Court upholds labor ruling in Florida post office case

By WALTER PUTNAM - Associated Press Writer --

ATLANTA --

A federal appeals court has upheld a finding of unfair labor practices by the U.S. Postal Service in a dispute stemming from a discovery of white powder at a post office in the Florida Panhandle.

A three-judge panel of the 11th U.S. Circuit Court of Appeals affirmed a decision of the National Labor Relations Board and an administrative law judge that a postal supervisor violated labor laws by threatening reprisal and to sue an employee who filed a complaint over the powder incident.

The Postal Service contended that supervisor Bobby Powers was exercising free speech protected by the First Amendment, and acting as a private citizen rather than an agent of the postal service, when he called Bobby Cline of Destin, Fla., from the nearby Miramar post office.

The appeals court disagreed in an opinion filed Friday.

The Supreme Court has made it clear that illegal speech is not protected by the First Amendment, and "we have determined that Powers' threat to sue, coupled with the unspecified reprisal, was retaliatory in nature, and thus, illegal" under the National Labor Relations Act, said the ruling by Circuit Judges Gerald Bard Tjoflat, William H. Pryor Jr. and Senior Judge Emmett Ripley Cox.

According to court documents:

Postal employee Ellen Wittic discovered white powder in a tray of letters in the Destin office on Aug. 25, 2004. She showed the powder to Powers, who had a maintenance employee transfer the letters to a clean tray and instructed the Destin employees to process them.

Mindful of scares of anthrax involving the mails, Wittic and co-workers Cline and Marcus Jackson protested the order as unsafe. Powers overruled their objections, telling Jackson, the shop steward, to "shut up."

Cline filed an unfair labor practice charge with the NLRB, alleging that Powers had "refused to allow union steward Marcus Jackson to perform his union duties."

When Powers learned of Cline's complaint, he was working at the Miramar office and called Cline in Destin. After Cline explained the reason for the charge, Powers asserted that Cline would be sorry he filed the complaint and warned that Cline "had better get a good attorney, because he was going to sue," according to the documents.

Powers never sued Cline, but the postal worker filed a charge with the NLRB alleging that the postal service, through Powers, had threatened to retaliate for the initial complaint over the powder incident.

The board found that the postal service had violated the National Labor Relations Act and ordered it to "cease and desist from threatening employees with a lawsuit or other reprisals for filing unfair-labor-practice charges" and from interfering in any way with employees rights under the labor law.