NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
December 28, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
On June 30, 2006, Administrative Law Judge Margaret G.
Brakebusch issued the attached decision.
The Respondent filed exceptions and a supporting brief, and the General
Counsel filed an answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and to adopt the
recommended Order.
1. The General Counsel moves to strike the Respondent’s exceptions on the
basis that, even though the Respondent also filed a separate brief in support
of exceptions, the exceptions contain argument and citations of authority and
are therefore contrary to Section 102.46(b)(1) of the Board’s Rules and Regulations. The General Counsel also moves to strike the
Respondent’s brief on the ground that it violates Section 102.46(c) because it
lacks a clear and concise statement of the case and does not specify or argue
the relevant questions in an orderly fashion.
We agree with the
General Counsel that the Respondent’s exceptions are defective. Section 102.46(b)(1) states, inter alia: “If a supporting brief is filed the exceptions
document shall not contain any argument or citation of authority in support of
the exceptions, but such matters shall be set forth only in the brief.” However, Section 102.46(b)(2) provides that
any exception that fails to comply with the requirements of Section
102.46(b)(1) “may be disregarded”
(emphasis added). In exercising the
discretion afforded by Section 102.46(b)(2), the Board “usually accepts exceptions
that contain argument if the number of pages of argument in the exceptions,
when added to the pages in the brief, do not cause the brief to total more than
50 pages, or other page limit set by the Board.” Hotel
del Coronado, 344 NLRB 360 (2005).
That is the case here: the
Respondent’s exceptions and supporting brief together total far fewer than 50
pages. Thus, we will deny the General
Counsel’s motion to strike the Respondent’s exceptions.
Turning to the
General Counsel’s motion to strike the Respondent’s brief, although that brief
is not in precise conformity with Section 102.46(c), we find that it substantially
complies with that rule, and we will exercise our discretion to accept it on
that ground. See, e.g., Metta Electric, 338 NLRB 1059 (2003),
enfd. in relevant part sub nom. JHP &
Associates, LLC v. NLRB, 360 F.3d 904 (8th Cir. 2004).
2. In adopting the judge’s conclusion that the
Respondent violated Section 8(a)(1), we rely, in addition to the cases cited by
the judge, on Lockheed Martin Astronautics,
330 NLRB 422 (2000). In that case, the
employee’s Weingarten representative was prevented from speaking at a certain
point during an investigatory interview, and then permitted to participate
later on.1 The
Board adopted the judge’s finding that the representative’s subsequent
participation “[did] not excuse [the respondent’s] effort to confine his
participation during the interview.” 330
NLRB at 429. Lockheed Martin Astronautics is on point here. Respondent’s agent, Irma Miranda, asked employee
Robert Kuch if he was aware of the penalties for willfully delaying the
mail. Miranda admitted at the hearing
that she would have taken an affirmative answer as an admission of willful
delay. Kuch’s Weingarten representative, Michael Daly, attempted to challenge
Miranda’s question with respect to the implication of “willful,” but Miranda precluded
Daly from speaking. Later, Miranda asked
Daly if he wanted to add anything, but the fact remains that Daly’s
participation was improperly limited at a crucial juncture of the
interview. Thus, we agree with the
judge’s finding that the Respondent violated Section 8(a)(1).
Our concurring
colleague says that Lockheed Martin
Astronautics and this case depart from the Board’s position as presented to
the Supreme Court in Weingarten
itself. He notes that in its brief to
the Court, the Board stated that, in response to a representative’s attempt to
“clarify the facts . . . . [t]he employer . . . is free to insist that he is only interested, at that
time, in hearing the employee’s own account of the matter under
investigation.” Here, however, Miranda did
not insist on hearing Kuch’s factual account.
Rather, she insisted that Kuch answer a loaded question.2 Thus, contrary to our colleague’s view,
finding the Weingarten violation here is not inconsistent with Weingarten
itself. To the contrary, the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, United
States Postal Service,
Dated,
______________________________________
Wilma B. Liebman, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Member Kirsanow, concurring.
I agree with my
colleagues that, under Lockheed Martin
Astronautics, 330 NLRB 422 (2000), the General Counsel has made out a Weingarten violation in this case. I question, however, whether both Lockheed
and this case depart from the Supreme Court’s original understanding of the Weingarten rule, and also from the
Board’s own understanding as presented to the Court. In Weingarten,
the Court quoted approvingly the following passage from the Board’s brief to
the Court: “The representative is
present to assist the employee, and may attempt to clarify the facts or suggest
other employees who may have knowledge of them.
The employer, however, is free to insist that he is only interested, at
that time, in hearing the employee’s own account of the matter under
investigation.” NLRB v. Weingarten, Inc., 420
My colleagues say that their finding is not inconsistent with Weingarten because Miranda was not
insisting on hearing Kuch’s own account of the matter under investigation, but
rather on getting his answer to a loaded question. However, I take the Court to have been making
a broader point, namely, that the employee’s right to a representative does not
derogate from the employer’s right to conduct the investigatory interview. Indeed, the Court stated that the employee’s
“exercise of the right [to a representative] may not interfere with legitimate
employer prerogatives.”
____________________________________
Peter N. Kirsanow, Member
National
Labor Relations Board
Derek Johnson, Esq., for the General Counsel.
Scott A. Mayer, Esq. and Stuart J. Blenner, Esq., for
Respondent.
DECISION
Statement of the Case
Margaret G. Brakebusch,
Administrative Law Judge. This case was
tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by counsel for the General Counsel and the
Respondent, I make the following
Findings of Fact
i. jurisdictionWe have amended the caption to reflect the disaffiliation of UNITE HERE from the AFL–CIO effective September 14, 2005.
Respondent
provides postal services for the
ii. alleged unfair
labor practices
A. Background
Michael Daly
has been employed by Respondent for 30 years.
For almost the entire period of his employment, he has been a member of
the
In a Weingarten interview the employee has
the right to a steward’s assistance—not just a silent presence. The employer would violate the employee’s Weingarten rights if it refused to allow
the representative to speak or tried to restrict the steward to the role of a
passive observer.
B. Issues
It is
undisputed that Customer Service Supervisor Irma Miranda conducted an
investigatory interview with employee Robert Kuch on September 14, 2004. Michael Daly attended the meeting as Kuch’s
union representative. Supervisor Sharon
Swart also attended the meeting as a management witness. The parties do not dispute that Kuch had
reasonable cause to believe that the investigatory interview could result in
disciplinary action. Counsel for the
General Counsel maintains that “at a critical juncture in the interview, Kuch
was effectively denied his right to union representation when Miranda refused
to let Daly speak and clarify a question that had just been asked.” Respondent asserts that it fully complied
with all of Kuch’s Weingarten rights
and that Miranda had the right to get the answers to her questions “untainted
by Daly’s interruption.”
C. The Events Prior to the September 14, 2004
Meeting
Irma Miranda
has been employed with Respondent for 21 years.
On September 13, 2004, Miranda worked in Respondent’s
Miranda
testified that normally if a carrier discovers that he or she has left mail
behind at the facility, they will call back to the facility. Prior to leaving for the day, Miranda left
the two trays of DPS mail with the evening supervisor and explained that the
carriers would return for their mail that had been left behind. She explained that while she had not spoken
with Kuch, she had just assumed that he would return to the facility to pick up
the mail that he had left behind. When
Miranda began her work day on September 14, 2004, she noticed that Kuch’s DPS
mail from the following day was still at the facility. Miranda told Union Steward Michael Daly that
she planned to conduct an investigatory interview with Kuch concerning the undelivered
DPS mail.
Daly recalled
that Miranda spoke with him between 7:30 a.m. and 10 a.m. on September 14 and
told him that she planned to conduct an investigatory interview with Kuch. While Daly could not recall what Miranda
specifically told him, he confirmed that Miranda told him the subject matter of
the upcoming meeting. Both Daly and Kuch
testified that prior to Miranda’s meeting with Kuch, Kuch was given an opportunity
to speak with Daly. Kuch recalled that
he and Daly were allowed to speak for an unlimited period of time in the bathroom/locker
room area and outside the presence of other employees.
D. Daly’s Description of Miranda’s Meeting with
Kuch
Daly recalled
that Miranda began the meeting by telling Kuch that she was conducting an
investigatory interview that might or might not lead to discipline up to and
including his removal from service. She
asked him if he wanted union representation and Kuch stated that he did. While Daly could not recall with specificity
all the questions asked by Miranda, he recalled that she asked Kuch why he left
the mail and what time he discovered that he had done so. Daly recalled that Miranda asked Kuch if he
was aware of the penalties for willfully delaying the mail. Daly testified: “And at that point, I tried
to—I tried to say something because I didn’t like the question. He did not willfully delay the mail. The mail wasn’t in order properly and he left
it there. And I started to say something
and she wouldn’t let me speak, told me I could speak later, and just let Bob
answer the questions.” Daly further recalled
that Miranda told him, “[J]ust let Bob answer the question, I’ll let you talk
later.” He further acknowledged that Miranda
told him that he just couldn’t talk while she was trying to get an answer to
the question. Daly recalled that Kuch
had not begun to answer the question when Miranda made this statement to
Daly. Daly acknowledged that while his
initial comment had been in a normal tone of voice, his voice may have “raised
a little” when Miranda had not allowed him to speak. Daly also recalled that he told Miranda that
she was violating Kuch’s Weingarten
rights by not allowing Daly to speak when he tried to do so. Daly recalled that after Miranda told him
that Kuch needed to answer the question, Kuch did so. After asking Kuch two or three additional
questions, she asked Daly if he had anything to add. Daly stated that he did not. Miranda then asked Kuch if he had anything to
add. Kuch asked Miranda what time she
had discovered that the mail had been left behind and if she had taken any
action to get the mail delivered when she had discovered the mail.
Daly
maintained that while he had not wanted Kuch to answer Miranda’s question, he
had not interrupted Kuch while he was answering. He also asserted that while Miranda had given
him the opportunity to speak, it had not been when he wanted to speak and he
initially declined.
E. Kuch’s Description of his Meeting with
Miranda
Kuch recalled
that Miranda told him that the interview could lead to discipline up to and
including his removal from employment.
In response to her inquiry, he told her that he desired union
representation. Kuch recalled that the
tray of mail that had been left behind on September 13 was positioned on
Miranda’s desk during the interview.
Miranda asked him the standard operating procedure for a mail carrier
when the carrier discovers that mail is missing. Kuch explained that while he understood that
the procedure required him to call the post office; he had not had time to do
so. In response to Miranda’s question,
Kuch acknowledged that he had failed to follow the standard operating procedure
by failing to call the postal facility.
Kuch recalled that Miranda next asked him if he knew that there were
penalties for willfully delaying the mail.
Kuch testified that before he “could even get a sentence out,” Daly interjected6 and stated that it had not been a
willful delay of mail. Miranda told Daly
to let Kuch finish talking. Miranda told
Daly that she was going to let him speak; however, he was interrupting Kuch
from answering her question. Kuch
recalled that when Daly asserted that Miranda was violating Kuch’s Weingarten rights, she told him that she
would allow him to speak at the end of the meeting. In response to Miranda’s questions, Kuch
continued to explain that DPS mail is often misplaced and that other carriers
have left the mail behind and have not been disciplined. Kuch recalled that Miranda then allowed Daly
to speak and Daly began asking questions.
Daly asked Miranda when she first knew that the mail had been left and
was not with Kuch on his route. Miranda
told him that she noticed that the mail was not with Kuch at approximately 2
p.m. Daly then explained that since Kuch
did not notice that his mail was missing until approximately 4 p.m., Miranda
could have sent the mail out to Kuch between 2 p.m. and 4 p.m. Miranda told
Daly that it was not her duty to bring out the mail to the carries. Kuch recalled that the meeting essentially
ended at that point.
Kuch recalled
that when Daly spoke in the meeting, he was loud but he was not screaming. When Miranda permitted Daly to speak, he was
not as loud as he was earlier in the meeting and when he was asserting that
Miranda was violating Kuch’s Weingarten
rights. Kuch confirmed that Daly participated in the meeting and assisted him
during the September 14, 2004, meeting.
Kuch acknowledged that other than the time in which Miranda did not
permit Daly to speak, both he and Daly were allowed to say everything that they
wanted to say before the conclusion of the meeting. Kuch did not recall any point during the
meeting when Daly instructed him not to respond to Miranda’s questions. Kuch did not recall that Daly requested time
to confer with him during the course of the meeting.
F. Miranda’s Description of the September 14,
2004 Meeting
Before
beginning the meeting, Miranda requested that Customer Supervisor Sharon Swart
also attend the meeting. With Daly,
Kuch, and Swart present, Miranda began the meeting by informing Kuch that the
meeting was investigatory and that it could lead to discipline up to and
including termination. In response to
her inquiry, Kuch requested the presence of a union steward. She told Kuch that she had found the DPS mail
tray and asked him at what point that he realized that the tray was
missing. Kuch confirmed that he had
discovered the missing tray at approximately 4 p.m. In response to additional questioning, Kuch
explained that he had not called the facility to report the missing tray
because he would not have been able to finish by 6:30 p.m. Upon inquiry, he also confirmed that he
completed the delivery of his mail without the DPS mail tray.
Miranda recalled
that she then asked Kuch if he knew the penalty for willfully7 delaying the mail. Miranda testified that Kuch began to answer
the question by stating that he was not the only carrier who had left DPS
mail. As Kuch was answering the
question, Daly interrupted Kuch’s answer.
Miranda acknowledged that while Daly interrupted and began speaking, he
did not physically stop Kuch from answering.
Miranda asked Daly if he could wait and allow Kuch to answer the question. Miranda recalled that Daly asked if she were
going to allow him to speak. Miranda
told Daly that she would allow Daly to speak; however, she wanted Kuch to
finish his answer. When Daly stopped the
interruption, Kuch completed his answer.
After additional questioning of Kuch, Miranda asked Daly if he had
anything to add and Daly shook his head to indicate that he did not. When Miranda asked Kuch if he had anything to
add, he told her that he had some of the DPS mail with him. Miranda then showed Kuch the tray in issue
and pointed out that he had not delivered any portion of the DPS tray. Miranda recalled that at that point in the
meeting Daly asked her when she had discovered that the mail had been left behind. When she told him that it had been about 2 or
2:30 p.m., he asked her if she had then taken the missing mail out to the two
carriers. She told him that she had
not. While Miranda recalled that Kuch
had added something further, she could not recall specifically what he had
said.
Miranda testified that she had allowed Daly to participate and to assist
Kuch during the meeting. She confirmed
that at no time did Daly ever instruct Kuch to refrain from answering a
question. She also added that she
allowed both Daly and Kuch to say everything that they wanted to say before the
meeting ended.
G. Sharon Swart’s Description of the Meeting
Sharon Swart,
herein Swart, was employed as a customer service supervisor on September 14,
2004. As supervisor of the clerks, she
was the first supervisor on the floor each morning. At approximately 8 a.m. on September 14,
Miranda asked her to attend an investigatory interview as a management witness
and to take notes. Swart estimated that
the meeting lasted for only 10 to 15 minutes.
Swart testified that she did not speak during the meeting and she
prepared notes contemporaneously with participants’ statements.
Swart’s notes
reflect that the meeting began at 8:15 a.m.
She recorded8
Miranda’s initial statement to Kuch as:
“On September 13, I left 2 trays of DPS for you and another carrier with
another supervisor. What time did you
get to that point (when miss DPS).” The
conversation continues with Kuch’s answer of 4 p.m. When Miranda asked Kuch why he did not call,
he told her he did not because he would not have been able to complete the
route by 6:30 [p.m.]. Swart records
Miranda as responding: “So you went
ahead and delivered your cased mail without the DPS?” Kuch confirms that he did so; along with a
specific bundled flier. Swart then
records Miranda as saying: “Bob, you know there is [are] penalties to willfully
delaying the mail?” Her notes reflect that Kuch responded that there had been
many other times when the DPS had been missing for other carriers as well as
for him. Swart added a star preceding
Kuch’s response. She testified that she
added the star to indicate that she had added a footnote to her notes. Swart’s footnote, that is located on the last
page of the notes, reflects: “Mike interrupts. Said you are violating his
rights. Mike wanted to speak before Kuch
answered.”9 Swart also wrote “loudly” above
“interrupts.” She admitted that her reference
to Daly wanting to speak before Kuch spoke and her description of “loudly” were
summaries of what happened rather than an exact description of what was
said. In her testimony, Swart asserted
that Miranda asked Daly to let Kuch finish his answer. Those specific words, however, were not recorded
in the notes.
Swart’s notes
additionally reflect that Miranda asked Kuch an additional question before
asking Daly if there was anything else that he wanted to add. Daly declined. Miranda then asked Kuch if he had anything to
add and he provided some additional information. Miranda responded to Kuch’s
comments by showing him the DPS tray in issue.
Daly then asked Miranda when she realized that the mail had been left
behind and why she did to rectify the situation. Swart’s notes end with the following words:
“Kuch thought if he left route while someone brought DPS out.” Swart testified that she was not sure whether
these words referred to a comment by Kuch or Daly. The last sentence in the notes was documented
as: “At 4:00 [p.m.] you thought about calling when you saw DPS was missing, but
you didn’t?”
iii. analysis and
conclusions
A. Applicable Case Authority
In NLRB v. Weingarten, 420 U.S. 251 (1975),
the Supreme Court held, in agreement with the Board, that an employee has a
statutory right to union representation in an interview in which the employee
reasonably fears may result in discipline.
420
In Texaco, Inc., 251 NLRB 633, 636 (1980), the Board addressed
the issue of whether the right to a representative under Weingarten includes the right not only to the presence of a
representative, but to the active assistance of that representative during a
confrontation with the employer which threatens the employee’s employment security. The Board referenced its earlier decision in Southwestern Bell Telephone Co., 251
NLRB 612 (1980), where it noted:
There we held
that the Court in Weingarten intended
to strike a balance between the right of an employer to investigate the conduct
of its employees at a personal interview, and the role of the representative
present at such an interview. While we
noted the Court’s admonition that the presence of a representative “need not
transform the interview into an adversary contest,” we nevertheless recognized
that the Court limited the employer’s right to regulate the role of the
representative at the interview. In
short, such regulation cannot exceed that which is necessary to ensure the
“reasonable prevention of such a collective bargaining or adversary
confrontation with the statutory representative.
Counsel for
the General Counsel asserts that while Daly was present during the investigatory
interview, he was relegated to the role of a passive observer during the “key
part of the interview and was not permitted to speak when he felt it was necessary
to do so to represent Kuch’s interests.”
In contrast, Respondent argues that while a steward may be present and
participate in an investigatory interview, the union representative may not
turn the meeting into an adversarial proceeding and prevent the employer from
questioning the employee or to interfere with legitimate employer
prerogatives. Weingarten, supra, 420
B. Issues and Facts in Dispute
Interestingly,
this case seems to involve a limited number of facts in dispute. There is no dispute that Miranda allowed Kuch
to confer with Daly prior to the investigative interview. Additionally, there is no dispute that during
the course of the meeting, both Kuch and Daly were given the opportunity to
provide information they felt to be pertinent.
Daly was not only given an opportunity to speak during the interview; he
also asked questions of Miranda. There
is no allegation that either Daly or Kuch asked for the opportunity to confer
during the course of the interview or at the conclusion of the interview or
that such request was denied. The only
alleged Weingarten violation involves
Miranda’s conduct when Daly attempted to speak in response to one of Miranda’s
questions. There is, in fact, no dispute
that Daly spoke and interrupted Kuch in his response to Miranda. The primary factual dispute seems to be
whether Daly interrupted Kuch in the middle of his answer or before Kuch began
to answer. Counsel for the General Counsel asserts that Daly spoke before Kuch
answered and Respondent maintains that Daly interrupted Kuch while he was
answering the question. While the
parties agree that Miranda later gave Daly an opportunity to speak, Miranda
acknowledges; and both her notes and those of Swart indicate that she asked at
least one additional question of Kuch before allowing Daly to speak. Accordingly, inasmuch as Miranda did not give
Daly an opportunity to speak until after additional inquiry beyond the question
in issue, Daly’s interruption before or during Kuch’s response is not
dispositive.
Respondent
maintains that under Weingarten, Daly
did not have the right to prevent or obstruct Miranda from asking her
question. Respondent argues that while
“exuberant, discourteous conduct or rude language” engaged in during grievances
and arbitrations is tolerated, the same is not true for Weingarten situations. As a
part of this argument, Respondent cites the Board’s decision in Yellow Freight Systems, 317 NLRB 115,
123 (1995). As distinguished from the facts in this case, the steward attending
the investigatory meeting in Yellow
Freight Systems disrupted the process by verbally abusive and arrogantly
insulting interruptions. The steward’s conduct also consisted of shouting
obscenities and violent desk pounding, as well as calling the manager a liar
and demeaning his managerial status in front of the employee.
In asserting
that Daly transformed the meeting into an adversarial meeting, Respondent
relies upon the testimony of Daly and Kuch as well as Miranda and Swart. Miranda testified that when Daly told her
that she was violating his rights, he spoke in a “very loud” voice. She also asserted that the interruption had
lasted for “a couple of minutes.”
Miranda testified that while she took notes during the interview, those
notes were later discarded and she later prepared typewritten notes taken from
her discarded notes and the notes written by Swart. Even in these subsequently prepared notes,
Miranda included only two statements by Daly to cover the entire period of the
interruption. She documented only that
he asked if she were going to let him talk and then he told her that it was a
violation of his rights when she told him that he was interrupting. Her notes then included the statement: “After
Mike Daly stopped yelling, Bob continued with his answer.” There is no description of what Daly said
other than the two statements described above.
It is not realistic that Daly’s exchange with Miranda in making these
two statements lasted for 2 minutes.
Additionally, the total record evidence does not support Miranda’s
assertion that Daly was yelling during his interruption. While Daly conceded that he may have raised
his voice, neither Kuch nor Swart testified that he yelled or screamed. Kuch testified that when Daly asserted his Weingarten rights during the meeting, he
was excited and loud, however, not screaming.
Swart recalled that when Daly interrupted Kuch’s answer, he leaned
forward in his chair. I note, however,
that she also acknowledged that Daly did not yell at any time during the
meeting. She recalled that he had simply
spoken in an elevated tone of voice.
Accordingly, crediting Swart, Kuch, and, Daly, the record evidence does
not support a finding that Daly was engaged in yelling or shouting during this
conversation. While Swart recalled that
he leaned forward in his chair, there is no allegation that he said or did
anything to threaten or intimidate Miranda or Swart. Thus, it appears that while Daly may have
raised his voice and leaned forward in his chair at the time that he attempted
to participate in the meeting, his conduct did not rise to the level of insubordination,
rudeness, or discourtesy that would remove the rights accorded by Weingarten. The overall record testimony does not reflect
that Daly’s statements constituted an attempt to turn the meeting into an
adversarial confrontation as alleged by Respondent.
Counsel for
the General Counsel submits that before Kuch could answer Miranda’s question,
Daly attempted to clarify the question.
Counsel asserts: “Daly did
nothing more than attempt to clarify a single question that Miranda had asked,
something which an active representative (as recognized by the Court in Weingarten) is entitled to do.” Counsel for the General Counsel further
submits that Kuch needed the active participation of his union representative
at the exact point in which Daly interrupted.
Counsel points out that by her own admission, Miranda indicated that if
Kuch had answered “yes” to her question, she would have understood that to mean
that he had, in fact, willfully delayed the mail, and the penalty for such an
infraction was termination.
C. Summary and Conclusions
As reflected above, there were four people who attended this meeting and
four separate and unique recollections of what occurred during the
meeting. What is especially interesting
is the fact that only Kuch seemed to recall what Daly actually said when he
made the interruption that is in issue here.
Daly testified that because Kuch had not willfully delayed the mail, he
had tried to speak. He testified: “And
at that point, I tried to—say something because I didn’t like the question.” He asserted that he started to say something
and Miranda had not allowed him to speak.
Swart’s notes only reflect that Daly wanted to speak before Kuch
answered, however, she does not record what he said when interrupting.
Miranda’s typewritten notes include: “Mike interrupts loudly,” however, she
does not include what he said to interrupt.
Only Kuch testified that when Miranda asked him if he realized that
there were penalties for willfully delaying the mail, Daly interjected: “this
was not a willful delay of mail.” During
her testimony, Miranda was asked if she could recall what Daly said when he
interrupted Kuch. She admitted that she
had no recollection of what he said; remembering only that his interruption
stopped Kuch from answering. Inasmuch as
only one of the four meeting participants recalled what Daly actually said
during the interruption, it would appear that his speaking at that precise time
was more significant than his actual words.
In United States Postal Service,
288 NLRB 864, 867 (1988), a union steward did not participate as a silent
observer during an investigative interview.
During the beginning of the interview, the steward asked the manager
questions about his investigation into the alleged misconduct. While the manager answered the questions, he
asked the steward to refrain from interrupting and to permit the employee to answer
the questions directed to her. Later in
the same interview, the steward again interrupted with challenging questions
and the manager again asked him not to interrupt. In all, the steward spoke up three times
during the interview and was accused of interrupting the interview in each
instance. The judge concluded that the
steward’s interruptions did not appear to be those of an obstructionist, but
rather reactions to the manager’s accusations that the employee had engaged in
unlawful conduct. The judge went on to
note that the steward seemed to be trying to participate and to assist and protect
the employee. The judge also noted that
the steward’s efforts were low key and conciliatory. The Board affirmed the administrative law
judge in finding that the employer denied the steward the right to participate
in the employee’s interview. Thus, while
the facts of this earlier case are not totally analogous to the facts herein,
the conduct of the two stewards is similar.
As pointed out by counsel for the General Counsel, Kuch’s answer to
Miranda’s question could have triggered a termination. He had already acknowledged that he was aware
that he had left the DPS mail at the postal facility and he had opted to finish
his route without going back for the mail.
Had he then acknowledged that he was aware of the penalty for willfully
delaying the mail, he may have put himself in an indefensible position. As it turns out, he didn’t really answer
Miranda’s question and he simply pointed out that other employees had also left
the mail behind. Daly’s interruption,
however, appeared to be an attempt to assist Kuch and to protect him from
unwittingly admitting to something that could trigger his discharge. Additionally, because of her particular
wording or phrasing, Miranda could have elicited an erroneous answer to her
question. Asking Kuch if he were aware
of the penalty for willfully delaying the mail is much akin to the age-old
loaded and misleading question “Are you still beating your wife.” Inasmuch as
Miranda acknowledged that if Kuch answered “yes,” she would have understood his
response to mean that he had willfully delayed the mail. It is reasonable that
Daly would have wanted to assist Kuch in responding to this potentially incriminating
question.
While the Board’s decisions in cases cited above indicate that the
employer cannot lawfully preclude the union representative’s participation in
the interview, there are a limited number of cases dealing with the issue of
participation and none that precisely define the boundaries of a
representative’s participation. Certainly,
because each factual situation differs because of the individual conduct of the
supervisor conducting the investigatory interview and the employee
representative attending the interview, the boundaries for appropriate participation
must vary for each factual situation.
As discussed above, during the majority of the interview, Daly was
allowed to participate and was not relegated to the role of a silent
observer. The record reflects, however,
that for at least one limited and arguably significant portion of the interview,
Daly was restricted in his ability to fully represent Kuch’s interests and to
participate in the interview as contemplated by the Court’s decision in Weingarten. It should be noted that my finding is based
upon a very narrow factual situation. I
am also cognizant that the violation as presented in this very fact-specific
situation might also be characterized as de minimis inasmuch as Daly again
became an active and unrestricted interview participant following a relatively
brief period of restriction. While Daly
may have had the opportunity to later participate without restrictions,
Respondent’s lifting of the restriction does not, however, void the earlier
restriction imposed upon Daly.
Accordingly, I find that Respondent violated Section 8(a)(1) as alleged
in the complaint.
Conclusions
of Law
1. The United States Postal Service is now, and at all times herein, has
been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The National Association of Letter Carriers, Branch 753, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the Act.
3. By refusing to allow a union representative to participate and assist
an employee during an investigatory interview on September 14, 2004, Respondent
violated Section 8(a)(1) of the Act.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended10
ORDER
The
Respondent, United States Postal Service,
1. Cease and
desist from
(a) Violating
Section 8(a)(1) of the Act by refusing to permit the Union’s representative to
participate and assist an employee during an investigatory interview when the
employee has reasonable cause to believe that the interview would result in disciplinary
action taken against him or her.
(b) In any
like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act
(a) Within 14
days after service by the Region, post at its
(b) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW
GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not
violate Section 8(a)(1) of the Act by refusing to permit the Union’s
representative to fully participate and assist in an investigatory interview
when the employee has reasonable cause to believe that the interview would
result in disciplinary action being taken against him or her.
We will not
in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
United States Postal
Service
2 Our concurring colleague finds it significant
that Daly had the option of later arguing that an affirmative answer by Kuch
acknowledged only that he was “aware” of the penalties for willfully delaying
the mail. However, in view of Miranda’s
admission that she would have taken such an answer as an actual confession of
willful misconduct, that after-the-fact lawyer’s option would have been no
substitute for clarifying the meaning of Miranda’s question at the time. Cf., Weingarten
supra,at 263 (rejecting employer’s argument that postdiscipline representation
is sufficient, because “[a]t that point, it becomes increasingly difficult for
the employee to vindicate himself, and the value of representation is
correspondingly diminished”). Our
colleague’s analogy between a disciplinary interview and a legal proceeding
conducted by an impartial judge is not convincing. If anything the analogy is much closer to a
police interview with a suspect represented by counsel. And in that situation, the lawyer could
certainly participate as Daly tried to do.
3 As the
Participation by the union representative might reasonably be designed to clarify the issues at this first stage of the existence of a question, to bring out the facts and the policies concerned at this stage, to give assistance to employees who may lack the ability to express themselves in their cases, and who, when their livelihood is at stake, might in fact need the more experienced kind of counsel which their union steward might represent.
420
1 I disagree with my colleagues’ bleak view of a
workplace investigatory interview as comparable to a police station criminal
interrogation.
1 All dates are in 2004 unless otherwise indicated.
2 During the hearing, the parties stipulated
that the investigatory interview occurred on September 14, 2004.
3 In Respondent’s initial answer to the
complaint, Respondent raised the affirmative defense that the matter should be
deferred to the parties’grievance-arbitration procedures consistent with the
Board’s policy as embodied in Collyer
Insulated Wire, 192 NLRB 837 (1971) and pursuant to Arbitration Deferral
Policy Under Collyer-Revised Guidelines issued by the General Counsel on May
10, 1973. Prior to the hearing in this
matter, Respondent filed an amended answer to the complaint withdrawing its
affirmative defense as described above.
4 NLRB v.
J. Weingarten, Inc., 420
5 The section references the case citation for Weingarten.
6 Kuch
testified that he had opened his mouth to speak; however, Daly’s response was
faster.
7 Miranda
testified without contradiction that the penalty for willfully delaying the
mail is termination.
8 The wording
reflects the words documented in Swart’s handwritten notes.
9 She further
acknowledged that while she had testified that Daly wanted to speak before Kuch
finished his answer, her notes had only reflected that Daly wanted to speak
“before Kuch answered.”
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
11 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading “Posted By Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”