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(This article first appeared in the July/Aug 2007 issue of The American Postal Worker magazine.)

Court: USPS Engaging in ‘Egregious’ Misconduct

Greg Bell, Director
Industrial Relations

A federal appeals court recently issued a decision that enforces an order of the National Labor Relations Board against the Postal Service in Albuquerque NM, which was found to have unlawfully disciplined and discharged a steward. The USPS also threatened to retaliate against rank-and-file APWU members who exercised their union rights.

Congratulations to the members of the Albuquerque Local, the local president, and the fired Vehicle Maintenance Facility craft director for this hard-fought victory.

What makes the decision significant is that not only was the Postal Service ordered to stop engaging in unfair labor practices, it was ordered to cease “ in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the [National Labor Relations] Act.” [Emphasis added.]

According to NLRB precedent, a remedy this broad would be warranted only when a respondent, such as the USPS, “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 court concluded that “there was sufficient evidence from which the Board could have determined the violations ... demonstrated opposition to the purposes of the Act and justified a broad remedial order.”

A Request at a VMF

In September 2003, the Motor Vehicle Craft director at the Albuquerque Vehicle Maintenance Facility made an information request for copies of forms that he believed bargaining unit employees unlawfully had been asked to sign. The request set off a sequence of events during which the VMF manager and a lower-level supervisor subjected the APWU craft director to nine retaliatory disciplinary actions, including official discussions, fact-finding meetings, a letter of warning, suspensions, and, ultimately, discharge.

After the discharge action, the VMF supervisor held a mandatory meeting for all facility employees at which, according to the NLRB, “he asserted that employees agreed to restrict their behavior when they came to work for the Postal Service, chastised union members for allowing [the craft director] to ‘squander union dues’ with his conduct, and threatened all employees with discipline or discharge for engaging in the types of ‘self-destructive behavior’ in which [the craft director] engaged.”

Also in Albuquerque in 2003, the APWU craft director at the Auxiliary Services Facility (ASF) made several information requests for the purpose of investigating potential grievances. Postal management simply failed to respond.

In June 2004, an Administrative Law Judge (ALJ) found that Albuquerque postal management had violated the NLRA in three ways: their actions toward the VMF craft director; the VMF supervisory threats to all VMF employees; and the unfilled information requests from the ASF craft director.

The ALJ recommended a broad cease-and-desist order that included the remedial “in any other manner” language, as well as the posting of notices in all USPS facilities in Albuquerque .

The Board Rules

The Postal Service contested both the breadth of the language and the geographical scope of the posting requirement. It did not challenge the ALJ’s factual findings, but argued that the recommended remedy was inappropriate because its “violations were limited to one location and were committed by a small number of low-level supervisors.” The Postal Service further contended that the violations were not egregious or widespread and “did not demonstrate a proclivity to violate the Act.”

Finally, the Postal Service objected to the ALJ’s consideration of nationwide NLRA violations when determining that the USPS had a proclivity to violate the Act, claiming that it has “a long history of union cooperation.”

A three-member NLRB panel reviewed the ALJ’s decision and the Postal Service’s exceptions. Although the panel modified the ALJ’s recommendations to require posting at only three facilities instead of throughout the Albuquerque Performance Cluster, it affirmed the ALJ’s decision to order a broad remedy that would enjoin the Postal Service from “in any other manner” interfering with, restraining or coercing employees in the exercise of their rights under the NLRA.

The Board noted that the Postal Service “here unlawfully threatened, disciplined, and discharged a union steward in retaliation for his union activity, including the filing of information requests.” Further, the Board noted, “after the [USPS] unlawfully disciplined and discharged the steward, [it] unlawfully warned the assembled employees that a similar fate awaited those who encouraged zealous union action.”

The Board determined that these actions at Albuquerque ’s main post office “demonstrated a proclivity to respond unlawfully to the [USPS] employees’ meaningful exercise of their statutory rights.”

Review of ‘Any Other Matter’

When an employer fails to voluntarily comply with a Board order, the Board must file a petition in the appropriate court of appeals to secure enforcement.

Because the Postal Service did not challenge the Board’s factual findings regarding the occurrence of violations of the Act, the only issue before the court was the permissibility of the “in any other manner” language that the Board included in its remedy.

In determining the appropriateness of the Board’s remedy in this case, “A key inquiry,” the U.S. Court of Appeals for the 10th Circuit wrote, “is whether the employers’ actions display ‘an attitude of opposition to the purposes of the Act to protect the rights of employees generally.’” “Requisite disregard for employees’ rights may be demonstrated where ... an employers’ conduct ‘goes to the heart of the Act,’ ... by burdening or interfering with” the workers’ fundamental right to form, join or assist a labor organization.

The court determined that “there was sufficient evidence from which the Board could have determined the violations in Albuquerque ’s three main post office facilities demonstrated opposition to the purposes of the Act and justified a broad remedial order.”

“The nature of [the supervisory] threats to the VMF employees are particularly consequential to this court’s determination that members of USPS management displayed ‘an attitude of opposition to the purposes of the Act,’” the court wrote.

“During [the VMF supervisor’s] speech, workers were not only cautioned against seeking information from management, but were also told not to speak out in meetings with management and not to question supervisors.” The supervisor “essentially indicated to workers that, if asserting union rights required acting outside the range of management- sanctioned behavior, employees should remain silent or face consequences similar” to the firing of the VMF craft director.

The court determined that the VMF supervisor’s speech also “effectively encouraged union members to reign in union stewards, craft directors, and others who make legitimate demands on management.”

“By displaying such opposition to union organization and union rights,” the court wrote, ”employees would not feel free to enjoy the rights of self-organization, engage in protected activity, or benefit from the guarantees provided to them in their collective bargaining agreement.”

The supervisor’s actions “went to the ‘heart of the Act’ ... and justify the Board’s decision to craft a broadly-worded remedial order.”

Finally, the court noted: “The Postal Service provided no evidence to substantiate its claims about its positive, long-term relationship with the postal workers’ union, thereby preventing both the Board and this court from considering the merits of such an argument.” (NLRB v. USPS, 10th Cir., No. 06-9513, 5/16/07 )

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