F I LED

United States Court of Appeals

Tenth Circuit

May 16, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATIONAL LABOR RELATIONS

BOARD,

Petitioner,

v. No. 06-9513

UNITED STATES POSTAL SERVICE,

Respondent.

APPLICATION FOR ENFORCEMENT OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

(NOS. 28-CA-19148(P), 28-CA-19149(P), 28-CA-19327(P))

Stacy Garrick Zimmerman, Attorney (Jill A. Griffin, Supervisory Attorney;

Ronald Meisburg, General Counsel; John E. Higgins, Jr., Deputy General

Counsel; John H. Ferguson, Associate General Counsel; and Aileen A.

Armstrong, Deputy Associate General Counsel, with her on the brief), National

Labor Relations Board, Washington, DC, for Petitioner.

Teresa A. Gonsalves, Counsel of Record, United States Postal Service,

Washington, DC (Stephan J. Boardman and Howard J. Kaufman, United States

Postal Service, Washington, DC; Steven E. Coney and Isabelle G. Dorlan, of

counsel, Dallas, Texas, with her on the briefs), for Respondent.

Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.
In its entirety, part 1 of the Board’s order states: 1

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

(continued...)

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I. INTRODUCTION

Petitioner National Labor Relations Board (“NLRB” or “Board”) seeks

enforcement of an order issued against the United States Postal Service (“USPS”

or “Postal Service”) for violations of the National Labor Relations Act (“NLRA”

or “Act”) at three facilities within Albuquerque, New Mexico’s main post office. 

See United States Postal Serv., 345 N.L.R.B. No. 26 (Aug. 27, 2005). 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.” 

United States Postal Serv., 345 N.L.R.B. No. 26, at 2. The Board also ordered 1
(...continued) 1

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. 

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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. Id. at 3. 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 Vehicle Maintenance Facility (“VMF”) is responsible for repairing 2

and maintaining all Postal Service vehicles in the Albuquerque district. 

Albuquerque mail is processed at the Auxiliary Service Facility (“ASF”) and the

main plant.

A postal worker union craft director files and processes grievances, 3

submits information requests to the Postal Service, and performs other union

steward duties associated with the maintenance of a collective bargaining

agreement.

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II. BACKGROUND

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 2

directors and all VMF employees occurred at the three facilities in 2003.

3

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
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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. Finally, also in 2003, the ASF’s 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.

An administrative law judge (“ALJ”) heard testimony and received

evidence in June 2004 finding violations of NLRA section 8(a)(1) and (a)(3) in

connection with Smith’s and Quintana’s actions toward Orlovsky, a violation of

section 8(a)(1) in connection with Smith’s threats to all VMF employees, and two

violations of section 8(a)(5) in connection with Trujillo’s unfulfilled ASF and

main plant information requests. When considering an appropriate remedy for the

multiple violations, the ALJ took into account both the Postal Service’s

nationwide history of section 8(a)(5) information-request violations, as well as a

January 2003 consent judgment entered by this court between the Board and the

USPS involving information-request violations at three other Albuquerque post

offices. The ALJ ultimately recommended a broad cease-and-desist order

containing the remedial “in any other manner” language now challenged before
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this court. United States Postal Serv., 345 N.L.R.B. No. 26, at 23. The ALJ also

recommended notice posting at all USPS facilities in the city of Albuquerque. Id.

at 21.

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 in Hickmott Foods, Inc., 242 N.L.R.B. 1357

(1979), 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, as required for the issuance of a broad remedial order under

Hickmott Foods. 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. 

United States Postal Serv., 345 N.L.R.B. No. 26, at 1. With one member

dissenting as to the need for broad cease-and-desist language, the panel
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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.” Id. at 2. 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. Id. at 1–2. The latter incident was particularly significant

in the Board’s determination that the USPS had a proclivity to violate the Act. Id.

at 2. 

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.” Id. 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
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history of nationwide violations in justifying its broad cease-and-desist order.

United States Postal Serv., 345 N.L.R.B. No. 26, at 1.

III. DISCUSSION

This court has the authority to enforce, modify, or set aside an NLRB order. 

29 U.S.C.§ 160(e). Enforcement is appropriate when “the agency has correctly

applied the law and its findings are supported by substantial evidence in the

record as a whole.” NLRB v. Velocity Express, 434 F.3d 1198, 1201 (10th Cir.

2006) (quotation omitted). “Substantial evidence is defined as such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Id. (quotation omitted). When reviewing a Board-ordered remedy for NLRA

violations, appellate courts must recognize the Board’s “primary responsibility

and broad discretion to devise remedies that effectuate the policies of the Act.”

Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898 (1984) (citing 29 U.S.C.§ 160(c)). 

This court’s scope of review is narrow, id., and should give “special respect” to

the Board’s choice of remedy, Velocity Express, 434 F.3d at 1202. We should

not, therefore, disturb the Board’s chosen remedy unless it can be shown that “the

order is a patent attempt to achieve ends other than those which can fairly be said

to effectuate the policies of the [NLRA].” Id.

Because the USPS does not challenge the Board’s factual findings or its

conclusions regarding the occurrence of section 8(a)(1), (a)(3), and (a)(5)
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violations, the only issue for this court’s determination is the permissibility of the

broad, “in any other manner” language the Board thought appropriate to include

in its remedial order. The breadth of a remedial order “must depend upon the

circumstances of each case.” NLRB v. Express Publ’g Co., 312 U.S. 426, 436

(1941). To be a permissible exercise of the Board’s discretion, an order that

enjoins violations other than those found by the Board is permissible if it appears

the enjoined violations “bear some resemblance to that which the employer has

committed or that danger of their commission in the future is to be anticipated

from the course of [its] conduct in the past.” Id. at 437. A key inquiry is whether

the employer’s actions display “an attitude of opposition to the purposes of the

Act to protect the rights of employees generally.” May Dept. Stores Co. v. NLRB,

326 U.S. 376, 392 (1945). 

Recognizing that a broad remedial order is an extraordinary remedy, the

Board itself has said the “in any other manner” language at issue here is

“warranted only when a respondent 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.” Hickmott

Foods, 242 N.L.R.B. at 1357. Requisite disregard for employees’ rights may be

demonstrated where, for example, section 8(a)(1) violations have occurred prior

to or concurrently with a discriminatory discharge, id., or where an employers’
The Florida Steel decision, 223 N.L.R.B. 174, 175 (1976), predates the 4

Board’s pronouncement in Hickmott Foods that broad remedial orders would, in

the future, be reserved for a narrow set of cases. See Hickmott Foods, Inc., 242

N.L.R.B. 1357, 1357 (1979). Florida Steel is cited in Hickmott Foods, however,

as a case whose facts would justify a broad remedial order even under the

Hickmott Foods test. Id. at 1357 & n.4. Florida Steel involved threats by several

supervisors against steelworkers for collective bargaining and other union

activity, in violation of section 8(a)(1), and a discriminatory discharge, in

violation of section 8(a)(3). Florida Steel Corp., 223 N.L.R.B. at 174. The

NLRB determined broad remedial language was necessary because Florida Steel’s

conduct went “to the heart of the Act.” Id. at 175. 

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conduct “goes to the heart of the Act,” Florida Steel Corp., 223 N.L.R.B. 174,

175 (1976), by burdening or interfering with workers’ section 7 rights. 

4

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. See May Dept. Stores Co., 326 U.S. at 392. 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,
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on one occasion, denied the chance to hear the charges against him in connection

with fact-finding meetings. 

Management’s actions, moreover, were not limited to Orlovsky alone. At

the meeting that Supervisor Smith held with all VMF employees a week after

Orlovsky’s termination, Smith threatened the employees with discipline or

discharge if they chose to engage in the same behavior as Orlovsky. The Board

interpreted Smith’s remarks as an “unlawful[] warn[ing] . . . that a similar fate

awaited those who encouraged zealous union action.” United States Postal Serv.,

345 N.L.R.B. No. 26, at 2. During his lecture, Smith compared the workplace to

a lifeboat and told employees that people in a lifeboat situation have “limited

alternatives of appropriate behavior available to them.” Smith indicated that

Orlovsky’s error was trying to “determine the direction of the VMF” through

complaining, whining, and threatening management with demands. He then

summarized each of Orlovsky’s grievances, indicated they were illegitimate uses

of union resources, and suggested any union member who tolerated Orlovsky’s

conduct bore responsibility for and should be angry at Orlovsky. Smith labeled

Orlovsky’s questions during stand-up meetings as “interruptions” and

“disruptions,” and advised Orlovsky’s “followers” to obey supervisors’ directions

without complaints or questions. 

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
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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.” May Dept.

Stores Co., 326 U.S. at 392. 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
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collective bargaining agreement and NLRA section 7. Smith’s actions, therefore,

went to the “heart of the Act,” Florida Steel Corp., 223 N.L.R.B. at 175, 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. United States Postal Serv., 345

N.L.R.B. No. 26, at 1. 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 Postal Service argues this court’s determination should be guided by

the Fifth Circuit’s recent modification of a broad cease-and-desist order at Waco,

Texas, postal facilities. See NLRB v. United States Postal Serv., 477 F.3d 263,

271 (5th Cir. 2007), modifying order in United States Postal Serv., 345 N.L.R.B.

No. 25 (2005). This court, however, concludes the Waco case is easily

distinguishable. The only NLRA violations in Waco involved four unfulfilled

information requests which occurred after an earlier series of twelve unfulfilled

information requests. Id. at 265. In contrast, the Postal Service’s actions at
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Albuquerque’s main post office facilities began with information requests, but, as

to Orlovsky and the VMF employees, did not end there. The Waco case in no

way involved the multiple instances of retaliatory, progressive discipline or

threats to all employees that occurred in Albuquerque. Furthermore, there was

not yet a cease-and-desist order in place in Waco to address the twelve prior

violations when the subsequent four violations occurred. Id. at 270. 

Accordingly, while the Fifth Circuit’s modification of the Waco order may have

been appropriate, the same modification is not required here. 

In concluding the breadth of the Board’s remedial order is appropriate, this

court rejects the Postal Service’s attempts to argue its size, decentralized

structure, small number of nationwide violations, and long history of good labor

relations negate the Board’s proclivity determination. Although the ALJ’s

recommendation accorded some weight to USPS violations nationwide, see

United States Postal Serv., 345 N.L.R.B. No. 26, at 20-21, the Board relied solely

on the violations that occurred in Albuquerque in crafting its order. And,

although the Board did refer by incorporation to the remedy ordered in its nowoverruled Waco decision, id. at 1, its proclivity determination was based on its

undisputed finding regarding anti-union animus and retaliation towards Orlovsky

and threats to all VMF employees. Id. at 2. (“[A]fter the Respondent unlawfully

disciplined and discharged the steward [Orlovsky], the Respondent unlawfully

warned the assembled employees that a similar fate awaited those who
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encouraged zealous union action. By these actions, the Respondent demonstrated

a proclivity to respond unlawfully to the employees’ meaningful exercise of their

statutory rights.”). Furthermore, 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. 

IV. CONCLUSION

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.” Sure-Tan, Inc., 467 U.S. at 398. Accordingly, the

Board’s order will be ENFORCED and posting will be required at the three

facilities within Albuquerque’s main post office. 
06-9513, National Labor Relations Board v. U.S. Postal Service.

TYMKOVICH, Circuit Judge, concurring.

I concur, but write to add a few comments about the scope of the remedy

imposed by the NLRB.

The NLRB’s power to select a remedy is broad, subject to limited judicial

review. Dayton Tire & Rubber Co. v. NLRB, 591 F.2d 566, 570 (10th Cir. 1979). 

“[W]e review only to ensure the NLRB acted within reasonable bounds and

substantial evidence supports the order.” NLRB v. Velocity Express, Inc., 434

F.3d 1198, 1201 (10th Cir. 2006). We should not disturb an order of the NLRB

unless it attempts “to achieve ends other than those . . . fairly . . . said to

effectuate the policies of the [National Labor Relations] Act . . . includ[ing] the

promotion of industrial peace, the prevention of unfair labor practices and

protection [of] victimized employees.” Dayton Tire & Rubber, 591 F.2d at 570. 

In effectuating the policies of the Act, the NLRB’s “proposed remedy [must] be

tailored to the unfair labor practice it is intended to redress.” Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 900 (1984). A failure to reasonably tailor the remedy is

arbitrary and capricious. See Velocity Express, 434 F.3d at 1206 (Murphy, J.

concurring and dissenting). 

 We have held that injunctive relief is a powerful remedy to “be narrowly

tailored to remedy the harm shown.” Garrison v. Baker Hughes Oilfield

Operations, Inc., 287 F.3d 955, 962 (10th Cir. 2002). More specifically, in this

circuit we allow a broad order enjoining all violations of the National Labor
 A finding of persistent attempts by varying means to interfere with 1

employee rights justifies a broad injunction by demonstrating “an attitude of

opposition to the purposes of the Act.” NLRB v. Armour & Co., 154 F.2d 570,

578 (10th Cir. 1946). See also May Dep’t Stores Co. v. NLRB, 326 U.S. 376, 392

(1945) (requiring “a clear determination by the Board of an attitude of opposition

to the purposes of the Act to protect the rights of employees generally”). Such a

determination must be supported by substantial evidence. See Velocity Express,

434 F.3d at 1201. 

 The rule has been followed in this circuit. In NLRB v. Seamprufe, Inc.,

2

382 F.2d 820, 822 (10th Cir. 1967), we modified a broad order so that it would

cover only the “unfair labor practices found to have been committed and other

related unlawful acts.” 

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Relations Act only where the defendant has engaged in “persistent attempts by

varying methods to interfere with employee rights.” NLRB v. Process & 1

Pollution Control Co., 588 F.2d 786, 792 (10th Cir. 1978) (citing NLRB v.

Express Publ’g, 312 U.S. 426, 437–38 (1941)). 

The Supreme Court has explained that Congress did not intend federal

courts to enforce NLRB orders that federal courts could not otherwise issue

themselves. Express Publ’g, 312 U.S. at 435. “A federal court has broad power

to restrain acts which are of the same type or class as unlawful acts which the

court has found to have been committed . . . . [But the Supreme C]ourt will strike

from an injunction decree restraints upon the commission of unlawful acts which

are thus dissociated from those which a defendant has committed.” Id. at

435–36. Injunctions that broadly order the enjoined party simply to obey the law 2

and not violate the statute are generally impermissible. Int’l Rectifier Corp. v.

IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004); Davis v. Richmond,
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Fredricksburg & Potomac R.R., 803 F.2d 1322, 1328 (4th Cir. 1986); EEOC v.

Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 576–77 (6th Cir.

1984); see also Public Interest Research Group of New Jersey, Inc. v. Powell

Duffryn Terminals, Inc., 913 F.2d 64, 83 (3d Cir. 1990); Gaddy v. Abex Corp.,

884 F.2d 312, 318 (7th Cir. 1989); Calvin Klein Cosmetics v. Parfums de Coeur,

Ltd., 824 F.2d 665, 669 (8th Cir. 1987). 

The NLRB admits the cease-and-desist order issued here is so broad that it

“will subject an employer to contempt sanctions for any future violations of the

Act, not simply ‘like and related’ violations.” Pet. Br. at 26 (emphasis added). 

Its finding of proclivity is based primarily on (1) the violations in this case, and

(2) historical information request violations, some of which occurred in other

parts of the country.

While a close call, given our standard of review I am satisfied that as a

whole the evidence supports a finding that the Albuquerque division of the Postal

Service engaged in “persistent attempts by varying methods” to violate the Act. 

In addition to the multiple information request violations in the Albuquerque

division, there is evidence involving (1) the Postal Service’s treatment of Mr.

Orlovsky for an extended period of time, and (2) Mr. Smith’s remarks to

employees regarding his views about the benefits generated from the facility’s

union representatives.
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Having said that, both the ALJ’s order and the NLRB’s modification

impose a punishment that seems incommensurate with the crime. An order

tailored to the conduct at issue is surely merited. However, as the dissenting

NLRB member noted in this and a related case in objecting to “no future

violation” orders, “Recidivism alone . . . is an insufficient basis for imposing a

broad order.” United States Postal Serv., 345 NLRB No. 25, *6 (Aug. 27, 2005)

(Schaumber, dissenting). Instead “the Supreme Court has made clear that broad

orders must be reserved for egregious cases in which the violations are so severe

or so numerous and varied as to truly manifest a general disregard for employees’

fundamental employee rights.” United States Postal Serv., 345 NLRB No. 26, *3

n.4 (Aug. 27, 2005)(Schaumber, dissenting). 

In the end, I concur because the NLRB’s findings regarding the Postal

Service’s violations are entitled to deference, as is the appropriate level of

injunctive relief based on these facts. The Postal Service is entitled to seek

modification of the injunction as circumstances change.