
craft director. He described Orlovsky as one of a miniscule
number of individuals who thought they “should determine the
direction of the VMF.” He announced: “that number was re-
duced this past Thursday.” He went on to tell the employees
that if they were among that miniscule number, they would do
well to reconsider their ways. In describing Orlovsky’s behav-
ior, he cautioned that he could also be talking about any one of
them should they choose to engage in the same behavior.
Smith’s remarks leaves no reasonable doubt that he would take
the same action with any one of them who engages in similar
conduct. Accordingly, I find that Smith threatened employees
by informing them that Respondent had discharged Orlovsky
because of his protected activities and in violation of Section
8(a)(1) of the Act.
2. The alleged Section 8(a)(3)
The General Counsel alleges that Respondent issued a series
of disciplinary actions to Orlovsky between September 5, 2003,
and January 29, 2004, because of his activities in support of the
Union. Specifically, the General Counsel alleges that the fol-
lowing actions were violative of the Act: (1) the September 5
official discussion; (2) the September 9 factfinding meeting; (3)
the September 11 letter of warning; (4) the October 16 factfind-
ing meeting; (5) the November 20 7-day suspension; (6) the
November 26 14-day suspension; (7) the December 4 factfind-
ing meeting; (8) the December 4 placement on paid administra-
tive leave; and (9) Orlovsky’s discharge on January 29, 2004.
There is thus no dispute that over a span of 3 months, Respon-
dent took eight disciplinary actions toward Orlovsky; establish-
ing the framework for Orlovsky’s ultimate discharge on Janu-
ary 29, 2004. Prior to the first disciplinary action on September
5, Orlovsky had never filed a request to take time for union
business nor had he submitted a request for information. He
had, in fact, filed only one grievance during his 2-year tenure as
craft director. Within hours of his first request for information
as a union steward, he was subjected to an official discussion.
As Orlovsky continued to file grievances as well as to submit
requests for information and requests for authorization to take
time for union business, he continued to receive discipline.
a. September 9 letter of warning
Respondent bases the September 11 letter of warning on
three infractions alleged to have occurred on September 5.
(1) Failure to properly complete work orders
When a mechanic begins a scheduled maintenance for a ve-
hicle, the mechanic receives a work order with an accompany-
ing PMI inspection work sheet. The mechanic not only initials
the sheet to confirm completion of the work, but he also in-
cludes the ERT or estimated repair time and the actual repair
time for each task for the scheduled maintenance. Quintana
testified that Orlovsky failed to include some of the code num-
bers for the work sheet that he submitted for September 5.
Employee Onecimo (Oney) Montoya testified that while there
have been occasions when he failed to include account codes
on his submitted work orders, he has never been told that he
would be subject to discipline for further omissions. Employee
Joe Villegas testified that there have been instances when he
forgot to add information to the scheduled maintenance work-
sheet. Villegas recalled that when he has done so, Quintana has
paged him to come to the office to complete the forms.
Villegas recalled that while Quintana may have “chewed him
out” for not doing it, he never disciplined Villegas or told
Villegas that he would be subject to discipline for future omis-
sions. Respondent offered no evidence of any other employees
who have been disciplined for failure to fully complete the
work orders.
(2) Failure to clean the service van
In September 2003, the VMF mechanics shared four vans
that were designated as A, B, C, and D. Typically, Cordova
used the A van. Montoya and Orlovsky normally used the B
van. Employee Tommy Burch, Villegas, and Orlovsky testified
that while it was the practice for the mechanics to clean up the
vans when they returned to the facility, they had never been
told that their failure to do so could result in discipline. Burch
testified that the van normally driven by Cordova was normally
the dirtiest van as it usually contained old rags, old antifreeze,
transmission fluid, and even broken light bulbs left in the cargo
for as much as a month. Quintana acknowledged that while
Cordova is the individual who normally checks the vans and
collects the vehicle record of utilization forms from the vans, he
decided to do so on Saturday, September 6. He testified that in
doing so, he found Orlovsky’s van to be dirty. Although
Montoya shared the B van with Orlovsky, he was not given a
factfinding or disciplined regarding the van. Rather, Montoya
testified that Quintana gave him an “official unofficial” discus-
sion about keeping the van clean. Respondent offered no evi-
dence of any other employees who have been disciplined for
failing to clean the vans.
(3) Failure to lock his toolbox
Quintana testified that on the same day that he inspected the
vans for cleanliness, he thought about checking the toolboxes.
He explained that the toolboxes came to mind because Or-
lovsky kept out a work order the previous day and Quintana
found the work order in Orlovsky’s toolbox. Quintana ac-
knowledged that prior to September 6, he had only randomly
checked to determine if mechanics were locking their tool-
boxes. Quintana asserted that he first checked Orlovsky’s tool-
box and then he checked everyone else’s to show that he was
not discriminating. Villegas testified that not only did he fail to
lock his toolbox that weekend; he had never locked it before
Orlovsky was disciplined. Villegas also testified that while he
and Cordova often left their toolboxes open, he was never dis-
ciplined for failing to lock his toolbox.
b. 7-Day Suspension
Orlovsky’s November 20 7-day suspension notice informed
him that he was suspended for three incidents involving “Fail-
ure to Follow Instructions” and one incident termed “Unaccept-
able Conduct.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD438
(1) Unacceptable conduct
The notice of suspension charges Orlovsky with publicly
threatening management to make “your lives miserable” on
September 4 and with twice telling Cordova that he was going
to enact a work “slow down.” Orlovsky denied making either
statement attributed to him. Quintana acknowledged however,
that Orlovsky’s alleged threat to make management’s lives
miserable was made in conjunction with his statement that he
intended to file grievances “right and left.” Although Quintana
alleges that Orlovsky made this threat at the September 4
standup, Respondent presented no witnesses to corroborate this
statement. Orlovsky expressly denied making any threat to
engage in a work slow down. Respondent offered no direct
evidence to the contrary. While Cordova is the only person
who allegedly heard the supposed threat to engage in a work
slow down, Respondent did not call Cordova as a witness.
(2) Repeated honking of horn
Respondent alleges that Orlovsky’s repeated honking of the
horn when backing a vehicle out of one of the work bays on
September 11 interfered with a discussion that Smith and Cor-
dova were having outside the shop. There is no dispute that
Respondent’s regulations include the provision “Only back
vehicle when no alternative is available. Sound horns and use
flashers in all backing maneuvers.” Smith testified that both
employees and contractors have been told that they are to tap
their horn only twice while backing up. He admitted however,
that he does not know if such a policy is written. Orlovsky
testified that he has never received such an instruction. Re-
spondent did not call Cordova as a witness to corroborate either
the policy or the incident as alleged.
(3) Failing to respond by radio
Respondent alleges that on September 18, Orlovsky failed to
properly respond on his two-way radio by giving his supervisor
false information and causing his supervisor anxiety/concern.
As an acting supervisor, Cordova radioed Orlovsky while Or-
lovsky was working away from the facility in the service van.
Orlovsky testified without contradiction that Cordova radioed
him and asked if he had picked up employee Montoya from
another location. Orlovsky jokingly told Cordova that he had
forgotten Montoya and would have to go back to get him. Or-
lovsky recalled that in less than a minute, he radioed Cordova
and told him that he was joking and that Montoya was actually
with him. Orlovsky’s estimate of 1 minute is corroborated by
Quintana’s prepared questions for the October 16 factfinding.
While Orlovsky did not deny his joking, Villegas and Montoya
testified that such joking on the radio is not uncommon by ei-
ther employees or management. Additionally, I note that Cor-
dova was never presented as a witness to provide any additional
information concerning the alleged “anxiety/concern” caused
by the 1-minute joke.
(4) Failure to consult and receive authority to
exceed estimated repair time
Quintana testified that he reviewed Orlovsky’s work order
for the week of September 17 and found that Orlovsky had not
received authorization prior to exceeding repair time on certain
line items. On cross-examination, however, Quintana admitted
that on at least one of the work orders, some of the work shown
to require excessive time was, in fact, performed by employee
James Jeffries and not Orlovsky. No disciplinary action was
taken against Jeffries. Orlovsky testified that he had never
previously been required to consult his supervisor prior to ex-
ceeding the estimated repair time on a work order. He ex-
plained that the mechanics had only been told that if they ex-
ceeded the estimated repair time, they were to simply include
that information in the remarks section of the form and bring it
to management’s attention. Montoya testified that if he ex-
ceeds the estimated time for a particular function, he documents
the additional time in the comments section of the form. He
denied that management has ever instructed him to get supervi-
sory approval before exceeding the estimated repair time.
There is no record evidence that any other employee has been
disciplined for failing to obtain preapproval for exceeding the
estimated repair time. Additionally, Respondent submitted no
work orders reflecting such prior supervisory authority.
c. 14-day suspension
On November 19, Respondent gave Orlovsky a 14-day sus-
pension for his accident on September 18. In the suspension
notice, Respondent charges Orlovsky with backing the vehicle
out of the VMF work bay without checking the area and open-
ing the garage door for clearance and causing $1526.13 in dam-
ages. Respondent also charges Orlovsky with failing to fully
complete the PMI sheet attached to the work order for the vehi-
cle in question. As counsel for the General Counsel points out
in her brief, there is no dispute that Orlovsky is responsible for
the accident in question. Orlovsky testified without contradic-
tion however, that employee Greg Jefferson had a similar acci-
dent within 2 months of his accident. Orlovsky testified that
while his driving privileges were suspended for a period of
time, Jefferson continued to drive a service van performing
repairs both at the facility and away. There is no record evi-
dence that Respondent disciplined Jefferson or any other em-
ployee for the conduct for which Orlovsky received his 14-day
suspension. Quintana testified that while he considered that
Orlovsky had been involved in prior automobile accidents, his
previous driving record was only a minor part of why he was
disciplined. Quintana explained that Orlovsky’s work perform-
ance and his attitude contributed a large part to why he was
disciplined.
d. Discharge
By letter dated December 16, Respondent notified Orlovsky
of its intent to discharge Orlovsky. The proposed discharge was
based upon two incidents.
Respondent alleges that on December 3, Orlovsky failed to
respond on his two-way radio within 6 minutes after Acting
Supervisor Cordova attempted to contact him. Orlovsky testi-
fied that he left the two-way radio in the service van while he
was underneath the vehicle making repairs. When a supervisor
at the facility where he was working informed him that Cor-
dova was trying to reach him, Orlovsky immediately returned
the call. Respondent contends that because Orlovsky initially
failed to respond to the call, Cordova had to call three stations
before locating him. Counsel for Respondent points out in her
brief that Orlovsky admitted that standard operating policy
POSTAL SERVICE 439
dictates that he was to have the radio within reach at all times.
Villegas testified however, that there have been occasions when
he has not responded immediately to a two-way radio commu-
nication from his supervisor. He recalled that there have been
times when he has left his radio in the van rather than taking it
underneath a vehicle and there have been other times when
poor reception prevented his receiving a call. Villegas recalled
that as much as 6 or 7 years ago, he informed management
during a standup that he was not going to take the radio with
him when working underneath a vehicle. Villegas testified
without contradiction that he has never been reprimanded for
his failure to immediately respond to a two-way radio commu-
nication.
Respondent also based Orlovsky’s discharge on an error in
the reinsertion of push rods for a Chevy Lumina undergoing
maintenance. Quintana testified that Orlovsky was responsible
for this error that resulted in damage of approximately $1400.
The work order for this particular vehicle reflects that Orlovsky
worked on the vehicle on November 18 and that Edwin Uroc, a
mechanic with much less experience, worked on the vehicle on
November 19. In reviewing the work order for this vehicle,
Villegas testified that the work description reflects that both
Orlovsky and Uroc performed the reassembly work. By look-
ing at the work order, he could not determine at what point the
push rods were reinserted. Villegas explained that he had been
surprised to learn that Uroc was assigned to work on this engine
because Uroc was not familiar with that kind of V-6 engine and
he recalled that Uroc’s asking for help while working on this
engine. Villegas also recalled that heard the engine malfunc-
tioning when Uroc cranked the engine.
Orlovsky denied that he erroneously inserted the push rods.
Quintana acknowledged that while Uroc performed over 6
hours on the reassembly, he had seen no need to conduct a fact-
finding with Uroc. Villegas also recalled that approximately 6
months prior to the hearing, Cordova had a similar problem
with the push rods of a vehicle on which he was working and
there was damage to the vehicle. Respondent presented no
evidence to show that either Cordova or any other employee
was disciplined for any similar incident.
By conducting the investigatory interview on September 9,
Respondent began a series of disciplinary actions that ulti-
mately led to Orlovsky’s discharge on January 29, 2004. After
September 9, Respondent conducted two additional investiga-
tory interviews and issued a letter of warning followed by a 7-
day suspension and 14-day suspension. Later Orlovsky was
placed on administrative leave on December 4 and then termi-
nated on January 29. In assessing the legality of Respondent’s
discipline of Orlovsky, it must first be determined whether
General Counsel has established that a motivating factor in
Respondent’s discipline was Orlovsky’s union or protected
activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I find
that for each disciplinary action10 beginning with the September

10 While Respondent asserts that an official discussion is not a part
of the disciplinary process, its occurrence lays the groundwork for later
discipline to occur. Accordingly, Orlovsky’s official discussion on
September 5 was also discriminatorily motivated.
9 investigatory interview and concluding with the January 29,
2004 discharge, the General Counsel has established a prima
facie showing of discrimination against Orlovsky because of
his union and protected activity.
Under the Wright Line analysis, the General Counsel must
prove not only that Respondent was aware of Orlovsky’s union
or protected activity, but also that animus was a “substantial
and motivating factor” in Respondent’s decision to take adverse
action against Orlovsky. See Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). Inferences of animus and discriminatory
motivation may be justified under all of the circumstances of
the case, even without direct evidence. Washington Nursing
Home, Inc., 321 NLRB 366, 375 (1966). Discriminatory moti-
vation may reasonably be inferred from such factors as incon-
sistencies between the proffered reason for the discipline; dis-
parate treatment of certain employees with similar work records
or offenses; an employer’s deviation from past practices, and
proximity in time between the employees’ union activities and
their discharge. W. F. Bolin v. NLRB, 70 F.3d 863, 871 (6th
Cir. 1995).
The Board has long held that where adverse action occurs
shortly after an employee has engaged in protected activity, an
inference of unlawful motive is raised. McLendon Electrical
Services, 340 NLRB 613, 613 fn. 6 (2003); LaGloria Oil, 337
NLRB 1120 (2002), enfd. 71 Fed Appx. 441 (5th Cir. 2003). I
find it significant that Orlovsky received an official discussion
on the very same day that he made his first request for informa-
tion as a union craft director. As he continued to file griev-
ances and to submit requests for time to perform union duties,
he continued to be the target of investigative interviews and
was ultimately taken through each step of the disciplinary proc-
ess leading to, and including discharge. While Orlovsky had
been employed with Respondent for 14 years, there was no
evidence of prior discipline. He had filed no requests for in-
formation or requests for time to perform union duties prior to
September 5 and he had filed only one grievance. All of the
three incidents upon which Respondent based Orlovsky’s Sep-
tember 9 letter of warning occurred on September 5; the day the
he submitted his first request for information. Employees
Montoya and Villegas testified that they had engaged in similar
conduct without discipline. While there is no dispute that
Montoya shared the same van with Orlovsky, he received only
an “official unofficial” discussion about the cleanliness of the
van rather than the discipline imposed upon Orlovsky.
Although the indirect evidence of animus toward Orlovsky is
substantial, the record is also replete with considerable direct
evidence of animus. When Smith initially learned that Or-
lovsky had submitted a request for information, Smith told him
that such a request was childish and foolish. Crediting the un-
disputed testimony of Orlovsky, I also find that Smith unlaw-
fully threatened Orlovsky that his actions would result in ad-
verse consequences. The record reflects that from that day
forward, Respondent took every opportunity to ensure the suc-
cess of Smith’s prediction. The most revealing direct evidence
of animus is also undisputed. Approximately a week after Re-
spondent placed Orlovsky on administrative leave, Smith held a
meeting with all of the VMF employees. Using an analogy of a
lifeboat, Smith described Orlovsky's actions in his capacity as a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD440
union representative as disruptive. Smith stated that a minis-
cule number of employees think they should determine the
direction of the VMF and then he proudly stated, “that number
was reduced this past Thursday.” Smith not only described
Orlovsky’s behavior as craft director as “self-destructive behav-
ior,” but he also added: “It could well be about any one of you,
should you choose self-destructive behavior.” Smith refer-
enced back to his stand-up on September 4 that led to Or-
lovsky’s first request for information and argued why he had
required employees to sign the notice concerning disposition of
soiled uniforms. Smith also talked with employees about some
of the issues that Orlovsky raised as a union representative. He
described Orlovsky’s grievances as “triviality.” It is abun-
dantly clear from Smith’s remarks in that meeting that he har-
bored significant animus toward Orlovsky for his actions as a
union representative. His veiled threat that he would treat other
employees accordingly if any of them also chose to “rock the
boat” could reasonably have had a chilling effect on their own
union activity.
While the timing alone of Orlovsky’s discipline is substantial
in supporting a showing of animus, Smith’s comments on Sep-
tember 5, as well as his statements to employees following
Orlovsky’s termination more than amply demonstrate that all of
the discipline administered to Orlovsky was motivated by ani-
mus. It is clear from the entire record, including the testimony
of both Smith and Quintana, that the motivating factor for Or-
lovsky’s discipline and discharge was his activity as a craft
director. Inasmuch as such activity is clearly concerted activity
and protected by the Act, it has long been established that dis-
cipline for such conduct is violative of the Act. Public Service
Co. of Oklahoma, 314 NLRB 1197, 1199 (1994).
Once the General Counsel makes an initial showing suffi-
cient to support an inference that the alleged discriminatee’s
protected conduct was a “motivating factor” in the employer’s
decision, the burden shifts to the employer to demonstrate that
the same action would have taken place even in the absence of
protected activity. American Gardens Management Co., 338
NLRB 644, 645 (2002). Under Wright Line, an employer can-
not carry its burden of persuasion by merely showing that the
action would have taken place even without the protected activ-
ity. Hicks Oils & Hicksgas, Inc., 293 NLRB 84, 85 (1989),
enfd. 942 F.2d 1140 (7th Cir. 1991).
In the instant case, there is no record evidence to show that
Respondent has ever treated another employee in the same
manner. Orlovsky was allegedly given the September 9 letter
of warning because he failed to complete a form, lock his tool-
box, and leave a shared van clean. He allegedly received the 7-
day suspension for: (1) repeatedly honking a horn when back-
ing a vehicle, (2) engaging in a 1-minute joke with Acting Su-
pervisor Cordova, (3) failing to obtain preauthorization to ex-
ceed estimated repair time, and (4) allegedly threatening that he
would make management’s lives miserable and enact a work
“slowdown.” Orlovsky’s 14-day suspension was allegedly
given because of his damage to a vehicle on September 18.
Respondent based Orlovsky’s discharge upon his failure to
return his supervisor’s call within 6 minutes and his alleged
incorrect installation of push rods on a vehicle. There is no
dispute that Orlovsky damaged the vehicle on September 18,
failed to return Cordova’s call within 6 minutes, or engaged in
a 1-minute joke with Cordova. Additionally, Orlovsky does not
deny that he failed to complete a form or that he failed to lock
his toolbox. He credibly denies that he incorrectly installed the
push rods or that he made any threat to enact a slowdown or to
make management’s lives miserable.
The fact that Orlovsky does not dispute some of the actions
for which he was disciplined does not lend any credibility to
Respondent’s alleged reasons for discipline. Respondent has
not demonstrated that it would have disciplined Orlovsky for
these same actions even in the absence of his protected activity.
There is no record evidence that Respondent has disciplined
any other employees for these same alleged infractions. Em-
ployees testified that either they or other employees have en-
gaged in the same or similar conduct without incident.
I find the reasons given for all of the discipline issued to Or-
lovsky, were not in fact relied upon, but were pretexts for Re-
spondent’s taking action against Orlovsky as an outspoken
union representative. In her brief, counsel for Respondent as-
serts that Respondent has demonstrated that Quintana would
have disciplined Orlovsky regardless of his union activity. The
record does not support such a finding. There is clearly no
obligation on the Board to accept at face value the reason ad-
vanced by an employer for its adverse action against an em-
ployee. Toll Mfg. Co., 341 NLRB 832, 837 (2004). Addition-
ally, it has been found that “the concurrent existence of an oth-
erwise valid reason for the discharge of an employee does not
preclude a factual determination that his discharge was dis-
criminatory if it appears from a preponderance of the evidence,
and the reasonable inferences drawn there from, that the dis-
charge was in fact motivated by the employer’s opposition to
the employee’s union activities.” NLRB v. Buitoni Foods
Corp., 298 F.2d 169, 174 (3d Cir. 1962).
The record reflects that prior to September 4, 2003, Orlovsky
had been an otherwise acceptable employee. While Quintana
testified that Orlovsky had a history of being disagreeable and
disruptive in the workplace, there is no evidence that such con-
ducted resulted in official discussions, investigatory interviews,
or discipline. It was only when Orlovsky began to submit re-
quests for information and requests for time for union business,
as well as to file grievances as a craft director that Respondent
initiated disciplinary action. Orlovsky’s demeanor as well as
the undisputed record evidence reflects that Orlovsky probably
did not attempt to endear himself to management. As Quintana
described Orlovsky’s behavior in testimony, his frustration and
exasperation with Orlovsky was apparent. Smith’s speech to
employees in December reflected that he perceived Orlovsky as
obstreperous and selfish. While Orlovsky may not have been
an ideal or even pleasing employee, the protection of the Act
does not allow Respondent to substitute “good” reasons for
“real” reasons when the purpose of the discharge is to retaliate
for his protected activities. See Hugh H. Wilson Corp. v.
NLRB, 414 F.2d 1345 (3d Cir. 1969). I find that all of the al-
leged mistakes and infractions that were attributed to Orlovsky,
even if true, were pretextual reasons for all of the discipline
issued to him. In summary, I find and conclude that the real
motivation for his discipline was Respondent’s retaliation for
Orlovsky’s rigorous union activity that began on September 4.
POSTAL SERVICE 441
Accordingly, I find that Respondent discriminatorily disci-
plined and discharged Orlovsky in violation of Section 8(a)(3)
and (1) of the Act.
E. The Union’s Requests for Information
Charles Trujillo is employed at Respondent’s main post of-
fice facility in Albuquerque and has been clerk craft director for
12 years. As clerk craft director, Trujillo oversees the griev-
ance procedure in operations involving those clerk craft em-
ployees in every Albuquerque station as well as the plant and
VMF facilities. As a part of filing and processing grievances,
Trujillo also files requests for information with Respondent.
Through the complaint and the complaint amendments, the
General Counsel alleges that Respondent either failed to pro-
vide or delayed in providing for information in response to
certain requests filed by the Union through Trujillo in August,
September, October, and November 2003.
On November 20, 2001, Plant Manager Eric Martinez11 dis-
tributed a letter of instruction to all EAS employees concerning
the procedures that he wanted them to follow when they re-
ceived an information request. The first line of the letter pro-
vides: “Both the Clerk and Mail Handlers General Presidents
have agreed that union stewards at the Plant, ASF, and AMF
will submit all requests for information directly to a supervisor.
This agreement by both parties is intended to eliminate the
ongoing problems that both sides have experienced with re-
quests for information. Both parties agree that stewards will no
longer leave these requests in supervisor holdouts, or otherwise
on the work room floor.” “The procedure required the supervi-
sor receiving the request to return a signed and dated copy of
the request to the Union steward. The procedure also required
the receiving supervisor to enter the identifying information on
a Request for Information log and to provide the information
within 5 calendar days of the request.” Union President Gene
Gabaldon responded to the proposed procedure in writing and
added only two additional provisions:
Upon receipt of the request form, the supervisor shall
provide the information at the time requested when it is
readily available. The supervisor shall annotate on the re-
quest form the information provided and both parties shall
initial. Information not readily available will be sent to the
Union via certified mail.
Nothing here shall waive any rights the Union may
have to obtain information under the parties’ Collective
Bargaining Agreement or under the National Labor Rela-
tions Act, as amended.
As Labor Relations Specialist Karen Wheeler (herein
Wheeler) testified, there was no indication that Gabaldon dis-
agreed with the requirement that stewards hand the information
request directly to the supervisor. Respondent submitted into
evidence Wheeler’s request for information log for 2003.
1. The Union’s August 12, 2003 information request
On August 12, 2003, Trujillo filed a request for information
seeking “copies of all weekly work schedules for all Pay Loca-

11 Martinez is now the postmaster for the city of Dallas. Paul Nistler
holds the position of plant manager.
tions, all Tours at the ASF Facility. (Weekly work schedules)
P/L 537, 538, 539, 518, 527, 528, and 529.” Trujillo also re-
quested copies of “each OTDL” for the same pay locations for
“Pay Periods 17, 18, 19 weeks 1 and 2.” Trujillo testified that
he requested this information to determine if there was an over-
time violation for the Albuquerque Auxiliary Service Facility,
also identified as the ASF facility. Trujillo recalled that he
submitted the request to Wheeler as well as to ASF Manager
Nathaniel Baines. On August 28, Baines approved the request.
Trujillo testified that as of the date of the hearing, he had re-
ceived the requested documents for only four of the pay loca-
tions and for only 1 week of the pay periods that he had re-
quested. He also testified that because he had not received all
of the requested information, he had not been able to complete
his grievance investigation and the matter was still pending.
Trujillo recalled that during second-step grievance meetings in
November or December, he mentioned to Wheeler that he had
not received the information. She responded that she was hav-
ing difficulty obtaining the material.
Wheeler’s Request for Information log reflects that the in-
formation in response to Trujillo’s August 12 request was pro-
vided on September 25. Wheeler testified that she entered this
date on the log based upon the assurances from Baines that the
information had been provided. Respondent also submitted
into evidence Respondent’s copy of the August 12 request that
contained Wheeler’s approval of the request and dated August
20. Wheeler testified that she was never informed by the Union
in a followup letter or in later discussions that not all of the
information had been provided in response to the request.
Baines testified that when he receives a request for informa-
tion, it is usually his practice to give the request to Ruth Vas-
saw, a clerk in his office. If he doesn’t have time to collect the
information, he asks Vassaw to do so. While individual super-
visors may also respond to the requests for information, Vas-
saw is primarily the individual who prepares the responses.
Baines explained that while requested information was previ-
ously provided to the Union by regular mail, Respondent now
sends the information by certified mail as well. He acknowl-
edged however, that he was not sure whether the information
was sent by certified mail as well as regular mail in August or
September. Baines testified that the Union never informed him
that it had not received all of the information.
As a clerk in the ASF, Ruth Vassaw is a member of the un-
ion. A part of her job involves collecting information covered
by union requests for information. Vassaw testified that she
was responsible for collecting the information covered in the
Union’s August 12 request for information. She testified that at
the time of the request, it was her practice to send the informa-
tion to the Union by inter-office envelope. She acknowledged
however, that she had no specific recollection of gathering this
material.
2. The Union’s August 15, 2003 information request
By letter dated August 15, 2003, Trujillo informed Wheeler
that the Union had submitted five previous requests for infor-
mation on various dates in April and May and no information
had been provided thus far. Trujillo attached a copy of a May 6
request seeking:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD442
Copies of all information pertaining employee: Sanchez,
Gabe concerning the payment of Hours in which he was de-
nied access to the work room floor. Phil Benavidez (ASDO)
(Arsenio Lovato) AMDO. Also can you contact Ms. Sue
Jacobi concerning the same issue dealing with employee:
Sanchez, Gabe (union wants copies of all c.c. mail to Ms.
Jacobi. Also to request from Ms. Jacobi to have employee:
Sanchez, Gabe Medical Records returned from the OWCP in
Dallas for Review and Copies. (Under the Freedom of In-
formation Act (ASM) Manual 352.4 Availability of Records.
Trujillo’s August 15 letter also included a June 12 request seek-
ing copies of information concerning SPBS Tour-3:
Copies of the Weekly work schedules for P/L 377 (PP 1 thru
PP13) 2003 Copies of employee Moves reports for Codes
(52) (53) same times as requested PP. 1 thru PP. 13 clerk craft
employees only. Copy of the Work Hour Comparison Re-
ports for SPBS Tour-3. Copy of the Mail Volume reports for
last (6) Months SPBS T-3.
Trujillo testified that he submitted the May 6 request for in-
formation to determine why Sanchez was sent home for un-
availability of work. He submitted the June 12 request to de-
termine whether there had been an overtime violation in rela-
tion to the usage of a small parcel distributor machine also
identified as an SPBS machine on tour 3. Trujillo initially testi-
fied that he never received the information included in either
the May 6 or the June 12 requests. On cross-examination how-
ever, he admitted that James Billings provided to him e-mails
that were sent to supervisors concerning this matter. Trujillo
maintained however, that not all of the information that he re-
quested was provided and that he continued to inform Wheeler
of the insufficiency of the information during on-going griev-
ance meetings.
While James Phillip Billings is currently detailed as an Al-
buquerque district security control officer, he previously served
as a supervisor in distribution operations. Billings recalled
receiving the Union’s May 6 request for information. He ex-
plained that it had been referred to him for a response because
it involved one of the employees under his supervision. Bill-
ings confirmed that in response to the request, he downloaded
the e-mail messages concerning employee Sanchez and what
was being done to get pay for the employee. Respondent sub-
mitted into evidence the request for information log showing
receipt of Trujillo’s request on May 7. The log also reflects
that the information was provided to Trujillo on May 14.
Billings testified that while Trujillo’s May 6 letter also in-
cluded a request for Sanchez’ medical records, these records
were not provided to Trujillo. Billings recalled that he ex-
plained to Trujillo that the requested information could not be
provided because it was confidential and was maintained by the
Occupational Health Nurse. Billings confirmed that the Union
never provided a release of information for the medical records.
3. The Union’s September 10, 2003 request for information
On September 10, 2003, Trujillo submitted a request for in-
formation seeking documents and/or witnesses for pay periods
19 and 20 weeks 1 & 2:
Copies of weekly work schedules, Overtime desire list,
for all Pay locations and all Tours at the ASF facility. (P/L
537, 538, 539, 518, 527, 528, and 529.)
Copies of Employee Moves reports for all above Pay
locations for operations (Code 52 (52) (53) (43) for Clerk-
Craft employees only.)
List of all employee clocked into operation codes
(324-38) (134-38)(137-37) (120-38) For the week of Sep-
tember 7th thru September 12 2003. Also I would like a
copy of the list compiled by Acting SDO Bridgett Ro-
mero, in which all employees whom were re-
quired/mandated to perform overtime at the ASF facility
for the week of September 7th thru September 12. (or
similar list of employees not assigned to the ASF Facility.)
Copy of c.c. message from Paul Nistler as per Man-
agement mandating all non-OTDL employees to 10 hours
and OTDL employees 12 hours at the ASF Facility.
Trujillo faxed a copy of the request to Nathaniel Baines,
manager of the ASF, and to Peter Baca, Rose Griego, and
Charles Maggart who were the supervisors on all three different
tours of duty at the ASF. Trujillo testified that he also sent a
copy of the request to Wheeler. Trujillo requested the informa-
tion because he perceived there to be an ongoing violation for
staffing and overtime distribution at the ASF facility. Trujillo
testified that in January 2004, he received the requested infor-
mation for pay locations 537, 538, 539, and 518 and he re-
ceived the copy of the c.c. message from Paul Nistler.12 He
testified that the remainder of the information in the September
10 request described above had not been provided as of the
time of the hearing. He testified that the information was re-
quested because of grievances that he had filed concerning
overtime as well as crossing crafts the use of casual employees.
Baines testified that he received Trujillo’s request and he di-
rected the request to Vassaw to collect the requested informa-
tion. Baines asserted that to the best of his knowledge all of the
requested information was provided to the Union. Vassaw
testified that she assisted Baines in responding to this request
for information. Respondent provided the worksheet com-
pleted by Vassaw in response to the Union’s September 10
request. The document contains Vassaw’s notation that the
material was provided to Trujillo on September 28.
4. The Union’s request for information on October 6, 2003
On October 6, Trujillo faxed a request for information to
Wheeler, Baines, Maggart, and Paul Nistler, senior plant man-
ager for the Albuquerque plant. Trujillo explained that the
faxes were sent shortly after 2 a.m. because those were the
normal hours that he worked at that time. Trujillo testified that
he requested the information described in the October 6 letter
because he believed that because an SPBS machine had been
moved from the main plant to the ASF facility, there might
have been overtime or crossing craft violations. In his request,
Trujillo requested eight categories of information contained in
various lists, forms, and notes. Trujillo testified that the re-

12 Counsel for the General Counsel moved to amend the complaint at
trial to allege that from September 10, 2003, until January 22, 2004,
Respondent delayed in producing the requested information.
POSTAL SERVICE 443
quested information related to three different grievances.
While two of the three grievances have since been resolved,
none of the information included in the October 6 request was
ever provided to him.
Vassaw testified that she assisted Baines in responding to
this request and she specifically recalled gathering the informa-
tion. As was her practice, she would have sent the information
to the Union using an inner-office envelope.
On October 6, Trujillo also faxed a second request for infor-
mation to Maggart, Baines, and Wheeler. In the request,
Trujillo requested:
Copies of the Last Quarter (and Current Quarter) of
Section OTDL list for the ASF Facility. Pay Locations
527, 536, 537, (July thru Sept.) (Oct thru Dec) all for
2003.
List lf All employees whom are called in on a Daily
Basis for Overtime on the SPBS, Priority Mail and Mail
Prep. Operations. (Rotations) List of Equitable distribu-
tions. From Pay Periods 20 week to current. (Please also
provide on going until end of year 2003).
Trujillo testified that he requested the information for his in-
vestigation of a grievance related to an overtime violation. At
trial, Trujillo testified that he had never received any of the
information contained in this second October 6 request. He
admitted that while he had not checked later to determine if the
faxes were received, he also left hard copies of the requests in
the recipients’ in-boxes or in the inter-office mail. At the be-
ginning of the trial, counsel for the General Counsel amended
the complaint to allege that from October 6, 2003, to January
14, 2004, Respondent delayed in providing:
Copies of the last Quarter (and Current Quarter) of Section
OTDL list for the ASF Facility. Pay Locations 527, 536, 537
(July thru Sept.) (Oct thru Dec.) all for 2003.
Vassaw testified that she was sure that she had assisted
Baines in responding to this second October 6 request for in-
formation. She recalls that, as with other information requests,
she would have pulled the information and sent it to the Union
by inner-office envelope.
5. The Union’s request for information on November 5, 2003
On November 5, Trujillo faxed a copy of an information re-
quest to Jim Mercurio, manager of labor relations, as well as to
Wheeler. He acknowledged however, that he did not have a fax
receipt verifying the fax. He testified that he might have also
left a hard copy of the request in Wheeler’s internal holdout or
mailbox. In the written request, Trujillo requested the identity
of the individual or individuals who were assigned to conduct
an investigation in the Union’s allegation of a hostile work
environment by a named supervisor in the plant. Trujillo also
requested a copy of the latest policy concerning sexual harass-
ment as well as information concerning the anticipated time
period for the investigation and copies lf all protocols for deal-
ing with such a complaint. Trujillo testified that he requested
this information for his investigation of a possible grievance
concerning this matter. Trujillo asserted that he never received
the requested information.
The November 5 written request included the caption: “Sec-
ond Request Submitted to Karen Wheeler.” Wheeler testified
that while she had received the first request from Trujillo, she
had not received this November 5 second request. She recalled
that the first request went to Plant Manager Paul Nistler and he
entered it in his request for information log. She explained that
if she ever receives a request identified as a second request, she
always double checks to verify the response to the first request.
Wheeler testified that when Trujillo made the first request for
this information, she prepared a letter the same day and gave it
to Nistler to provide to the Union. Respondent submitted into
evidence a copy of the October 18 letter that was signed by
Nistler and addressed to Trujillo.
F. Analysis and Conclusions Concerning 8(a)(5) Allegations
In a recent decision involving the United States Postal Ser-
vice,13 the Board quoted from Asarco, Inc., 316 NLRB 636,
643 (1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996):
“In dealing with a certified or recognized collective bargaining
representative, one of the things which employers must do, on
request, is to provide information that is needed by a bargaining
representative for the proper performance of its duties. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967).” In its decision, the
Board also referenced its earlier decision in Ellsworth Sheet
Metal, 224 NLRB 1506 (1976), in pointing out that following
an appropriate request, and limited only by considerations of
relevancy, the obligation arises from the operation of the Act
itself.
Repeatedly Trujillo testified that his information requests
were for purposes of determining whether to file a grievance or
for purposes of investigating and processing grievances previ-
ously filed. It has been clearly established that processing
grievances is a union’s responsibility and an employer must
provide information requested by the union for the purposes of
handling grievances. TRW, Inc., 202 NLRB 729 (1973). In
NLRB v. Acme Industrial Co., 385 U.S. 432 (1965), the Su-
preme Court held that the duty to bargain in good faith imposes
an obligation to furnish relevant information needed by a union
for effective administration of an existing contract and the
processing of grievances. The Court also concluded that this
duty includes information requested having “potential” rele-
vance to the union’s evaluation of the prudence in pursuing a
contractual claim against an employer. Id at 436–438. It is
also noteworthy that the Board, in determining that information
is producible, does not pass on the merits of the grievance un-
derlying a request nor is it necessary for the union to demon-
strate that the basis for the request is accurate, nonhearsay, or
even ultimately reliable. W. L. Molding Co., 272 NLRB 1239,
1240 (1984). Inasmuch as the Board uses a liberal discovery-
type standard in evaluating requests for information, it is appar-
ent that Trujillo’s requests were arguably relevant and neces-
sary for the processing of union grievances and the administra-
tion of the collective-bargaining agreement. Brazos Electric
Power Cooperative, Inc., 241 NLRB 1016, 1018 (1979). Addi-
tionally, Respondent makes no assertion that any information
was denied the Union because of relevancy or privilege. The

13 Postal Service, 337 NLRB 820, 822 (2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD444
only information that Respondent acknowledges that it know-
ingly failed to produce related to a question of confidentiality.
Trujillo asserts that Respondent either failed to provide in-
formation in response to his requests or delayed in providing
the requested information. Respondent denies this allegation
and contends that the information was provided. Respondent
presented a number of individuals who testified concerning the
procedure for responding to the Union’s requests for informa-
tion and who asserted that the information was gathered and
provided to the Union in accordance with those procedures.
Overall, I found these witnesses credible. There was no evi-
dence of any intent or conspiracy to withhold information from
the Union. It is ironic that the crux of the problem in providing
the information may in part be due to the inefficiency of the
inner-office mail delivery system utilized by the parties and the
failure of the parties to adhere to the 2001 procedure that was
instituted to prevent problems in responding to information
requests.
There is no dispute that Plant Manager Martinez promul-
gated a procedure for both parties to follow for union requests
for information. Wheeler testified without contradiction that
Union President Gabaldon reviewed the proposed procedure
and added two additional requirements. If followed, the final
procedure mandated that the union steward give the request for
information directly to the supervisor and not simply leave it
for the supervisor to find. The supervisor providing the infor-
mation to the union was required to mail the information to the
Union via certified mail. The record reflects however, that
neither party followed the procedure as proposed. Trujillo
either faxed his requests to supervisors or left the requests in
their holdout or inboxes. There is no dispute that during the
time period in issue, Respondent sent the information to the
Union in the inner-office mail rather than by certified mail.
1. The August 12 request for information
There is no dispute that Respondent received and approved
Trujillo’s August 12 request for information. Based upon as-
surances from Baines that the information was provided to the
Union, Wheeler noted on her request for information log that
the information was provided to the Union on September 25.
Both Baines and Vassaw confirmed that this information would
have been collected and forwarded to the Union using the nor-
mal procedures. While Vassaw testified that she assisted
Baines in collecting this material, she had no specific recollec-
tion of gathering this material. Vassaw also explained that she
might not always be the only person who is gathering informa-
tion in response to a request for information. If a supervisor is
also collecting information, the information may be sent to the
Union without her involvement. There is no dispute that part of
the information in the August 12 request was provided to the
Union. While I have no reason to believe that Respondent
intended to deny the remaining information to the Union or was
even aware that it had not been provided, there is simply insuf-
ficient evidence to show that all of the requested information
was provided.
2. August 15 request for information
In his August 15 request for information, Trujillo attached
his previous requests for information on May 6 and June 12.
Billings testified that the information in response to the May 6
request was provided to Trujillo on May 14. Initially Trujillo
testified that none of the information requested in the May 6
letter was provided to the Union. On cross-examination, how-
ever, he acknowledged that Billings provided a portion of the
information. Billings testified without contradiction that he
explained to Trujillo that the medical records included in this
request for information could not be provided without the em-
ployee’s release of information. Billings also testified without
contradiction that no release was ever provided by the Union
for these requested medical records. Counsel for the General
Counsel argues in her brief that Respondent did not offer to
bargain or offer the Union an accommodation to address any
alleged confidentiality concerns. While the Union might be
otherwise entitled to the disclosure of the requested informa-
tion, the Supreme Court has recognized a limited exception for
information that is confidential in nature. Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). In Detroit Edison, the Court held
that an employer did not violate the statutory duty to bargain in
good faith by resisting an unconsented-to disclosure of individ-
ual employee aptitude test results to a union that was process-
ing a grievance. The Court relied on three factors: (1) the sen-
sitive nature of the information sought; (2) the minimal burden
that a requirement of employee consent would impose on the
union; and (3) the lack of evidence that the employer had fabri-
cated concern for employee confidentiality only to frustrate the
union in the discharge of its responsibilities. Id. at 319–320. In
the instant case, the request for a release from the employee in
issue was reasonable and posed no undue burden on the Union.
Thus, I find no evidence that Respondent unlawfully failed to
provide the information identified in the May 6 request for
information.
The second request for information attached to Trujillo’s
August 15 letter was a previous request for information dated
June 12. Trujillo’s copy reflects the request was approved by
management and there is a small note written on the right side
of the page. Trujillo testified that a yellow post-it note was
affixed to the original information request form and signed by
Carol Sutherland, a secretary for the tour three plant operations
in downtown Albuquerque. The note states:
Charlie, I just returned from AL tonight and found this
in my holdout. It will probably still be a few days before
Darlene can get the info to you.
Carol S.
Neither Baines nor Wheeler testified concerning the produc-
tion of information in response to the June 12 request.
Wheeler’s information request log reflects receipt of a request
from Trujillo on August 25 concerning “2240’s Gabe Sanchez.”
The log reflects that the information was sent to the Union on
August 28. While the May 6 request dealt with employee Gabe
Sanchez, there was no evidence to show that Respondent also
provided information in response to the June 12 request.
3. September 10 request for information
Trujillo testified that in January, he received a portion of the
information identified in the September 10 request for informa-
tion. He denied that he ever received the remainder of the in-
POSTAL SERVICE 445
formation. Vassaw credibly testified that she assisted Baines in
collecting the information for this specific information request.
She also provided a copy of her worksheet showing that she
sent the information to Trujillo on September 28. While the
record provides no explanation for the basis for such a discrep-
ancy in the parties’ recall, I found Vassaw to be a very credible
witness. As evidenced above, she freely admitted that she had
no specific recollection of gathering the information for the
August 12 request. By contrast, she recalled that she assisted
with the collection of documents for the September 10 request
and she recorded it as sent to the Union on September 28. I
credit her testimony that she provided the requested informa-
tion. Again, it is ironic that the issue may be the flawed effi-
ciency of Respondent’s inner-office mail service. While the
information may have be lost or erroneously redirected, there is
not sufficient evidence to show that Respondent failed or re-
fused to provide this information as requested.14
4. October 6 requests for information
There were two separate requests for information dated Oc-
tober 6. The complaint was amended at trial to allege that Re-
spondent delayed in providing a portion of the information
contained in one of the October 6 requests for information.
Vassaw testified that she assisted Baines in collecting the in-
formation for both requests. As was her practice, she sent the
information to the Union via the inner-office mail system. I
find Vassaw to be a credible witness and there is nothing in the
record to support a finding that she negligently, intentionally, or
deliberately failed to provide the information as requested.
5. November 5 request for information
Wheeler testified that while she never received a copy of
Trujillo’s November 5 request for information, she was aware
of the information requested. She credibly testified that when
Trujillo first requested this same information, it was provided.
Without contradiction, she testified that in response to the first
request, she prepared the October 18 letter to Trujillo. Thus,
the record reflects that Respondent provided the information as
requested.
6. Summary
As discussed above, Respondent has not sufficiently demon-
strated that it fully provided all of the information in response
to the Union’s August 12 request or the June 12 request for
information that was later incorporated into the August 15 re-
quest. Contrastly, there is not sufficient evidence to show that
Respondent failed to provide the information referenced in the
Union’s requests of May 6, September 10, October 6, and No-
vember 5. There is no dispute that Respondent was not follow-
ing the procedures outlined in Martinez’ November 2001 direc-
tive. There is also no evidence that the Union was following
the procedure or that the Union protested Respondent’s failure
to provide the information by certified mail as required by the

14 In reaching this conclusion, I am not relying upon the administra-
tive law judge decision cited and attached to Respondent’s brief.
Counsel asserts that it is offered in support of her assertion that “[t]he
Board stated that once management has given information it believes
satisfied the union’s request, the burden shifts to the union to complain
regarding any inadequacies.”
2001 letter. In essence, the evidence shows that both parties
were using a less than reliable method of making requests and
responding to requests. While the ineffectiveness of the deliv-
ery system for information production may have prevented or
delayed the Union’s receipt of the information, it did not consti-
tute a failure to provide or a delay in providing the information
requested in the Union’s requests of May 6, September 10,
October 6, and November 5 in violation of Section 8(a)(5) of
the Act. I do, however, find that Respondent’s failure to pro-
vide all of the information requested on August 12 and the in-
formation requested on June 12 and incorporated into the later
August 15 request to constitute a violation of Section 8(a)(5) of
the Act.
G. The Necessity for Special Remedies
Counsel for the General Counsel asserts that a broad posting
requirement is clearly appropriate in this case. She also argues
that site-specific notice postings used in prior cases have not
been successful in eliminating Respondent’s recidivist pattern
of refusing to provide information requested by collective-
bargaining representatives of its employees. Counsel further
argues that because Respondent has been shown to have a pro-
clivity to violate the Act and because its unlawful conduct with
respect to Orlovsky is so egregious and widespread, Respon-
dent has demonstrated a general disregard for employees’ statu-
tory rights. The General Counsel additionally requests that the
Board include broad injunctive language in its order, prohibit-
ing the Respondent from engaging in “any other” unlawful
conduct.
In support of her request for a broad remedial order and a
district-wide posting, counsel for the General Counsel asserts
that Respondent has a long history of violating Section 8(a)(5)
and (1) of the Act by failing to provide requested relevant in-
formation at many of its locations nationwide. Specifically, she
cites the Board’s recent decisions in Postal Service, 339 NLRB
1162 (2003), and Postal Service, 337 NLRB 820 (2002), as
well as two other cases15 in which Respondent entered into a
formal settlement involving the Albuquerque facilities. Coun-
sel for the General Counsel asserts that in this formal settle-
ment, ultimately enforced by the Court of Appeals for the Tenth
Circuit, Respondent agreed that it would not refuse or fail to
provide, or delay in providing information to the Union that is
necessary and relevant to the Union’s performance of its repre-
sentational duties.
In August 2003, the Board issued its decision in Postal Ser-
vice, supra, finding that respondent failed and refused to pro-
vide relevant and necessary information in a timely manner to
the National Association of Letter Carriers, AFL–CIO. Citing
12 previous Board decisions covering a span of time between
1985 and 2002, and involving postal facilities throughout the
United States, the Board stated: “The Respondent has a history
of violating Section 8(a)(5) and (1) by failing to provide re-
quested relevant information at many of its locations over the
past two decades.” Because Respondent had shown a particular
tendency to violate Section 8(a)(5) within its Houston district

15 They are identified as Cases 28–CA–17383(P) and 28–CA–
17405(P).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD446
by failing to provide requested information, the Board found a
districtwide posting appropriate. Specifically, the Board found
that districtwide posting was necessary due to the Respondent’s
repeated violations in the district and the absence of any evi-
dence that the Respondent had taken any affirmative steps to
control its misconduct.
The Board in Hickmott Foods, 242 NLRB 1357 (1979), held
that a broad cease-and-desist order requiring a Respondent to
cease and desist from “any other manner” restraining or coerc-
ing employees in the exercise of their Section 7 rights rather
than the narrow “in this or any like manner” language should be
reserved for situations where a Respondent is shown to have a
proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard
for the employees’ fundamental statutory rights. The Board
went on to state that each case would be analyzed to determine
the nature and extent of the violations committed by a respon-
dent so that the Board might tailor an appropriate order. Id. at
1357.
In Postal Service, above at 2, the Board also found it appro-
priate to provide broad injunctive language in their order, bar-
ring the Respondent from engaging in any other unlawful con-
duct. Because Respondent had repeatedly refused to provide
requested relevant information to the Union at many of its loca-
tions over a period of many years and because of Respondent’s
recalcitrance on this issue, a broad order was found appropriate.
In the instant case, Respondent argues that a broad order is
not required because the allegations in this case arise out of
three separate facilities, which are contained at one location;
the Albuquerque Main Post Office. Respondent argues, “This
small number of violations pales in comparison to the 12 post
offices within Albuquerque district that were not part of this
complaint.” Respondent also argues that “incidents at only
three facilities at one singular location, by a handful of employ-
ees, in the entire Albuquerque area do not rise to the level of
egregious and widespread misconduct that a broad order is
meant to remedy.”
There is no evidence of a similar pattern of violations affect-
ing other postal facilities in the Albuquerque district. The re-
cord reflects that the unfair labor practices relating to a failure
to provide requested information found herein involve requests
for information filed by Craft Director Charles Trujillo with
respect to the postal facilities within the city of Albuquerque. I
also note that the formal settlement in Cases 28–CA–17383(P)
and 28–CA–17405(P) required only a posting in three facilities
in Albuquerque. Accordingly, a notice posting limited to the
facilities within the city of Albuquerque should be sufficient to
remedy the violations and I shall not recommend a district-wide
posting. See Postal Service, 341 NLRB 655, 669 (2004).
While I do not find the necessity for a districtwide posting, I
nevertheless find the need for a broad remedial order. Not only
has the Board found Respondent to have a proclivity to violate
the Act involving the failure to provide or the delay in provid-
ing requested information, but Respondent has agreed by virtue
of a formal settlement, that it would not refuse to provide or
delay in providing requested information or in any other man-
ner interfere with its employees’ Section 7 rights. It is espe-
cially significant that the formal settlement specifically in-
volved Respondent’s actions toward its employees at the Albu-
querque facilities. Accordingly, I recommend that a broad
order issue in this matter.
CONCLUSIONS OF LAW
1. The United States Postal Service is now, and at all times
herein, has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The American Postal Workers Union, Local No. 380
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with unspecified reprisals be-
cause of their activities on behalf of the Union, Respondent
violated Section 8(a)(1) of the Act.
4. By denying John Orlovsky’s request for union representa-
tion during a discussion that he reasonably believed might re-
sult in discipline, Respondent violated Section 8(a)(1) of the
Act.
5. By refusing to permit John Orlovsky to speak with his un-
ion representative prior to an investigatory interview that he
reasonably believed would result in disciplinary action, Re-
spondent violated Section 8(a)(1) of the Act.
6. By failing to inform John Orlovsky and his union repre-
sentative of the specific charges that were to be discussed dur-
ing an investigatory interview that Orlovsky reasonably be-
lieved would result in disciplinary action, Respondent violated
Section 8(a)(1) of the Act.
7. By threatening employees that Respondent discharged
John Orlovsky because of his activities on behalf of the Union,
Respondent violated Section 8(a)(1) of the Act.
8. By requiring John Orlovsky to participate in an official
discussion on September 5, 2003, Respondent violated Section
8(a)(3) and (1) of the Act.
9. By requiring John Orlovsky to participate in factfinding
meetings on September 9, October 16, and December 4, 2003,
Respondent violated Section 8(a)(3) and (1) of the Act.
10. By issuing a letter of warning to John Orlovsky on Sep-
tember 11, 2003, Respondent violated Section 8(a)(3) and (1).
11. By issuing a 7-day suspension to John Orlovsky on No-
vember 20, 2003, Respondent violated Section 8(a)(3) and (1)
of the Act.
12. By issuing a 14-day suspension to John Orlovsky on
November 26, 2003, Respondent violated Section 8(a)(3) and
(1).
13. By placing John Orlovsky on administrative leave on
December 4, 2003, Respondent violated Section 8(a)(3) and (1)
of the Act.
14. By discharging John Orlovsky on January 29, 2003, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
15. By failing and refusing to provide the Union with all of
the information it requested on August 12 and June 12, 2003,
and resubmitted on August 15, 2003, as found herein, the in-
formation being relevant and necessary to the Union as the
collective-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) of the Act.
POSTAL SERVICE 447
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily disciplined and dis-
charged John Orlovsky, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent having failed and refused to provide the Un-
ion with all of the information it requested on August 12, 2003
and having failed and refused to provide the Union with certain
information it requested on June 12 and again on August 15, it
must promptly supply the information.
Because the Respondent has a proclivity for violating the
Act, (see, e.g., Postal Service, 339 NLRB 1162 (2003), and
because of the serious nature of the violations, I recommend
issuance of a broad Order requiring the Respondent to cease
and desist from infringing in any other manner on rights guar-
anteed employees by Section 7 of the Act. Hickmott Foods,
242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]