United States Postal Service

National Labor Relations Board - Administrative Judge Opinions

Sep 8, 2004

28-CA-019148 (N.L.R.B. Sep. 8, 2004)

JD(ATL)–46–04
Albuquerque, NM

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

UNITED STATES POSTAL SERVICE

and CASES 28-CA-19148(P)
28-CA-19149(P)
AMERICAN POSTAL WORKERS UNION, 28-CA-19327(P)
LOCAL NO. 380, AFL-CIO

Liza Walker-McBride, Esq., for the General Counsel.
Charles Trujillo for the Charging Party.
Kimberly Blanton, Esq., and Elizabeth A. Ramirez-Washka,
Esq., for Respondent.

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, 20031 and the American Postal
Workers Union, Local No. 380, AFL-CIO, herein 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 Relations Board (herein the Board)
issued an Order Further Consolidating Cases, Second Consolidated Complaint and Notice of
Hearing on April 30, 2004. The consolidated complaint alleges that the United States Postal
Service (Respondent) discharged employee John Orlovsky on January 29, 2004 because of
his activities 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
1 Unless otherwise indicated, all dates herein are 2003.

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discussion on September 5, 2003 (2) fact finding meetings on September 9, 2003, October
16, 2003, and December 4, 2003, (3) a letter of warning on September 11, 2003, (4) a seven-
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 two
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, 2003, August 15, 2003, September 10, 2003, October 6, 2003,
and November 5, 2003. By motion at trial, General Counsel amended the consolidated
complaint to allege that Respondent delayed in providing specific information identified in
the original consolidated complaint.

This case was tried in Albuquerque, New Mexico, on June 21, 22, 23, and 24, 2004,
at which all parties had the opportunity to present testimony and documentary evidence, to
examine and cross-examine witnesses, and to argue orally. General 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 filed by the
General Counsel and Respondent, I make the following:

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 jurisdiction of this matter
pursuant to Section 1209 of the Postal Reorganization Act, 39 U.S.C. Section 1209.
Respondent admits, and I find and conclude, that the United States Postal Service,
hereinafter referred to as the Respondent, is an employer within the jurisdiction of the
National Labor Relations 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 Consolidated Complaint and
Notice of Hearing, it is alleged:

(a) The employees of the Respondent referred to in the collective
bargaining agreement described below in paragraph 5(b) including the
Respondent’s employees employed at its Albuquerque facilities, herein called
the Unit, constitute a unit appropriate for the purposes of collective-

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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 collective-bargaining representative of the
Unit and since then the National Union has been recognized as the
representative 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 mutual 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 designated the Union as
its designee for the purpose of conducting 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 employees 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 Respondent either
failed to provide or delayed in providing information requested by the Union during the
period between August 12, 2003 and November 5, 2003.

C. 8(a)(1) and (3) Allegations Relating to John Orlovsky

1. Background

For over four years, Thomas C. Smith has held the position of Manager for
Respondent’s Vehicle Maintenance Facility in Albuquerque. The Vehicle Maintenance
Facility, herein 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 supervisor for the past two and a half years. Michael Quintana,
herein 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 Automotive Technician. In Quintana’s absence, Cordova served as an acting

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supervisor.2 Both the stock room employees and automotive technicians are represented by
the American Postal Workers Union. In addition to president, vice-president, secretary, 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 collective bargaining agreement.

John Orlovsky began his employment with Respondent in 1988 as a letter carrier. In
approximately 1995 or 1996, Orlovsky transferred to the VMF. Prior to his discharge in
January 2004, Orlovsky had been the Motor Vehicle Craft Director for two years. Prior to
September 2003, Orlovsky had never submitted a request to take work time 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 management 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. Orlovsky testified
that prior to this meeting, there was no established 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 September 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 hamper. 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 uniforms would take additional clean-up time at the end of an employee’s shift3 and
he also complained that placing his uniform in his locker would occupy space that he used
for other personal belongings. Orlovsky also raised a concern about Quintana requiring the
employees to sign a statement acknowledging 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 clean-up 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 testified 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 Orlovsky copies of other employees’ forms. When Quintana handed
2 The acting supervisory position in the VMF is also referenced as a 204B position.
3 Article 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.”

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a copy of the information request to Smith, Smith inquired as why Orlovsky had submitted
such a request. Orlovsky 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 described 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 official 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 permission, Quintana
yelled over to him and told him to discontinue 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 establish a policy for the use
of telephones by designated Union representatives for legitimate business
related to the administration 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 concerning 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 business and he had the right to use the telephone. Quintana contends 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 lunch break, 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 “borderline insubordinate” during his earlier
meeting with Smith and Quintana.4 Article 16 of the collective bargaining agreement
4 Quintana acknowledged, however, that insubordination occurs when an employee is given a direct
order or instruction and the employee 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.

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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 grievable. 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 discussion” concerning something that
occurred on “union time.” Orlovsky went on to explain to Quintana that the earlier meeting
with Smith occurred because Smith questioned him about his making the union request for
information. Quintana responded 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 four hours to
work on union grievances and he was granted one hour at the end of his shift on September
9. On September 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 number MVS-03-05, Orlovsky referenced the September 4, 2003 meeting,
alleging “management forced employees to sign VMF policies.” Orlovsky also asserted in
the grievance that such action was a clear violation of the collective bargaining agreement,
herein CBA, citing a third step decision in a prior grievance in which there was an
agreement that signing any type of form for management 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 number MVS-03-06, Orlovsky alleged that the new uniform procedure affected
the CBA concerning clean-up and unilaterally changed conditions of employment.

4. Orlovsky’s Letter of Warning

Smith testified that a fact-finding 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 fact-finding interview. On September 9,
Quintana conducted a fact-finding interview with Orlovsky. Prior to the meeting, Quintana
arranged for union representative Chris Fulton to be present. When both Fulton and
Orlovsky asked Quintana for a copy of the fact-finding questions prior to the meeting,
Quintana initially declined. Orlovsky recalled however, that at some point in the meeting,
Quintana provided a copy of the questions. The written questions reflect that Orlovsky was
questioned about three different areas. The “facts” listed for discussion with Orlovsky
included:

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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 normally checks the vans and
verifies whether the toolboxes are locked. He explained, however, that on September 6, he
decided 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 Orlovsky 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 occurred on September 5. The letter of warning also
refers to the fact-finding interview with Orlovsky on September 9 and Orlovsky’s demeanor
is described in the warning letter as uncooperative 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 occurring on September 5 as well as incidents occurring on September 10 and
11 that required time for union business. As Quintana was away, Orlovsky gave the request
to Smith. Smith 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 number MVS03-08. In the grievance,
Orlovsky asserted that Respondent had violated an established past practice by removing the
TV from the employee break room. 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 break room sometime around September 15 to 17. Orlovsky
acknowledged that he had no discussion with either Smith or Quintana about the removal of
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.

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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
break room because the employees 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
completed an accident report at Quintana’s direction. For approximately the next week to
ten 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 informed 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 agreement. 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 three hours to
be used over two 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 fact-finding with Orlovsky on October 16 and Jeff Padilla was
the first union representative called to act as a representative for Orlovsky for the 10:00 a.m.
meeting. Quintana testified that he was only able to cover the first ten questions. He
recalled that the meeting ended because Padilla became really “abusive and vulgar and
threatening.” Padilla testified that when he arrived at the fact-finding 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
6 Orlovsky testified that he had agreed to the 6:00 a.m. to 8:00 a.m. time frame.

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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 fact-finding.7 Quintana’s fact-finding notes reflect that union representative
Chris Fulton replaced Jeff Padilla at approximately 11:05 a.m. Both Fulton and Orlovsky
asked for a copy of the proposed questions. Fulton testified that despite Quintana’s
providing a copy of the questions, he did not explain the basis for the fact-finding. Fulton
testified that because he and Orlovsky had not known what the fact-finding involved or the
consequences involved, he advised Orlovsky to respond with “no comment” to the
questions. Quintana’s notes reflect that the questions posed to Orlovsky during the first
October 16 fact-finding 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 briefing, 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, your are not; I will not allow you!” Is that correct?

On Thursday, 9/18/03, did you not file a Step 1 grievance with me which
stated “Management stated they are not putting said TV back in the Break-
room?

Who specifically of management, made that statement?

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, September 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 grievance, 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 disciplinary or investigative interview and the fact-finding
ended. Fulton gave Quintana a written request for every document upon which he was
relying in the fact-finding as well as a request for a copy of the question sheet completed by
7 Orlovsky recalled that Quintana ordered Padilla out of one of the fact-finding interviews but he could
not recall the exact date.

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Quintana. Quintana conferred with Smith and then Smith provided Fulton with the same
copy of the questions that had been provided at the beginning of the fact-finding.

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 fact-finding
interview. While Fulton was given an opportunity to confer with Orlovsky prior to the
second fact-finding, 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 fact-finding and asked
questions that required only a “yes” or “no” answer. Fulton finally ended the fact-finding
and explained that Quintana appeared to be asking questions designed to trap Orlovsky into
saying something that he should not say. Quintana’s notes reflect that at 11:40 a.m., Fulton
advised Orlovsky to not participate further in the fact-finding and they left the fact-finding.
Quintana’s worksheet for the second fact-finding reflects that “Yes” or “No” answers were
requested for seven 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 Seven-Day Suspension

On November 20, Quintana gave Orlovsky a seven-day suspension. 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 instructions. 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 interview. I then proceeded
to ask you the first question. Even before I could finish the question, Jeff
Padilla interrupted 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

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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 representative. 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 following:

On September 4, 2003 you publicly threatened management to make “Your
lives miserable” and advised Mathew Cordova, Lead Automotive Technician,
on two separate occasion, that you were going to enact a work “slow down.”
Mr. Cordova 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 document the accident damage on the
Preventive Maintenance Sheet attached to the required work order.

11. Orlovsky’s Final Union Activity and Final Fact-Finding

On November 26, Orlovsky submitted a written request for information to Quintana
for various reports and receipts concerning 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 fact-finding 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 allowed to know the
charges. Padilla told Orlovsky that Respondent was already in a due process violation.
While he gave Orlovsky the option of leaving, Orlovsky declined and remained to answer
Quintana’s questions. Respondent’s notes reflect that Orlovsky responded to all of the
proposed questions. The fifteen listed questions concerned two primary incidents. One of
the incidents mentioned involved Lead Mechanic Cordova’s inability to reach Orlovsky for
six minutes on December 3 because Orlovsky left his radio in the service truck while
working on another vehicle. The second incident involved a charge that Orlovsky
improperly installed push rods in one of the vehicles. 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

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question 15 of the fact-finding, Quintana questions whether Orlovsky is “in fact” following
through on his public declaration of a work slowdown. Respondent’s notes reflect that
Orlovsky denied making such a declaration.

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. Specifically,
Respondent cites Cordova’s failure to reach Orlovsky by radio for six minutes on December
3 and the improper installation of push rods. Additionally, the letter states that Respondent
considered the September 12 letter of warning as well as the 7-day suspension on November
20 and the 14-day suspension on November 26 in arriving at the decision to remove
Orlovsky. 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 six-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 behaviors to those which we
are willing to pay for.

As with a group of any size, we have a miniscule number amongst us who
think THEY should determine the direction 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

8 The capitalization, underlining, and bold print are shown as appearing in Smith’s notes.

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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 union
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 management is
hired for.

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

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with it.

Smith also told the employees that if they were “card carrying” 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 meeting,
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 threatened that employees would suffer for his
actions and that Orlovsky 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 unrebutted9 and overall credible. Accordingly, I find that Respondent

Continued
9 Counsel for Respondent argues in her brief that Counsel for the General Counsel failed to corroborate
Smith’s alleged threat to Orlovsky on September 5. While Respondent argues that Counsel for the General

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_________________________
threatened Orlovsky with unspecified reprisals because of his activities on behalf of the
Union as alleged in paragraph 5(a)(1) of the complaint.

In NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme 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 believes might
eventually result in disciplinary action. “Weingarten” rights inhere in both “investigatory”
and “disciplinary” interviews. The Court also clarified that the test for determining 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., at 257, fn. 5. While the
conversation with Smith does not fit within the framework of the traditional investigatory 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.
Accordingly, Respondent’s failure to allow Orlovsky union representation is also violative
of the Act as alleged in complaint paragraph 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 official discussion concerning his conduct in the earlier
meeting with Quintana and Smith. Orlovsky testified that he had previously 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 assertion 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 borderline insubordinate in the meeting with Smith and
Quintana. Orlovsky questioned how he could receive an official discussion for what
occurred on union time. Quintana denied that the meeting was union time because Orlovsky
had not been authorized for union time. Quintana acknowledges that he and Smith
discussed grievances and some of Orlovsky’s other concerns such as the TV issue during
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 questioned about this alleged threat. Accordingly, Orlovsky’s testimony remains unrebutted with
respect to Smith’s alleged threat on September 5.

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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 continues the same conduct.
Based upon the overall record evidence, 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 conducting the official discussion and through his
statements made therein, Quintana threatened Orlovsky with unspecified reprisals 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 Fact-finding
Interviews

The Board has long recognized the Supreme Court’s intention in the Weingarten
decision to strike a careful balance between 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. Southwestern 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
Company, 308 NLRB 277, 279 (1992), the Board noted: “It is clear from the Court’s
decision in Weingarten, that the role of the union representative is to provide assistance and
counsel to the employee being interrogated.” The Board went on to observe: “The Court
specifically 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 fact-finding, there is no requirement to provide a copy of the proposed questions to the
Union prior to the meeting. Chris Fulton testified that when he asked Quintana what the
September 9 fact-finding 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 fact-finding. Fulton also asserted that Quintana denied his request to
confer with Orlovsky before the fact-finding. While Quintana did not assert that he allowed
Orlovsky the opportunity to consult with Fulton prior to the fact-finding, he maintained that
he allowed Orlovsky an opportunity to speak with Fulton two or three times during the fact-
finding.

Paragraph sections 5(f), (g), and (h) allege that during the investigatory 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,

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that prior to the fact-finding, Quintana gave him a copy of the questions and also gave him
an opportunity to speak with Orlovsky.

Complaint paragraph section 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 interview 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 fact-
finding, he requested 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 testified that it is his practice to tell the employee the subject matter of the
fact-finding and to give the employee an opportunity to confer with his or her union
representative, Quintana did not address his procedure for this particular fact-finding.

While Quintana asserted that it is his practice to tell the union the nature of the
charges prior to the investigatory interview, the record does not support this assertion.
Quintana’s notes from the initial October 16 fact-finding indicate that the meeting was
scheduled for 10:00 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 included 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 representation?” Quintana’s
notes from the September 9 meeting reflect no introductory summary. The fact-finding
notes from the second October 16 fact-finding 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 representation?”
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 representation?”

Quintana testified that it is his practice during an investigatory 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 representative 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 interview and they need to
let him ask his questions without interruption. 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.

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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 fact-finding interview. In the September 9th fact-finding meeting, Quintana
provided a copy of the proposed questions to Fulton prior to beginning the fact-finding. He
did not however, allow Fulton an opportunity to confer with Orlovsky. During the October
16th fact-finding 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 fact-finding. The record demonstrates that
during the remaining fact-finding interviews in issue, Quintana failed to adequately inform
the Union of the charges against Orlovsky and failed to allow Orlovsky an opportunity to
confer with the representative prior to the beginning of the fact-finding.

The Board has long held that Weingarten rights encompass the right to prior
consultation with the union representative prior to an investigatory interview. United States
Postal Service, 303 NLRB 463, fn. 4(1991); Climax Molybdenum Company, 227 NLRB
1189, 1190 (1977). As the Board noted in Colgate-Palmolive Company, 257 NLRB
130,133 (1981), “Nothing in the rationale of Weingarten suggests that, in its endorsement of
the role of ‘knowledgeable union representative’ the Supreme Court meant to put blinders
on the union representative by denying him the opportunity of learning the facts by
consultation with the employee prior to the investigatory-disciplinary interview.
Knowledgeably 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 No. 106, slip op. at 3 (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 Orlovsky the opportunity to confer with his union
representative prior to the beginning of the fact-finding 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 fact-finding on December 4,
Respondent interfered with employees in the exercise of the rights guaranteed in Section 7
of the Act and in violation of Section 8(a)(1) of the Act.

(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 reduced this past Thursday.” He went on to tell
the employees that if they were among that miniscule number, they would do well to

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reconsider their ways. In describing Orlovsky’s behavior, 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. Alleged 8(a)(3)

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, General Counsel alleges that the following actions were
violative of the Act: (1) the September 5 official discussion; (2) the September 9 fact-finding
meeting; (3) the September 11 letter of warning; (4) the October 16 fact-finding meeting; (5)
the November 20 seven-day suspension; (6) the November 26 fourteen-day suspension; (7)
the December 4 fact- finding meeting; (8) the December 4 placement on paid administrative
leave; and (9) Orlovsky’s discharge on January 29, 2004. There is thus no dispute that over
a span of three months, Respondent took 8 disciplinary actions toward Orlovsky;
establishing the framework for Orlovsky’s ultimate discharge on January 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 two-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 vehicle, the mechanic
receives a work order with an accompanying PMI inspection work sheet. The mechanic not
only initials the sheet to confirm completion of the work, but he also includes 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 numbers 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 worksheet. 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

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omissions. 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 anti-freeze, 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 fact-finding or disciplined regarding the van. Rather, Montoya testified that
Quintana gave him an “official unofficial” discussion about keeping the van clean.
Respondent offered no evidence 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 Orlovsky kept out a work order the previous day and Quintana found the work order
in Orlovsky’s toolbox. Quintana acknowledged that prior to September 6, he had only
randomly checked to determine if mechanics were locking their toolboxes. Quintana
asserted that he first checked Orlovsky’s toolbox 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 disciplined
for failing to lock his toolbox.

b. Seven-Day Suspension

Orlovsky’s November 20th seven-day suspension notice informed him that he was
suspended for three incidents involving “Failure to Follow Instructions” and one incident
termed “Unacceptable Conduct.”

(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

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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 Cordova 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. Respondent 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 Orlovsky 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. Orlovsky 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
one minute is corroborated by Quintana’s prepared questions for the October 16 fact-
finding. While Orlovsky did not deny his joking, Villegas and Montoya testified that such
joking on the radio is not uncommon by either employees or management. Additionally, I
note that Cordova was never presented as a witness to provide any additional information
concerning the alleged “anxiety/concern” caused by the one-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 exceeding the estimated repair time on a work order. He
explained that the mechanics had only been told that if they exceeded the estimated repair

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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 exceeds 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 supervisory approval
before exceeding the estimated repair time. There is no record evidence that any other
employee has been disciplined for failing to obtain pre-approval 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 suspension 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 opening the garage door for
clearance and causing $1526.13 in damages. Respondent also charges Orlovsky with failing
to fully complete the PMI sheet attached to the Work Order for the vehicle 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 contradiction however,
that employee Greg Jefferson had a similar accident within two 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 evidence that Respondent disciplined Jefferson or any other employee 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 performance 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 six minutes after acting supervisor Cordova attempted to contact him.
Orlovsky testified 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 Cordova 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 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 communication 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 six or seven years ago, he informed

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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 communication.

Respondent also based Orlovsky’s discharge on an error in the re-insertion 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
looking at the work order, he could not determine at what point the push rods were re-
inserted. 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 malfunctioning when Uroc cranked the engine.

Orlovsky denied that he erroneously inserted the push rods. Quintana acknowledged
that while Uroc performed over six hours on the reassembly, he had seen no need to conduct
a fact-finding with Uroc. Villegas also recalled that approximately six 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 ultimately led to Orlovsky’s discharge on January 29,
2004. After September 9, Respondent conducted two additional investigatory 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 terminated 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 1093 (1980). I find that for each disciplinary action10 beginning with the September
9 investigatory interview and concluding with the January 29, 2004 discharge, 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 at fn. 12 (1996). Inferences of animus
and discriminatory motivation may be justified under all of the circumstances of the case,
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.

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even without direct evidence. Washington Nursing Home Inc., 321 NLRB 366, 375 (1966).
Discriminatory motivation may reasonably be inferred from such factors as inconsistencies
between the proffered reason for the discipline; disparate 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 No. 73, slip op. at fn. 6 (2003); LaGloria Oil, 337 NLRB
No. 177 (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
information as a union craft director. As he continued to file grievances 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 process 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 information 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 September
9th 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 Orlovsky had submitted a request for information, Smith told him that such a request
was childish and foolish. Crediting the undisputed testimony of Orlovsky, I also find that
Smith unlawfully threatened Orlovsky that his actions would result in adverse consequences.
The record reflects that from that day forward, Respondent took every opportunity to ensure
the success of Smith’s prediction. The most revealing direct evidence of animus is also
undisputed. Approximately a week after Respondent 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 union representative as disruptive.
Smith stated that a miniscule 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
behavior,” but he also added: “It could well be about any one of you, should you choose
self-destructive behavior.” Smith referenced back to his stand-up on September 4 that led to
Orlovsky’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 abundantly clear from Smith’s remarks in that
meeting that he harbored significant animus toward Orlovsky for his actions as a union
representative. His veiled threat that he would treat other employees accordingly if any of

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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 September 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 animus. It is clear from the entire
record, including the testimony of both Smith and Quintana, that the motivating factor for
Orlovsky’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 discipline for such conduct is violative of the Act. Public Service Company of
Oklahoma, 314 NLRB 1197, 1199 (1994).

Once the General Counsel makes an initial showing sufficient 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 No. 76, slip op. at 2 (2002). Under Wright Line, an employer
cannot carry its burden of persuasion by merely showing that the action would have taken
place even without the protected activity. 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 toolbox, and leave a shared
van clean. He allegedly received the 7-day suspension for: (1) repeatedly honking a horn
when backing a vehicle, (2) engaging in a one-minute joke with acting supervisor Cordova,
(3) failing to obtain pre-authorization to exceed 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 six 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 six minutes, or engaged in a one-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.
Employees testified that either they or other employees have engaged in the same or similar
conduct without incident.

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I find the reasons given for all of the discipline issued to Orlovsky, were not in fact
relied upon, but were pretexts for Respondent’s taking action against Orlovsky as an
outspoken union representative. In her brief, counsel for Respondent asserts 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 advanced by an employer for its
adverse action against an employee. Toll Manufacturing Company, 341 NLRB No. 115, slip
op. at 5 (2004). Additionally, it has been found that “the concurrent existence of an
otherwise valid reason for the discharge of an employee does not preclude a factual
determination that his discharge was discriminatory if it appears from a preponderance of
the evidence, and the reasonable inferences drawn there from, that the discharge 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 (3rd 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 conducted
resulted in official discussions, investigatory interviews, or discipline. It was only when
Orlovsky began to submit requests 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 (3rd Cir. 1969). I find that all
of the alleged 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. Accordingly, I find that Respondent
discriminatorily disciplined and discharged Orlovsky in violation of Section 8(a)(3) and (1)
of the Act.

D. The Union’s Requests for Information

Charles Trujillo is employed at Respondent’s main post office facility in
Albuquerque and has been clerk craft director for 12 years. As clerk craft director, Trujillo
oversees the grievance procedure in operations involving those clerk craft employees 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, General Counsel alleges that
Respondent either failed to provide or delayed in providing for information in response to
certain requests filed by the Union through Trujillo in August, September, October, and
November 2003.

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On November 20, 2001 Plant Manager Eric Martinez11 distributed a letter of
instruction to all EAS employees concerning the procedures that he wanted them to follow
when they received an information request. The first line of the letter provides: “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 requests 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 supervisor 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 request 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 Relations Act, as amended.

As Labor Relations Specialist Karen Wheeler (herein Wheeler) testified, there was
no indication that Gabaldon disagreed 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.

3. 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 Locations, all Tours at the ASF Facility. (Weekly work
schedules) P/L 537, 538, 539, 518, 527, 528, and 529.” Trujillo also requested 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 overtime
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 received the requested documents for only four of the pay
locations and for only one week of the pay periods that he had requested. He also testified
11 Martinez is now the Postmaster for the city of Dallas. Paul Nistler holds the position of Plant
Manager.

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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 having difficulty
obtaining the material.

Wheeler’s Request for Information log reflects that the information in response to
Trujillo’s August 12 request was provided 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 follow-up 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 information, it is usually his
practice to give the request to Ruth Vassaw, a clerk in his office. If he doesn’t have time to
collect the information, he asks Vassaw to do so. While individual supervisors may also
respond to the requests for information, Vassaw is primarily the individual who prepares the
responses. Baines explained that while requested information was previously provided to
the Union by regular mail, Respondent now sends the information by certified mail as well.
He acknowledged 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 union. 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 information to the Union by inter-office envelope. She acknowledged however, that
she had no specific recollection of gathering this material.

4. 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 information 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:

Copies of all information pertaining employee: Sanchez, Gabe concerning
the payment of Hours in which he was denied 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 Information
Act (ASM) Manual 352.4 Availability of Records.

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Trujillo’s August 15 letter also included a June 12 request seeking 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 Reports 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 information to determine
why Sanchez was sent home for unavailability of work. He submitted the June 12 request to
determine whether there had been an overtime violation in relation to the usage of a small
parcel distributor machine also identified as an SPBS machine on Tour 3. Trujillo initially
testified that he never received the information included in either the May 6 or the June 12
requests. On cross-examination however, 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 requested was provided and that he continued to
inform Wheeler of the insufficiency of the information during on-going grievance meetings.

While James Phillip Billings is currently detailed as an Albuquerque 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 explained that it
had been referred to him for a response because it involved one of the employees under his
supervision. Billings 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 submitted 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 included a request for
Sanchez’s medical records, these records were not provided to Trujillo. Billings recalled
that he explained 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.

5. The Union’s September 10, 2003 Request for Information

On September 10, 2003, Trujillo submitted a request for information 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.)

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List of all employee clocked into operation codes (324-38) (134-38)(137-37)
(120-38) For the week of September 7th thru September 12 2003. Also I
would like a copy of the list compiled by Acting SDO Bridgett Romero, in
which all employees whom were required/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 Management 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 information 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 information for Pay Locations 537, 538, 539 and
518 and he received 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 requested
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 directed the request to
Vassaw to collect the requested information. 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 completed 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.

6. 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 Manager for the Albuquerque plant. Trujillo explained that
the faxes were sent shortly after 2:00 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 requested information related to
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.

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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 information. 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 information 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 distributions. 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 investigation 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 beginning 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 information. She recalls that, as with other information
requests, she would have pulled the information and sent it to the Union by inner-office
envelope.

7. The Union’s Request for Information on November 5, 2003

On November 5, Trujillo faxed a copy of an information request 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
harassment as well as information concerning the anticipated time period for the

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investigation and copies lf all protocols for dealing 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: “Second 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.

E. Analysis and Conclusions Concerning 8(a)(5) Allegations

In a recent decision involving the United States Postal Service,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 previously 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 Supreme 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” relevance 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 underlying a request nor is it necessary for the
union to demonstrate 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
apparent that Trujillo’s requests were arguably relevant and necessary for the processing of
union grievances and the administration of the collective bargaining agreement. Brazos
13 United States Postal Service, 337 NLRB 820, 822 (2002).

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Electric Power Cooperative, Inc., 241 NLRB 1016, 1018 (1979). Additionally, Respondent
makes no assertion that any information was denied the Union because of relevancy or
privilege. The only information that Respondent acknowledges that it knowingly failed to
produce related to a question of confidentiality.

Trujillo asserts that Respondent either failed to provide information 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 information 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 evidence 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 promulgated 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 information 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 assurances 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 normal
procedures. While Vassaw testified that she assisted Baines in collecting this material, she
had no specific recollection of gathering this material. Vassaw also explained that she might
not always be the only person who is gathering information 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 insufficient evidence to show that all of the
requested information was provided.

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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, however, 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 employee’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 information, the Supreme Court has
recognized a limited exception for information that is confidential in nature. Detroit Edison
Co. v. NLRB, 440 U.S. 301, 99 S. Ct. 1123 (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 individual employee aptitude test results to a union that was
processing a grievance. The Court relied on three factors: (1) the sensitive 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 fabricated concern
for employee confidentiality only to frustrate the union in the discharge of its
responsibilities. Id. at 319-20. 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 production 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 6th request dealt
with employee Gabe Sanchez, there was no evidence to show that Respondent also provided
information in response to the June 12 request.

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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 information. He denied that he ever received the remainder
of the information. 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 discrepancy 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 information. Again, it is ironic that the issue may be the flawed
efficiency 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 refused to provide this information as requested.14

4. October 6 Requests for Information

There were two separate requests for information dated October 6. The complaint
was amended at trial to allege that Respondent 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 information 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 demonstrated 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 request. Contrastly,
14 In reaching this conclusion, I am not relying upon the administrative law judge decision cited and
attached to Respondent’s brief. Counsel asserts that it is offered in support of her assertion that “The 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.”

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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 November 5.
There is no dispute that Respondent was not following the procedures outlined in Martinez’s
November 2001 directive. 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 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 delivery system for information production may have
prevented or delayed the Union’s receipt of the information, it did not constitute 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 provide all of the information requested on
August 12 and the information requested on June 12 and incorporated into the later August
15 request to constitute a violation of Section 8(a)(5) of the Act.

F. 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 proclivity to
violate the Act and because its unlawful conduct with respect to Orlovsky is so egregious
and widespread, Respondent has demonstrated a general disregard for employees’ statutory
rights. General Counsel additionally requests that the Board include broad injunctive
language in its order, prohibiting 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 information at
many of its locations nationwide. Specifically, she cites the Board’s recent decisions in
United States Postal Service, 339 NLRB No. 150 (August 21, 2003) and United States
Postal Service, 337 NLRB 820 (2002) as well as two other cases15 in which Respondent
entered into a formal settlement involving the Albuquerque facilities. Counsel for the
General Counsel asserts that in this formal settlement, 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 representational duties.

In August 2003, the Board issued its decision in United States Postal Service, 339
NLRB No. 150 (2003), finding that Respondent failed and refused to provide relevant and
necessary information in a timely manner to the National Association of Letter Carriers,
15 The cases are identified as 28-CA-17383(P) and 28-CA-17405(P).

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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 requested
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 by failing to provide requested information, the Board found a district-wide posting
appropriate. Specifically, the Board found that district-wide posting was necessary due to
the Respondent’s repeated violations in the district and the absence of any evidence 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 coercing 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 respondent so that the Board might tailor an
appropriate order. Id. at 1357.

In United States Postal Service, above at 2, the Board also found it appropriate to
provide broad injunctive language in their order, barring the Respondent from engaging in
any other unlawful conduct. Because Respondent had repeatedly refused to provide
requested relevant information to the Union at many of its locations 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 employees, 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 affecting other postal facilities
in the Albuquerque district. The record 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 United States
Postal Service, 341 NLRB No. 94, slip op. at 15 (2004).

While I do not find the necessity for a district-wide posting, I nevertheless find the

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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 providing
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
manner interfere with its employees’ Section 7 rights. It is especially significant that the
formal settlement specifically involved Respondent’s actions toward its employees at the
Albuquerque 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 because 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 representation during a
discussion that he reasonably believed might result in discipline, Respondent violated
Section 8(a)(1) of the Act.

5. By refusing to permit John Orlovsky to speak with his union representative
prior to an investigatory interview that he reasonably believed would result in disciplinary
action, Respondent violated Section 8(a)(1) of the Act.

6. By failing to inform John Orlovsky and his union representative of the
specific charges that were to be discussed during an investigatory interview that Orlovsky
reasonably believed 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 fact-finding meetings on
September 9, 2003, October 16, 2003, 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 September 11, 2003,
Respondent violated Section 8(a)(3) and (1).

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11. By issuing a 7-day suspension to John Orlovsky on November 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, Respondent 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, 2003 and June 12, 2003 and resubmitted on August 15, 2003, as
found herein, said information 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.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.

The Respondent having discriminatorily disciplined and discharged 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 Union 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 said information.

Because the Respondent has a proclivity for violating the Act, (see, e.g., United
States Postal Service, 339 NLRB No. 150 (August 21, 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 guaranteed employees by
Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:16

ORDER

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 employees union representation during a discussion they
reasonably believe may result in discipline.

(c) Refusing to permit an employee to speak with his or her union
representative prior to an investigative interview that the employee reasonably believes may
result in disciplinary action.

(d) Failing and refusing to inform an employee and his or her union
representative of the specific charges that are to be discussed during an investigative
interview that the employee believes will result in disciplinary 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 collective with the American Postal Workers
Union, Local No. 380, AFL-CIO by failing and refusing to provide requested information
that is relevant and necessary to the Union as the collective bargaining representative of
those Unit employees described 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 restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all purposes.

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2. Take the following affirmative action necessary to effectuate the policies of
the Act:

(a) Within 14 days from 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. Make John Orlovsky whole for any loss of earnings and any other benefits
suffered as a result of the discrimination against him, in the manner set forth in the remedy
section of the decision.

(b) 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 the discharge will not be used against him in any way.

(c) Preserve and, within 14 days of a request, or such additional time as
the Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under
the terms of this Order.

(d) Within 14 days after service by the Region, post at its Albuquerque,
New Mexico facilities, copies of the attached notice marked “Appendix.”17 Copies of the
notice, on forms provided by the Regional Director for Region 28, after being signed by the
Respondent'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 Respondent 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 facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time since September 5, 2003.

(e) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has take to comply.

17 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C.

_________________________________
Margaret G. Brakebusch
Administrative Law Judge

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APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT threaten our employees with unspecified reprisals because they engage in
activities in support of the American Postal Workers Union, Local No. 380, AFL-CIO, or
any other union.

WE WILL NOT deny our employees union representation during a discussion they may
reasonably believe to result in discipline.

WE WILL NOT deny our employees an opportunity to consult with their union
representative before participating in an investigative interview that an employee may
reasonably believe to result in disciplinary action.

WE WILL NOT refuse to inform our employees and their union representative of the
specific charges to be discussed in an investigative interview that an employee reasonably
believes to result in disciplinary action.

WE WILL NOT threaten our employees that they will be discharged because of their
activities in support of the American Postal Workers Union, Local No. 380, AFL-CIO, or
any other union.

WE WILL NOT issue a letter or warning, suspend, or otherwise discipline our employees
for engaging in activities in support of the American Postal Workers Union, Local No. 380,
AFL-CIO, or any other union.

WE WILL NOT discharge our employees for engaging in activities in support of the
American Postal Workers Union, Local No. 380, AFL-CIO, or any other union.

WE WILL NOT refuse or fail to provide and furnish information to the Union that is

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necessary and relevant to the performance of its duties as the exclusive collective-bargaining
representative of the Unit.

WE WILL NOT in any manner interfere with, restrain, 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 o the Board’s Order, remove from our files any
reference to John Orlovsky’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 any remaining information that has not
otherwise been provided in response to the Union’s written information requests on August
12, 2003 and on June 12 that was later included in a request on August 15, 2003.

UNITED STATES POSTAL SERVICE
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relation Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov

505 Marquette Avenue NW – Suite 1820, Albuquerque, NM, 87102-2181
(505) 248-5125, Hours: 8:15 a.m. to 4:45 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.

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