N.L.R.B. v. U.S. Postal Service

• Decision Date: 19 June 1990
• Docket Number: No. 89-9511,89-9511
• Citation: 906 F.2d 482
• Parties: 134 L.R.R.M. (BNA) 2545, 59 USLW 2071, 116 Lab.Cas. P 10,195 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 482

906 F.2d 482

134 L.R.R.M. (BNA) 2545, 59 USLW 2071,

116 Lab.Cas. P 10,195

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 89-9511.

United States Court of Appeals Tenth Circuit.

June 19, 1990.

Howard E. Perlstein (David Seddelmeyer, with him on the brief), Supervisory Atty., N.L.R.B., Washington, D.C., for petitioner.

Lynn D. Poole (Stephen E. Alpern, Associate Gen. Counsel, Jesse L. Butler, Asst. Gen. Counsel, with him on the briefs), U.S Postal Service, Office of Labor Law, Washington, D.C., respondent.

Before SEYMOUR, MOORE and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This matter comes before the court on application of the National Labor Relations Board ("NLRB" or "the Board"), pursuant to Sec. 10(e) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. Sec. 160(e), for enforcement of the Board's decision and order in United States Postal Service and Charles B. Richardson, 290 NLRB No. 20, 1988-89 NLRB Dec. (CCH) p 15,081. The Board affirmed the findings and conclusions of the administrative law judge ("the ALJ") that respondent United States Postal Service ("USPS") violated Sec. 8(a)(1) and (3) of the Act by refusing to reassign and promote Charles Richardson because he had engaged in protected concerted activity and that respondent violated Sec. 8(a)(1) by threatening to harass and retaliate against Richardson because he had engaged in protected concerted activity.

I

Charles B. Richardson was hired by respondent on April 9, 1977, as a part-time clerk at respondent's Joplin, Missouri, facility. In the fall of 1979, Richardson contacted the Galena, Kansas, postmaster Clarence Bounds concerning a possible transfer to the Galena facility and, in November 1979, Bounds offered Richardson a position as a "part-time clerk-carrier." Richardson accepted the offer and transferred to Galena effective December 1, 1979, at least in part because of the possibility he would be able to transfer to a full-time carrier position in Galena within a few years. At the time of Richardson's transfer, the Galena facility work force consisted of two full-time rural carriers, two full-time city route carriers and three part-time clerks. ¹ Postmaster Bounds held the only supervisory position.

In February 1983, Richardson was assigned to work holidays and days off for Lester Clarkson, a full-time city route carrier. Thereafter, during the summer of 1984, a part-time carrier position was created in Galena in anticipation of Clarkson's retirement. Both Richardson and Timothy Weston, a part-time clerk, applied for reassignment to the new position. In early July, Bounds asked carriers Clarkson and Teddy Watkins to recommend an employee to fill the new position. Clarkson and Watkins then wrote a letter recommending Weston for the vacancy. In September 1984, after Bounds formally recommended Weston for reassignment to the new carrier position, USPS management in Wichita approved Weston's reassignment effective October 13, 1984, and notified Richardson that his reassignment request had been denied. After Clarkson retired in January 1985, Weston, Galena's only part-time carrier, was promoted to fill Clarkson's full-time letter carrier position.

Between 1981 and the time the new carrier position opened in 1984, Richardson filed several successful grievances against Bounds pursuant to the grievance machinery of the collective-bargaining agreement. ² Richardson filed his first grievance in Spring 1981 when Bounds insisted that Richardson work as a temporary supervisor in Bounds' absence. The grievance was withdrawn at the first step when a union steward informed Bounds that the collective-bargaining agreement expressly prevented the postmaster from requiring an employee to work as a supervisor.

On September 21, 1981, Richardson filed a grievance over a warning Bounds issued to him. Bounds denied the grievance at the first step and Richardson appealed the denial of his grievance to the second step, where Bounds was overruled and the warning withdrawn. On October 13, 1981, Richardson filed a grievance when Bounds suspended Richardson for fourteen days. Bounds' first step decision was again overturned at the second level and Richardson received forty hours back pay (Richardson also received forty hours of back pay through a separate Equal Employment Opportunity ("EEO") complaint).

On February 24, 1984, Bounds disciplined Richardson for misdelivery of the mail and discourtesy to customers by issuing a letter of warning. In March 1984, Richardson filed a grievance concerning the letter and at the second stage of the grievance procedure the warning was reduced to a nondisciplinary "job discussion." Also in March 1984, Bounds denied Richardson a regular pay increase and Richardson filed a grievance in protest on March 28. (About March 26, Bounds also relieved Richardson of his substitute carrier duties, ostensibly because of customer complaints related to Richardson's performance and Richardson's inefficient work.) On April 6, the grievance concerning the pay increase was decided in Richardson's favor at the second level.

The General Counsel of the Board issued a complaint April 1, 1985, against respondent based upon charges filed by Richardson on January 9, 1985. The complaint alleged that respondent, through postmaster Bounds, violated Sec. 8(a)(1) and (3) of the NLRA by threatening, harassing and refusing to reassign and promote Richardson because he had engaged in protected concerted activity by utilizing the grievance procedures of the collective-bargaining agreement.

A hearing was held before the ALJ July 10-12, 1985, and in a decision dated February 19, 1986, the ALJ held: (1) "By threatening to harass, retaliate against and prevent the advancement of Charles B. Richardson because he filed grievances, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act," and (2) "By refusing to reassign and promote Charles B. Richardson because he filed grievances, Respondent has engaged and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act."

Accordingly, the ALJ ordered respondent to cease and desist engaging in the unfair labor practices and ordered respondent to perform certain affirmative actions designed to further the purposes of the Act. Specifically, respondent was ordered to offer Charles B. Richardson a full-time regular carrier position at the Galena facility, "displacing if necessary any employee assigned to such a position since 31 December 1984," and to make Richardson whole for any loss he may have suffered as a result of respondent's discriminatory activities.

Respondent filed exceptions to the ALJ's decision with the NLRB, which, in a decision and order dated July 29, 1988, "affirm[ed] the [ALJ]'s rulings, findings, and conclusions as modified" and modified the interest rate to be used in calculating the ordered remedy. 1988-89 NLRB Dec. (CCH) p 15,082 at 28,296 (footnote omitted). Respondent subsequently refused to comply with the Board's decision and order, necessitating the Board's instant application to this court for enforcement.

II

Respondent first contends the Board erred in concluding that the USPS had violated Sec. 8(a)(1) and (3) of the Act. Section 8(a)(1) and (3) of the NLRA, 29 U.S.C. Sec. 158(a)(1) and (3) provides:

(a) It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; ³ ....

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....

A violation of Sec. 8(a)(3) is established where General Counsel demonstrates that an employer's opposition to protected union activity was a motivating factor in a decision to take adverse action against an employee and the employer is unable to demonstrate that the adverse action would have been taken even absent the protected activity. NLRB v. Transportation Management Corp., 462 U.S. 393, 403, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983), aff'g Wright Line, 251 NLRB No. 150, 1980 NLRB Dec. (CCH) p 17,356.

In conducting our review, we must uphold the Board's factual findings if they are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Artra Group, Inc. v. NLRB, 730 F.2d 586, 590 (10th Cir.1984). "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464. However, the substantiality calculus does not mean that "a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465. "[This] court certainly does not retry the case. It [does not] undertake[ ] to weigh the credibility of witnesses"--the credibility determinations of an ALJ will not be upset absent extraordinary circumstances. Artra Group, 730 F.2d at 590, 592.

In our opinion, substantial evidence in the record supports the ALJ's conclusions that Bounds threatened to harass and retaliate against Richardson and prevented Richardson's advancement because Richardson had repeatedly filed grievances challenging Bounds' conduct. ⁴

Richardson testified that on July 11, 1984, Bounds told him that he would not be reassigned to the new carrier position "due to EEO complaints and union grievances [Richardson] filed against [Bounds]" and because Clarkson and Watkins had objected to Richardson's reassignment. According to Richardson, when Richardson reminded Bounds that he had originally transferred to Galena because Bounds had indicated that a regular letter carrier...