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USPS Liable for Supervisor's Threats of Retaliation

Greg Bell, Director
Industrial Relations

(This article first appeared in the July/August 2008 issue of The American Postal Worker magazine.)

A supervisor who threatened an employee with  reprisals after the employee filed an unfair labor practice charge was acting as an “agent of the USPS” and therefore the Postal Service was liable for his actions, according to a U.S. Court of Appeals decision enforcing an order of the National Labor Relations Board.

The Board found, and the court concurred, that the supervisor was acting in his capacity as a supervisor – and not as a private citizen with free speech rights – when he told the employee that he was “going to be sorry for filing the charge” and that he “had better get a good attorney” because the supervisor “already had a good attorney” and he was “going to sue.”

Protected Activity

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.…”

“It is well established,” the Appeals Court noted, “that the filing of a charge before the Board constitutes protected activity within the meaning of Section 7.”

Furthermore, Section 8(a)(1) of the act makes it an “unfair labor practice for an employer…to interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed in Section 7.

“An employer thus violates section 8(a)(1)when it threatens an employee with retaliation because the employee engaged in protected activity,” the board wrote.

Background: Fear of Anthrax

The case arose in August of 2004 when an employee discovered white powder in a tray of letters. Concerned because of the anthrax incidents several years earlier, a group of workers protested the supervisor’s instructions to process the mail. When the shop steward attempted to pursue the issue, the supervisor told him to “shut up” and ordered him back to work. Thereafter, one of the employees filed an unfair labor practice charge against the supervisor, alleging that the supervisor had refused to allow the shop steward to perform his duties.

Upon learning of the charge filed against him, the supervisor (who was working at another office that day) telephoned the employee at work and questioned him about the charge. When the employee explained that the charge concerned the supervisor’s interference with the steward’s union activities during the powder incident, the supervisor began to yell at the employee, asserted that he would be sorry he filed the charge, and warned him that he “had better get a good attorney because he [the supervisor] was going to sue.” The supervisor then slammed down the phone without giving the employee any further opportunity to respond.

The employee subsequently filed another unfair labor practice charge, alleging that the Postal Service, through the supervisor, had threatened to retaliate for his initial unfair labor practice charge.

The Board’s Decision

The case was first heard by an administrative law judge (ALJ) who ruled that the USPS violated Section 8(a)(1) of the National Labor Relations Act by threatening to retaliate against the employee for filing an unfair labor practice charge. The Postal Service appealed the decision of the ALJ, but the National Labor Relations Board agreed with the judge and ordered the Postal Service to “cease and desist from threatening employees for filing unfair labor practice charges and from, in any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act,” and to post a notice stating the above in the affected post office.

The Postal Service argued that it was not responsible for the actions of the supervisor, and refused to voluntarily comply with the board’s order. The board then applied to the U.S. Court of Appeals for an enforcement order.

Decision of the Appeals Court

The Postal Service argued before the court that the supervisor was speaking as an individual citizen when he served notice of his intent to sue, and not as an agent of the USPS. Furthermore, the Postal Service argued, the supervisor’s statements were protected by the free speech clause of the First Amendment to the U.S. Constitution.

In its decision, the court agreed with the board’s finding that the supervisor was speaking as an agent of the employer. The board has long held employers responsible for the conduct, including threats, of their supervisors. “That attribution of responsibility,” the board stated, “is reasonable, given that employers present supervisors to employees as endowed with a certain level of authority in the workplace. And it is particularly apt in certain circumstances, namely when the threatening supervisor is directly in charge of the threatened employee, the threat targets the employee personally, and the threat is related to the employee’s critique of that supervisor’s actions in a supervisory capacity.”

The court then turned to the USPS’ argument that the supervisor’s statements were protected by the free speech clause of the Constitution. The court ruled that “because an employer’s threat of retaliation against an employee for engaging in protected conduct violates section 8(a)(1), [the supervisor]’ s statements do not enjoy Speech Clause immunity.”

As the board noted, “the Supreme Court has specifically held … that employer’s retaliatory threats in violation of the Act are not entitled to First Amendment Protection.”

The supervisor’s “screamed warnings of legal and other reprisals, from a supervisor to a supervisee, during working time, in retaliation for a protected charge stemming from an earlier workplace incident involving alleged supervisory conduct,” the board wrote, “comprise a typical Section 8(a)(1) violation.”

The supervisor did not merely state a protected opinion regarding the merits of the charge, the board noted. Nor did the supervisor confine his threats to possible recourse to the legal system.

“His threats were therefore not, as the USPS implies, analogous to a sanitized legal notice of intent to file a lawsuit…,” the board wrote. “In sum, [the supervisor]’s mere mention of legal action during his intimidation of [the employee] is not enough, under the speech clause of the First Amendment, to insulate the USPS from unfair-labor-practice liability.”

The court concluded by enforcing the board’s order. A spokesperson said the USPS will not appeal the ruling. 

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