United States Postal Service

National Labor Relations Board - Board Decisions

Jan 9, 1981

253 N.L.R.B. 1203 (N.L.R.B. 1981)

UNITED STATES POSTAL SERVICE
United States Postal Service and William C. Do-
herty, Branch 40, NALC, National Association
of Letter Carriers, AFL-CIO. Case 8-CA-
13479(P)
January 9, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on January 8, 1980,1 and
amended on January 29 and February 15, by Wil-
liam C. Doherty, Branch 40, NALC, National As-
sociation of Letter Carriers, AFL-CIO, herein
called the Union, and duly served on the United
States Postal Service, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
8, issued a complaint and notice of hearing on Feb-
ruary 27. The complaint alleged that Respondent
had engaged in and was engaging in certain unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, the amended
charges, and complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that, on or about
July 12, 1979, Respondent, at its Midpark Branch
facility, presented an award entitled "Certificate of
Excellence" to its clerical employees for outstand-
ing achievement during fiscal year 1979, and in-
cluded a copy of the certificate in each employee's
personnel file. The complaint further alleges that
one of the seven criteria listed on the certificate
and used by Respondent in granting the award was
that the named employees had "no registered comn-
plaints or grievances." Thereafter, on March 10,
Respondent filed an answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint, and raising Section 8(c) of the Act
as an affirmative defense.
On July 7, Respondent filed with the Board a
motion seeking transfer of the case to the Board
and summary judgment on its behalf, and a memo-
randum in support of its motion. Attached to the
motion are copies of the original and amended
charges, the complaint and notice of hearing, ap-
propriate affidavits of service, Respondent's answer
to the complaint, and an affidavit from the Cleve-
land, Ohio, Management Sectional Center Man-
ager/Postmaster, Harry Penttala, a copy of the cer-
tificate issued to the postal clerks, and a copy of a
i All dales herein are in 190, unless otherwise indicated
253 NLRB No. 158
notice concerning the certificate issued by the post-
master to the Midpark Branch facility employees.
In its motion, Respondent contends that there is no
genuine issue as to any material fact and that it is
entitled to judgment as a matter of law.
On August 4, the General Counsel filed a Cross-
Motion For Summary Judgment, a memorandum
in support thereof, and a memorandum in opposi-
tion to Respondent's Motion for Summary Judg-
ment. Attached to the motion are copies of the
charge as last amended, the complaint and notice
of hearing, Respondent's answer to the complaint,
a copy of the certificate issued by Respondent to
the postal clerks, and the appropriate affidavits of
service. On August 14, Respondent filed a brief in
reply to the General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Having duly considered the matter, the Board
hereby grants Respondent's request to transfer this
proceeding, and, upon the entire record, makes the
following:
Ruling on the Motions for Summary Judgment
The complaint and answer, the affidavit of
Cleveland Postmaster Penttala, and the uncontra-
dicted portions of the General Counsel's statement
of additional facts reveal that in July 1979, acting
upon the recommendation of Midpark Branch
Manager James F. Comodeca, Respondent decided
to issue a Certificate of Excellence to the staff of
10 postal clerks employed at the Midpark Branch
facility. On July 12, 1979, the 10 postal clerks and
the 64 letter carriers were gathered together for
the presentation ceremony. Supervisory personnel
read copies of the certificate to the assembled
group and gave each of the 10 postal clerks a copy.
A copy was also placed in each clerk's personnel
file. The certificate, signed by Midpark Branch
Manager Comodeca and Cleveland Postmaster
Penttala, states as follows:
This Certificate of Excellence is presented
to the Clerical Staff at Midpark Branch of the
Cleveland Ohio Postal Service for Outstanding
Achievements during the Fiscal Year of 1979
in the categories listed below:
1. Outstanding Public Relations
2. Outstanding Productivity
3. Very Satisfactory Audit
4. Minimum Time Lost Due to Sick
Leave Usage (Of 20,800 scheduled clerk
hours, only 189 Sick Hours or 9% were
used.)
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. No Lost Time Due to Injury on Duty
(I.O.D.)
6. No Registered Complaints or Griev-
ances
7. No Registered E.E.O. Complaints
I would like to commend each employee in
this group for his productivity, devotion to
duty, dependability, and professionalism. All of
you have demonstrated that the KEY TO A
SUCCESSFUL OPERATION IS TEAM-
WORK: CONGRATULATIONS!
Sometime in February, before the complaint in
the instant case was issued, Respondent posted the
following notice signed by Cleveland Postmaster
Penttala:
NOTICE TO EMPLOYEES
Branch 40, National Association of Letter
Carriers, AFL-CIO, filed an unfair labor prac-
tice charge with the National Labor Relations
Board on January 8, 1980 and an amended
charge on January 29, 1980 which alleges that
the Postal Service is attempting "to induce the
Letter Carriers from not filing grievances by
giving non-monetary awards to members of
another craft, who do not file grievances."
This allegation has to do with a July 12, 1979
Certificate of Excellence presented to the
clerical staff at Midpark Branch of the Cleve-
land Post Office. In our view it would be
indeed ironic that what we first considered as
an innocent and simple form of employee rec-
ognition for employees' cost consciousness and
productivity would ultimately result in poten-
tial litigation for the Postal Service. We did
not intend the Certificate to be considered as
an inducement to our employees to relinquish
their rights to file or process grievances.
Moreover, I wish to take this opportunity to
reiterate the Postal Service's policy that all
our employees be free to file and process
grievances without interference, restraint or
coercion. To the best of my knowledge no em-
ployee at Midpark Branch has ever been dis-
criminated against because of his grievance
filing activity and no one will be discriminated
against in the future either. We believe that
the language of the Certificate is protected by
the First Amendment and Section 8(c) of the
National Labor Relations Act and sincerely
hope that this clarifies the matter for all con-
cerned.
In his Cross-Motion for Summary Judgment, the
General Counsel argues that "Respondent's issu-
ance of an award based in part upon the fact that
the clerical employees had not filed any grievance
not only rewards and encourages the clerical em-
ployees for not filing grievances, but also attempts,
by prohibited means, to induce its letter carrier em-
ployees to refrain from filing grievances, thereby
inhibiting employees from utilizing the grievance
machinery." The General Counsel also contends
that by issuing the award, and by placing it in the
employees' personnel files, "Respondent is discrimi-
nating against those employees who choose to ex-
ercise their Section 7 rights to file grievances
thereby discouraging union activity in violation of
Section 8(a)(l) and (3) of the Act."
In its Motion for Summary Judgment, Respond-
ent asserts that its issuance of the Certificate of Ex-
cellence to the clerical employees is protected by
the first amendment and Section 8(c) of the Act.
Respondent further contends that there is no evi-
dence which would support a finding that Re-
spondent violated Section 8(a)(3) of the Act, and
that, even if a technical violation of Section 8(a)(1)
exists, Respondent's prompt ameliorative action in
issuing the notice described above "should obviate
any need for any finding of violation or remedial
order."
Section 8(c) of the Act provides that:
The expressing of any views, argument, or
opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair
labor practice under any of the provisions of
this Act, if such expression contains no threat
of reprisal or force or promise of benefit.
The certificate here in issue commends the cleri-
cal employees for, inter alia, not having registered
grievances or complaints during fiscal year 1979.
Such a commendation is a benefit to those who re-
ceive it, a fact made evident by Respondent's in-
cluding a copy of the certificate in each recipient's
personnel file. Furthermore, by granting this certif-
icate to the clerical employees, Respondent im-
pliedly promised its other employees, the letter car-
riers, that they too could receive similar recogni-
tion if, all other factors being equal, they have not
registered grievances or complaints. That Respond-
ent intended to convey and did convey this mes-
sage to the letter carriers is demonstrated by its as-
sembling them along with the clerical employees to
hear supervisory personnel read the certificate. By
its very terms, Section 8(c) excludes such state-
ments granting or promising benefits.
Respondent's assertion that it has obviated the
need for the Board to find a violation or issue a re-
medial order because it promptly posted an amelio-
rative notice is also without merit. In order for an
1204
UNITED STATES POSTAL SERVICE
employer to repudiate unlawful conduct and there-
by relieve himself of liability for that conduct, sev-
eral criteria must be met. 2 The repudiation must be
timely, unambiguous, specifically describe the con-
duct, and disavow it as unlawful. It must also be
free of other proscribed conduct. Further, the em-
ployer must adequately publish the repudiation to
the employees involved, engage in no proscribed
conduct after the publication, and give assurances
to employees that in the future the employer will
not interfere with their exercise of Section 7 rights.
The notice in this case fails to recognize the unlaw-
ful nature of Respondent's actions, and also fails to
assure employees that Respondent will not in the
future engage in similar conduct. Respondent in
fact has done little more than reassert a right to
issue the certificates we have determined to be un-
lawful. We conclude therefore that a remedial
order is appropriate. Accordingly, we grant the
General Counsel's Cross-Motion for Summary
Judgment, and deny Respondent's Motion for Sum-
mary Judgment. 3
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and
we find that the Board has jurisdiction over this
matter by virtue of Section 1209 of the Postal Re-
organization Act, 39 U.S.C. §101, et seq. The facili-
ty involved in this proceeding is the Midpark
BranchPost Office located in Cleveland, Ohio. Re-
spondent is, and has been at all times material
herein, an employer within the meaning of the
Postal Reorganization Act.
II. THE LABOR ORGANIZATION INVOLVED
Branch 40, NALC, National Association of
Letter Carriers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about July 12, 1979, Respondent issued a
certificate rewarding its clerical staff for not having
registered complaints or grievances during fiscal
year 1979. Accordingly, we find that Respondent
has engaged in and is engaging in conduct which
constitutes an unfair labor practice within the
meaning of Section 8(a)(l) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in
and is engaging in an unfair labor practice within
2 Passavant Memorial Area Hospital. 237 NLRB 138 (1978)
' Having reached this conclusion, we find it unnecessary to consider
whether the conduct here in issue also violated Sec 8(aX3) of the Act.
inasmuch as the remedy would be essentially the same
the meaning of Section 8(a)(l) of the Act, we shall
order that it cease and desist therefrom and post
the appropriate notice.
CONCLUSIONS OF LAW
1. United States Postal Service is subject to the
jurisdiction of the National Labor Relations Board
by virtue of Section 1209 of the Postal Reorganiza-
tion Act, 39 U.S.C. §101, et seq.
2. Branch 40, NALC, National Association of
Letter Carriers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By issuing a certificate to its clerical employ-
ees rewarding them for not having registered any
complaints or grievances during fiscal year 1979,
Respondent has engaged in and is engaging in an
unfair labor practice within the meaning of Section
8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
United States Postal Service, Cleveland, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing certificates rewarding employees for
not having registered grievances or complaints.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its Midpark Branch, Cleveland, Ohio,
facility copies of the attached notice marked "Ap-
pendix."4 Copies ofsaid notice, on forms provided
by the Regional Director for Region 8, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals ENforcing an
Order of the National Labor Relations Board "
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER PENELLO, concurring:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(1) of the Act by issuing the cer-
tificate of excellence to its clerical staff.
Respondent employs some 10 postal clerks and
64 letter carriers, and is bound by the National
Collective Bargaining Agreement which contains a
formal grievance procedure. On July 12, 1979, Re-
spondent issued to its staff of 10 postal clerks a
"Certificate of Excellence" which was based in
part upon the fact that this segment of its work
force had not registered any complaints or griev-
ances during the past fiscal year. Copies of this cer-
tificate were placed in the clerks' personnel files.
After the charge in this case was filed and shortly
before the complaint was issued, Respondent
posted a notice to employees which stated essen-
tially that the certificate was not intended to
induce employees to relinquish their rights to file
grievances, and that it was Respondent's policy
"that all [its] employees be free to file and process
grievances without interference, restraint or coer-
cion." In addition, the notice stated Respondent's
belief that the language of the certificate was pro-
tected by the first amendment and Section 8(c) of
the Act.
I cannot agree with Respondent that this is a
"trivia" case, involving only an inconsequential, in-
significant, de minimis violation of the Act unwor-
thy of a Board remedy. Generally, the so-called
trivia cases fall into two categories. The first is the
group of cases in which the very existence of a
violation is subject to serious question even when
viewed in the light most favorable to the General
Counsel. 5 The second is the group of cases in
which there is reasonable basis upon which to con-
clude that a technical contravention of the Act has
occurred, but the quantum of misconduct is so
slight, or its effects so substantially remedied by the
respondent's subsequent action, that the conduct
does not rise to the level of a violation worthy of a
Board remedy.6 This case in my opinion falls into
neither category.
It is clear that Section 7 of the Act protects the
rights of employees such as these to file grievances
pursuant to their contract, and it is equally clear
that the exercise of this right cannot be compelled
I See my concurring opinions in United States Postal Service, 248
NLRB 846 (1980); Peoria Journal Star, 242 NLRB 928 (1979); United
Slates Postal Service, 242 NLRB 228 (1979); Peerless Food Products. Inc,,
236 NLRB 161 (1978); and note my remarks in Bureau of National Af-
fairs, Inc. 235 NLRB 8 (1978). Cf. Metal Industries, Inc., 251 NLRB
1523, fn. 2 (1980) (plant manager allegedly directed employees to ignore
union leafletters).
6 American Federation of Musicians. Local 76, AFL-CIO (Jimmy
Wakely Show), 202 NLRB 620 (1973). See my concurring opinion in
United Steelworkers of America, AFL-CIO (Bucyrus-Erie Company). 238
NLRB 177 (1978).
or restrained either by burden or benefit. Certifi-
cates such as the one before us constitute a benefit
to those who receive them. By their nature, they
document a job well done, and are but one of the
many "carrots" available for employers to dangle
before employees eager for advancement. An em-
ployer cannot be permitted, consistent with the
Act, to condition the grant of any benefit, large or
small, upon employees' use or relinquishment of
rights under the Act. Respondent in this case not
only granted the benefit conditioned upon its em-
ployees' not having engaged in protected activity,
but also contended in its "curative" notice that its
conduct was protected, indicating thus that repeti-
tion is likely.7 Given this likelihood, and the fact
that the conduct bears all the necessary earmarks
of a significant violation, the principles espoused in
the Jimmy Wakely case, supra at fn. 6, and relied
upon by Respondent, cannot be applied.
In Jimmy Wakely, the respondent union was
charged with violating Section 8(b)(1)(B) of the
Act for delivering letters to the employer's four
employees and to Supervisor John Wakely, which
informed them that continuing to work for the em-
ployer, a suspended union member, would subject
them to a $100 fine. Two days after the letter was
given to the five individuals, the union retracted
the warning on advice of its attorneys and permit-
ted its members to work without fear of the fine.
The Board found that, under the circumstances, the
misconduct had only limited impact, and had been
so substantially remedied by the union's subsequent
conduct that the entire situation was one of little
significance exhibiting no real need for a Board
remedy. Noting that there was no action taken to
enforce the threat of a fine, and that there was no
other evidence to show a pattern ofunlawful con-
duct, the Board dismissed the complaint even
though it recognized that under a strict interpreta-
tion of the standard for assessing 8(b)(1)(B) con-
duct, a violation could reasonably have been found.
Unlike the respondent union in Jimmy Wakely, Re-
spondent has not "substantially remedied" its un-
lawful conduct, and on the contrary, as noted
above, apparently claims the right to rely on its
employees' not having registered complaints or
grievances as a permissible basis for granting bene-
fits in the future. Given this potential for repetition,
the need for a remedy is clear.
7 Respondent's statement in the notice to its employees that the certifi-
cate was not intended to interfere with its employees' right to file griev-
ances cannot change the fact that the certificate reasonably tends to have
that proscribed effect. Respondent's intention or motive is irrelevant to a
finding that Sec. 8(aXl) of the Act has been violated. The Cooper Ther-
mometer Company, 154 NLRB 502, 503, fn. 2 (1965)
1206
UNITED STATES POSTAL SERVICE
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the right:
To engage in self-organization
To form, join, or assist any union
To argain collectively through
sentatives of their own choice
repre-
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT issue certificates rewarding
employees for not having registered grievances
or complaints.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
UNITED STATES POSTAL SERVICE
1207