News

🗞️ When Asking for a Union Rep Isn't Enough: The USPS Case That Shows the Limits of Labor Protections

The NLRB upheld the firing of a Cincinnati postal worker who filed union grievances, ruling that documented attendance failures and a workplace altercation, not his union activity, drove the dismissal.

Antwon Thompson thought he had a case. A probationary clerk at the United States Postal Service's Cincinnati processing and distribution center, he had repeatedly invoked his right to union representation, filed grievances when that representation was delayed, and then found himself out of a job just weeks after a physical altercation with a manager. To Thompson, the sequence was no coincidence.

The National Labor Relations Board disagreed.

In a decision issued May 22, 2026, a three-member panel affirmed an administrative law judge's dismissal of Thompson's complaint, concluding that the Postal Service had legitimate, well-documented reasons to end his employment and that his union activity had nothing to do with it.

The case, United States Postal Service and Antwon D. Thompson, NLRB Case 09–CA–278765, offers a window into the practical limits of federal labor protections for workers in the early stages of employment and illustrates how the Board weighs competing explanations for a termination when lawful and potentially unlawful motives appear to coexist.

Background

Thompson was hired as a non-career postal employee in November 2020 and converted to career status in April 2021, triggering a 90-day probationary period. During his time at the facility, he clashed repeatedly with Mustapha Sene, a manager of distribution operations, and frequently requested union stewards, a right protected under the National Labor Relations Act's Section 7.

Known as Weingarten rights, the entitlement to union representation during investigatory interviews that could lead to discipline was established by the Supreme Court in NLRB v. J. Weingarten, Inc. (1975). At the Cincinnati facility, however, the right was honored largely in theory. With only two stewards covering 300 to 400 workers on the overnight shift, timely representation was rarely available, and the Postal Service had settled into a practice of paying employees $12.50 per incident when they went without a steward, a standing arrangement with the American Postal Workers Union that accounted for roughly 25 to 48 grievances per month.

Thompson filed two such grievances. Then, on May 21, 2021, he grabbed a Gatorade bottle from Sene's hands during a dispute over beverages in the work area. Sene, citing the facility's zero-tolerance workplace violence policy, placed Thompson on emergency leave that day pending an investigation into the altercation. Thompson was subsequently terminated by letter dated June 1, with his immediate supervisor citing attendance failures as the basis for dismissal.

The Legal Framework

The General Counsel, representing Thompson before the Board, argued that the termination violated Section 8(a)(3) and 8(a)(1) of the NLRA, which prohibit employers from discriminating against workers to discourage union activity.

Such cases are evaluated under the Wright Line burden-shifting framework, first articulated by the Board in 1980 and subsequently enforced by the First Circuit Court of Appeals. Under Wright Line, the General Counsel must first establish that protected activity was a motivating factor in the adverse employment action. If that showing is made, the burden shifts to the employer to demonstrate that it would have taken the same action regardless of the protected conduct.

What the Board Found

Administrative Law Judge Arthur J. Amchan found that while Thompson did engage in protected activity, requesting stewards and filing grievances, the evidence did not support an inference that the Postal Service acted with anti-union animus. Critically, any hostility Sene bore toward Thompson appeared to predate Thompson's first request for union representation, undercutting the causal link the General Counsel needed to establish.

The Board's three-member panel, led by Chairman James R. Murphy, declined to rule on whether the General Counsel had met even the threshold burden under Wright Line, instead concluding that USPS had independently satisfied its defense: it would have placed Thompson on leave and discharged him even absent any protected activity.

Supporting that finding was evidence that Thompson was absent from work on May 8 and had engaged in extended, unexplained absences from his assigned workstation and inefficient work practices on May 9 and May 14. He had also violated the facility's policy against beverages in the work area on more than one occasion. Perhaps most significant was a comparison the Board drew to a separate termination: USPS had discharged another probationary employee under similar circumstances, one absence and one instance of misconduct, and that employee had no history of protected union activity.

The Board was careful to note one factual correction: it declined to adopt the administrative law judge's finding that Thompson was absent from work on May 14, concluding that finding was not supported by the record. The Board nonetheless found the remaining, unchallenged evidence sufficient to sustain the dismissal.

Key Points

Thompson was a probationary career employee at the time of his termination, a status that carries fewer workplace protections than permanent employment.
His union activity, requesting stewards and filing grievances, was protected under Section 7 of the NLRA, but the Board found no causal connection between that activity and the Postal Service's decision to discharge him.
The USPS's $12.50 grievance-settlement practice, negotiated with the APWU and applied uniformly across hundreds of employees, weighed against any finding of anti-union animus; requesting representation was treated as a routine cost of operations, not conduct warranting retaliation.
Under Wright Line, an employer satisfies its defense by showing that the same adverse action would have occurred regardless of the employee's protected conduct. USPS met that standard in part by pointing to a comparable termination of a probationary employee with no union activity.
Thompson's grabbing of the bottle from Sene, while the proximate trigger for his emergency placement, was not protected activity under Section 7.
The case illustrates that documented, non-pretextual performance and attendance deficiencies can be dispositive in discharge cases, even when an employee has engaged in protected union activity.

Primary Source Author: Arthur J. Amchan, Administrative Law Judge; affirmed by Chairman James R. Murphy and Members David M. Prouty and Scott A. Mayer

Primary Source: United States Postal Service and Antwon D. Thompson, 374 NLRB No. 116 (May 22, 2026)

Primary Source Link: Available via the NLRB decisions database

Supplemental Sources