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 National Labor Relations Board vs. U.S. Postal Service (posted May 20, 2007)

Excerpts from the Tenth Circuit Court (PDF) and NLRB Cases


Petitioner National Labor Relations Board seeks enforcement of an order issued against the United States Postal Service for violations of the National Labor Relations Act at three facilities within Albuquerque, New Mexico's main post office. . As part of a remedy for violations of NLRA section 8(a)(1), (a)(3), and (a)(5), 29 U.S.C. § 158(a)(1), (3), (5), the Board ordered the USPS to, among other things, cease and desist from "[i]n any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act."

The Board also ordered that language to this effect be posted at the three facilities within the main post office as part of a notice to employees about their rights.. The Postal Service challenged the breadth of the remedial language before the Board and renews its challenge before this court. Exercising jurisdiction pursuant to 29 U.S.C. § 160(e), we enforce the Board's order.


The three facilities within Albuquerque's main post office are the Vehicle Maintenance Facility ("VMF"), the Auxiliary Service Facility ("ASF"), and the main plant. It is undisputed that NLRA violations involving two union craft directors and all VMF employees occurred at the three facilities in 2003. Beginning in September 2003, when VMF craft director John Orlovsky made an information request for forms he believed union workers were unlawfully asked to sign, VMF Manager Michael Quintana and VMF Supervisor Thomas Smith subjected Orlovsky to nine retaliatory disciplinary actions, including official discussions, fact-finding meetings, a letter of warning, suspensions, and, ultimately, discharge. Smith and Quintana also prevented Orlovsky from conferring with a union representative during two fact-finding meetings and failed to disclose the charges against him prior to one of the meetings, both in violation of the union's collective bargaining agreement. After Orlovsky's discharge, Smith held a mandatory meeting with all VMF employees at which he asserted that employees agreed to restrict their behavior when they came to work for the Postal Service, chastised union members for allowing Orlovsky 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 Orlovsky engaged.

  Smith confirmed that approximately a week after [APWU steward] Orlovsky was “formally walked off the floor,” he conducted a meeting with the VMF employees. As reflected by his written outline, Smith compared employment to participating in a lifeboat. Smith told employees that in a lifeboat situation, participants have “limited alternatives of appropriate behavior available to them.” The following excerpts were included as a part of Smith’s six-page written outline:

In ANY specific JOB, the ALTERNATIVES for APPROPRIATE BEHAVIOR for that job are limited.

When individuals come to work for our company, they are in fact:

Offering to restrict their selection of alternate behaviors to those which we are willing to pay for.

As with a group of any size, we have a miniscule number amongst us who think THEY should determine the direction of the VMF. That number was reduced this past Thursday.

A word to the wise: If you are amongst that minute number, you would do well to:

Reconsider your ways.


Now let me make myself very clear about what I am about to say:

I am not “union bashing” or speaking ill of the union.

I have absolutely no problems with unions.

They have a job and purpose, just as management has a job and purpose.

This is not about the union; rather it is about your union representative’s behavior,

It could well be about any one of you, should you so choose self-destructive behavior.

Your Craft Director, appears to be under the erroneous impression:

He is appointed to run the VMF, rather than perform the work he was hired to do.

I haven’t the foggiest Notion, what role he thinks management is hired for.

In his failed attempts to deride and ridicule, whine and complain about virtually everything, he appears to have forgotten that we rented his behavior for technical repairs:

He climbed in our lifeboat

All he wanted to do was “dance”


He could row, steer, fish, hit seagulls on the head or catch rainwater – NOT DANCE.


This is self-destructive behavior

It endangers everyone in the boat

Thus, it is unacceptable behavior and management rightfully dealt with it.

Smith also told the employees that if they were “card carrying” union members and did nothing to address the “selfish way” that Orlovsky was squandering union dues and wasting postal funds, they bore a portion of the responsibility for his conduct. Smith talked about the grievances filed by Orlovsky and asked: “How many would willingly take, say $60.00 out of their pocket – use to file such triviality. Collectively-you did! And for what?” Smith continued the meeting by describing the ways in which he had improved their working conditions since his arrival at the VMF in 1999. At the conclusion of the meeting, Smith told employees:

When MIKE, MATT, OR JAMES directs you to:




Finally, also in 2003, the ASF's [APWU] craft director, Charles Trujillo, made several information requests of USPS management regarding management's actions at the ASF and the main plant. Trujillo's requests were made for the purposes of investigating potential grievances and processing filed grievances. Postal Service management failed to respond to two of these requests.

The USPS contested both the geographic scope of the posting requirement and the breadth of the language in the ALJ's recommended order. As to the breadth of the cease-and-desist language, it argued a broad order was inappropriate under NLRB precedent , because its violations were limited to one location and were committed by a small number of low-level supervisors; it contended its misconduct did not amount to egregious or widespread violations and did not demonstrate a proclivity to violate the Act. The USPS, furthermore, objected to the ALJ's consideration of nationwide NLRA violations when determining that the USPS had a proclivity to violate the Act. It claimed the number of nationwide violations paled in comparison to its long history of union cooperation.

A three-member NLRB panel modified the scope of the ALJ's recommendation to require posting only at the three facilities within Albuquerque's main post office rather than in all Albuquerque city postal facilities, but affirmed the broad injunctive language recommended by the ALJ.  With one member dissenting as to the need for broad cease-and-desist language, the panel determined the violations at Albuquerque's main post office "demonstrated a proclivity to respond unlawfully to the [USPS] employees' meaningful exercise of their statutory rights." The Board stated its determination that a broad cease-and-desist order was appropriate based on the series of section 8(a)(1) and (a)(3) violations by Quintana and Smith against Orlovsky, and the section 8(a)(1) violation resulting from the meeting Smith held with all VMF employees after Orlovsky's discharge. The latter incident was particularly significant in the Board's determination that the USPS had a proclivity to violate the Act.

Additionally, as had the ALJ, the Board referenced the Tenth Circuit's entry of a January 2003 consent judgment between the NLRB and the USPS, which had been precipitated by information-request violations at three other USPS facilities in Albuquerque and which contained the same broad remedial language challenged here. Id. at 1 (citing NLRB v. United States Postal Serv., No. 02-9587 (10th Cir. Jan. 8, 2003) (unpublished consent judgment)). The Board observed that the NLRA violations arising in the wake of Orlovsky's information request amounted to the "very conduct which the previous order sought to remedy." Although the Board's order in the instant Albuquerque case also referenced a decision issued the same day involving information-request violations at Waco, Texas, postal facilities, United States Postal Serv., 345 N.L.R.B. No. 25 (2006), the Board did not explicitly discuss the Postal Service's history of nationwide violations in justifying its broad cease-and-desist order.


After reviewing the record, and giving appropriate deference to the NLRB's expertise in selecting a remedy, Velocity Express, 434 F.3d at 1202, this court concludes 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 Board determined, and the USPS does not contest, that Orlovsky's request for information touched off an escalating series of NLRA violations demonstrating animus towards Orlovsky's section 7 rights. In particular, Orlovsky was not only unable to obtain information on behalf of the union, but also received a warning, suspensions and, ultimately, a discharge, in retaliation for asserting basic union rights. He was, moreover, twice denied the opportunity to speak with a union representative and, on one occasion, denied the chance to hear the charges against him in connection with fact-finding meetings.

According to two employees who were present at the meeting, Smith also held up two file folders, a fat one which he said represented all of the work Smith and management had done to improve the lives of VMF employees, and a thin one, containing Orlovsky's grievances, which Smith said represented the work the union had done to improve employees' lives. Smith's message, according to the employees, was that the grievances Orlovsky filed were frivolous. The employees also testified they understood Smith's lecture to be a warning that "rocking the boat," or engaging in union activities, could lead to termination.

The nature of Smith's 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 breadth of Smith's threats implicated much, if not all, section 7 activity: During Smith'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. Smith 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 Orlovsky's. Smith'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, Smith created a risk that Postal Service employees would not feel free to enjoy the right of self-organization, engage in protected union activity, or benefit from the guarantees provided to them in their collective bargaining agreement and NLRA section 7. Smith's actions, therefore, went to the "heart of the Act," and, along with the multiple violations of Orlovsky's rights by Smith and Quintana, justify the Board's decision to craft a broadly-worded remedial order.

Moreover, as the Board noted, the violations at the three facilities within Albuquerque's main post office occurred less than a year after the USPS voluntarily agreed, in connection with information-request violations at three other Albuquerque postal facilities, to a broad cease-and-desist order that contained the very language in dispute here. . Although the prior Albuquerque order applied to facilities other than those at issue in this appeal, it was reasonable for the NLRB to view the recurrence of anti-union activity within the same geographic area as further evidence of the Postal Service's proclivity to violate the Act.


The NLRB's determination that the Postal Service has a proclivity to demonstrate opposition to workers' section 7 rights is supported by substantial evidence. The cease-and-desist order's inclusion of language enjoining management at Albuquerque's main post office from interfering "in any . . . manner" with workers' section 7 rights is, therefore, a remedy "that effectuates the policies of the Act."  Accordingly, the Board's order will be ENFORCED and posting will be required at the three facilities within Albuquerque's main post office. 


1.In its entirety, part 1 of the Board's order states:

The National Labor Relations Board orders that the Respondent, United States Postal Service, Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall

1. Cease and desist from:

(a) Threatening employees with unspecified reprisals because they engaged in union or protected activity.

(b) Denying an employee the rights of union representation during an investigatory interview that the employee reasonably believes may result in disciplinary action.

(c) Refusing to permit an employee to speak with the employee's union representative prior to an investigatory interview that the employee reasonably believes may result in disciplinary action.

(d) Failing and refusing to inform an employee and the employee's union representative of the specific charges that are to be discussed during an investigatory interview that the employee reasonably believes may result in disciplinary action.

(e) Threatening employees that they will be discharged for their protected or union activities.

(f) Disciplining employees because of their protected or union activities.

(g) Discharging employees because of their protected or union activities.

(h) Refusing to bargain collectively with the American Postal Workers Union, Local No. 380, AFL-CIO by failing and refusing to provide requested information that is relevant and necessary to the Union as the collective bargaining representative of those Unit employees described in the existing collective bargaining agreement and found appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

(i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

United States Postal Serv., 345 N.L.R.B. No. 26, at 2. Clause (i) is the portion of the order challenged in this enforcement action.