United States Postal Service

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 50 (N.L.R.B. 1973)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Alfred Schreiber.
Case 21-CA-10734(P)
March 1, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 3, 1972, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a -supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This
proceeding was tried before me on July 18 and 191 at Los
Angeles, California, with all parties present or represented
by counsel. The_ complaint,2 issued pursuant to Section
10(b) of the National Labor Relations Act, as amended
(herein the Act), alleged that the United States Postal
Service (herein Respondent) had violated Section 8(a)(4)
and (1) of the Act when it suspended employee Alfred
Schreiber because he had filed an unfair labor practice
charge with the National Labor Relations Board (herein
the Board). The complaint further alleged that Respondent
I All dates herein are 1972 unless otherwise indicated
2 The original charge was filed by Schreiber on March 7 and the first
amended charge filed on April 17
3 Public Law 91-375, 84 Stat 719, Title 39, USC, Section 1209
Applicability of Federal labor laws
(a) Employee -management relations shall, to the extent not inconsistent
with provisions of this title, be subject to the provisions of subch 2 of ch 7
of title 29
(b) The provisions of ch Il of title 29 shall be applicable to labor
organizations that have or are seeking to attain recognition under sec 1203
of this title, and to such organizations, officers, agents, shop stewards, other
representatives, and members to the extent to which such provisions would
be applicable if the postal service were an employer under sec 402 of title
through its agent and supervisor, Jacob Landesman,
ordered employees not to discuss unionism or veteranism
with their fellow employees and further requested employ-
ees to substantiate their visits to the Board and did thereby,
discourage the employees from exercising their statutory
rights all in violation of Section 8(a)(1) of the Act. The
answer of Respondent denied the commission of any
unfair labor practice and additionally denied that it is an
employer as defined in Section 2(2) of the Act because the
U.S. Postal Service is an agency of the United States
Government, but at the hearing stipulated that the
Respondent is subject to the Act because of the language
contained in section 1209 of the Postal Reorganization
Act.3 Respondent also stipulated that Lucille Ashford and
Jacob Landesman are supervisors and agents of Respon-
dent within the meaning of Section 2(11) and (13) of the
Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and the briefs received from the
parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The United States Postal Service, as established and
created by the Postal Reorganization Act, (herein PRA), is
a basic and fundamental service provided to the people by
the Government of the United States, authorized by the
Constitution, created by act of Congress, and supported by
the people. The postal service has as its basic function the
obligation to provide postal services to bind the nation
together through the personal, educational, literary, and
business correspondence of the people. As reflected in that
portion of the PRA set forth, supra, at footnote 3, in
creating the United States Postal Service Congress specifi-
cally provided that it shall be subject to the provisions of
the Act, to the extent not inconsistent with provisions of
the PRA. I find Respondent to be an employer engaged in
commerce within the meaning of the Act and that it will
accord with the will of Congress and effectuate the policies
of the Act for the Board to exercise jurisdiction herein.
11. THE LABOR ORGANIZATION
The complaint alleges, the Respondent admits and I
herewith find the National Association of Postoffice Mail
Handlers, Local 21, herein called the Union, is and at all
material times herein has been a labor organization within
the meaning of Section 2(5) of the Act.
29 In addition to the authority conferred on him under sec 438 of title 29,
the Secretary of Labor shall have authority, by regulation issued with the
written concurrence of the postal service, to prescribe simplified reports for
any such labor organization The Secretary of Labor may revoke such
provision for simplified forms of any such labor organization if he
determines , after such investigation as he deems proper and after due notice
an opportunity for a hearing, that the purposes of this chapter and of ch i I
of title 29 would be served thereby
(c) Each employee of the postal service shall have the right, freely and
without fear of penalty or reprisal , to form , join, and assist a labor
organization or to refrain from any such activity, and each employee shall
be protected in the exercise of this right
202 NLRB No. 24
UNITED STATES POSTAL SERVICE 51
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Why was Schreiber suspended for 3 days?
2. Did Respondent interfere with , restrain , or coerce
employees in the exercise of their rights guaranteed by the
Act?
B. The Evidence
Alfred Schreiber is an employee at the Los Angeles
terminal annex where he is employed as a full-time
mailhandler assigned to permanent light duty because of a
job-incurred injury. He is vice president of the Los Angeles
local of the National Postal Union (NPU) which was
recognized by the Los Angeles Post Office prior to July 20,
1971, but which has not had an official status since that
date because recognition is now on a national basis only
and the NPU is not one of the seven nationally recognized
unions. He is an officer of the Disabled American Veterans
Organization in Los Angeles. His immediate supervisor is
Jacob Landesman.
On March 6, Schreiber submitted & request for 6 hours of
unscheduled annual leave to be taken on March 7 on form
3941 which is normally used to request unscheduled annual
leave.4 The reason given for the request was: "Appoint-
ment National Labor Relations Board. Personal Business."
Schreiber was asked to provide some substantiation (upon
his return to work) that he actually visited the National
Labor Relations Board. According to the testimony of
Mrs. Ashford, who is the second tour (meaning "shift")
superintendent, requiring substantiation is not an unusual
procedure. Substantiation is required by the supervisor if
the workload is particularly heavy or in the event the
individual requesting the unscheduled leave is frequently
absent and in the judgment of the supervisor it is necessary
under the circumstances at that time. According to
Landesman, the leave form was first marked approved.
When Schreiber indicated that he would not provide
substantiation for this request, or any other annual leave
request, the leave slip was then marked disapproved with
the letters AWOL appearing thereon. According to
uncontradicted testimony in the record, these leave slips
are the property of the government and are filed with the
data center, but no action is taken unless the leave is
actually taken by the individual making the request. In this
instance , Schreiber did not take the leave.
On the ninth day of March, Schreiber reported for work
and worked approximately 15 minutes at which time he
and Mr. Feldman went to see Mr. Landesman to ask
permission to go to the break area where they wished to
discuss Mr. Feldman's adverse action case in which Mr.
Schreiber was going to represent him.5 Mr. Landesman
had prior knowledge of the adverse action hearing
regarding Mr. Feldman and readily granted the request. At
that time , according to Mr . Landesman, he told Schreiber
and Feldman that he would leave their 7020 forms, which
are required for employees who are leaving the work area,
on his desk to be picked up when they were ready to leave
the work area. The hearing was to be held at approximately
8 a.m. on the morning of March 9.
According to the testimony of Mr. Schreiber and Mr.
Feldman, they did not see Mr. Landesman again that
morning and picked up the forms from Mr. Landesman's
desk and proceeded to the adverse action hearing. Both
men testified that they had seen Supervisor Hockenhull
shortly before 8 o'clock and asked him if he knew the
whereabouts of Mr. Landesman. This conversation was
verified by Mr. Hockenhull.
According to Jacob Landesman, Schreiber approached
him about 7:45 or 7:50 on the morning of ,March 9 and
accused Landesman of having destroyed the 3971 request
for unscheduled leave form which he had submitted on the
prior Monday. (The March 6 request related heretofore.)
According to Landesman, Schreiber had apparently
checked with the data service and the data service had not
been able to indicate to them that his form had been filed
as would have been the normal procedure. Landesman
contended that he had filed the 3971 form in the normal
routine manner. During this conversation, according to
Landesman, Schreiber became very loud and abusive and
it was because of this act of insubordination on the part of
Schreiber that Landesman thereafter submitted a person-
nel action request recommending that Schreiber be given a
3-day suspension for insubordination. Schreiber denies this
conversation ever occurred. However, Virginia Williams,
an employee of 27 years at the terminal annex who is now
a foreman of mail, stated that she saw Schreiber and
Landesman talking sometime after 7:30 a.m. on the
morning of March 9, 1972. Mrs. Williams was not able to
add any material evidence regarding the conversation, but
could only testify that she did see them talking. Manuel
Lest, a rank-and-file employee of some 24 years' service,
testified that he saw Landesman and Schreiber talking
about 7:45 a.m. on the morning of March 9, and he heard
Schreiber state that "he would file charges." According to
Lest, they appeared to be arguing and Schreiber was
talking in a very loud voice. Anna Mae Ward has been
employed by the postal service for the past 6 years as a
regular mail carrier and is the steward for the mail
handlers' union. Mrs. Ward testified that on March 10,
shortly after Schreiber received his notification of suspen-
sion, a first-step grievance meeting was held as provided
for in the provisions of the now current union contract,
and at that meeting Schreiber "did not deny having had
the conversation with Landesman on March 9." Mrs.
4 Scheduled leave refers to an employee's vacation period as scheduled
in the late fall of each year for the following year . Presumably this was done
on the basis of seniority keeping in mind the necessity of maintaining a
reasonable work force at all times . Unscheduled leave refers to leave which
has been earned by an employee, but which is taken on short notice and
generally for short periods such as increments of I hour. Thus an employee
might earn 120 hours of leave per year , take 80 hours as a scheduled
vacation period and still have 40 hours to be used as needed or necessary in
the form of unscheduled leave.
5 Mr. Schreiber was entitled to represent certain employees prior to the
Postal Reorganization Act, but after the new legislation his union was not
one of those recognized during the transitional period pending elections to
determine the employee representatives . However , Mr. Schreiber was
permitted to represent employees at their request on matters which arose
prior to January 3. 1972. This particular adverse action regarding Mr.
Feldman had occurred prior to January 3, 1972, and Mr. Schreiber was
properly entitled to represent him at the hearing upon Mr. Feldman's
request.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mann, who has been employed by the postal service at the
Los Angeles terminal annex for the past 4 years as a clerk,
testified that she saw Schreiber and Landesman on the
early morning of March 9, and they appeared to be
arguing. Mr. Frierson, an employee of the Los Angeles
terminal annex for the past 25 years as a regular mail
handler, testified that he heard Schreiber and Landesman
talking together on March 9 sometime after 7:30 and that
they were speaking in loud voices and appeared to be
arguing. The testimony of Feldman does not corroborate
Schreiber's denial of the incident. The testimony of
Feldman only makes clear that there were several minutes
between 7:43 a.m. and 8:00 a.m. on the morning of March
9, that he was working and did not know where Schreiber
was or what Schreiber was doing. The evidence is
overwhelming that Schreiber and Landesman argued on
the morning of March 9 and I so find.
The critical evidence and testimony in this proceeding
was given by Mrs. Ashford who testified that following the
receipt of the recommended suspension of Schreiber by
Landesman that she had her supervisors make a careful
investigation of the situation and then report to her. Mrs.
Ashford indicated that the decision to suspend Mr.
Schreiber for 3 days was entirely hers and that she did not
consult with her superior. Following the investigation
which she directed be made, she alone made the decision to
suspend Mr. Schreiber and at that time she had no
knowledge that Mr. Schreiber had at any time ever filed an
unfair labor practice with the National Labor Relations
Board or for that matter had ever gone, or requested leave
to go, to the National Labor Relations Board.
Mrs. Lucille Ashford was a most impressive witness
and I credit her testimony in its entirety. As superintendent
of tour 2, or the 7 a.m. to 3:30 p.m. shift, at the terminal
annex, she directs the work of 1,070 employees of whom 69
are supervisors. Mrs. Ashford has occupied her current
position for 5 years, has been in supervisory positions for
15 years, and has 30 years of service with the post office.
While the evidence seems unmistakable that notification of
the filing of a charge by Schreiber against the Respondent
was received in Mrs. Ashford's office at 12 noon on March
9, I credit fully her testimony that she had no knowledge of
the filing of a charge until late March or mid-April-well
after the suspension of Schreiber on March 15 through 17.
The timestamps indicate that the letter containing the
notification of a charge having been filed with the National
Labor Relations Board was stamped in by one of the clerks
in Mrs. Ashford's office at about 12 noon on March 9;
there followed a stamp of 1:15 or 1:45 by the executive
division, Los Angeles. The executive division is located in
another building from that building in which Mrs.
Ashford's office is located and she testified that the letter
was evidently placed in the intraoffice mail and sent to the
postmaster shortly after having been received and stamped
by the clerk in her office. The mail also has the stamp of
the personnel department and the assistant personnel
director's initials indicating it was forwarded from the
6 While final disposition of the resulting grievance filed by Schreiber
with the Union would not in any way effect the disposition of this matter,
nevertheless it is of interest to note that the grievance was settled at the third
step of the grievance procedure Schreiber's suspension was reduced from 3
executive division to personnel and received by personnel
on March 10, 1972. Mrs. Ashford's explanation is perfectly
logical, is supported by the timestamps on the mail (see
Resp. Exh. 2(a), (b), and (c)) and I am convinced that it
happened exactly in accordance with her explanation and I
so find. Jacob Landesman testified that he had no
-knowledge of a charge having been filed when he prepared
the recommendation for the 3-day suspension because of
insubordination on Mr. Schreiber's part. Mr. Landesman
further testified that it was not until some 3 weeks to a
month after March 9 that he learned that Schreiber had
filed an unfair labor practice charge against the Postal
Service and Mr. Landesman had never seen the charge or
Board cover letter (Resp. Exh. 2(a), (b), and (c)) until it was
shown to him at the trial of this case . I fully credit Mr.
Landesman's testimony in this regard. It is therefore
apparent that there cannot be an 8(a)(4) violation because
Jacob Landesman had no knowledge of the filing of an
unfair labor practice charge with the National Labor
Relations Board at the time he made his recommendation
to have Schreiber suspended for 3 days because of
insubordination. More importantly, the individual who
made the actual decision to suspend Schreiber for 3 days,
Mrs. Ashford, had absolutely no knowledge of the filing of
a charge by Schreiber and made the decision to suspend
Schreiber only after a thorough and impartial investigation
by supervisors other than herself or Mr. Landesman.6 I
therefore find that the sole and only reason for Schreiber's
suspension on March 10, for the period March 15 through
March 17, by Superintendent Ashford stemmed from his
acts of insubordination toward Foreman Landesman and
was done in accordance with the recommendation of
Foreman Landesman, but only after a thorough and
impartial investigation of the material facts indicated the
recommended suspension to be necessary and desirable. I
shall recommend dismissal of the alleged violation of
Section 8(a)(4).
The 8(a)(1) Allegations
The complaint alleged that Respondent, through Fore-
man Landesman, ordered employees 7 not to discuss
unionism or veteranism with their fellow employees and
that Foreman Landesman requested employees to substan-
tiate visits to the Board in order to discourage them, from
exercising their statutory rights all of which is alleged to be
in violation of Section 8(a) (1) because it interfered with,
restrained, or coerced employees in the exercise of their
rights as guaranteed in Section 7 of the Act. These
allegations I find to be without merit and I shall
recommend dismissal of this portion of the complaint for
the reasons set forth hereinafter.
For some time prior to January 1972, Schreiber was
employed as a light-duty mailhandler in the cutting-belt
area of the terminal annex where his supervisor was
Foreman of Mails Sobel. Landesman replaced Sobel as the
supervisor for the cutting-belt area in mid-January 1972.
At the terminal annex, regular quarterly reports are
days to I day, but no further action was taken and the Union elected not to
proceed to arbitration
7 The complaint was drafted in the plural , but all the evidence related
only to what may or may not have been said to one employee
UNITED STATES POSTAL SERVICE
distributed to all supervisors showing the names of
employees who regularly use their sick leave as it
accumulates . If an employee 's name appears on three
consecutive quarterly reports the employee is placed on
restricted sick leave . The effect of restricted sick leave is to
require an employee to substantiate the use of all
subsequent sick leave by providing a written statement
from a physician or other reasonable evidence verifying the
purposes for which an employee is using his sick leave. On
February 3, 1972, Landesman placed seven employees in
his unit on restricted sick leave based on information
appearing in a quarterly report issued the latter part of
January. Although Schreiber 's name appeared on the
January report , indicating that he too was using more sick
leave than was desirable , Landesman did not place him on
restricted sick leave . Landesman testified that he did not
place Schreiber on restricted sick leave on February 3, at
the time he placed the other seven employees in his unit on
restricted sick leave , because Schreiber informed him that
he was already substantiating all of his sick leave absences.
On a later date , Landesman checked the Postal Service
Data Office and learned that Schreiber was not substantiat-
ing his sick leave and thereafter placed Schreiber on
restricted sick leave . This action was not taken until after
Landesman had discussed the matter with Schreiber's
former supervisor , Mr. Sobel , who informed Landesman
that he had counseled Schreiber about excessive use of sick
leave . There were two or three other instances during the
month of February in which Schreiber either requested
unscheduled leave for union business , or questioned
Landesman's personnel decisions in a manner which
necessitated Landesman advising Schreiber that he was no
longer authorized to represent employees in union matters
under the new contract and any further union business or
leaves for union business would have to be substantiated.
Mrs. Ashford testified that on February 17 the mailhan-
dler's union president , Brownlee , had complained to her
concerning the attempts by Mr. Schreiber to represent
mailhandlers in union -related matters . These conflicts
between Landesman and Schreiber had caused Landesman
on February 7 to recommend a 15-day suspension of
Alfred Schreiber because of these minor acts of insubordi-
nation and his general attitude toward supervision. (See
Resp . Exh. 1.) After an investigation , Mrs. Ashford denied
the recommended 15-day suspension of Schreiber, but
requested General Foreman Edward Kamper to have an
instructional meeting with Schreiber and Landesman to
advise them of the elements of insubordination . General
Foreman Edward Kamper had conducted classes instruct-
ing all supervisors regarding the terms of the national
agreement and was considered well qualified for such an
instructional meeting. Kamper testified that at the meeting
he discussed the meaning of insubordination , describing
examples such as demeaning a supervisor in front of
employees , challenging order of supervisors , threatening to
file charges against supervisors in front of employees and
in general "showboating." On Friday, March 3, Landes-
man and Schreiber were engaged in a conversation
regarding a minor personnel action and in the conversation
Schreiber contends that Landesman gave him a direct
order that he should not talk veteranism or unionism to
53
any of the employees . Under cross -examination , Schreiber
modified his testimony stating that Landesman told him
not to talk about veteranism or unionism among the
employees when they were "on the clock." Landesman
denied ever ordering Schreiber not to discuss unionism or
veteranism with his fellow employees. There is no
independent corroboration of either man's version of this
incident and I am left to determine through some magical
powers exactly which version is correct . Based on the entire
testimony in this proceeding, I am inclined to feel that
Landesman may have apprised Schreiber again of the fact
that he was no longer authorized to represent employees in
union matters . I cannot conclude that Schreiber was
ordered by Landesman not to discuss unionism or
veteranism with his fellow employees . In any event even if
it did occur, and I have the gravest doubt , it would be a
lone and isolated incident not warranting the finding of a
violation.
The complaint alleges that Respondent through Fore-
man Landesman requested employees to substantiate visits
to the Board in order to discourage them from exercising
their statutory rights . There is no conflict in the evidence
and I find that Landesman asked Schreiber to provide
some substantiation of his request for unscheduled leave
on March 7 in order to keep an appointment with the
National Labor Relations Board . However, in view of the
established policy of the Postal Service to require substan-
tiation for all unscheduled leave if the supervisor deemed it
necessary and desirable under the working conditions at
the time , and particularly in view of Schreiber 's frequent
periods of being away from the job for one excuse or
another , I find nothing unusual in the request by Foreman
Landesman of Schreiber . As has been expressed many
times before and with approval of the courts "worktime is
for work ." The problem of "unscheduled absences" was
the subject of a memo to all supervisors from the
postmaster dated November 17, 1971. (See Resp . Exh. 4.)
The record in this case makes it obvious that Schreiber
resented the efforts by Landesman to maintain some
reasonable degree of efficiency and productivity in his area
of work and authority . Undoubtedly , Mr. Schreiber is
somewhat miffed because "his" union no longer has the
right to represent the employees and the resulting curtail-
ment of his freedom of movement has caused him to be
somewhat resentful of all supervisory authority.
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, United States Postal Service, is an
employer engaged in commerce and specifically made
subject to the provisions of the National Labor Relations
Act by action of the United States Congress by the Postal
Reorganization Act.
2. The National Association of Post Office Mailhan-
dlers, Local 21, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent did not through numerous alleged
acts violate Section 8(a)(1) as alleged in the complaint, and
Respondent did not in any manner interfere with , restrain,
54 DECISIONS OF NATIONAL
or coerce its employees in the exercise of rights guaranteed
in Section 7 of the Act.
4. The Respondent did not violate Section 8 (a)(4) of
the Act in suspending employee Alfred Schreiber for 3
days. Alfred Schreiber was suspended because of acts of
insubordination.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this case , and pursuant to Section
LABOR RELATIONS BOARD
10(c) of the Act, I hereby issue the following recommend-
ed: '
ORDER
It having been found and concluded that the Respon-
dent, United States Postal Service , has not engaged in
unfair labor practices the complaint herein is dismissed in
its entirety.