LABOR LAW

The National Labor Relations Board,

Handling Unfair Labor Practice Charges, and
Union Rights

August 2010
 STRUCTURE OF THE NATIONAL LABOR RELATIONS BOARD

I. Two Primary Functions: Conducting Elections and Enforcing of the NLRA

The National Labor Relations Act (NLRA) gives the National Labor Relations Board
(NLRB) jurisdiction over two types of proceedings: 1) representation proceedings; and 2) unfair
labor practice proceedings.

II. Representation Proceedings

The NLRB oversees elections among employees to determine whether they wish to be
represented by a labor union. Employees at a work site can “petition” the NLRB to hold an
election if 30% of the employees who would be involved in the election (bargaining unit) request
an election or authorize the union to represent them. The NLRB hears and adjudicates claims
arising out of NLRB conducted elections.

III. Unfair Labor Practice Cases

A. Unfair Labor Practices

An unfair labor practice (ULP) is an action by an employer or a union that interferes with
the rights of employees under Sections 7 or otherwise contravenes the prohibitions listed in
Section 8 of the NLRA. Section 7 of the NLRA guarantees employees the right to support, or
not to support, a union, to engage in collective action in support of a union, and to bargaining
collectively with their employer.

Common Employer ULPs:

 Harassing, disciplining or terminating an employee in retaliation for being a union leader.
 Failing to provide a union with information necessary for processing a grievance.
 Refusing an employee‟s request for a union steward during a disciplinary investigation.
 Making a unilateral change in a “mandatory subject of bargaining”—a change in employees‟
wages, benefits, hours, or other terms and conditions of employment.

Common Union ULPs:

 Breaching the “duty of fair representation” by handling a grievance arbitrarily,
discriminatorily, or in bad faith.
 Harassing a non-member because of the employee‟s non-member status.

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B. Enforcement of the NLRA

The NLRB serves as prosecutor throughout the course of a ULP case, and serves as judge
at the evidentiary hearing and the first appeal.

C. Prosecution of ULPs: Regions and the General Counsel

The Regions throughout the United States, and the General Counsel in Washington, DC,
are responsible for prosecuting employers and unions who engage in unfair labor practice
conduct.

1. The Regions:
 Point of contact for the public.
 Each Region has a geographic jurisdiction. Most Regions have one office; a
handful of Regions also have “Resident Offices” in other cities.
 At the Regions, NLRB Agents and NLRB Attorneys investigate allegations of
unfair fair labor practices. After the investigation, the Region decides whether
to prosecute an employer or union for the alleged unfair labor practice
conduct.
 Regions also investigate whether to seek an injunction to prevent employers
and unions from engaging in unlawful conduct while ULP cases are litigated.
 Regions try cases at the trial and during the appeal to the Board.
 The NLRB publishes two “Casehandling Manuals” on its website at
www.nlrb.gov. The Casehandling Manuals provide detailed and helpful
explanations of how Regions are supposed to handle cases.

2. The General Counsel:

 Appointed by the President with approval of the Senate.
 Located at NLRB headquarters in Washington, DC.
 Oversees the enforcement of the unfair labor practice provisions of the NLRA.
 Determines policy on prosecution of ULPs through memoranda that are
binding on the Regions.
 Advises Regions on complicated or novel issues of law.
 Approves Regions‟ decisions to seek injunctions to prevent employers or
unions from engaging in unlawful conduct while ULP cases are litigated.
 Reviews decisions by Regions to dismiss ULP charges and to enter into
settlement agreements.
 Handles appeals of ULP cases to federal courts.

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D. Adjudication of ULPs: ALJs and the NLRB

If a Region decides to prosecute a ULP, there will be a hearing before an Administrative

Law Judge (ALJ). After the ALJ renders a decision, the matter can be appealed to the five-
member Board of the NLRB.

1. Administrative Law Judges:

 The “Division of Judges” is independent of the Regions.
 The ALJ creates the record—the only person that hears testimony or accepts
other evidence.
 Issues a decision, and if merit found to Region‟s allegations, issues an order to
remedy the unfair labor practice.
 ALJ‟s decisions can be appealed to the five-member Board of the NLRB.

2. The Board:
 Five-member Board.
 Appointed by President and confirmed by the Senate.
 In ULP cases, reviews ALJ decisions.
 Generally will not upset the finding of fact of the ALJ. Instead, it will only
sustain an appeal if there is an error of law.
 Decisions can be appealed to the United States Courts of Appeal, and the
Supreme Court.
 Decisions not “self enforcing.” If employer or union refuses to comply with
order, the General Counsel must go to federal court to get order enforcing the
Board‟s order.

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 HANDLING UNFAIR LABOR PRACTICE CHARGES

I. Preparation for Filing the ULP Charge

Prior to filing ULP charge:

 Identify when you knew or should have known about the alleged unfair labor practice
conduct. There is a six-month statute of limitations.
 Investigate your ULP to ensure that you have a good ULP. Everything that is unfair
is not an “unfair labor practice.” Locals that lose credibility with their Regions by
filing numerous meritless ULPs have difficulties when they have good ULPs.
 Have your evidence ready to present. Evidence will most likely be a witness who is
willing to give an affidavit, or documents. Regions are evaluated on the number of
calendar months they spend investigating ULP charges and often become impatient if
your lack of preparation delays the process. Avoid filing a charge at the end of the
month if possible.

II. Filing the Charge

Filing a ULP charge with a Region begins the ULP proceeding.

 ULP forms are available at www.nlrb.gov or at Regional offices.

 Language alleging ULP can be one sentence and need not contain a thorough
statement of the allegation.
 Generally, allege all claims arising out of same set of facts in same charge.
For example: If a discharge was a ULP because it was in retaliation for union activity,
and because it was a unilateral change in the discipline policy, you allege both a
retaliatory discharge and a unilateral change. If your charge only alleges that the
termination was unlawful under one theory, under certain circumstances you will not
be able to proceed on the other theory later.
 Call by telephone or visit your Region‟s “information officer” for assistance in filing
a ULP charge.
 You can amend your ULP charge later if necessary.
 Once you have filed your ULP charge, you become the “Charging Party” and the
Postal Service becomes the “Respondent.”
 You may also include a position statement laying out any pertinent facts or law. A
position statement is not necessary.
 You can request that the Region seek a “10(j)” injunction. Under 10(j) of the NLRA,
a Region may seek an injunction in federal court to prevent a party from engaging in
the alleged unfair labor practice while the parties wait for a trial and a decision.
Regions do not routinely seek 10(j) relief.

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III. Board Investigation of Charge

The Regional Director will assign a Board Agent or Board Attorney to investigate the
ULP charge. Generally, you will hear from the Region within a week of when you filed your
charge. The investigator will generally request the union‟s evidence before he does anything
else.

 Timely respond to the requests of the investigator.

 Prepare witnesses‟ testimony before sending them in to give affidavits. You will
normally not be allowed to sit with a witness when the investigator takes the
witness‟s affidavit.
 Tell witnesses to be firm with the investigator if their affidavits mischaracterize their
testimony. Lazy investigators may purposefully draw up a bad affidavit so that the
Region can dismiss the charge.
 Individuals who give affidavits should ask for a copy of the affidavit so that the
union can get a copy.
 Ask the investigator if he wants additional evidence.

Once you have presented your evidence to the Region, the Region will contact the Postal
Service.

 Stay in touch with the investigator so that before the Regional Director makes his
decision you have an opportunity to respond to any defenses raised by the Postal
Service.
 During the course of the investigation, the investigator will usually ask the Postal
Service if it wants to enter into a settlement agreement to resolve the ULP charge.

IV. Determination of Merit by Regional Director

After conducting his investigation, the investigator will sit down with the Regional
Director to explain the case to him. The Regional Director will then make a finding concerning
the ULP charge.

A. Finding of No Merit

If the Regional Director finds that the ULP charge was without merit, the investigator
will offer you two options:

 Withdraw the charge. Withdrawing the charge is generally without prejudice, so that
the union may refile the ULP charge so long as it is within the six-month statute of
limitations. The union may choose to withdraw a charge if it believes that it can
uncover new evidence that would sway the Region. The union may not appeal the
Region‟s finding of no merit if it accepts a withdrawal.
 Take a short-form or long-form dismissal. A short-form dismissal does not explain
why the Region found no merit. A long-form dismissal explains why the Region

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 found that the union‟s ULP charge was meritless. A party may appeal a Regional
Director‟s finding of no merit to the Office of Appeals in Washington, DC. The
success rate is under 3%.

B. Finding of Merit

If the Regional Director finds that the ULP charge was meritorious:

 Before and after the complaint issues, the Region will attempt to settle the case.
 The Region will issue a “complaint” against the Postal Service and set a date for a
hearing before an ALJ.
 The Region may also seek 10(j) relief.

V. Settlement of ULP Charges

The Regions are generally eager to settle any charge that it finds meritorious. There are
three general types of settlement:

 Non-Board Settlement. A settlement between the union and the Postal Service
where, as part of the settlement, the union agrees to withdraw its ULP charge. The
Regional Director must approve the agreement.
 Informal Settlement. A settlement between the NLRB and the Postal Service. But, if
the Postal Service violates the settlement, the Region cannot enforce the agreement.
The Region‟s only recourse is to proceed to a trial on the merits.
 Formal Settlement. A settlement between the NLRB and the Postal Service. If the
Postal Service violates the settlement, the Region may enforce the settlement
agreement. The Region does not need to litigate the merits of the ULP charge to
prove that the Postal Service engaged in an unfair labor practice.

Regions will generally settle ULP cases with employers with informal settlement
agreements. But, if an employer is a recidivist, it may insist on a Formal Settlement. Similarly,
a “non-admissions” clause that states that the employer is not admitting guilt by entering into the
settlement agreement is not supposed to be included in settlement agreements if the employer is
a recidivist.

A Region does not need the consent of the union or other charging party to settle a ULP
case. A union or other charging party may appeal a decision by a Region to enter into a
settlement agreement to the General Counsel‟s office. Appeals have a low success rate.

VI. Trial before an ALJ

If a Region issues a complaint and is unable to settle the case, the Postal Service will be
required to file an answer responding to the allegations in the Region‟s complaint. The trial will
be heard before an ALJ. An attorney from the Region will handle the case. The union can also

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have its own counsel who can make arguments and present witnesses at the trial. As discussed
before, any decision may be appealed to the Board, and then to the federal courts.

VII. Deferral of ULP Charge to Arbitration

If a Region determines that a ULP charge is of “arguable merit,” it may refuse to resolve
the ULP charge, and instead defer the charge to arbitration for resolution by an arbitrator.

Not all ULP charges are appropriate for deferral under NLRB precedent. Regions do not
defer to arbitration charges alleging that an employer has refused to provide bargaining or
grievance information. Regions do not defer to arbitration charges alleging a limited number of
other violations of the NLRA, including retaliation against employees for filing ULP charges.
Additionally, Regions do not defer to arbitration charges that are “inextricably intertwined” with
charges which are not deferrable. Thus a union seeking to avoid deferral of a unilateral change
charge can ask the employer for information concerning the unilateral change—if the employer
fails to provide the information and the union alleges the failure as a ULP, the Region may find
that the unilateral change allegation is “inextricably intertwined” with the information request
allegation, and therefore refuse to defer either allegation to arbitration.

A Region will defer a charge if:

 The allegations in the charge appear to be covered by, and are likely to be
resolved through, the contractual arbitration procedure;
 The employer and the union have a collective bargaining agreement currently in
effect that provides for final and binding arbitration; and
 The employer is willing to arbitrate the allegation and waive any contractual time
limits.

A union may appeal the decision of a Region to defer a charge to the General Counsel in
Washington, DC. Such appeals have a very low success rate. The Region will also agree to
defer a charge if both parties agree to arbitrate the allegation in the ULP.

If the Region determines that a charge is appropriate for deferral, it will follow up with
the union to see that it has filed a grievance and is pursuing arbitration. If the union fails to
pursue the grievance, the Region will dismiss the ULP charge. Once the grievance has been
filed, the Region will periodically contact the union to inquire into the status of the arbitration.

Once the deferred allegation has been arbitrated, the union can request that the Region
review the award. The Region will defer to the arbitration award even if the arbitrator ruled in a
way that is inconsistent with NLRB precedent. The Region will defer to the arbitrator‟s award if
the Region finds:

 The allegations tried in the arbitration were parallel to the allegations in the ULP
charge and the arbitrator was presented with the facts generally relevant to the
ULP charge;

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  The arbitration hearing appeared to have been “fair and regular”; and
 The award is not “repugnant” to the NLRA.

If the Region finds that the arbitrator‟s award does not meet the above three standards, it will
revoke the deferral and resume the processing of the ULP charge. If the Region finds the
arbitrator‟s award does meet the above three standards, a union may appeal the finding to the
General Counsel in Washington, DC. Such appeals have a very low success rate.

Although the NLRB‟s deferral policy is often frustrating—after all unions file charges
with Regions because they want them to investigate the charges, not because they want to
arbitrate the charges—the policy can save an untimely grievance. For example, if an employer
ignores a provision of the contract but the union misses the time limit for a grievance, the union
can still file a ULP charge alleging a unilateral change in working conditions if the charge is
within the NLRA‟s six month statute of limitations—if the Region finds that the charge is
arguably meritorious, it will pressure the employer to arbitrate the allegation and waive
timeliness arguments.

A union may file both a grievance and a ULP charge over the same act by an employer
where the act violates both the collective bargaining agreement and the NLRA. Even if the
union is confident that its ULP charge will be deferred to arbitration, there is still an advantage to
filing the ULP charge. First, the Region may put pressure on the employer to settle the ULP
charge prior to the Region‟s decision to defer the charge. Second, the arbitrator will then be
charged with examining whether the employer‟s act violated not just the collective bargaining
agreement, but also the NLRA.

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 WEINGARTEN RIGHTS

I. Employees’ Right to a Weingarten Representative

If a union-represented employee reasonably believes that an investigatory interview may

lead to his or her discipline, the employee is entitled to have a union representative present
during the interview. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-267 (1975); but see IBM
Corp., 341 NLRB 1288, 1288 (2004) (holding that non-union represented employees do not have
a right to Weingarten witnesses). The right to a Weingarten representative exists only in
investigatory interviews; an employee is not entitled to a Weingarten representative in a meeting
where management announces discipline if “the employer has reached a final, binding decision
to impose certain discipline on the employee prior to the interview.” Baton Rouge Water Works
Co., 246 NLRB 995, 997 (1979); see also Success Village Apartments, Inc., 347 NLRB No. 100,
slip op. at 7 (2006).

Although an employee has the right to a union representative under Weingarten, an

employer is under no obligation to affirmatively advise an employee of his or her Weingarten
rights. United States Postal Service, 241 NLRB 141, 152 (1979). An employee‟s right to a
union representative under Weingarten, 420 U.S. at 257, arises only if the employee requests a
union representative. When faced with a request for a union representative, an employer has
three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the
choice between continuing the interview unaccompanied by a union representative or having no
interview at all. Id. at 258-259; Postal Service, 241 NLRB at 141; Meharry Med. College, 236
NLRB 1396 (1978). But once an employee has requested a union representative, an employer
may proceed with an interview only if it grants the request for a union representative, if it
informs the employee of his or her right to discontinue the interview, or if the employee is
otherwise aware of his or her right to discontinue the interview. Postal Service, 241 NLRB at
141; Meharry, 236 NLRB 1396.

An employee‟s right to a union representative at a disciplinary interview extends to

investigatory interviews into criminal matters, see e.g. Weingarten, 420 U.S. at 256-567,
including investigatory interviews conducted by the United States Postal Inspection Service,
United States Postal Service v. NLRB, 969 F.2d 1064, 1067 and 1072 (D.C. Cir. 1992); see also
United States Postal Service, 241 NLRB 141, 141 (1979) (holding that even where the
Inspection Service provides an employee notice of his or her Miranda rights, employees are still
entitled to a union representative).

The National Labor Relations Board (NLRB) has held that a Postal Service employee is
not entitled to union representation during a “fitness for duty” examination. See United States
Postal Service, 252 NLRB 61, 61 (1980).

The requesting employee and his or her union are entitled to select which union
representative will serve as the employee‟s Weingarten representative, provided that there are no
extenuating circumstances and the selected representative is available at the time of the meeting.
Barnard College, 340 NLRB 934, 935 (2003); Anheuser-Busch, Inc., 337 NLRB 3, 8 (2001)
enfd.338 F.3d 267 (4th Cir. 2003). When there are two union representatives available to serve

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as Weingarten representatives, it is the union‟s prerogative to decide which union representative
will serve as the Weingarten representative. Anheuser-Busch, 337 NLRB at 8 (holding that short
delay in availability of one union representative did not justify employer refusal to allow
employee the representative of his choice where allegations against employee did not require
immediate action).

II. Rights of Weingarten Representatives

A Weingarten representative has a right to consult privately with an employee prior to the
start of a meeting, and to interrupt a meeting to consult privately with the employee. The
Supreme Court recognizes that an employee facing a disciplinary interview has a right to a
“knowledgeable union representative.” Weingarten, 420 U.S. at 263. As a result, the
Weingarten representative and employee may consult privately so that the representative is
familiar with the circumstances under investigation and with the employee‟s view of the matter.
Climax Molybdenum Co., 227 NLRB 1189, 1190 (1977), enforcement denied, 584 F.2d 360
(10th Cir. 1978); Postal Service, 969 F.2d at 1067, 1071.

A Weingarten representative has a right to actively assist an employee while the

investigatory interview is being conducted. Weingarten, 420 U.S. at 263; Barnard College, 340
NLRB at 935. An employer may not require a union representative to be a silent observer to the
disciplinary interview and it may not prohibit a union representative from speaking out. Barnard
College, 340 NLRB at 935 (citing Talsol Corp., 317 NLRB 290, 331-332 (1995) enfd. 155 F.3d
785 (6th Cir. 1998)). A Weingarten representative may present the employee‟s version of
events, clarify the facts, assist the employee in articulating an explanation, advise an employee
appropriately of the employee‟s right to consult with an attorney, and offer justifications and
mitigating factors. See Weingarten, 420 U.S. at 262-263.

During the course of an investigatory interview, an employer is not required to bargain

with a union representative over any discipline that the employer is considering, Weingarten, 420
U.S. at 259-260, and the union representative is not entitled to interfere with the employer‟s right
to conduct its investigation. Weingarten, 420 U.S. at 258; Yellow Freight System, 317 NLRB
115, 123-124 (1995); see also Barnard College, 340 NLRB at 935, 942. The Supreme Court and
the NLRB have held that employees and their Weingarten representatives are not entitled to an
“adversarial” hearing during investigatory interviews. See New Jersey Bell Tele. Co., 308 NLRB
277, 279 (1992) (upholding employer‟s ejection of steward from interview after steward advised
employee to refuse to answer the employer‟s repetitious questions more than once); see also
Weingarten, 420 U.S. at 263; Barnard College, 340 NLRB at 935; Yellow Freight System, 317
NLRB 115, 123-124 (1995). Similarly employees and their Weingarten representatives are not
entitled to present witnesses on an employee‟s behalf during an investigatory interview. Coyne
Cylinder Co., 251 NLRB 1503, 1504 fn.6 (1980). But a Weingarten representative may interrupt
an employer representative in the course of representing an employee, see e.g. United States
Postal Service, 288 NLRB 864, 868 (1988), and may object to questions reasonably perceived as
harassing, see New Jersey Bell, 308 NLRB at 279-280.

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 SHOP STEWARDS’ RIGHTS

I. Rights of Union Representatives

The rights of union representatives extend beyond the rights of Weingarten

representatives discussed above. The NLRB recognizes that an employee acting in his or her
status as a union representative stands on equal footing with an employer representative. Crown
Central Petroleum Corp., 177 NLRB 322 (1969), enfd. 430 F.2d 724 (5th Cir. 1970); see also
Indiana & Mich. Elec. Co., 273 NLRB 1540, 1545 (1985) (holding that “the master-servant
relationship does not carry over to the dealings between the employer and the employee when
the employee is acting as a union representative.”) As a result, an employer generally may not
discipline an employee for intemperate comments made in the course of grievance handling. See
e.g. United States Postal Service, 250 NLRB 4, 4 fn.1 (1980) (holding that discipline of steward
for referring to foreman as “horse‟s ass” during discussion of potential grievance was unlawful);
United States Postal Service, 251 NLRB 252, 252 (1980).

Although an employer generally cannot discipline a union representative for intemperate

comments made in the course of handling a grievance, the NLRB holds that certain conduct “is
so opprobrious” as to allow an employer to discipline a union representative. In determining
whether an employer can discipline a union representative for conduct occurring the course of
representing an employee the NLRB examines several factors: (1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the employee‟s outburst; and (4) whether
the outburst was, in any way, provoked by an employer‟s unfair labor practice. Atlantic Steel
Co., 245 NLRB 814, 816 (1979); see e.g. Bloomfield Health Care Cntr., 352 NLRB No. 39, slip
op. at 3 (2008) (holding discipline unlawful where conduct occurred in break area where work
could not be disrupted, parties were discussing right of representative to be in work area, no
profanity was used, and representative was provoked by employer‟s unlawful conduct); Datwyler
Rubber and Plastics, Inc., 350 NLRB No. 58, slip op. at 2 (2007).

A union representative also has the protection of a “stewards‟ privilege.” An employer

may not interrogate a union representative concerning his or her discussions with an employee
the union representative represents, nor may it threaten a union representative who refuses to
turn over his or her grievance notes. Cook Paint & Varnish Co., 258 NLRB 1230, 1231-1232
(1981). But the stewards‟ privilege is not absolute, and a union representative may be
subpoenaed and compelled to testify concerning such matter before a grand jury or in court.

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 INFORMATION REQUEST ULPS

I. The Postal Service Must Provide a Broad Spectrum of Information

Upon a request by a union, an employer must provide information that is necessary for
the union to process grievances, administer a collective bargaining agreement, or collectively
bargain. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956); Disney Park and Disney’s California Adventure, 350 NRLB No. 88, slip op. at 2-3
(2007). The obligation to provide information includes information necessary for a union to
determine whether it will file a grievance. Disney Park, 350 NLRB No. 88, slip op. at 2.

A union is presumptively entitled to information concerning bargaining unit employees‟

wages, hours, and terms and conditions of work. Disney Park, 350 NLRB No. 88, slip op. at 2.
A union does not have to justify its request for such information because the information is
presumptively relevant to the union‟s duties as the representative of the bargaining unit. See e.g.
Good Samaritan Hosp., 335 NLRB 901, 918 (2001); Yeshiva University, 315 NLRB 1245, 1247
(1994). Other information requests are governed by a “broad discovery-type standard.” Disney
Park, 350 NLRB No. 88, slip op. at 2; Acme Industrial, 385 U.S. at 437. Under this broad test for
relevancy, a union is entitled to any information that is of probable use to the union in carrying
out its responsibilities to represent its members. Sheraton Hartford Hotel, 289 NLRB 463, 463-
464 (1988). If the “information has some bearing on the issue between the parties” it must be
supplied. U.S. Postal Service, 289 NLRB 942, 942 (1988) enfd, 888 F.2d 1568 (11th Cir. 1989).
“[T]he legal standard concerning just what information must be produced is whether or not there
is a „a probability that such data is relevant and will be of use to the union in fulfilling its
statutory duties and responsibilities as the employees‟ exclusive bargaining representative.‟”
U.S. Postal Service, 337 NLRB 820, 822 (2002) (quoting Asarco, Inc., 316 NLRB 636, 643
(1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996); see also United Postal Service, 332
NLRB 635, 636 (2000) (“even potential or probable relevance is sufficient to give rise to an
employer‟s obligation to provide information”); Conrock Co., 263 NLRB 1293, 1294 (1982),
enf‟d, 118 LRRM 2968 (9th Cir. 1984) (“Information of even probable or potential relevance to
the union‟s duties must be disclosed.”).

An employer must furnish the requested information in a timely manner absent a valid
defense. Woodland Clinic, 331 NLRB 735, 736-737 (2000). “An unreasonable delay in
furnishing such information is as much of a violation of Section 8(a)(5) of the Act as a refusal to
furnish the information at all.” Id. Even if an employer intends not to provide a union with
information, it must “provide the [u]nion with some timely legitimate explanation for its
refusal.” U.S. Postal Service, 332 NLRB at 636.

Although a union in entitled to information, it is not entitled to have the information

presented to it in the exact form desired by the union.

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II. Confidentiality Defense

Substantial claims of confidentiality may justify an employer‟s refusal to furnish

information. Detroit Newspaper Agency, 317 NLRB 1071, 1072-1074 (1995). A union will be
entitled to information that an employer alleges is confidential only if the need of the union for
the information outweighs the legitimate confidentiality interests of the employer. Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). The NLRB does not accept blanket claims of
confidentiality; an employer must justify such claims. Detroit Newspaper, 317 NLRB at 1072;
U.S. Postal Service, 289 NLRB at 942; see also McDonnell Douglas Corp., 224 NLRB 881, 890
(1976). To trigger the balancing test under Detroit Edison, an employer must first timely raise
its confidentiality claim. Detroit Newspaper, 317 NLRB at 1072-1074. Further, even if
information is confidential, the employer cannot simply deny the request; rather, it must bargain
for an accommodation of its concerns, for example, by offering to enter into a non-disclosure
agreement. See Tritac Corp., 286 NLRB 522, 522 (1987) (an employer “cannot simply raise its
confidentiality concerns, but must also come forward with some offer to accommodate both its
concerns and its bargaining obligation); see e.g. U.S. Postal Service, 332 NLRB 635, 648 (2000);
Silver Brothers Co., Inc., 312 NLRB 1060 (1993); Minnesota Mining & Mfg. Co., 261 NLRB 27
(1982).

When unions have requested OWCP records the Postal Service has refused to respond
citing confidentiality concerns. OWCP records are covered by the Postal Service‟s Privacy Act.
The Board has rejected the Postal Service‟s Privacy Act defense. See e.g. U.S. Postal Service,
289 NLRB at 944-945. In fact, the Postal Service‟s Privacy Act regulations found in the
Administrative Support Manual provide that medical records can be disclosed to a union.

III. Filing Information Request ULPs

The General Counsel issued a memorandum concerning information request ULP charges
against the Postal Service. OM-03-18. In the memorandum, the General Counsel requests that
ULP charges contain: 1) the identity of the requester; 2) the person to whom the request was
directed; 3) whether the request was oral or in writing; 4) a description of the requested
information sought that was not provided; and 5) the general proffered reason for the request
(e.g. contract administration, grievance processing or collective bargaining).

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 APPENDIX OF ATTACHED CASES AND MATERIALS

I. Weingarten Rights

A. United States Postal Service v. NLRB, 969 F.2d 1064 (D. C. Cir. 1992).

B. United States Postal Service, 252 NLRB 61 (1980).

C. United States Postal Service, 241 NLRB 141 (1979).

D. Letter from K.H. Fletcher, Chief Postal Inspector, to William Burrus, dated May 24,
1982 concerning role of union representatives in investigatory interviews.

E. Texaco, Inc., 168 NLRB 361 (1967), enf. denied, 408 F. 2d 142 (5th Cir. 1969).

II. Shop Stewards' Rights

A. Cook Paint and Varnish Company, 258 NLRB 1230 (1981).

B. Report of the NLRB General Counsel (March-Sept. 1994).

C. United States Postal Service, 250 NLRB 4 (1980).

D. United States Postal Service, 251 NLRB 252 (1980).

E. United States Postal Service, 252 NLRB 624 (1980).

F. United States Postal Service, 268 NLRB 274 (1983).

III. Information Request ULPs

A. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).

B. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).

C. Disney Park and Disney's California Adventure, 350 NRLB No. 88 (2007).

D. Woodland Clinic, 331 NLRB 735 (2000).

E. Detroit Newspaper Agency, 317 NLRB 1071 (1995).

F. National Labor Relations Board, Office of the General Counsel, Division of

Operations Management, Memorandum OM-03-18 (2003).

14
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969 F.2d 1064,140L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64.61 USLW 2024,122Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

H 231H Labor and Employment

U.S. Postal Service v. N.L.R.B. 231HXII Labor Relations
C.A.D.C,,1992. 231HXII(J) Judicial Review and Enforce-
ment of Decisions of Labor Relations Boards
United States Court of Appeals, District of 231HXII(J)2 Enforcement by Courts
Columbia Circuit. 231Hk1931 k. Scope of Inquiry in
UNITED STATES POSTAL SERVICE, Petitioner, General. Most Cited Cases
V. (Formerly 232Ak717 Labor Relations)
NATIONAL LABOR RELATIONS BOARD, Re- In ruling on cross-application by National Labor
spondent, Relations Board (NLRB) for enforcement of its re-
American Postal Workers Union, AFL-CIO, and medial order, Court of Appeals had authority to
East Bay Area Local, American Postal Workers consider objections by United States Postal Service
Union, AFL-CIO, Intervenors. (USPS) to NLRB's decision, even if federal courts
No. 91-1373. lacked jurisdiction over USPS petition seeking re-
view of NLRB order. 39 U.S.C.A. $$ 1208(a),
Argued May 18,1992. 1209(a).
Decided June 30,1992.
[2] Labor and Employment 231H -1921
The United States Postal Service (USPS) petitioned
for review of determination by National Labor Re- 231H Labor and Employment
lations Board (NLRB) that USPS committed unfair 231HXII Labor Relations
labor practice when postal inspector denied em- 231HXII(J) Judicial Review and Enforce-
ployee the opportunity to consult with his union ment of Decisions of Labor Relations Boards
steward prior to interrogation concerning employ- 231HXII(J)2 Enforcement by Courts
ee's alleged misconduct. NLRB filed cross- 231Hk1921 k. Parties. Most Cited Cases
application for enforcement of its remedial order (Formerly 232Ak710 Labor Relations)
requiring USPS to post corrective notices at all Union could not raise issue as to whether United
USPS union-represented facilities. The Court of States Postal Service (USPS) was barred by preclu-
Appeals, Ruth Bader Ginsburg, Circuit Judge, held sion principles from challenging nationwide scope
that: (1) even if Court lacked jurisdiction over of remedy imposed by National Labor Relations
USPS petition seeking review of NLRB order, Board (NLRB), but rather that position could be
Court could consider USPS's objections to NLRB's raised only by NLRB.
decision in ruling on NLRB's cross-application; (2)
union was not entitled to raise issue of whether [3] Statutes 361 -219(8)
USPS was barred by preclusion principles from
challenging nationwide scope of NLRB's remedy; 361 Statutes
(3) NLRB reasonably determined that USPS com- 361VI Construction and Operation
mitted unfair labor practice; and (4) NLRB's re- 361VI(A) General Rules of Construction
medial order was not excessive. 361k213 Extrinsic Aids to Construction
361k219 Executive Construction
Cross-application granted. 361k219(6) Particular Federal Stat-
utes
West Headnotes 361k219(8) k. Labor Relations

[I] Labor and Employment 231H -1931

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 969 F.2d 1064 Page 2
969 F.2d 1064, 140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64.61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

and Standards. Most Cited Cases prior to interrogation by employer's representatives

Court of Appeals would give deference to "special can be weighed. National Lahor Relations Act, 5 7,
competence" of National Labor Relations Board 29 U.S.C.A. 5 157.
(NLRB) in construing phrase "concerted activities
for * * * mutual aid or protection" in NLRA, on re- [6] Labor and Employment 231H-1755
view of NLRB's determination that United States
Postal Service (USPS) committed unfair labor prac- 231H Labor and Employment
tice when postal inspector denied employee the op- 23 IHXII Labor Relations
portunity to consult with his union steward prior to 231HXII(I) Labor Relations Boards and Pro-
interrogation concerning employee's alleged mis- ceedings
conduct. National Labor Relations Act, s 7, 29 231HXII(I)6 Weight and Sufficiency of
U.S.C.A. 9 157. Evidence
231Hk1755 k. Interrogation of Em-
141 Labor and Employment 231H -1469(1) ployees. Most Cited Cases
(Formerly 232Ak555 Lahor Relations)
231H Labor and Employment
231HXII Labor Relations Labor and Employment 231H-1931
23 lHXII(G) Unfair Lahor Practices
231Hk1467 Interrogation of Employees 231H Labor and Employment
231Hk1469 Particular Conduct 231HXII Labor Relations
231Hk1469(1) k. In General. Most 231HXII(J) Judicial Review and Enforce-
Cited Cases ment of Decisions of Labor Relations Boards
(Formerly 232Ak367 Labor Relations) 231HXII(J)2 Enforcement by Courts
National Labor Relations Board (NLRB) acted 231Hk1931 k. Scope of Inquiry in
reasonably in construing NLRA provision estab- General. Most Cited Cases
lishing right of employees to engage in concerted (Formerly 232Ak718 Labor Relations)
activities for mutual aid or protection to mean that Substantial evidence supported administrative law
United States Postal Service (USPS) committed un- judge's finding that, had union steward been al-
fair labor practice when postal inspector denied em- lowed to consult with employee, there was only a
ployee the opportunity to consult with his union possibility that she would have advised employee to
steward prior to interrogation concerning employ- remain silent or otherwise refuse to cooperate, even
ee's alleged misconduct. National Labor Relations though union publication stated that best possible
Act,§7,29U.S.C.A.$ 157. advice to employee during such situation was to re-
main silent; therefore, Court of Appeals would not
[51 Labor and Employment 231H -1468 reach question of whether it would have been in-
cumbent upon National Labor Relations Board
231H Labor and Employment (NLRB), upon proof of union-enforced policy of
23 1HXII Labor Relations noncooperation, to excuse denial by United States
23 lHXII(G) Unfair Labor Practices Postal Service (USPS) of consultation prior to
231Hk1467 Interrogation of Employees postal inspector's interrogation concerning employ-
231Hk1468 k. In General. Most Cited ee's alleged misconduct. National Labor Relations
Cases Act, 5 7.29 U.S.C.A. 8 157.
(Formerly 232Ak361 Labor Relations)
In evaluating credibility of employee charged with [71 Labor and Employment 231H -1831
misconduct, fact that employee has exercised right
under NLRA to consult with union representatives 231H Labor and Employment

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969 F.2d 1064 Page 3
969 F.2d 1064,140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64.61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

231HXII Labor Relations brief for intervenors.

231HXII(I) Labor Relations Boards and Pro-
ceedings Before: RUTH BADER GINSBURG, HENDER-
23 lHXII(1)10 Orders SON and RANDOLPH, Circuit Judges.
23 1Hk1830 Posting of Notice of Order
231Hk1831 k. In General. Most
Cited Cases Opinion of the Court filed by Circuit Judge RUTH
(Formerly 232Ak624.1, 232Ak624 Labor Rela- BADER GINSBURG.
tions)
Upon determining that United States Postal Service
(USPS) committed unfair labor practice when **66*1066 RUTH BADER GINSBURG, Circuit
postal inspector denied employee the opportunity to Judge:
consult with his union steward prior to interroga- In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95
tion concerning employee's alleged misconduct, S.Ct. 959, 43 L.Ed.2d 171 (1975), the Supreme
National Labor Relations Board (NLRB) acted Court upheld a National Labor Relations Board
within its remedial discretion in requiring the post- (Board or NLRB) decision interpreting section 7 of
ing of corrective notices at all USPS union- the National Labor Relations Act (NLRA), 29
represented facilities, where collective bargaining U.S.C. 5 157,M1to secure to employees the right
agreement provision recognizing right to union par- to union representation at an investigatory inter-
ticipation in such interrogations applied to union view that the employee reasonably believes may
members nationwide, and inspection service manu- result in disciplinary action. The dispute before us
al which expressly ruled out leave to confer gov- concerns the propriety of the Board's reading of the
erned all inspectors wherever they undertook an in- section 7 right affirmed in Weingarten to cover pre-
vestigation. National Labor Relations Act, § 7, 29 interview consultation between employee and union
U.S.C.A. 157. representative.

*I065 **65 On Petition For Review and Cross- FNI. Section 7 establishes the right of em-
Application For Enforcement of an Order of The ployees, inter alia,"to engage in ... concer-
National Labor Relations Board (No. 32-CA-10209). ted activities for ... mutual aid or protec-
Douglas N. Letter, Atty., Dept. of Justice, with tion."
whom Stuart M. Gerson, Asst. Atty. Gen., Jeffrica
Jenkins Lee and Jacob N. Lewis, Attys., Dept. of In the ruling under review, the Board determined
Justice, and Karen A. Intrater, Associate Gen. that the United States Postal Service (USPS) com-
Counsel, Jesse L. Butler, Asst. Gen. Counsel, James mitted an unfair labor practice MZ in March 1989
A. Friedman and Robert P. Sindermann, Jr., Attys., when Postal Inspectors, following a USPS nation-
U.S. Postal Service, Washington, D.C., were on the wide policy, denied an employee the opportunity to
brief, for petitioner William Kanter, Atty., Dept. of consult with his union steward prior to an interroga-
Justice, and Stephen E. Alpren, Washington, D.C., tion concerning the employee's alleged misconduct.
also entered appearances for petitioner. The NLRB's remedial order directed the Postal Ser-
William M. Bernstein, Atty., N.L.R.B., with whom vice to cease and desist from interfering with the
Jeny M. Hunter, Gen. Counsel, and Aileen A. Arm- employee-union representative consultation right
strong, Deputy Associate Gen. Counsel, Washing- recognized in the Board's decision, and it required
ton, D.C., were on the brief, for respondent. the Postal Service to post remedial notices at all
Anton G. Hajjar, Washington, D.C., was on the USPS union-represented facilities.

FN2. Section 8(a)(l) of the NLRA,

29U.S.C. 5 158(a)(l), makes it an unfair

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(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

labor practice for an employer "to interfere after his lunch break and without advance warning,
with, restrain, or coerce employees in the to a trainingisupply room, where two waiting In-
exercise of rights guaranteed in section 7." spectors informed him that their inquiry concerned
his "job." The collective bargaining agreement
We conclude that the NLRB has advanced a per- between USPS and APWU provided: "If an em-
missible construction of the NLRA, one that is con- ployee requests a steward or Union representative
sistent with the language of the statute and with the to be present during the course of an interrogation
Supreme Court's Weingarten decision. The Board's by the Inspection Service, such request will be
interpretation therefore warrants our respect. We granted." Salvador accordingly asked for the at-
furthermore conclude that, in view of the nation- tendance of his union steward, Anne Rodrigues.
wide policy followed by the Postal Inspectors, the The interview was deferred for forty-five minutes
Board acted within its large remedial discretion in to an hour, pending Rodrigues' attendance, during
requiring the posting of corrective notices at all which time Salvador was kept in isolation in the
USPS union-represented facilities. Accordingly, we training*1067 **67 /supply room. When Rodrigues
enforce the NLRB's order in full. arrived, she immediately and repeatedly requested
permission to confer privately with Salvador before
the interview resumed. The Inspectors refused her
I. FACTS AND NLRB PROCEEDINGS request. Their refusal followed official instructions
contained in USPS's Inspection Service Manual; the
Benjamin Salvador, a member of the American Manual declared it USPS nationwide policy to deny
Postal Workers Union (Union or APWU), began all requests for pre-interrogation consultation
working for the Postal Service in 1977. At the time between employees and their collective bargaining
of the episode in suit, he was employed as a representatives.
"business reply" clerk at the Fremont, California
Post Office. Confronted by his supervisor in March The interview proceeded, and Salvador answered
1989 with apparent inaccuracies in a postal custom- all questions asked of him. Rodrigues also particip-
er's account balance, Salvador attributed the dis- ated in the interview, although when Salvador first
crepancies to a temporary bookkeeping manoeuver requested her presence, he was told she could at-
he was trained to use to cope with a time bind. The tend only "as a witness" to the interrogation. The
supervisor, evidently not satisfied that the errors record does not disclose what action was taken re-
were innocent, contacted the Postal Inspection Ser- garding Salvador after the investigation concluded.
vice.
Shortly after Salvador's interview, the Union
Postal Inspectors are USPS employees. They serve, lodged an unfair labor practice charge and, in April
however, as federal law enforcement officers, with 1989, the NLRB Regional Director issued a com-
authority to carry weapons, make arrests, and en- plaint concerning the denial of Rodrigues' request
force postal and other laws of the United States. for pre-interview consultation with Salvador. The
See18 U.S.C. 9 3061. The Inspection Service un- Postal Service denied that an unfair labor practice
dertakes investigations only when criminal conduct had occurred and contended that, in any event, the
is suspected. If an investigation reveals no crime, matter had been remedied by a notice the Service
the Inspectors turn over the evidence they have had voluntarily posted in five different locations at
gathered to USPS management, without recom- Fremont Post Office installations. This notice, un-
mendation or evaluation. Management then decides signed, acknowledged the Union's charge alleging
whether the evidence warrants disciplinary action. the failure of the Postal Service "to grant employ-
ees the right to confer with their union representat-
On March 9, 1989, Salvador was summoned, just

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969 F.2d 1064,140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64,61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

ive before an investigatory interview" and stated, The ALJ, applying Board precedents, upheld the as-
specifically: serted section 7 employee right to consult privately
with a union representative prior to a management
We will not prohibit employees from conferring interview implicating discipline. See Climax Mo-
with their union representative, upon request, where lybdenum Co., 227 NLRB 1189 (1977). enforce-
the employee has invoked his or her right to have ment denied,584 F.2d 360 (10th Cir.1978); Pacific
union representation present at an investigatory in- Tel. & Tel. Co., 262 NLRB 1034, 1048 (1982),
terview conducted by agents of the Inspection Ser- enfi 711 F.2d 134 (9th Cir.1983). Furthermore,
vice which the employee reasonably believes could the ALJ noted, the Board had very recently, in an
lead to discipline. We also will not prohibit such unappealed decision, rejected the Postal Service
union representative from participating in any such plea that a consultation right should not be avail-
interview to the extent permitted by the Supreme able in a criminal investigation conducted*1068
Court's Weingarten decision. **68 by the Inspection Service. See United States
Postal Serv.,288 NLRB at 866. The proof did not
In proceedings before an administrative law judge bear out, the ALJ found, that Rodrigues, pursuant to
(ALJ), the Regional Director stressed that, in Sal- Union instructions, would have counseled Salvador
vador's case, the Postal Service had repeated a pre- against cooperation with the Postal Inspectors. Fi-
viously adjudicated unfair labor practice. Less than nally, in view of the USPS policy announced in the
a year earlier, the Board had determined that, in Inspection Service Manual, the ALJ recommended
April 1982, at the very same Fremont Post Office, that the Postal Service be ordered (1) to cease and
the Service had violated an employee's section 7 desist on a nationwide basis from engaging in the
right when a Postal Inspector refused to let a union consultation denials declared unlawful, and (2) to
representative confer with the employee prior to an make a nationwide posting of USPS's Notice to
investigatory interview. See United States Postal Employees that
Serv.,288 NLRB 864 (Apr. 29, 1988). Despite that
unappealed ruling, the Postal Service had retained WE WILL NOT refuse to permit union representat-
in its Inspection Service Manual, the companywide ives to consult with employees prior to investigat-
instruction requiring denial of "all requests for con- ory interviews conducted by Postal Inspectors
sultations between employees and their [union] rep- which the employees reasonably believe will result
resentatives prior to any interview by a Postal In- in disciplinary action and WE WILL NOT refuse to
spector." Stipulation at 1-2, NLRB v. United States permit employees to speak with union representat-
Postal Serv., No. C 89 2734 FMS (N.D.Cal., Aug. ives prior to such interviews.
1989) (Application for Enforcement of NLRB Sub-
poena). The Board, in a June 21, 1991 decision, affirmed
the ALJ's rulings, findings, and conclusions and ad-
The Postal Service, in response to the Regional Dir- opted his recommended order. United States Postal
ector's complaint, urged containment of the Serv., 303 NLRB No. 75 (1991). In footnotes, the
Weingarten precedent to union presence at an inter- three-member panel added these qualifications.
rogation; the Service pressed, particularly, the inap- First, Chairman Stephens "expresse[d] no opinion
propriateness of spreading a right of prior consulta- on the Board's interpretation of [Weingarten I," but
tion to criminal investigations. The Service further joined his colleagues "for institutional reasons."
argued that even if the right to a representative re- Second, in Member Raudabaugh's view, if a union,
cognized in Weingarten could be construed to in- contrary to what the evidence showed in this case,
clude a right to prior consultation, the latter right in fact had a policy "of routinely telling employees
should not be allowed in Salvador's case because to refuse to cooperate with an investigation," then
APWU had a policy of noncooperation.

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969 F.2d 1064, 140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64.61 USLW 2024, 122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

"an employer might well be privileged to forbid FN3. 39 U.S.C. $ 1209(a) prescribes that
prior consultation." Finally, Member Cracraft noted postal employee-management relations
that, "[allthough this is the second occasion in "shall, to the extent not inconsistent with"
which the [Postal Service] has committed this viol- other PRA provisions, follow the NLRA
ation, ... these violations both occurred at [USPS's] model. The "principal exception" is that
Fremont, California facility 7 years apart." Because postal employees are barred from striking.
no evidence showed "that the unlawful conduct has SeeH.R.Rep. 91-1104, 91st Cong., 2d Sess.
been carried out or disseminated to employees at 10, reprinted in 1970 U.S.C.C.A.N. 3649,
any other facilities," she "would not order employ- 3658.
erwide posting of the notice," but would have lim-
ited the remedy "to the Fremont, California facil- APWU's jurisdictional argument is difficult to re-
ity." Id. at 1-2, nn. 4 & 5. concile with the declared purpose of Congress to
place Postal Service industrial relations under the
regime governing "nationwide enterprises in the
11. DISPOSITIONS private sector." SeeH.R.Rep. No. 91-1104. 91st
Cong., 2d Sess. 13 (1970). reprinted in 1970
U.S.C.C.A.N. 3662. Nor can we seriously entertain
A. Jurisdiction the contention that separation-
of-powers-of-powersoncemsicial*1069 **69 re-
[I] The Union, as intervenor, maintains that federal view. Cj5 U.S.C. § 7123 (providing for judicial re-
courts lack jurisdiction over this-or any-Postal Ser- view of Federal Labor Relations Authority de-
vice petition seeking review of an NLRB order. The cisions). Nevertheless, we pretermit the Union's
Postal Reorganization Act (PRA) places Postal Ser- charge that Congress precluded USPS's petition for
vice labor relations under the governance of Na- review. The Board has cross-applied for enforce-
tional Labor Relations Act provisions. See39 ment of its order, and that application falls squarely
U.S.C. g 1209(a).R) APWU maintains, however, within 39 U.S.C. 8 1208(a). In ruling on the cross-
that NLRA section 10(f), 29 U.S.C. § 1600, which application, we have authority to consider the re-
provides for court review of Board orders on peti- sponding party's objections to the Board's
tion of an aggrieved party, is not among the incor- decision.FN4 See Ford Motor Co. v. NLRB, 305
porated provisions. An unconstrained reading of U.S. 364, 370, 59 S.Ct. 301, 305, 83 L.Ed. 221
section 1209(a)'s incorporation language, the Union (1939); FLRA v. U.S. Dep't of Commerce, 962 F.2d
explains, would draw in NLRA section 10(e), 29 1055, 1058 (D.C.Cir.1992).
U.S.C. 8 160(e), which governs NLRB enforcement
petitions. But NLRB enforcement petitions are au- FN4. 39 U.S.C. 1208(a) gives federal
thorized by a discrete PRA provision, 39 U.S.C. § courts jurisdiction in actions brought by
1208(a), which states: "The courts of the United the NLRB "to the same' extent that they
States shall have jurisdiction with respect to actions have jurisdiction ... under title 29," and 29
brought by the INLRB] under this chapter to the U.S.C. 9 160(e) defines that extent as
same extent that they have jurisdiction with respect "jurisdiction of the proceeding and of the
to actions under title 29." There would have been question determined therein." (Emphasis
no need for section 1208(a), APWU concludes, if added.)
section 1209(a) encompassed judicial review peti-
tions. See 2A SUTHERLAND ON STATUTORY B. Issue Preclusion
CONSTRUCTION 46.06, at 119 (Singer, 5th ed.,
1991) (statutes should be "construed ... so that no [2] Intervenor APWU makes a further threshold ar-
part will be ... superfluous"). gument. The Union acknowledges that the Postal

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(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

Service is not barred by preclusion principles from National R.R. Passenger Corp. v. Boston & Maine
challenging the nationwide scope of the Board's Corp., 503 U.S. 407, 112 S.Ct. 1394, 1401, 118
remedy, but asserts that a prior adjudication, United L.Ed.2d 52 (1992). As stated in the leading case, "if
States Postal Serv.,288 NLRB 864 (1988), is con- the statute is silent or ambiguous with respect to the
clusive on the merits of the unfair labor practice specific issue, the question for the court is whether
charge. That prior adjudication also involved the the agency's answer is based on a permissible con-
Fremont, California Post Office; it both upheld the struction of the statute." Chevron, USA, Inc. v. Nat-
section 7 consultation right reasserted here, and dis- ural Resources Defense Council, Inc., 467 U.S.
posed of defenses raised again by the Postal Ser- 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694
vice. The Postal Service, APWU underscores, (1984). "If the agency interpretation is not in con-
failed to seek judicial review of the 1988 NLRB de- flict with the plain language of the statute, defer-
cision. Essentially, the Union argues, the Service, ence is due." National R.R. Passenger Corp., 112
having deliberately passed up its first opportunity, S.Ct. at 1401 (citing K Mart Corp. v. Cartier, Inc.,
should not be accorded a second chance for court 486 U.S. 281, 292, 108 S.Ct. 1811, 1818, 100
review. L.Ed.2d 313 (1988)).

The Union's preclusion plea would have been This case does not fall within the standard Chevron
worthy of consideration had the NLRB made it. analysis, the Postal Service maintains, because the
See, e.g., Lockheed Shipbuilding & Construction Board's decision reflects its interpretation of a Su-
Co., 278 NLRB 18 (1986). But courts do not force preme Court precedent construing the NLRA, i.e.,
preclusion pleas on parties who choose not to make NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Q.
them, and APWU is not positioned to determine the 959, 43 L.Ed.2d 171 (1975). "[Blefore reaching the
Board's litigation strategy. See Society Hill Civic issue of deference to the *I070 **70 Board," the
Assh v. Harris, 632 F.2d 1045, 1060 (3d Cir.1980). Service urges, "a reviewing court must first detem-
Perhaps because it prefers to have a judicial re- ine whether the NLRB's construction is consistent
sponse to the questions this case presents, the with [the guiding Supreme Court] precedent." Brief
NLRB raised no prior adjudication bar to the Postal for the PetitionerICross-Respondent at 25. The
Service's objections. Cf Poulin v. Bowen, 817 F.2d Board's decision here, USPS centrally argues, is ir-
865, 868-69 (D.C.Cir.1987) (agency that waived reconcilable with Weingarten. In making this argn-
application of "administrative res judicata" may not ment, the Postal Service emphasizes Lechmere, Inc.
assert that doctrine as alternate basis for its de- v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d
cision). In short, we reject APWU's endeavor to 79 (1992), in which the Court held a Board decision
achieve disposition of this case on a "rationale [not] incompatible with the statutory construction pre-
set forth by the agency itself." See Fort Stewart cedent the Court had set in NLRB v. Babcock &
Schools v. FLRA, 495 U.S. 641, 652, 110 S.Ct. Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed.
2043, 2049, 109 L.Ed.2d 659 (1990); SEC v. Chen- 975 (1956). See also Maislin Indus., U.S., Inc. v.
ery Corp., 318 U.S. 80, 93-95, 63 S.Ct. 454, Primary Steel, Iuc., 497 U.S. 116, 110 S.Ct. 2759,
461-62, 87 L.Ed. 626 (1943). 2768, 111 L.Ed.2d 94 (1990) ("Once we have de-
termined a statute's clear meaning, we adhere to
that determination under the doctrine of stare decis-
C. Merits is, and we judge an agency's later interpretation of
the statute against our prior determination of the
[3] The Postal Service initially recognizes that statute's meaning.").
"Ljludicial deference to reasonable interpretations
by an agency of a statute that it administers is a Weingarten upheld the Board's judgment that an
dominant, well settled principle of federal law." See

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969 F.2d 1064, 140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64,61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

employee had a section 7 right to the presence of a It is the province of the Board, not the courts, to de-
union representative during an investigatory inter- termine whether or not the "need" [for union assist-
view. The Postal Service points out, however, that ance at an investigatory interview] exists in light of
the Weingarten decision acknowledged "contours changing industrial practices and the Board's cumu-
and limits" to the statutory right. 420 U.S. at 256, lative experience in dealing with labor-management
95 S.Ct. at 963. The Court in Weingarten spoke of relations.... [Tlhe Board's construction here, while
protection against interference due "legitimate em- it may not be required by the Act, is at least per-
ployer prerogatives," id. at 258, 95 S.Ct. at 964, missible under it ....
and observed that "[a] knowledgeable union repres-
entative could assist the employer ... [in] getting to Id. at 266-67, 95 S.Ct. at 968. Weingarten thus did
the bottom of the incident occasioning the inter- not rein in the Board, as Babcock did. The preced-
view," without "transform[ing] the interview into ent set in Weingarten, instead, is fully consistent
an adversary contest." Id. at 263,95 S.Ct. at 966. with the Board's recognition in this case that Con-
gress, in enacting section 7, did not "directly
The careful Weingarten balance between employer [speak] to the precise question at issue,"Chevron,
prerogative and employee right, the Postal Service 467 U.S. at 842, 104 S.Ct. at 2781,i.e.. the scope of
charges, has been upset by the NLRB in this case union assistance appropriate at an investigatory in-
and in prior Board decisions recognizing a pre- terview. We thus face a case in which deference is
interview consultation right. By failing to accord due to the Board's "special competence" in constru-
proper weight to the employer's interest in gather- ing the section 7 phrase, "concerted activities for ...
ing information needed to detect and check wrong- mutual aid or protection." See Weingarten, 420
doing, the Service asserts, the Board has demon- U.S. at 266,267, 95 S.Ct. at 968,968.
strated its misunderstanding of Weingarten's inter-
pretation of section 7. **71 [4] *I071 We turn, accordingly, to the ques-
tion whether the Board's unfair labor practice de-
We find unpersuasive the Postal Service's attempt termination qualifies as "reasonable," see Chevron,
to fit Weingarten and this case into the BabcocW 467 U.S. at 844, 104 S.Ct. at 2782; and we hold
Lechmere mold. Babcock, the guidepost decision on that the Board's judgment measures up to the ap-
allowing nonemployee organizers onto an employ- plicable standard.
er's property, held a Board construction of section 7
impermissible. The Lechmere Court read Babcock The NLRB determined that the employee's
as saying, in Chevron terms, that Congress had dir- Weingarten recognized right to the assistance of
ectly spoken to the question at issue. Lechmere, 112 "[a] knowledgeable union representative," see420
S.Ct. at 848. Babcock had tightly circumscribed the U.S. at 263, 95 S.Ct. at 966, sensibly means a rep-
Board's authority under the NLRA to order nonem- resentative familiar with the matter under investiga-
ployee access to an employer's premises. The tion. Absent such familiarity, the representative will
Board, according to the Lechmere majority, had de- not be well-positioned to aid in a full and cogent
parted from Babcock's "straightforward teaching." Id. presentation of the employee's view of the matter,
bringing to light justifications, explanations, exten-
Weingarten, in contrast, far from upsetting an uating circumstances, and other mitigating factors.
NLRB order and correcting a Board error, spoke See Weingarten, 420 U.S. at 262-63,95 S.Ct. at 966
with approval of NLRB-shaped "contours and lim- ("A single employee confronted by an employer in-
its" to the statutory right. 420 U.S. at 256, 95 S.Ct. vestigating whether certain conduct deserves dis-
at 963. Key to the Weingarten decision is this ob- cipline may be too fearful or inarticulate to relate
servation: accurately the incident being investigated, or too ig-
norant to raise extenuating factors."); Climax Mo-

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 969 F.2d 1064 Page 9
969 F.2d 1064, 140 L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64,61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

lybdenwn, 227 NLRB at 1190 (prior consultation Postal Serv.,288 NLRB at 866.
allows union representative "to learn [employee's]
version of the events and gain familiarity with [5] Management is not stripped, we note, of effect-
facts"). ive control of employee misconduct by allowing
employee-union representative consultation in ad-
This case is illustrative. Union steward Rodrigues vance of interrogation. The employer remains in
testified that, on other occasions when she was command of the time, place, and manner of the in-
called to attend investigative interviews, she knew, terview, and can concentrate on hearing the em-
"prior to going into the meeting," just "what was ployee's account, with "no duty to bargain with the
going on, what the situation was about." Prior to union representative" at the interview. See
the start of Salvador's March 9, 1989 interview, Weingarten, 420 U.S. at 260, 95 S.Ct. at 965. The
however, Rodrigues knew only that Salvador, with fact of prior consultation, moreover, can be
whom she had been acquainted since her early days weighed in evaluating the employee's credibility.
as a postal worker, was "an honest employee and Nor can we agree that obstruction necessarily is
[she] couldn't bring the two together: him embezz- promoted by consultation. One might equally fore-
ling funds-and that's why [she] would have gone in cast, as the Board observed, that an uninformed
and got his story." representative would attempt to obstruct the inter-
rogation "as a precautionary means of protecting
Significantly, in the only court case declining to ex- employees from unknown possibilities." Climax
tend the section 7 right confirmed in Weingarten to Molybdenum Co., 227 NLRB at 1190.
a plea for pre-interview consultation, ample time
had been provided after notice, and before the inter- Nor was the Board obliged to except Postal Inspect-
view, to allow the employees subject to investiga- or interrogations from the consultation right at issue
tion to arrange a conference. See Climax Molyb- based on the potentially criminal character of the
denum Co. v. NLRB, 584 F.2d 360, 363 (10th conduct that Inspectors investigate. Weingarten
Cir.1978) (17 112 hours distanced time employees protections have been consistently accorded*1072
were advised of pending investigation and time it **72 to private sector employees suspected of crim-
took place). The court therefore held: inal conduct. See, e.& Exxon Co., 223 NLRB 103
(1976). Furthermore, the results of inspections,
The employer is under no obligation to accord the when no criminal proceedings ensue, are routinely
employee subject to an investigatory interview with turned over to management for possible use in dis-
consultation with his union representatives on com- ciplinary actions. See ALJ Decision at 2, United
pany time if the interview date otkenvise provides States Postal Serv., 303 NLRB No. 75 (June 21,
the employee adequate opportuniry to consult with 1991). Mindful of the deference due to the Board,
union representatives on his own time prior to the we uphold as reasonable the NLRB's judgment that
interview. Thus, we do believe that Weingarten re- neither "public safety" nor "legitimate employer
quires that the employer set investigatory inter- prerogatives" necessitate the suggested exemption
views at such a future time and place that the em- of Inspector interviews, and the attendant
ployee will be provided the opportunity to consult "sacrifice" of the statutory right of postal employ-
with his representative in advance thereof on his ees. See United States Postal Serv., 241 NLRB at
own time. 142 & n. 12. M5

Id. at 365 (emphasis added). In the case before us, FN5. A question was raised at oral argu-
as in Pacific Tel. & Tel. Co. v. NLRB, 711 F.2d ment, and in subsequent submissions to the
134, 137 n. 4 (9th Cir.1983), no time at all had been court, concerning the potential con-
allowed for a conference. See also United States sequences of an employee's telling her uni-

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 Page 11 of 12

969 F.2d 1064 Page 10

969 F.2d 1064, 140L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64.61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

on steward the whole story. A steward, un- FN6. The ALJ found Rodrigues a credible
like a lawyer, can be compelled to testify witness. See ALJ Decision at 7, United
in court as to his knowledge of criminal States Postal Sew., 303 NLRB No. 75
conduct, and postal employees are obliged, (June 21, 1991).
by regulation, to report to USPS miscon-
duct of which they are aware. These con- No evidence was introduced to show that the Guide
siderations were not aired before the was distributed generally to Union members or that
Board. Whatever impact they might have the Union otherwise maintained a noncooperation
on the union representative-employee con- policy. Nor was there any showing that Rodrigues
versation, we cannot find, on the current or any Union steward had ever advised noncoopera-
record, that they supply a reason for the tion with the Inspection Service. At the interview
employer to deny the opportunity for prior itself, Rodrigues made no effort to urge silence
consultation. CfClimax Molybdenum, 227 upon Salvador. To the contrary, she assisted the In-
NLRB at 1190 (denied opportunity to con- spectors in eliciting the facts from him. Viewing
sult beforehand, steward might advise em- the record as a whole, the ALJ found that, had
ployee silence at interview, despite em- Rodrigues been allowed to consult with Salvador,
ployee's innocence). "there was only a possibility that she would have
advised him to remain silent" or otherwise refuse to
[6] The Postal Service next urges that it was AP- cooperate. The evidence supporting that finding
WU's policy to have Union stewards tell inter- qualifies as "substantial." See29 U.S.C. 8 160(e).
viewees at Inspection Service interrogations "to re- We therefore do not reach the question whether it
main silent"; such advice, USPS urges, could only would have been incumbent upon the Board, upon
frustrate, not advance the objective of uncovering proof of a union-enforced policy of noncooperation,
truth. The Postal Service supports this point by cit- to excuse an employer's consultation denial. Cf:
ing pages from an APWU 1986 publication: A Climax Molybdenum, 584 F.2d at 363-64 (denying
Guide for the Craft Employee in Dealing with the enforcement of Board's order where union had a
U.S. Postal Inspection Service. The Guide contains policy of noncooperation pursuant to which union
these lines: officials, including the official who requested the
pre-interview consultation, "had urged [employees]
Q. What are your rights during an interrogation by not to cooperate with management in any investig-
the inspection service in which you could possibly atory interviews").
be the subject of a criminal investigation?
[7] The Postal Service ultimately argues that the
A. The best possible advice to an employee during remedy is overbroad. Taking into account that it has
this type of situation is to remain silent. Advise the been charged only twice with the unfair labor prac-
inspector that you intend to seek legal counsel. tice in question,,*1073 **73 that the two episodes
Then when you have engaged the services of an at- occurred, several years apart, at the same facility,
torney you will cooperate with the investigation .... and that it bad voluntarily posted notices at that fa-
cility, the Service resists nationwide relief. The
Guide at 20-21. Asked whether she would have fol- ALJ, however, whose decision the Board adopted,
lowed the Guide and counseled Salvador's silence, properly relied upon these features of the case: (1)
Rodrigues ultimately clarified that if Salvador ad- the collective bargaining agreement provision re-
mitted "he had done wrong ..., I would have told cognizing the right to Union participation in In-
him to remain silent and to let us handle it from spection Service interrogations applies to APWU
there." But if he had told her he was innocent, she members nationwide; and (2) the Inspection Service
would have told him he had "nothing to hide." M 6

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969 F.2d 1064 Page 11
969F.2d 1064,140L.R.R.M. (BNA) 2639,297 U.S.App.D.C. 64,61 USLW 2024,122 Lab.Cas. P 10,253
(Cite as: 969 F.2d 1064,297 U.S.App.D.C. 64)

Manual, which expressly rules out leave to confer, main silent. The record supports these Board as-
governs all Inspectors, wherever they undertake an sessments. We therefore leave for another day and
investigation. Nor do we agree that cause for re- case the question whether an established union
straint is supplied by the Service's commission of a policy of counseling noncooperation should excuse
second violation at the Fremont Post Office, despite an employer's refusal to allow pre-interrogation
the cease and desist order the Board had issued re- consultation. The Postal Service's currently-main-
garding that facility less than a year earlier. tained policy, as stipulated by the parties, directs
Inspectors, nationwide, to deny all pre-interview
In sum, Congress allowed the Board large discre- consultations. That policy, combined with USPS's
tion to impose remedies that "will effectuate the evident disregard of a prior Board order, warranted
policies of [the NLRA]." See29 U.S.C. 5 160(c). the nationwide cease and desist directive and notice
We have no warrant on the facts before us to de- posting remedy approved by the Board. Accord-
clare the Board's relief order excessive. See Virgin- ingly, the cross-application for enforcement of the
ia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, NLRB's order is
63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943); Consol-
idated Freightways v. NLRB, 892 F.2d 1052, 1055 Granted.
(D.C.Cir.1989).
C.A.D.C.,1992.
U.S. Postal Service v. N.L.R.B.
111. SUMMARY AND CONCLUSION 969 F.2d 1064, 140 L.R.R.M. (BNA) 2639, 297
U.S.App.D.C. 64, 61 USLW 2024, 122 Lab.Cas. P
In Weingarten, the Supreme Court approved as con- 10,253
sistent with NLRA section 7 the Board's recogni-
tion of a right to a union representative's attendance END OF DOCUMENT
at investigatory interviews. The NLRB has since
determined that the right recognized in Weingarten
and the statutory purposes underlying that decision
are best effectuated by allowing employees to con-
sult with their union representatives prior to the oc-
currence of an interview; and the Board has exten-
ded that protection to Postal Service employees
whose conduct is subject to investigation by the
Postal Inspection Service.

Noting the court's clear statutory authority to enter-

tain NLRB enforcement petitions and our obliga-
tion to review the reasoning actually relied upon by
the agency, we find the Board's decision a
"permissible" and "reasonable" construction of sec-
tion 7, one in no way foreclosed by the Weingarten
decision. The Board was unpersuaded either that
the Union in this case maintained a policy of coun-
seling noncooperation or that the Union represent-
ative, Anne Rodrigues, had pre-interview consulta-
tion been allowed, would have counseled the inter-
viewee, postal employee Benjamin Salvador, to re-

@ 2008 Thomson/West.No Claim to Orig. U.S. Govt. Works

 UNITED STATES W S T A L SERVICE 61

United States Postal Service and A m e r i m Postal cluding the representative from the "hands on"
Workers Union, AFLCIO. Cases I-CA- physical examination.
1563qP). I-CA-I5894(P), and 1-CA-1628qP) We also agree with the Administrative Law
September 9. 1980 Judge that the remarks concerning the Union made
by Dr. Doyle during his examination of employee
DECISION A N D ORDER Norman Fugere. Jr., and his questioning of Fugere
On May 28, 1980. Administrative Law Judge as to why he wanted the union representative with
Robert Cohn issued the attached Decision in this him at a physical examination, did not violate Sec-
proceeding. Thereafter, the General Counsel and tion 8(a)(l) of the Act. Although a supervisor by
the Charging Party filed exceptions and supporting reason of his supervision of nurses and administra-
briefs, and the Respondent filed an answering brief. tive personnel employed in Respondent's medical
The Board has considered the record and the at- unit, Dr. Doyle was not acting in a supervisory ca-
tached Decision in light of the exceptions and pacity with respect to Fugere. In addition. his
briefs and has decided to affirm the rulings, find- question and his remarks were manifestly the out-
ings, and conclusions of the Administrative Law come of a personal irritation at what he regarded
Judge, as modified herein, and to adopt his recom- as the union representative's intrusion into the ex-
mended Order. amination. an incident which had resulted in a
We agree with the Administrative Law Judge heated altercation between the doctor and the rep.
that, on the record in this case, the "fitness for resentative immediately prior to the doctor's re-
duty" examinations in question were not part of a marks to Fugere. Although Fugere was ordered to
disciplinary procedure and d o not fall within the report for the examination, nothing Dr. Doyle said,
purview of Weingarten.' Thus, while the examina- in these circumstances, carried the imprimatur of
tions were prompted by personnel problems such Respondent's management o r could reasonably be
as excessive absenteeism because of alleged illness construed as a threat of retaliation by Respondent
o r injury, and the examinations might lead to rec- for the exercise of a Section 7 right. Therefore, we
ommendations respecting the employees' future find it unnecessary to pass on the Administrative
work assignments, there is insufficient evidence es- Law Judge's conclusion with respect to the neces-
tablishing that these examinations were calculated sity for a remedial order if an 8(a)(I) violation
to form the basis for taking disciplinary o r other were found, and w e adopt his recommendation that
job-affecting actions against such employees be- this allegation, and the complaint in its entirety, be
cause of past misconduct. Noteworthy also is the dismissed.
absence of evidence that questions of an investiga-
tory nature were in fact asked at these examina- ORDER
tions. In addition these particular medical examina-
tions d o not meet with the tests set forth in the Pursuant to Section I q c ) of the National Labor
Weinganen line of cases, o r the rationale underly- Relations Act, as amended, the National Labor Re-
ing these tests which envision a "confrontation" be- lations Board adopts as its Order the recommended
tween the employee and his employe^.^ According- Order of the Administrative Law Judge and
ly, we need not decide in the instant case what hereby orders that the complaint be, and it hereby
weight, if any, should be given to the Administra- is, dismissed in its entirety.
tive Law Judge's findings that the physicians per- DECISION
forming the examinations had no authority to
impose o r recommend discipline, and that the re- STATEMENT OF THE CASE
quested union representatives had insufficient medi-
cal qualifications to enable them to be of assistance ROBERT COHN,Administrative Law Judge: This con-
solidated proceeding w u heard before me at Boston.
to the physicians. We also need not determine, in Masrschusetts, on November 15, and December 12-14.
this case, ns urged by the General Counsel, wheth- 1979.' pursuant to due notice. The principal issue to be
er, in an appropriate case, it might be appropriate resolved is whether the United States Postal Service
and feasible lo provide union representation during (herein the Respondent) violated Section 8(a)(l) of the
the interview portion of an examination while ex- National Labor Relations Act, as amended (herein the
Act), when it refused to allow a representative of the
Id .I
N.LR.6. u. J. W c i i g ~ r r m Inc.
. 420U.S.111 (1911).
1M. Wc nacc slu, ibt lincc the cumirvlions here were limited
ta thr ntablishmmt of prrron.1medical inrorm.8ion conccroinp ihr em.
Charging Party (American Postal Workers Union AFL-
ployre, thc Rnpondenl did not have t ) u oplion or procecdins an its
awn, without ihr naminalion, lo oblVn this inrormntion. Cf. id. 81 218- I All dates hereinnher rrRr 10 the calendar yrar 1979. unless otherviv
199. i"diL-.ld.

252 NLRB No. 14

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

CIO-herein the Union) to accompany employees during

their fitness for duty examination interviews.a
~.~
nurses and administrative aersonnel who are emoloved - ~in
the medical unit. 'lhe record reflects that, in addition to
-,-~
Subsequent to the hearing, wunsel for the General conducting the examinations a1 issue herein, the medical
Counsel and counsel for the Respondent filed helpful, "nil also provides first aid trestment and medical care for
post-hearing briefs, which have been duly ~onsidered.~
Upon the entire record in the case, and from my ob-
. .
iniured or ill emolovees at the facililv. conducts ohvsical
cxamlnatlons for prospecttvc employees, and clearance
..
servation o f the demeanor of the witnesses,' I make the exarnnnatlons follow~ngan illness or injury '
following: The fitness for dutv examination on which the instant
procccdlng 1s focused 8% normully lnlllatcd by an admtnls-
FINDINGS
AND CONCLUSIONS" trative omcer of the Rc~pondenl(such as a poslma.lcr)
when a personnel problem artscs in hlr junsd~ct~on uh~ch
I.THE ALLEGED UNFAIR LABOR PRACTICES involves or requires a medical opinion. For example.
some of the alleged discriminatees in the instant matter
A. Background and Setting of rhe Issues
were scheduled for such examinations because of assert- ~ ~~~

As previously stated, the principal issue in this case is ed exccsaive absenteeism due to alleged illness or injury;
whether the Respondent violated Section 8(a)(l) o f the i.e., to determine the nature and scope o f any such illness
Act by refusing l o allow, upon an employee's request, or i n i u r y I t should be noted that prior to the schedulina
his union reoresentalive to accomoanv him (or her) o f s u i h a n examination the file o f t h e affected employ&
during a "fit& for duty e~amination."~. is forwarded l o the administrative assistant in the medical
The facility o f the Respondent involved in the instant unit who makes the determination lhat a medical proh-
proceeding is located in Boston. Mas~achusetts,where it lem is involved and can only be resolved through a fit-
is known as the South Postal Annex. T h i s facility serves ness for duty examination. Once this determination is es-
the Respondent's employees i n Msssachusetts, Maine. tablishud, a date and time for the examinnlion is mutually
New Hampshire, Vermont, and Rhode Island. I n the agreed upon, and the employee is then scheduled for
South Postal Annex, the Repondent maintains a medical such eramination at the medical unit i n Boston.
unit, staffed by two full-time physicians. Dr. Edward The affected employee may have a friend, relative, or
Handy, the arm medical oNlcer, and Dr. Joseph Doyle. representalive accompany him to the examination, and
The examinations at issue herein are conducted by either there may be, i f desired, a discussion prior to the exami-
of the above-named physicians, both o f whom are ac- nation among the doctor, patient, and his representative.
knowledged to be supervisors within the meaning of the However, it is the policy o f the Respondent not to allow
Acl, inasmuch as they, in fact, supervise the registered a third party (except an attending nurse, when needed)
to
.. he
..oresent durinc the ~- actual
~ - examination
~ ~ - ~ itself.
~ ~
~~~~-~~
~ This - . ~~ ~
~ h 0rigin.l
c ch.rgc incur I-CA-15610 wu nlrd ~ ~ 14; ,he
b ~policy'is
~ .based~ primarily
~ on the need for complete
origiml charge in Cur I-CA-IS894 w a A l d April I; ,he h r p e in Cur candor, confidentiality, and lack o f intrusion between the
I-CA-16286 w u nlcd lvnc 29. On August 8. $heRegional Director for
R t l b Iof the Nnliaal btm Rel.liom b r d ilrued hi, ordcr conali. doctor and the patient. However, after the examination is
d.&g thews, iuuing a wcond .mend& complaint and nolicc of hur- completed it is the Respondent's policy to allow a dis-
inr A l the hurine and in i l s bticf. ,he Rnmndcnt orolnlrd ihal the cussion among the doctor, patient, and his representative
e<mpl.int v.r nol;.lid l o the eilcnt that it nilcged vidlalions of she Act at that time.
ramling one of the .Ilefied ddirriminataa since "the mended charge
or the original wmpl.int b u d on empteycr Walar I. Urban made no Following the examination. the physician will, in due
mmlian of my violatbn of Sretion a(aX1) and (3) of the National Lnbr course, write a report making his findings and recom-
RehLbrd Act bv dirioiinina Mr. Urban." Thc Rnmndcnt .I- moved mendations to the requesting ollicial. Such report may,
Ih.1 l h a r portions ol'lhr &ond amnded compdnt be dirmi& re.
. p ~ l i n gUrban sin- he appealed his suspension through ihc grievance
for example, find no injury or illness and rewmmend full
pmcsdulc and. therefore, this proceding should bc deferred to ihr pro. duty; find that any such illness or injury would necessi-
ccdurc under the sontr.cl. tate only light duty; or perhaps recommend further spe-
Ido IWI deem i t n-ry lo dixuu and rewlur t h e procedural man. cialized physical e~amination.~
tm lilrr 1 h v e found no vialrtion of ihr Act on the merit. of Urban's
-.-..- The record i s clear that the examinina - .~hvsician
. at the
1 A I ~ an
, M W C ~ 11. IPBD, counvl for the nspondcntnlcd. motion medical unit has no authority to mete out any form of
lo correct the hearing trmxripl in ccrtlin mmts. No objcellonr hnuing discipline or punishment to the employee-patient, nor
born A M . the motion i s hereby granted. does the record reflect that he ever recommends such a
* CC Bilhop and Mdca Inc, d/b/a Wolker'r. I59 NLRB 1159. 1161 course of action to the administrative oN~cer.The most
(1%).
'
*re h no isue u to the juridiction of the N~ ,~oI., bbrRC.I that the record shows o f a circumstance which c o m a
lions Bonrd in lhir metter. thc B m d h-ving such jurisdiction by virlvc of closest t o such a recommendation is, for example, should
the Pmul Rrorgmiution Act.
mtrrul, the Union
2(J) or the Act. and
.
T h c wmpI.int dlega, the mlwcr admil$. and IAnd ih.1
orglniu,ion
.I all l l m n
mrvrinp of SCF.
within the meaning of rhr Posul R=organiulion
an employee have a record o f excessive absenteeism
based on e r f e d illness, the examining physician may

' Thc r-rd

.
Act. shows that during an annual period, the medical un8l han-
' A "Fitness for duly cxlmination," may be dcrribed. numi.lly, un d l e ~pproximnlrly2l.W individual medical complainr,.
physical e m i n a t i o n candv~mlby on. of the Rnpondml's $116physi. The callectivc.b.rg.ining .gr-men, bnwccn ihc Repondent and
ci.N, md comprising, in addition to a "hands on" physical elaminolion the Chmrging Plny provida 8 procedure Tor the sppoinlment of. third
ofthe employer's matomy. quntlans and diruuion by ~hcphysician of physician whcrs them i s a d'kagrwmml belwrrn the cmployrr'r phpi-
th~cmployrr'lmedical and work history. I f is narm.lly rcqunlrd by fhr cian md the physician dnignated by thc Rnwndcot concerning lhe
Rapondent in order to v c c r u i n whether an cmplnyn i s Rlly A l for medical condilion of an rmployce who i s on a light duly auignmcnl. Scc
duly. A8 for only light duly, or not At for my duly. J I . Eih. I. pp. 12-31.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

violation o f an employer's policy, practice, or plant and/or mental ability or capacity of the employee to per-
rules." There is no evidence i n the instant record that form tasks to which he may be assigned. Certainly, it
any one of the six employees involved herein, or any may not be reasonably assumed that an employer, with-
other employee, was required to undergo the f i t n a for out ulterior motives," normally wishes l o rid itself of
duty examination as a part o f any "disciplinary program" otherwise competent employees who have not conducted
as that term i s usuelly defined. They were simply called themselves i n such a manner as to warrant dismissal or
for the examination in order to determine whether or not other consequences o f a disciplinary nature.
they were physically and/or mentally capable o f carry- Finally, it seems clcar that the instant situation does
ing on the duties to which they were assigned. The doc- not fit the fifth test of the Supreme Court, above-quoted.
tors, unlike the supervisory or managerial personnel in-
volved in Weingnrlen and its progeny (see fn. 19, infra)
Thus, it is apparent that the Court thought that the sanc-
tioning of a union representative at the type of interview
had no authority to either impose discipline or even to
recommend it and did not do so. T o be sure, in the case there under consideration would be of assistance not
of any individual employee. the results of the examina- only to the employee (since the union representative may
tion could have an adverse impact on their employment; attempt l o clarify the facts or suggest other employees
i.e.. their hours could be shortened, they might not be who may have knowledge of them), but also "to make
able to perform the work which they believed them- certain that the employer does not initiate or continue a
selves capable, or, i n the extreme case, i t could be rec- practice of imposing punishment unjustly."" The Court
ommended that he (or she) be suspended for lack of abil- goes on to paint out that "A single employee confronted
ity or capacity to perform the job. However, this is not by an employer investigating whether certain conduct
"discipline" in the sense o f punishment for the breach of deserves discipline may he too fearful or inarticulate to
P rule or practice but, rather, a resolution o f s medical relate accurately the incident being invesligatcd, or too
problem for the health and safety of the employee, his ignorant to raise ehtenuating factors." (Emphasis sup-
fellow workers, and possibly the public with which the plied.)" Again, i t is apparent that the Court was point-
employee may come i n wntact. ing out the desirability o f collective action in a situation
I t is recognized, o f course, as the General Counsel premised upon the employee's fear o f discipline due to
points out, that the procedure might be utilized b y an un- an alleged breach o f a rule or practice in the plant. Here.
scrupulous employer to r i d itself o f an unwanted employ- i t would seem highly questionable. to say the least, that a
ee by having the employer's physician make medical lay union representative would be of much assistance to
findings which would necessarily result in the dismissal a physician conducting a physical e ~ a m i n a t i o n . ~ ~
of the employee. However, there is no evidence of such
But the General Counsel and the Charging Party
a Machiavellian intent here. The fact that an employee
might be discharged or suspended as a result o f not com- argue that the union representative in the instant case
plying with the physician's recommendation, with which may be of asriistance to the employee with respect to the
the administrative ollicer agrees, docs not make the fit- questions posed by the physician relating to work histo-
ness for duty examination into an interview which the ry, family history or, for example, questions relating to
employee fears might result in disciplinary action within how an injury occurred, etc. However, the record herein
the meaning o f the Weingonen doctrine. is clear that the fitness for duty examination docs not
Nor doen the fitness for duty examination fit comfort- lend itself l o such a truncated procedure. Thus, while it
ably within the abovequoted fourth contour enumerated is apparently the customary procedure for the examining
by the Supremc Court i n Weingarfen. This test empha- physician to initiate the fitness for duty examination by
s i m the freedom o f the employee to refrain from partici- asking certain questions relating to the above-mentioned
pating in an interview while at the same lime relinquish- subjects, and then proceeding to the "hands on" physical
ing any benefit which might be derived therefrom; by examination, i t is usual and customary for the physician
the same token, the employer would then be free to act to pursue such questions and discussion during the
on the basis of information obtained from other "hands on" physical after the doctor has learned more
sources." Like the situation emanating from an alleged respecting the employee-patient's anatomy and his physi-
breach o f a rule or practice of the employer. the employ- cal abilities. I t would, therefore, not be feasible l o at-
er may decide to proceed wilh discipline b u d on the in- tempt to divide the fitness for duly examination into two
formation he has absent the investigatory interview parts in order that a union representative might be pres-
which the employee has declined. However, unlike that ent for the part relating to work history and the like.
situation. the Reswndent here has evidenced no desire to
B a d on all o f the foregoing. I am convinced and.
disciplin; or penilize the employee called for a medical
therefore, find that the fitness for duty examination at
examination, but rather to simply ascertain the physical
issue here was not within the contemplation o f the deci-
S e t k drfinillon in Webar's Third Ncw 1nlcrn.tion.l Diilionary:
'r: punishment: u a: chutiummt vlCinIlistcd u rnonikalion or Im-
mud a a m m n oras ~ . . Blul;'~Law Dicliolurv. 5th Edition.
a mnalrr":
drnnn ihc trrm r:"lnnruclion, comprehending lhc cammunicetion a1
knowlrdp and trainingto obwrvr snd ,el in nssordancc with r v l n and ria U.S.131.
orden. C o m t l o ~ , chu~ixcmenr, punirhrnrnr, pnnlly." (Emphasis sup. " Id.
~licd.) 1. Thcrc i s no eontenlion i n ihc innnnf c r u that the union rrprrwnta.
Mcbil Oil Corpamtion. I96 NLRB 1051(1972) (quotd wilh approv-
8. l 8 v n r q u n l e d by thc aI1cg.d diwriminalm hnd any m d i c a l qurlifica-
.I by the Suprrmc Coun in Wcingonm). ,ions.
 UNITED STATES WSTAL SERVICE 65

sion in Weingorren and its progeny.'* I shall therefore tion. Smyrnios agreed and, in fact, accompanied Fugere
recommend that the complaint, insofar as it is based to the medical unit on that day.='
upon the asserted right of the alleged discriminates to When Fuaere- was called for examination bv Dr.
have a union representative present during their fitness Doyle. Smyrnios accompanied Fugcre into the doctor's
for duty examinations. be dismissed. olT~ce,and Fugere requested that Smyrnios be allowed to
represent him during the examination. Doyle refused.
C. Alleged Independent 8fo)fl) ond (3) Viobrions citing the Respondent's policy. After some rather acri-
The amended complaint (paragraph 8 ) alleges that monious discussion. Smyrnios did leave, but under pro-
during the fitness for duty examination conducted by Dr. test. Fugere also indicated that he was submitting to the
Joseph B. Doyle of employee patient Norman R. Fugere. examination under protest since he felt that failure to
submit to the examination might result in some form of
Jr.. on or about June 25, the doctor made certain coer-
discipline to him.
cive remarks and engaged in interro~alionconcerninn
union activities in vioiatFon of Section i(a)(l) of the ACE Following Smyrnios' departure, according to Fugere's
It is also alleged in paragraph 9 that through the conduct testimony. Doyle turned to him and stated as follows: "I
~ ~~

don't know why you brought him with you. You came
of the fitness for duty examination on said date, the Re-
here to jump down our throats and I'm not going to
spondent "subjected its employee Norman R. Fugere.
allow it." Fugere further testified that Doyle asked him
Jr., to an accusatory, coercive and intimidating inter- why he thought the Union was needed, and that Doyle
view." It is further alleged in paragraph 10 that the Re- opined that "the Union should not bother with people
spondent engaged in such conduct described in para- like me. The Union should stick with the drunks and
graph 9 because Fugere '>joined, supported, o r assisted dope addicts where they belong." Later in the interview.
the Union, and engaged in concerted activities for the according to Fugere. Doyle stated that while Doyle did
purpose of collective bargaining or other mutual aid or not give out disciplinary action. Fugere deserved it, and
protection, and in order to discourage employees from then "We'll see what the Union will d o for you."'l
engaging in such activities o r other concerted activities Doyle denied making the above-quoted statements
for the purpose of collective bargaining o r other mutual except that, on cross-examination, he did indicate that it
aid or protection." By its duly filed answer, the Re- was probable that he asked Fugere why he had Smyrnios
spondent denies having engaged in any unlawful con- at the examination.
duct. The credibility iuue here has been a dificult one.
For several years prior to the events giving r i x to the Fugere impreswd me as being one who approached the
instant wntroversy, Fugere had been employed by the fitness for duty examination with great apprehension and
Respondent at its Woonsocket. Rhode Island, postal fa- concern based upan his apparent belief that the Respond-
cility as a distribution clerk (mail sorter). In October ent had ordered the same in an attempt to justify subx-
1978. he received an injury to his knee. Later. in Janu- quent disciplinary action, if not worse-as a basis for es-
ary, there was an operation performed on the knee, and tablishing an intent on the part of Fugere to defraud the
Fugere did not work from that time until approximately Respondent-that is, by making claims based on a w r t e d
7 months later. On o r about June 6, he wrote a letter to injury which were not true. Dr. Doyle impressed me as
his postmaster in Woonsocket informing him that he being an outspoken individual who, while not harboring
would be available to return to work on June 20, but his an antiunion intent in general, was positive in his opinion
work schedule would k limited to 2 hours per day due that union representation had no place in a medical inter-
to the order of his doctor. The postmaster, upon check- view. In addition, it is clear that Doyle did not appreci-
ing with Fugere's physician, suertedly received conflict- ate Smyrnios' militant and intrusive attitude on this
ing reports respecting the limitation on Fugere's ability point. Accordingly. I believe, and therefore find, that
to work full time. On that basis, as well as the postmas- following Smyrnios' departure from the room. Doyle
ter's expressed doubt as to whether a k n u injury should asked Funere whv he wanted Smvrnios with him. and
cause an absence for as long a term as existed, requested probably opined strong language that Doyle w& of
a fitness for duty examination for F u g e r ~ . ' ~ the view that it was not in the b n t interest of either the
The fitness for duty cxaminalion was scheduled for- Respondent or Fugcre that a union representative be
and took place--on June 25. A few days prior thereto. present during the interview. Doyle might very well
Fugere contacted Union Representative Smyrnios and have, in his agitated state, gone on to suggest other areas
requested that the latter accompany him to the examina- where unions should interest themselves such as with

" The rrcord rcflsls that. at prior union meelingl, Smymim had ci.
'* SII. e.8. Ammo C h ~ m i r o lCorponrrion. 117 N L R B 194 (19781, p r n v d ihc viewpoint ihl the Wlmb.ncn d o c l t i ~mcamplucd ihc ti!.
hurhwrrrm Ed1 Telmhonc Commnu. 111 N L R B 1111 11911k Cf;mni
~~~ n n r for duty r~.minrllon and mcouraged r m p l o y m who w r r r called
~ o r y ~ e n ucom,&y:zii
m NLRU 1ia9(1~11);A(/& M. ~ . ~ i i ' ~ n229 c. for such cx.mmalians 10 rlqunl unmn repmclatinn. As a conmurncc.
NLRB 7 9 (IPll): G<n,ml Efrrrrir CompmnyY 240 N L R B 497 (19191; he h d k e n lo the med!c.l unit in a rcprcunl.livc capacity on prior oc.
C k d Hop Rtfin./inrritr b r . 145 N L R B No. 39 (1919): R m d w y Express cuians. and knew ulme of the pnonncl, including the doclan. ern.
b c . 146 N L R B No. IM II9791: Enram Roupe Wmrcr Work Campmy. 2UI ployed there. However, he had ncvcr k n .Ilowed l o accompany m em.
~
.
NLRB No. 161 ll919l. . ploy=-patien! dunng a tilnru for duty eraminalmn.
I n Thc nnllcc in Fugcrr 3ut.4 lhr r r m n ' l o dsrrmnnc your hlnru l a 11 should hc nnlcd thnl the doctor did no@ in his report lo fhr pan.
for duty in r.rv of rontln.u~, abunce uncc Lkermbcr 1918. .Itr8h.tw master rrcommcnd any diuiplinc ror Fugerc. but dld rrcomrncnd full
to 80 aIl<ped *njur> on dun ' duly
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

drunks and done addicts. However. Ido not believe that concerled activities, and in order l o discourage other em-
Doyle directed Fugere not to talk to the Union or said ployees from engaging in such activities. Although there
that employees do not need a union. However, given the were certain coercive and intimidatory statements made
antagonistic circumstances extant in the interview, I be- by the doctor in the interview, as above-desnribed. Ifind
lieve i t likely that Doyle made the slatement attributed that they were as a result of: (I) Fugere's desire to have
to him by Fugere that while Doyle did not give out dis- a union representative present during the examination,
ciplinary action that Fugere deserved it, and then "We'll which i s not a right protected by Section 7; (2) that the
see what the Union will do for you." doctor believed thal Fugere was in fact malingering with
While I have found that Doyle made some of the respect l o the seriousness o f the injury he sustained and
statements attributed l o him by Fugere which were de- his ability to perform essentially sedentary duties: and (3)
rogatory toward union representation and Fugere. Iam because o f the intrusion and militancy o f the union repre-
not convinced that such constituted a violation of the sentative on the occasion, which clearly upset the
Act in the circumstances of this case. That is to yly, as doctor. None of the above fall within the tests o f viola-
previously noted, each participant came into the inter. tion of Section B(aXI) and/or (3) of the Act.
view with an emotional chip on his shoulder. filled with I n the light of all of the foregoing factors. 1 am unable
suspicion and antagonism toward each other. The slate- to conclude that there is substantial evidence to sustain
ments o f the doctor made under such circumstances the allegations o f paragraphs 9 and 10 of the complaint,
were either emotional exclamations as a consequence of and will therefore recommend that they be dismissed.
intrusive conduct o f the union representative 23 or were
basieallv his own ooinion and were therefore ~rotected CONCLUSIONS OF LAW
by ~ e c h o nB(c) o f h
;e Moreover, evin i f it be I.The National Labor Relations Board has jurisdiction
found that some o f the statements made by the doctor to over the Respondent by virtue o f the Postal Reorganiza-
Fugere in the particular circumslances of this case con- tion Act.
stituted interference, restraint, and coercion within the 2. The Union is a labor organization within the mean-
meaning of Section 8(a)(l) o f the Act. Ido not believe it ing o f Section 2(5) o f the Act and within the meaning o f
would serve a useful purpose to issue a remedial order. the Postal Reorganizalion Act.
This for the reason that, since I have found thal the 3. The Respondent did not, as alleged in the amended
Woingorlen doctrine does not apply l o the fitness for complaint, engage in conduct violative o f Section 8(a)(l)
duty examinations, there w i l l be no repetition of events and (3) of the Act.
which would lead to the kind of utterances made by the Upon the basis o f the foregoing findings of fact and
doctor on this occasion; i.e.. there would be no atlempt conclusions o f law, and upon the entire record, and pur-
by an employee-patient to have a union representative suant to Section 10(c) of the Act, I hereby issue the fol-
present at the examination. Accordingly, there is no need lowing recommended:
for an order to cease and desist from such conduct i n the
future. ORDERZS
Finally, Ifind a lack o f substantial evidence l o support
The complaint is hereby dismissed in its entirety.
the allegation in paragraph 9 that the Respondent sub-
jected Fugere to "an accusatory, coercive and intimidat-
ing interview" because he engaged in union or other
" I n ihr event no cxccplinnr arc filed n provided by Scc 102.46 or
,he R U I ~ $ negul.tinn~ ohc N . ~ ~ oL~. ~~, II R I I ~ ~ ~ OB ~O, S ~ ~the
.
findin@. conclu~ion~. and rcmmmcndcd Ordcr herein shall. nr provided
" Scc, c.8.. W;lmimgton Hating Emrc.. Inr. 113 N L R B 68 (19b81 in %c. la1 4s or the Rules snd Rcgulnionr, b.ldnplrd by ihc Bmrd and
2. ~ cc.8.
, HurploJslm;r. Car,mr~!;ond/b/a Blur Cm.". 119 NLRH I become its findings. sondurions, and Ordcr. 2nd all ob~eclinnr thereto
II91~1. shall bc dcrmed wlivcd lor all purpov..
 UNITED STATES POSTAL SERVICE 141

United States Postal Service and FAdie L. Jenkins. ministrative Law Judge's finding that the rendition to
Case 13-CA-16195-P a n employee in a criminal investigation of his rights
under Miranda v. Srare of Arizon~'does not supersede
March 19. 1979 or satisfy the rights under N.L.R.B. v. J. Weingarren,
Inc.,' which might also attach to such a n investiga-
DECISION A N D O R D E R tion. We find no merit in this exception. for the rea-
sons discussed below.
BY Cn,\~n&lnu
FANKIN(; A N D Mrblnti~sPESEII o There is no dispute in the instant case that Jenkins
AND T R v ~ s n ~ 1 . e reasonahlv feared that the February 2, 1977. inter-
view witk Postal Inspectors ~ a ~ e d i andr n Strachan
On Septemher 19. 1978. Administrative Law Judge
Nancy M. Sherman issued the attachcd Decision in
-
might result in his discinline. In addition, the credited
testimony reveals that Jenkins requested a union rep-
this proceeding. Thereafter Respondel~tfiled excep- resentative during the February 2 interview and that
tions and a supporting brief.' he was told by Inspector Hagedorn that Union repre-
Pursuant to the provisions of Section 3(b) of the sentatives were not permitted to attend such criminal
National Lahor Relations Act, a s amended. the Na- ~nvcstigatioas.
tional Lahor Relations Board has delegated its au- Under Weingarten, once a n employee makes such a
thorit). in this proceeding to a three-memher panel. valid request for union representation.' the employer
The Board has considered the recnrd and the at- is permitted one of three options: ( I ) grant the re-
tached Decision in light of the exceptions and hrief quest. (2) discontinue the inter vie^.^ or (3) offer the
and has decided to affirm the rulings. findings.' and employee the choice between continuing the inter-
conclusions of the Administrative Law Judge. as fur- view unaccompanied by a union representative or
ther explained herein, and to adopt her recommended having no interview at all.' Under no circumstances
Order. may the employer continue the interview without
The Administrative Law Judge found that Respon- granting the employee union representation. ~mlesr
dent violated Section 8(a)(l) of the Act by requiring
employee Eddie L. Jenkins to submit to a n interview
the emolovee .-
. . voluntarilv aerees to remain unreore-
sented <frer having been presented by the employer
with Postal Service inspectors, which the employee with the choices mentioned in notion (3) . . ahove or if
reasonably feared might result in disciplinary action. the employee is otherwise aware of those cho~ces."
while denying his request f ~ union
~ r representation at In the instant case, after Jenkins requested union
the interview. Respondent has excepted to the Ad- representation Respondent not only denied his re-
' l requesad oral argument. This nequrst is hercby de"cd.
R ~ w n d t n has quest hut also railed lo offer Jenkins the option of
as thcrec0rd. ,he cr<<p,,ons.and ,hr hnrr.drqu"trly pr.wn,r ,heir.um and cont~nuinathe interview unaccompanied by a union
the mritionl "r the n a r ~ l c r .
representilive or having no interview at ali? Rather.
.~ "
Ancr a mrrlul nnminatio. of the entire r m r d . we are "!i%Aed ~h.1 this
~~~ ~
Resoondent merelv continued with the interview. Un-
der'these circumsiances, it is clear that Jenkins did
aIlag.tion i s w ~ l h o umeti!.Thrre
l it nobrsir lor findingthat bias and parlial-
ity exisled merely k e r v v the Adminirlrative Law Jvdgc rcwlved i m p o r ~ n l not waive his Weingarren rights, and. thus. Respon-
factual wnRVu in iavor ofihr Gencnl (bunwl'r wmtocsws. As L r Suprrme dent violated Jenkins' Section 7 right to union repre-
Court luted in N.LR.B. v. Psaburgh Slcamrhip Cowunv. 311 U.S. 6%. 659
(1949). "ITIuIPI IULCIIO~ 01 an O P ~ view Y ~ ~ n n o l ilwll impugn ihr
sentation at the February 2 interview.
~nlrvllror romwanre n l a trier of h c t " Furthermore. il is LCBoard's Respondent nevertheless contends that it satisfied
crta6li&d policy not lo overmle an Adminissatire b w Judge's rraoludonc its obligations under Weingarren by informing Jen-
wilh nml lo credibililv unless Be clear onoandcr.nc~ . . or all of the ,el.
kins of his Miranda rights and, in addition, that Jen-
.ran, .;A,,. ,","&.s ,.ni ,he i n n l d l s n r a l e ,ncon.c, Slandard DO
Walt Prod.r!r I n < . 91 N L R B )41 1195O).enld 188 F 2d 3 b l l l d C 1 r 1911) kins in effect waived his Weingarren rights by signing
Wc ha$r r)ilcf~II)r.;nm#nrd the i c x r d and fino nn bas.% lor rcrrnlng he# the Miranda waiver. W e find no merit in these con-
..
I" th< r o u w "r ner dn'l'30". the *dm" 'lr.ll"c La. Judge clwd l'bno.
Mal*M,n*m (owon,. u D . b . ~ o no l l m o x . Inr. 211 N L R B 1189 119771. 8"
I~DMIIor nr# .c.lcmrnl that ' holh Mwlmdo and H'rmnonm rophlr inclddr .~
'384 US. ~~.~
- - 436 llW61.
~~,

~hytighllo prrinlrnirw consulmtion with !he rcpre&nla!iv> M r m k r '420 U.S. 251 (19151.
ror
PC~~IIO . ~e diwurvd i n hi, dilvntingopinion in rrjmr
MO&~. 3Comparr Caa-Cola Bo,r!#g Co o / h An8cl.r. 227 NLRB 1216 t1911).
dmum. would not rely on that eau to r u p p r l I t decision hsein. W h h .
vhcrr s ma$oritv . . teou$rl for
, ar ihr Board contludcd that an emolova'r
union rrprrwntalion war not valid smcr he knew that r panlrular union
rxprtulng no vbrw on Crimr Molybdenum Mtmhcr TmcsdaIe finds the
fach in that ca&e ~napporilelo tho* hrre and. accord!ndu. p l a c e on =In- steward war unnvailahlc ror wveral &yr and railed to r q v n l an illcrnarirc
s n u an that drcariun~onfflrmbng lhc Admnni$lralnre La; Judge. Iapr~wntallul.
In addtltun. ~n recommend~nglhal Respondent be ordered lo rescind ihc 1S.e Amaro Od Corlpany. 138 NLRB No. 84 (1978).
warning "our. irrvrd lo Jcnkinr and lo rtlmburv J l n k l n s for the $216.95 '* Mehorn Mcdiral Collr$e, 136 NLRB 1396 (19781.
drduclrd lram hisralan. the Adm~ninmt~uc Law Judy. relied on Sourhrrr!. 'See Stper Valu Xmio, n D,virmn o / S t p n V d u t Slorr,, I n < . 236 NLRB
rm srll Telephonr Cownny, 221 VLRB I?lLl19771. M c m k r P c n ~ l l o r g r ~ e s 1581, IJW-91 (19781.
with the A d m i n ~ r l r a l ~ rLaw
r Judgr'r rccammmllcd rtmrdy. hut in doing so. 'Thew IS no cndence to indicate that J e n k ~ n ~ w a ~ u t h aware x he
~ r u ~lhvl
hc would not rd) on Snu,hrrrrrm R ~ l lTtlephnnr Cooyom. in whteh he could c h a x r tu diunn!mue the imeniew or lo p r ~ e wd u h the inlcwxw
dls~nlrd. wnthout a anmn repawntntwc.

241 NI.RB No. 18

142 DE('ISI0NS Ok NA1 IONAI. I,ABOR RELATIONS BOARD

tentions. Wc arc i n o)mplelc agreentcnt w ~ t hthe A d - velopment hy the Board o f t h e princtple. approved by
mintstrative l ow Judge's analy*is the rtgntficant t l ~ cSupreme Court tn M'c~tr~arren.that Sectton 7 cre-
differences i n foundation and ;cope o f ~ i r < f ; ~ d and
tr ates a ntatutory right i n an employee to refuse to sub.
Weingarrrv~rights. and we adopt her conclusion that mit without union representation to an interview
"Jenkins' Wc,irr~urre,~ rights were unaffected by any which he reasonably fears may result in his disci-
rights he may also have possessed or heen accorded pline.12 Accordingly. we reject the Respondent's con-
under Mir~arrlu."'l'he fact that Jenkins signed the Mi- lention as heing wholly without merit.
randa waiver at the outset o f the interview i s com-
pletely irrelevant to his suhsequenl assertion of his ORDER
~ein,&frlen rtghts, since we have ibund that at the
time Jenkins requested his union representative. Re- Pursuant to Section I q c ) o f the National Labor
spondent failed to offer Jenkins the option o f continu- Relations Act, as amended. the National Labor Rela-
ing the interview un;tcc~>mpaniedby a union rcpre- tions Board adopts as its Order the recommended Or-
sentative or having no interview at all. Thus. Jenkins der o f the Administrative Law Judge and hereby or-
never expressed ;I willingness to waive his Wt,ing<rricn ders that the Respondent. United States Postal
rights . his assertion ol'such rishts. nur was he
- titicr
even given the opportunity to do so.'O
- Service. its officers. agents, successors, and assigns.
shall take the action set forth i n the said recommend-
Resoondent further a m e n d s that il'an emnla\.ee, is
afforded the right to have ;I union representative pre-
. ed Order.

" S r c E.rron Con+mny, U S A . 22.1 NLRB 201 119761 iriolmlon lound

sent during a criminal investigation conducted b y xC,r~,rhe lnresllg.l#on lnvofrrd 011qed c r h i n u l randurr by the rnp1w.e);
postal inspectors. there niight exist a significant inter- Illino,l Brll Telmhonr C o m n , ; 221 NLRB 989 l l 9 l S I lvtolation round
where the inverlialion inrd1v.b allegrd ihcn or company p r o p n y by ihr
ference with "legitimate employer prerogatives."" SI; ernpluycr, m d it was ornduclrd by entpluycr's rcurity rcpreunbtivo: D I .
well as societal prerogatives, i n having the Federal rrmr Ed;nm ( i m w n y . 111 NLRB 622 1197s) (violation round where ihr
~nrosllealit,ninvvlvtd rllcncd irrcxulsr~licsi n i n r c l re~rnhursemenlrlmmr
laws dealing with p ~ ~ s t a otienses
l properly investi- hy ihe;mpl"y.r. and 8 , ua. c0"juclrd hy ih. rmp1oycr.s wcun,y depart-
gated. Although we are not unmindful o f the serious ment )
nature o f the olfetiscs which the Postal Inspecti~,n
Service is charged with investigating, the i'act remains DECISION
.
that in the instant case. Resm~ndentadministrativelv
disciplined 43 security police officers for unauthorized
ST&TFMI~NI
OP THE CASE

purchases under the uniform-allowance program, and NANCYM. SHERMAN.Administrative Law Judge: This
i n each case the discipline w:ts hased on evidence ob- rase was heard in Chicago. Illinois. an May I5 and 16.
tained as a result o f the criminal investigation con- 1978. pursuant to a charge filed on February 7. 1977. and a
ducted hy the Postal Inspection Service. T h e only em- complaint issued on June 16. 1977. The issue presented i s
ployee who was accorded a separate administrative whether Respondent United States Postal Service violaad
investigation was Jenkins, hut, as the Administrative the Postal Reorganization Act (the PRA) and Section
L a w Judge correctly found, the "letter o f warning" 8(a)(l) of the Naliclnal Labor Relations Act, as amended
(the NLRA). by requiring the Charging Party, employee
issued to Jenkins was hased o n evidence derived from Eddie L. Jenkins. l o submit to an interview. which he rea-
the criminal investigation. Thus, were we to accept
Respondent's argument that "legitimate employer
. .
sonahlv I'eared would lead to discinlinarv action aeainst
Illm. wh~le<lcny.nghlr nllcgcd retluc5t for unlon represenla.
-
prerogatives" and the public safety require the exclu- tmn ddrlng Ihe inlcrvleu 'Tnc General Counsel contends
sion o f all union representatives from criminal investi- that Jenkins war entitled lo such representation under
gations conducted h y the Postal Inspection Service. N.L.R.B. v. J. Weingarfen. Inc.. 420 U.S. 251 (1975). The
while at the same time permitting Respondent to ad- Postal Service contends, inrrr alio, that any such right was
sufficiently satisfied hy the Postal Service's action in alleg-
ministratively discipline emnloyees
. . hased on the
edly aRording Jenkins righls under Mirondn v. Slate ofAr;-
fruits o f such criminal investigations, we would i n ef-
- -
fect he nullifvine the Wri~murirrrriehts of anv Postal
Service employee who might he adkinistratiGely dis-
:,>no. 384 U.S. 436 (1966).
Upon the entire record, including my observation of the
witnesses. and after due consideration of the hriefs filed bv
ciplined as the result o f a criminal investigation. Such counsel firr the General Counsel (the General Counsel) an;
an outcome i s clearly repugnant to the historical de- the Postal Service. I herehy make the following:

'0 WI note that #hequntiun ar is~h~eh.,J E ~ P did ~ ~ S far, u.lYI

his Mlrnnrlu rights i c net free rrnm dl,uhl, in ti&\ nrihr evidence lhrt n l the
time Jenk8nsngord the M t n , , ~ d W, ~~ I V I L he wdr told II 1-1mcrcly a krmrl.
ily and that when Jenk#nr l r l r r requnlrd hen1 raun~ling.such aqur\l w;lr
denied. At a l l times rn;itcriiil, the Baard has had jurisdictaon over
N.I. R B v. J IVt.,r~c#r,rn. In?.r ~ q ~ 8n,, 258. In. I . this matler h, virtue oI'Section 1209 ofthe PRA. The Fed-
eration of P ~ s t a Security
l Police (the Unianl is a labor or- proved uniforni items" Ilst to persons who are not necessar-
ganization within the meaning o f the NI.RA. ily uniformed postal wlvlce personnel. A n employee who
fails to use u p his entire u n i l i x m ;tllowrnce i n I year loses
the unused omuunt. A t all ilrnes hrra relevsnl. the sccurity
police have hcrn covered hy ;i hagaining ;agreement which
conlalar prarvisjnns fbr unifbrnt allowances.: l'he Poslal
Services's rrcurity force manuel provides. mrrr vlrcr. "Pay-
mentr shall no1 he cla~medand $nay no1 be made fi,r any
The Postal Service maintains a Postal Inspection Service items o f clothing that d o net canfc~rmwllh the detailed
which is responsihle for. inrer nlia. enforcement u f postal male or female specifications and s~yleslor [he cmployeer'
laws. plant and nersunnel sccuritv. and internal audits. I t s calcgory of cmploymrnl."
respons~h~l~l~csinclude carr)tng out invrrl~gattonsdnd p r r - I n early January 1977 Moore rcce~veda report from
scnttng cvdcncc 10 lhc Drpnrtmcnl Juittre and L l n ~ ~ e d Postal Inspector McCloud that examination of unifornl-al-
Stales auornr)s i n invesllgatlonr of a rrlllllnal nalure .tnd lowance records showed that several scourity police officers
the performance o f operating inspections and audits fur the were pureharing unusual numhars o f shoes from one ven-
Posul Service. 39 C F R 224.7. The Postal Inspection Servicc dor. McCloud further advised Mcm>re ol'a report fh,m one
is headed h y the postal inspeclor i n Washington. D.C. such officer that there purchawl had hren encouraged hy
Among the officials reporting directly to h i m is Regional Ihr vendur. I n lale January or e;~rly Fehruilry Muare di-
Chief Inspeclor Carl E. Lawrence. whose officr is i n Chi- rected Plxval Inspector Wilhur E. Ilnlmes. Jr.. l o conduct
cago. Illinois, hut whose duties encompass 13 Midwestern a n inve.l.gatl$,n tnlo pusl~hlcr.on\p~r.~c)h! the tcta,l~,r .tnd
Stales. Among the officials repurling directly to 1.awrenre is pk~\rthlcl n ~ c n 1,l) d ' r . t ~ dh) he recurl!) pul~cc~llticer\' I n
the poslal inspector i n charge o f the Chicago division. Roh- r e t n u t h . n s . Holmc, hdd 4 h ~ 1
ert N. M w r e , whose office is also i n Chicago hut whose seven two-man teams o f p>stal inspeclors conduct inter.
duties encompass northern Illinois and porlions o f Iowa views o f lhe 75 security police officers who were the suhjcrts
and Indiana. Among the personnel under Mmre's jurisdic- o f the invcsligatinn. Among thcsr 75 securily police afficrrs
tion are ahout 1 M postal inspectors and ahoul 290 security w;$s i h r Charging Party. Eddie L. Jenkins. who has hern
nolice officers. Directlv under Moore are. inrer alia. an employed hy the Poslal Senice as n recurit? police officer
is stant Inspcrtor i n cl;arge l o r fraud and p r u h ~ h ~ t ema.1
d since a h o a ~1972.
~ngs(Hcnr~ckron)and an asslrlanl Inspeclor i n rhargc ft>r
security and internal crimes. who during the period here
involved was Dohhins. Directlv under Dohhins were ner-
sons dasslfitd ds \ecurlt, oW.11.r~in C ~ . I I ~ L D1re~11>u n ~ r c
each such secunt) officer in c h a l ~ c3re 11eulen;tntr. .,I ihc
Among i h r portal inspectors ;issigned 1') the invcs1ig:tlios
Chlclpo mdln plrrl ilffice. Ihcre Arc thrcc l~rutcn:~ntr. carh
of whom is responsihle for a part#cular 8-hatir shill out or were John S. Slrachctn and l ~ ~ n ~ c W. ~ l hHngrdom.
y l'hcy
the 24-hour day. Under the lieulenants are perxms clnssi- orranstd through Jenkins' r u p r r v l w r have Jenkins repor! I,,
ficd as sergeants, and under them are rmployecs rlnssificd I<! the euority office am Fehru:try 2. 1977. Thai day J m -
as security police officers. A t all lilnes relcvanl here. the kinr' sttpcrior, I.ieut~nan1Lomnx. gave Jmktns it slip with
Union has represented the security police officers i n the hbr n;gmr on i t and. i n the presence of Sergeant Mnper.
Chicago divisinn. Some o f the securily officers' duties arc tnrlrucled Jenkins l o 1~:lt.eh l r gun. hell. haton. and hand-
summarized infra at footnote 30. curs i n hls locker and 10 go to the security office. This wits
The Postal Servicc requires all security officers to wear the first occasion on which Jenkins had hcen directed to
"approved uniform ilems." at leas1 some of which arc nc- leave his gun hell i n his locker hefore p i n g to I h r srcurily
ceptable as ordinary civilian dress. Among such i ~ e m sare office.
"[bllack. lace type shoes 3s prcscrihrd in Postal Serwre When Jenkins came into the seturlt) office. Slrachnn and
Manual."' The securily force ma~iualgiven tn each serurlly Ii;tgedorn showed h i m their crrdentlals ilnd ;xskrd htm l o
police officer when he enters on duty states than upon
gradualion froni the security force irnininp course. cnch em- :D~r~rnw Ponal lnrprrtor M,on as ineticJ. Hc further irst8fird [ha,
ployee will receive a first-year unbfirrm a l l o w ~ n c pof $250. pnur i s thr hernog he tiled an a R i B r ~ ulth t #he Borrd r n d it!ilthcJ iherau
and that thrreafwr he will receive a onifnrnt ;tll~,u.;lnce c ~ f r<,tr,s pnn,r,t>nrar ihr i~ll.~,,~.-h.~y.~","~ rgrrt,n~n, Th,r .,Rdrn, and
$154 a year (see fn. 2 ifflrol. Adn~1nislra81rely.1111su n i l i > r ~ i ~ ~hc.r ;~llachrncntr r l r r rll.nrhtd sr RcrpmJml'r plchranng Srpwmhr
1917 md Ma) 1018 mwons for sumonan , d g m t n l . h l l h urrhnrh ucrc
allowance is handled h) giving each csployee a cdrd or Jm8r.l hy ~ h n~wnl r awl u h r h urrc ~ A c r n lh) the (iracrrl c<lunut, and
cards n,hich rese~tthle chcukr. Alter sclerlinc "appn~vcd A L C I I ~ ~III C V I ~ C I L w
~ #lhw~ ob~e(!t~sn.
l .t\ pdil cd ihc Alrnbnl plndlne. Srr
uniliorm" items from ;! vendur approved hy the Porl;il Scr- (i('. ,;ah,. Iti, rlid IIPI. Src. SX\tII of ihc r g < c m t n f i n qanrtsln Jnh
wlth unih,rm nllo*.lnl.rr I need no, drill do IIUI ~l~.t~rm$n( 4hc tx!.nt. ~ r ~ n y .
vice. the employee signs a stalemenl I ~ P I the merchand~se lo rhsch lhrw rllarhmrnlr ma! hc rcgarded .IS prc~hrlwcr\,dcnrc
conforms to Poslal Service regulalinns and gives n stuh 'surhccmdur~mbghl harevn,l;llnl I S L I S c (S31I I " C ~ ~ I, ~ ~~~ ~ ~ ~ ) ~ ~ ~
from the card l o the vendor. who sends lhe htuh to the ml! o n i n x 111 lo Jeha3 1 1 0 ~ 1S!dt<b''l. ~6 IUOI i m "I.IIIC~ s l t h m ~ u r ~ x l ~ c t ~ ~ n
Postal Service 10 gel paid. Many. i f m t l all. o f these vendors 3 lnnlrd Salt, Jrprlmcnl er a p n r ) . nuknnj .r u.,np dcxament r r t l h
iatx. ~i~.ura~t~\. rrat~dutcmsmten~~nt~. IW, IU,C < > f a~ I W tw
also sell items which are not on the Postal Serv~ce'r" a p
ruppllrl .l n l o n n Jclndnd .tmlnrl 1nlll.rl 51.11e51. 171 1 I"Lllsrppr~rprtrl!c?n 1x1
p,rat itlnJ%"l.or 171: 1"t-.%lr80cal8un 01 pn,l;lt rrturn ~ ~ , i n r a ; romwnbl.
l~o
~wn")Such ollm.rrrxr punirhahtr h! tinr .omr i r n v ~ n l c rtsp I ~ S I O . U U I )
.%"*I #r1>l~r8>0>b:#>>'!lt t<21 " . m C t">tdr\L<\ ,,I> 'L,, \<,,r.1
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sit down. In order to make sure that Jenkins was the person obtain one at his own expense. but it would be fmlish to get
the inspectors were supposed to interview, and in order "to a lawyer because a lawyer could not sit in on an inveshsa-
get [Jenkins] lo start talking in an atmosphere of conversa- lion. Jenkins said. ". . . so this is an investigation?" Hagc-
lion," Strachan or Hagedorn asked Jenkins whether he was .
dorn said, "Yes." Jenkins said, ". . i l l can't get a lawyer in
married, whether he had any children, and how long he had on the investigation. can I get a union steward in?" Hage.
been working on the job. Jenkins answered all these q u e s dorn said that a union steward cannot sit on an investiga.
lions. Hagcdorn then told Jenkins that Hagedorn and S t r a hon. In a series ofquestions, he asked Jenkins to name the
chan were investigating various security police officers that union steward, the chief steward, the president, and the
might be involved in misuse of the uniform allowance and assistant steward. In response, Jenkins namedeach ofthem.
that Jenkins might bc onc ofthem. Hagedorn asked Jenkins including two referred to herein as John Doe and Richard
not lo reply at this point. Hagedorn went on to inqulre if Roe (see in. 16 infra). All of them worked on Jenkins'
Jenkins was familiar with the Mirando decision (384 U.S. ".
"tour" (shift). Jenkins said, . .just a minute ago you read
436). As a security police officer, Jenkins had status as a law me my rights and said I could have legal counselling. Now
enforcement officer and had the power lo make arrests (see you are saying I can't have legal counselling." Hagedorn
in. 30 in/ro). In being trained 5 years earlier for his job as a said.". . . [Dlo you think you should have legal counselling
security police officer. Jenkins had been told lo give Miran- for defrauding the government?" Jenkins denied defrauding
do warnings when someone was placed under arrest, but he the Government and asked how long the investigation had
had never in practice had occasion lo give any such warn- been going on. Hagedorn said that it had been going on for
ing and had forgotten much oiwhat he had been taught in 3 months.' Jenkins asked who was being investigated.
lhis connection. Hagedorn read Jenkins, and asked him to Hagedorn said that anybody that had a uniform allowance
sign, the following document: was being investigated.' Strachan nsked how many pairs of
shoes Jenkins had bought for the job. Jenkins, Strachan,
Before you are asked any questions you must under- and H ~ ~ went ~ , J ~ ~ vouchers, ~ two 01
stand your rights. You have a right to remain silent, ,ssued by ~~l~ Uniformsand seven ofthem issued by a firm
Anything you ray can be wed against you in referred to herein as the X Company (see fn. 17 infira). Jen-
You have the right lo talk to a lawyer for advice before kins, ~ ~ and strachan
~ ~initialed each
d ~
voucher ~ ~
we ask you any questions and lo have him with you where Jenkins could authenticate his signature and was
during questioning. If YOU cannot afird a lawyer, one that he had paid {he voucher from his own fundr.
will be appointed for you before any questioning if YOU or the vouchers so initialed issued by ,he x cam.
wish. If you decide to answer questions now without a pany, and covered a of I I pairs of shoes, of
lawyer present. you will still have the right to stop an- ,hem having brrnbought on ~~~~h 13, 1975, and 3 having
swering a t lime. also have the right lo been bought on June 30. 1975. Jenkins declined lo identify
answering at an). time until you talk to a lawyer. his signature on or initial one of the Kale Uniform vouch-
have mad lhls statement Of my rightsand I under- ers, dated almost 4 years earlier, on the ground that it had
stand what my righo are. I am willing lo make a state- been issued some time ago. Hagedorn said. ". . .you are so
men1 and answer questions. I d o not want a lawyer. I God damn stupid you can't identify your own signature on
understand and know what I am doing. No promises the voucher:' Jenkins raid that he did not appreciate Hage-
or threats have hecn made to me and no pressure or dornns-curs,ng at- him. strachan ~~~~d~~~ lo
coercion of any kind has been used against me. down because everybody's nerves were on edge." Jenkins
jenkins ,hat only lime you read the Mirundo 'aid that 10 o i the I I pairs of shoes covered by X Company
decision to anyone is when are under Am I vouchers had hccn purchased from the X Cornpan? for his
under arrest?wagedorn said he was and that it was prrwwdl use. Hagedorn and Strachan thereup011 added up
'Tust a formality." Jenkins then signed the document. the total amount of the X Company vouchers, divided this
Strachan produced nine which bore dales total by I I to determine the average price per pair of shoes.
April ,)
years, EIEh
1973, and April
these
1976, a period of
,raa signed Jen.
and multiplied lhis average hy 10. They reached the urith-
metic result of 5240.90. St:achan then took a premimeo-
kins and that he had pur,.h;,se'l conforming uaphed form. (sped in Jrnkills' nalne and the anlllunt.
Service requirements, covered the pur- typed in an additional sentence. signed the fi)rnm, and gave
chase of pairs Hagednrn said ..we know.. it to Jenkins. The form as gi\.cn to JcnL~nrstrltcd. in mate-
all those shoes were not for the and Jenkins how rial part (ernpharib to indicate porticlnr typed in hy Stra-
chan):
many pairs he had bought for his own personal use. Hage-
dorn said that Jenkins might as well tell them because they Subject: Demand for Payment
were going to suhpena the records of the store whele Jen- This letter is denland Tor payment of 524090 for
kins hought most o i the shoes. and if Hagedorn and Slra- ilems purchased and paid for through the uniform al-
chan found out he was lying, it could he hard on him. Jen- lowance program. These items d o not comply with
kins said that he thought he should have same kind orleeal Postal Service uniform specifications for your employ-
counseling hefore answering any more questions and asked men1 category. They were purchased by you for per-
whether he could get a lawyer. Hagedorn said thal he ccr~ld

Vouchrrr which included ihr . h a rm var~auslyiprcificd 9M. 91). 9-lJ2. 'The invelligalion n s alrvddy in prugres when Maor. Mcarne d~risian
9.112~.and I O E Thc price wr patr varied born about $11 t l u n e 19761 u> p l a t in%pe~toron J ~ Y L T ) 1971.
$30.95 (Much 1916). rac1,l11c ~ n l t l ~ Y ~ . ~llmlltd
~ l~ i ~lo~~ ~ ~ ~pollre
~ ~ l ) .
146 I>L:('ISIONS OF NAIIONAL LABOR KELATIONS BOARD

by Jenkins on Fehruary 2. Jenkins refused hut said tl~athe unlil the deht i s liquidated. Reimhursr,t,rttr l"r u,guurho-
understud his Mirondc~rights. ri:t,l pt~rr1,u.sc.v a,$dcr rhu tr,>ilurtn ~~llon.~,ts.r
pro~nrnz.
Jenkins then showed the proof c~l'pilymentto tlagedurn. I herehy cerli* [hot the foregoing rtalemenls are
Hagedorn said that he would in01 reduce the sire 01' thr lrue and correct l o the hest ol'nly knowledge and he-
"Demand fur Payment" unless Jmkins leli the documents lief. and they are made 01' my own free will anrl at my
with Hagedorn and Str;tch;tn or pcrntilted them 10 moke own direction.
copies. hul Jenkins refused an the ground that "therc ntighl
he something incriminating against me." Jenkins d ~ dno1 Jenkinb vrcdihly leslified thal he signed thts documenl "he-
request union represenlnlion during this inlervicw. cause they told me Ihad l o pay he money hack su Ididn't
wan1 1'1 pay il oul u f m y pocket so Itold them ro take i t out
c~l'niycheck." When Postal Service counsel then asked. "So
D. Evrnrr Precrdinl: Jcnki,,~' I,tlrrvirw Wirln Scruri!v
you agreed 10 this arrangement? There i s no question in
officer^ in Chorxr Cndvr nnd Scorr
yuur mind ahout thal. is there?:' Jcnkins crrdihly replied.
"Well. I had to."
On Fehruary 7. 1977. Jenkins tiled his charge herein. ;,I- The deductiuns so authorized wrrc duly made. with the
leging that Ihe Paalal Service, in viali~tion01' the PKA and tinal deduction made on April IS. 1977. Jer~kinstcstiticd at
Section 8(a)(1) of the Nl-RA. had "lslince on u r ahuul Frh- Ihc hearing that the word "re~mhursemrnt" Incsnr "pay
ruarv 2. 1977 . . . denied Eddie I..Jenkins union renresentn- hack."
lion." On Fehruary 9. 1977. this charge was received hy an Meanwhile. Postal Service attorney Frnelkr got in tuuch
agent o f Richard Froelke, counsel for the Postal Service. with an rssislanl l o Division Pustal Inspector Moore ahuut
On February IS. 1977. Jcnkins received a "Demand tbr February 10 and with M w r e himself ahout March 2 5 . Dur-
Paymenl." signed hy Postal Inspector Hulmes. which ing this latter meeting. Fruelke advised Moore o r the con-
staled: tention that the merils o f the instant ch;rrge were governed
This mentorandurn i s demand fur paynlmt of hy Weingurrr,~ (420 i!.S. 251). Poslal Inspector Holmes.
16216.95 fur items nurchased and w i d for throuah the who was in chalrge 01' the invesligatiun rrg:tnling anifi,rm
unliurni all~rwnsceprugranl. which itrnns do rnll c o n - allou,ances. testified that ahout this sttrnr. linie Ass~st;~nlIn-
ply wllh Postal Service otiirorn! spucificationr lirr your speclor in Charge Henrickson i~lrlrucludhim k, rclurn ihc
employment category. 'This lnemorandutn rcscinds the unifornl-invoice file regarding Jenkins back th~.prrson-
earlier lettcr uf demand dated 1:ehruary 2. 1977. nel section hecause a separate administrati\e investigation
The amount is reduced h;~sed an ;a review u f lhe would he cunducled hy someone else. Holrnrs further testi-
invoices you suhmilted for payment under the uniform fied lhat he lhereopon rctarned lhese docurncnlr IO Ms. A.
allowance program during unifurnm ;~llowunreyear he- Spencer. a security l i m e program ;~nalyrtwhosc in~mcd~;ile
-
ainnina March 10. 1976 Isic: cl: Ih. I 2 i,,frlrl. The total
u 4 ,

inv<,ices suhmitled fbr poynlent exceeded yo111 ini;~xi-

superior was Dohhins, the ;xssisl:tnl i~isprcl<rri n ch;trgr ibr
security and inlernal crimes. Ilenrick\c,n. Spencer. and
ri~un allowance
~ hy $2395 and the I;lrl invuice generet- Dohhins did not testih. Hy letter to %f<r>re <laled May I?.
in8 the excess was lirr ~~naulha>rb,.editems. 1977. Regiunnl Chief lnspeut<,r 1.rwrcncc sl;~teJ:
I'ayn~enlhy certified uhcrk or money order shuuld
'This has rekrencc to your request l i v pn,ccdur;tl
hc made within I 5 d;tys fror~ltlbis d;tte.
instrurtians regarding the possihlc misuse 01' unilbrnm
l h e $23.95 reducticrn had heen aulhorired hy Holmcr per- alla>wanceliznds by Security I-orue ~,rrr~nor.l.
sonally. Heo;~usrCIS lhc ullusual circums1sncr.r t ~ l 'lhls case
A day or 1u.o later Jenkins told Slrachan and Hagrdurn and specitically the positioa laken hy the Pur!:~l Scr-
lhat Jenkins would pay [his amount ia ;I lump rum. Jenkins vice i n its preliminary rlatcmenl l o [the Board'c Kr-
then decided that rather than pay i n a lump sum, he wuuld eional Officein the inslnnt carcl. Mr. Fruclkr'r advice
have the money taken out o f his paycheck in installmrnls. as expressed in his April 15. 1977. ~llen,orisndu~n
On February 18, a1 Jenkins' request, hc wen1 down 1 0 kec should he lidlowed. I n lhir regard. $ 1 ir r u ~ c r l e dthat
Strachan and adv~sedhim of this dcoai<,n. Jenkins d ~ d ntll the Inspeclion Serv~cemanagur srlua~e~l 1,) *upcrr,ise
request union represenlelian during this inlervlew. 'fhal the ;ldlninirtrativr investigation shtn~ldhe ,we tvho
same day Jenkins signed an "Aulhoriztliun li,r Pinynlll Ik. neither was involved i n the crlmin;il 111vcstigitll~)r~ I~UI
ductiun l o 1,iquidate lndchtedness" Ibrm whwh re;ld. in has any rr~p~,nsihil~ties III cunnccllun u ~ t~lh~ rpnrcerr-
.
part (empha~sist t ~indicate n c > n ~ > r ~ ip~ I~e ~ l r t ctf
t ~docu.
~ u ~ ~ n c,fgriev;tnces
g undcr ihr. ccnotr.ivt.
mcnt): Further. rhcruld the cn~nl<,rre . , rruucrt unnm lenre-
smtulion during any invrstig;tlive intervtuw. si~chre-
I acknowledge thal I itrn indrhtrd ((3 the L1.S. I'ost;~I
Service in the mount of$?ln,vr. Stncc i t wtll he 10m \ querl nh,,uld he ~ r ; l r ~ I er~nl ,. l w ~ l l ~ s t : ~ t ~~hr,
l l i nCI
~CI that
financial adv;tnt;tge, 1 reaprctfi~llyrcqucsl th:tt I he Sccl~ril?I:orve lahc~rconlr;trts do oc~tcc,nt;tbn a Mrmo-
permitted to liquidate Illis indchledness in lh~.fidlow- r;tndunn 01' I:~~durat;tnJingrcg;tnlinl: t~nionrepresenla-
ing manncr: lion like thal rcl;tting to lhc 1975 N;tlinnal Agrecmenl
with ot1tr.r posttl cntfkr.
I n virw u l l h e u~isu:tilnhil~ty ofgrand jury te\timc>ny
.tnd rub[awn:lcd ~l~,cumenls. evlduncr. upun whnch dir-
2. A halance o f S l n . ~ 5lo hc deductcd in L equal1 ciplinnry ;action ni;~y he lakun will. c f necessity. h;ive
installntents ~ l ' R 4 . i . t Yfrom 111) s;ll;lry check* . . . heg~n- la he developed indrpundenl ol'thu crimin:~linvestig;,.
.
ning with the check due . . .(-18.77. :and cunllmltlig In)n Ilivt,l~gliinlc~\,~eus 01' III\.III\.CLI ~pcrst~n~~el. ex:inii-
 ; POSTAI. SFRVICI:. 147

naliun o f internal Postal Service Ih~cumenlsrelating l o wanted l o talk with Jenkirts. A few minutes lnler Cruse
the uniform program. etc. If. of awrse, indictments nre came intn 1.omar's 4,lliue and escorted Jenkins l u Cruse's
handed down. the indiclcd employers may he placed c,fficc. whure Cruse m ~ theyd had tc wail fur S~ecurir) 01%-
on indefinite rumension under the discinllne nrocedure cer in Charge Scou. Jenkins and Crusr discussed sporls un.
lil. ahoul I / ? hour later. Scott came i n with :t hr~efc.asr.
Snlll s;11 at one end o f Cruse's desk and pulled oul some
vice to ~mmrdiatrlyremove an employer from :I pa* papers. Crmc ral ;>I thr. other m d . pulled out Jenkins' file.
slalus where there is reasonable C;INISC l a hellcvr that ;and said that Cruse and Scot1 had to qurslion Jenkins
the enlployee is guilty o f a crime ibr which a sentence :~honlvouchcr~for shoes hc houghl at lhe X Company.
of imprisonment can he imposed. I t ir furlher rug. Jenkins aaid that he hat1 already hecn through this invcsti-
gesled that .all notices ofcharges prepared i n their case g t t i m ~onre with the parl;tl insperlors and saw m, reason
he coc>rdinatedwilh M r . Fruelkr's diire. why he had 10 go through the matler again. Cruse said that
Nation;il tleadqaarters i s continuing lo assess the he had orders to qurslion Jenkins. Jenkins asked who had
impact 01' recent NI.RB decisions interpreting Wein- isrued these orders. Cruw said lhnl he did not know and
K<I,IC,I on the Poslal Service's Imp-slnnding pal~cyre- that he 'tiust had a piece of pnprr on his desk to queslion"
garding onion represenlation during invesligntory in- Jcnkins. Jenkins said 1h;tl hr. w;nnlcJ a union slcwnrd l o he
terviews and as r>nnas a decision i s reached as l o what present. Cruse asked thr idcntily of the union steward un
legal c>hlig;~l~onr these h a r d decinons inlpasc upon dot). Juhn Doe \v:ts "<,If" and Jenkins said il u,as Gentry
the Post:tl Service. a palicy statelnenl will he dissrmi- D;tnielr. Crttse then ralletl for Daniels.
nated l o i t l l ilficled Postal Service elcmrnlr. After Daniels had arrived. Cruse again said that he had
Mtrrre testified that durine llolmes' investig;~li<~n ol'thc to ;ask Jenkins ahout shcles he hooght from the X Company.
uniform-alluu,a~icc profram. on IWL) or threc occasionr Jenkins raid thnt he witoled to talk to Daniels prwotely.
Holmes described 10 M w r e I~L. ovcrall prclprcrs of the in- Crusr told thcm to go inlo Ihe hall 1,) d~scusswhat lhey had
vesligatic~n.hut ncvcr related la him spcritic ditla as to spe- to say. When they went out inl'l the hall Daniels said that
cific conduct afspcc~ficaecurblr pc,lice officers. Moore fur- Jcnkins did not have to say anything and that Daniels did
ther testified 1ha1 ;Is 01 his canversi~tionwith alturnvy no! ice why Jenktns had lo gu hack lhrough the inrestigo-
Froelkc on March 25. M<x,rr. did nnlt hnvc III his nussession tion again 4fter the two returned I11 Cruse's ~ffice.Jenkins
an) 01 II~C. cr!n>.n.tI &I> Jcw~.l<*p:J h) ll<>ln,e\'grcwp w~tls :agiiin asked Crurr why he was qurrlioning Jenkins. Cruse
respcil l u Jcnl~nsprrst~l,.tlly. ;an.!. .I far a, M,,dre L n r w 4, w i d lhot hc had orders 10 questtoti Jcnkins. Jenkinr sskrd
,>Ithat Jatc nc~lller the nrrlrl;a~ll in\pcct,)r in chdrgu l i u whether Cruse would he uueslionine anvonc- * else. Cruse
w i d thal "we" had alrc:sdy quesria>nedone security pnlice
rrnlrily and inlernal crlmcs il)ohhinsl m,r any dircrl super.
visor ofsrctlrity police cmiccrs hiltl any such d;tl;t. In addi- ~rllicerand would he questioning others.'" Daniels said that
lion. Moore trrtifird that. so fur its he kneu,. and laying he did not see wh\ Jenkins h a d ~ l oeh thruueh this. Jenkins
Jenklns l u one slde, none of the security police personnel asked Cruse whcther he had had kohwledg; a f the investi-
interwewed in cunnecllon wilh ihc unilorm-allowance in- gation when il had been condurled i n February. Crusr said
vesligation requested union represen1;rlian.' that the investigation had heen just about over when he
Moore leslified 1h;tl afler receiving l.awrencc's May I 2 heard ahcrut it. that the poslal insprclors did nut usually lell
letter. he instructed Henri~.kn,n. the assistrnl inspector in him itnylhtng, that lhey had not told him anything abuul
charge for 1-mud ;and prohihiled mailings. lo cause ihc con- the inve~lipntinn.and that he knew nothing ahuul their in-
duct of an administrative investigation of Jenkins' use o f his vestigatton ol'Jmkins. Cruse told Jenkins l o explain what
unirurm albwance. Still according l u M w r e . he instrucled
Henrickwn l u have the investigalion conducted hy two su-
..
hanoened when he went l a see the inmectors. Jenkins Eavr
him an ttcuount which inuludecl the ilfiro,rLlu warnmg mat-
-
pervisors who had n<>knowledge whatever of the investiga- ar and the h c l that Jcnkins had askrd for and been denied
liun heing conducted and inat 10 aRord slrch supervisors any a union steward.
of tbc malerial colleclcd in connccti<~n with the criminal ('ruse and Scolt then sl:trted i~skmgJenkins questiuns
invesligati<~n:The Isvo rupervin)rr ~clcclcdwere Security from lists [hey had in front o i them. From lime to time
Officers in Chargc P. E. Cruse and R. 1.1. Scull. Moore had Scolt prefaced a question with: ". . . [Dlld the inspeclt,rs nsk
no personal knowledge of what they were told l o do. Hen- you (his?" Jenkin* said "Yes." and Scoll said. ". . . [Wlell. I
rickson. Cruse. and Suutl did not tr\lif?. will po on 10 the next one" The record fails l o show the
suhjeut rnaurr of these parl~cularquestions. Daniels an-
swered nmr o f the questions asked hy Cruse. including
qocsrianr rep:krding the relative qualily and price o f shnes
Isre in. 4 r~~pnil." Crurr askrd Jenkins why he had mil
On May 27. L.iruler,a~nI.om;ls inslrucad Jenk~nslo w;til
~n l.~rmar'rullicc. for Security Otlicer in C'h;trgr Cruse. who
148 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD

bought any shoes recently.'' Jenkins said. "I'd be a fool to giving vague answers." Also. the memorandum states that
buy some shoes now. The inspector still has this investiga- Jenkins said he had thrown out all of the shoes, except
tion going on." Scott asked Jenkins whether he had bad those he was wearing, which he had bought with his uni-
feet, and Jenkins said "No." Cruse asked how much money form allowance and that he refused to give a written state-
he had paid back, and Jenkins t d d him. After Cruse and ment on the ground that he had not given one to the postal
Scott had finished questioning Jenkins and he was prepar- inspectors.
ing to leave. he asked Cruse what was going to happen Furthermore, the memorandum states that Cruse and
"behind all this" and whether Jenkins would he suspended Scott decided to interview Jenkins because Cruse and Scott
or fired or "something like that." Crusr said. ". . . [Dlon't had inspected his uniform-vuucher file. and it appeared to
worry, nothing's going to happen." Jenkins and Daniels show irreeularities. However. durine this interview Cruse
then left the office. told ~enkrnsthat Cruse had been Gdered to condu; the
M y findings as to what happened during this May 27 interview by someone whose identity he did not know. The
conversation are based on Jenkins' uncontradicted testi- memorandum slates that when asked how long Jenkins
mony. At the time ofthe hearing. Cruse and Scott were still wears a pair of shoes, he replied that he had bad feet and
working for the Postal Service, at locations a short distance had to wear comfortable shoes. However, during this inter-
from the hearing room. but they did not testify." Respon- view Jenkins had in fact denied having bad feet. Thc
dent's brief nonetheless attacks as unworthy o f belief Jen- memorandum states that when asked why he had not
kins' uncontradicted testimony that he told Cruse and Scott bought any shoes recently or since June 1. 1976. Jenkins
that during the February 2 interview he had asked for and said that he did not know. However. Jenkins had in fact
been denied the presenceof a union stcward, on the ground told Cruse and Scott that Jenkins had not hought any shoes
that this allegation is not set rorth in Jenkins' prehearing recently because of the pending uniform-allowance investi-
affidavit although Jenkins said he told the Board agent gation."
about the matter. Ido not regard this omission as sufficient The memorandum begins with the assertion that on May
to warrant my discrediting Jenkins i n this respect, because 23 Cruse and Scott were instructed to conduct a rnanage-
any directly contradictory testimony which existed would men1 investigative inquiry of Jenkins' uniform vouchers.
be readily available to Respondent but was not produced. and "[nlo other information was given us at that time." The
On June 7, 1977. Cruse and Scott submitted to Moore an memorandum is dated II days after Cruse's and Scott's
"Investigative Memorandum" regarding investigation o f interview with Jenkins. Division Postal lnsoector Moore
J e h n s ' uniform invoices. This document was not offered testtfied that thts memorandum constituted htr only per-
to show the truth of the matters asserted therein. The sonal knowledge of what Cruse and Scott had available to
memorandum stales that Jenkins told (hem he had orom- look at when they conducted their investigation of Jenkins.
~scdto pay the Postal Scn~ce$216 in connecuon wtth the
poslal in$pectors'Invcstlgatlon, but had not admatted to the F. The Porral Service's Conracrs With rhe Unired Srafes
~nspectorsthat he had made illegal purchases on hts unl- A rrorney
fork allowance. Also, the memorandum states that Jenkins
said all the shoes he purchased met Postal Service specifica- The uniform-allowance investieation covered 15 security
tions, so far as he knew. There i s no specific probative evi- officers. both supcrvssory and no~supcrv~sory On the bar!;
dence that Jenkins made either statement to C ~ s e and of thls invecttgdtlon, Postal lnspcctor Holmes concluded
Scott. The memorandum contains further assertions as to that 44 securttr officers, lncludlng Jenklns, had improperly
which there i s no probative evidence. Thus, the memoran- used their unijorm allowances. bn
various occabons b;-
dum states that Jenkins was told that the Cruse-Scott inves- tween March and June 1977, Holmes forwarded to the
tigalion was a management inquiry. that it had no relation- United States Attorney for the Northern District of Illinois
shin to the oostal insrxctors' investieation. and that a all of the investigative notes of all the postal inspectors as-
.irond do
. ~warnine and waiver were no: necessarv because
. . ~.~..~ signed to help Holmes i n the investigation. These notes in-
Cruse and Scott were conducting a management inquiry cluded the field notes o f Inspectors Hagedorn and Strachan
and not a criminal investigation. Further, the memorandum about their interview with Jenkins. Holmes also retained
states that upon being g$en the purpose of the interview. copies of these Jenkins notes in his office. I n consequence of
steward Daniels said he had no objection and that "it was a subpena issued at the instance of Postal Service counsel.
evident" to Daniels that Jenkins "was being evasive and these notes were tendered to such counsel, bul they are not
in the record.
, > A t t o a d employee. lhs 1-year priod wilhin which lhr annual u d o m
ailwan~cmust k uud or loll rum Imm the snniverrrry dale ofthe rmplol
cc.6 hiring. Jer&in&'annivrrraw &to was March 10. So far as lhc recard G. The Lerrers of Warning Issued in Connecrion Wirh rhe
shows, asof the May 27. 1977, &te of his in1ervi.w hr had bought no r h a Uni/orm-Allowance lnvesligorion
under his uniform allownnrr rincr June 1. 1976. whcn hc bought two pain.
Since March 10, 1976. he had houghl four pair, under his uniform allow-
m ~including, onr pair in April 1976 rrom Kslc Unirormr for which he I n connection with the uniform-allowance investigation.
evenaslly paid oul of his own pocket (ue set. 11. Csuprd. lnspcctor Holmes wrote 43 investigative memorandums.
0 On the second day ol the hearins caund for the General Counrrl each dealing with a particular member of the security force,
ruled on #hetrmrd wilhoul denial that both S a l l and Crux had k e n
preen, during the fin, &y orthe hearing. Jmkins. Hagrdam. and Slrlchln
testified on that day. B ~ c a u vnrilher Crvv nor SIoll wns iden~ifirdlo me. I "The invcrttgalion had k p n on an undisclosed dale krorc January I.
do no1 know whose lrstimony <heyheard. Before the fin1 wilnou lraificd. 1971. Howrver, nonc of the security aIi%ers war inlcrvirwnl kforc Febru-
and over the obje~ionor Respondcnl'r counul. Igranted the C~ntrnt Gun- ary 1977. and Jrokinr' May 27 remarks aside. here ir no cvrdrncr !ha! hr
xl's molion a vqucrtcr the wimcrua. knew a b v l the investigationkfwc his own interview on Ftbrvsry 1. 1911.
 UNITED STATES POSTAI. SERVICF lJ9

to Divisiun Postal Inspector Moore. Each memorandun> same manner as the Se~ul-it)Pt,l~ccOfficer Eddnv Jen-
stated that the particular individual had purchased "unau- kins matter.
thorized pairs of shoes" on his uniform allowance. Halmes'
June 29. 1977. memorandum o f transmittal states. "All Mocrre tcst~fiedthat the Junt 7 Cruse-Scott nlemc-r;bn-
memorandums are hased on voluntary admissians in writ- -
dum reeardinc thtir interv~rwwith Jenkins w a s rcfcrred
the security scrtlon f;,r "prepantlion c~fd~scipl~n.ary
~.~ (11
:~rt~nn"
~

ing andlor orally." The sums involved ranged from ahuut

$20 to about $284 per person. with a total amount of abuut hy i t and h? Jenk~ns'supenisor. Jenkins' immediate supc-
$3,121. over a period ofa little more than 4 years." Amung nor was Lieutenant L.om;lr. Jenkins' squad leader w;ts acco-
the persons who were the subjects 01these memorandums nty supeninlr Joseph P. Pil~.tbrn,. l!nder the 1rtterhc;td
were a security officer in charge (not Cruse or Scott). two "Llnited Slates Poslal Service.'Otlioe o f fhr lamrrtcw
, ~- i...n
~

sergeants (not including Magec). and three union stewards ChargelChicago." and the datc July 21. 1977. the li>lluw~ng
(including John Doe and Richard R e . " but nut Daniels). "Letter of Warning" signed h Piuurrc, was irrucd 1,s .lcn-
Holmes testified that no ~nvestigativeme mu ran dun^ was kins. who refused Pinontr's ruqtlest to r i p i t :
writlen about Jenkins. and his name i s not included in the The officlal ILetter o i Warning IS k i n g issurd IC, >nu
4l.pcrson l l s t atlarhed to the n~cmorandumo f tran<m#ttdl lor the ft>llowing reason.
Holmc5' memorandum 01 transm~tlalfurther stated 'Alter Bet\recn April 30. 1973. and June I. 1976. !c>u pur-
the investigation met with a high degree o f success for re- chased a total of lhirtecn (13) pairs ut'sh~~cs that \ICTC
petitive purchases. the investiaatian was expanded to cover charged to your unifc>rm allowance. Five ( 5 ) p;tlrr 01'
~!ngular'tnstanccsu l at [the X ~ o m ~ a n ) . ' Add!.
]. the referenced shoes were purchased hrtu.een \I;lrch
ttunal success i n thns area tndtcated that Sccur~t, Pol~ce 13. 1975. and June 30. 1975. During an interviru utth
Officers generally using othcr licensed vendors may have SOlC's [Security Officers in Charge] P:tul ('rule ilncl
specifically visited [the X Company], intending to make un- Richard Scot1 on May 27. 1977. you ack!n?\rlrdgcd
authorized purchases." The February 2 Jenkins tnteruiew that you are reimhurslng the L1.S. Postal Serxtcr in the
was conducted by Hagedorn and Strachan un the second amount of 5216.03 for non-unrfornm shoes purrh.~rcd
day of their interviews as one of about seven 1u.o-man during the referenced p r r i u d
teams. Holmcs' memorandum o f transmtttal concluded Your attention i s directed 10 Part 1 01' the Srcurlt\
with the following paragraph: Force Manual w h ~ r hstnter that a l l Security Pollre 01-
The investigation includes about twelve files af indi- ficers must be thoroughly familiar with thr ue,ntcn~r$'I,
viduals who may have made unauthorized purchases the Security Force Manual as well as Postal l:twr 2nd
and who are suspected 01making false negative state- regulations pertaining to the area c~frespimsih~lit~ rw-
ments or who declined to discuss the matter aher re- ered. II is expected that !c,u will ikn,d!ar~~e >ourvell'
ceiving their Miranda rights. There files were retained with the authorized unili,rm items as lihted in the Suck!-
for the possibilily of proving unauthorized purchases rlly Force Manu:tl Part 4 and Postal Scr\.ir.c hl;inu;,l
SuhChapter 420. Part 422. 11 yc,u have some qur.itlon
bv the material obtained from the vendor through a
w a n d j u v subpoena t(owcver. this I-not p~~ss~hl;he- as to whether a paruculrr item is aulhonrrd. plearr
call un me or sotr mav consult wtth yoor other sunerbi-
cause the Un~tcdSlates Attorney adv~sedthat suhpoe.
sors and we will assist you where posrihlc. l l ~ ~ w c v rIr .
naed documents cannot be used administratively. and
must warn you that future infractions such as outlined
also becauw the documents do not avvcar lo be com-
above will result i n more severe disciplinary acuon
plete and may work only i n an icolai;d instance Ex.
being taken against you including suspensions or re-
ampler o f these susp~c~ousfiles are a Sccurit) Officer i n
moval from the Postal Service.
Charge who spent $1 18.00 o f his untfurm allowance at
You may appeal this Letter o f Warning in accord-
one lime at [ihe X Company] for five pairs o f shoes
ance with Arttcle X V o f the Bargaining Agreement
which could not be produced because his dog chewed
within 10 days from the dale you reccive thn letter.
them all up; another Security Police Officer who pur-
chased lourleen pairs o f shoes on his uniform allow- Piuurro did not lestifv. When asked to account tur the 6-
ance on a total o f seven occasions within twentv.six week interval hetween Mmre's rcceipt o l the June 7. 1977.
months ts employed i n a sedentary lndwrs pasttlon of Cruse-Scott report and the issuance o f the July 22. 1977.
Communtcattons Room duttcs. I t is suggested that letter o f reprimand to Jenkins. Moorc testifie~."At that
these files receive administrative considcr%ian i n the time we [were]" s t i l l wailing for the release of the crim~nal
invcsligatiuc results from the grand jur). on the other secu-
" Sorno ofthw pvrehun were lor shah which did not conform lo P w a l rity police officers and supervisors who . . . had comniitted
Sllvie m?uirmme but which mav in f.cl have t e n h u h ! for and vsrd similar offcnsrs as Mr. Jenkins had committed and I
on the j o b . k u u u thr weann k.;bed (hem 40 & perrmlca
'6\Uhllhelf h s I~c ~ l r & hmd acluall) mnc~ud!heor ~nlformallo-ant.$ .
wanted t o . . weigh all the evhlence and t ~invokej h l r and
u.8 not malrnml I> ihr .urn hra end ual no1 lhl~wlrdTo .sod nau8hlc equitable disciplinary procedures against the entire person-
unr.lmc~ to (heir ropunn~ionr,they arc rrrenld tohcrcon as ~ohnDa. md nel that was involved." Attached to the Postal Serrice's ma-
Rirhnrd Ra. Holmn' memaandurn slat- h a t one or them failed no .om- lions for summar? judgment a an affidavit from Postal In-
pl) Y t l n 01 rtspnnd to ,he lrller ofd~mandand a fo!lorup leu<!of demand spector Holmes. dated Septemhcr 9. 1977. u h i r h states.
" B u a ~ uor ~rnplwdalle(.~oonc tn the record (ha! thlr 6nm may haw
been onvolrrd in rra.Julcnt acllt41s,and bcuuu thr truth of an\ such a111 inrer alra. "The investigation has heen continued h) the
8lliord is immelmal to ihr i v v c s herein and was not litbgslrd. lo arotd
pouiblr unhimcu lo the rrpuLalion aftha! Rrm. i! i s rcfrnsd lo herr~nar
!he X Company.
IS0 I)I!('ISIONS OF NATIONAI. LABOR RFI.ATI0N.S BOARD

I!niled Stitt~.sAttwncy through an impaneled Grand Jury. testified that he sent out these 43 letters afler "reviewing a
I am still to &as pern,nally invol\.ed in thir investigation representative numher" or the inverligalive memorandums
and am thrrcli~reun;~hlc1c1supply any further information which Holmcs had forwarded to him with the June 29
in connvclwn therewith." As ol' the May 1978 datc uf the ~ncnwr;,ndum &,I' tran\rn~tt.il IIOUPVPI. hrcauw thrre
hearing helbre me. nu prosccutia,ns had heen initiated ~nrnl.,rar~dumr d ~ not
d .nr \udr any inrcrupat#,ry mrm<>ran-
against any security personnel. inuludinp Jenkins. Moore tlum :xhout Jenktn,. I ~ n l p rth:~tM w r e murl also hake con.
testified that hc hvlirvecl. hut was not sure. that the grand sidered the June 7 Cruse-Scott memorandum. As previously
iury hod rele;trcd ;,I1 thc materlal connected with the inves- ncrled, when sending Moore the files attached to the June 29
tigation. The rccurd otherwise fails to shuw when thir hap- memorandum n f transmittal. Holmes had retained the files
pened or when the Postal Service found out about it. On o f ahaut I 2 security afficers. including some who had re-
July 22. 1977. the date o f Jenkins' leuer o f warning. the fused l u discuss the matter after receiving their Mirondo
following letter was sent over Pilzurro's signature lo a secu- rights. None o f these I 2 ever received a letter o f warning.
rity police ulficer not involved i n the instant proceeding: On August 10. 1977. steward John Doe filed a grievance
on Jenkins' behalf. The form stated the grievance as fol-
'I'hi\ dlir.i;ll lrttur c~fwarning is hcing issued to y o u lows: "He had made restitution for whatever wrong that
filr the lilllc,wing rrdSOn. was donc. He was led lo helieve that no action would he
Ycn~have ~nisusedyour unilbrm allowance hy the taken ageinst him afler restilutian was made." The griev-
purehare of no!t-uslfor~litenls in \.iulrticm o f the Se- ance further alleged that the discipline violated article X V I
eurtt) I;IITCC Manual. Part 4. and I'uslal Service Man- of the collective-bargaining agreementm and was untimely
ual. Suh-Chapter 420. Part 422.715. Specifically. an and. as tc the remedy expected. stated. "Rescind the letter
.July 28. 1976. you lpurchvsed two (2) pairs 111 shoes nf warning." The grievance fc~rrndoes not call for the griev-
tI1;tt dl) n ~ lc<,nlbrm
t to the aprcificslic~nsfor the Secu- ing employee's signature. and Jenkins did not sign the
rity Vcrrcc Police ORicer Uniforn~as detailed in Srcu- grievance I n support o f that grievance. Jenkins supplied
rity 1:urce M;l~tu;tl. Part 4. snd Postal Service Manual. steward Doe with a written statement which asserted that
P:trt 422,4l(i). You further certificd that the statement during the May 27 interview. Cruse and Scott had told him
i,f ch;trprs sohmittcd hy the vendor on 7 28-76. fix they had orders lo qucslion Jenkins again ahout the shoe
those ltcnls ws\ correct oncl jukt. purchases: that when Jenktns said he had already under-
Your iturntion i s directed to Part I of the Security gone a postal inspcctars' ~nvestlgatian.Cruse said hc knew
I . ' ~ ~ cManual
L. whlch st;ncs thal ;ill Security Police 011 nuthing ahout that: thal Cruse raid hc would interview oth-
fiecrs must he thorc,u~hly i'amiliar with the contents o f ers besides Jenkins but he w;ts the only one called into
thc S c c u r ~ l yh v u u Manual as well as Postal laws and Cruse's office; and that Jrnk~nstold Cruse that the inspec-
rurulat~x,nsnurtsinine 10 the ;!red of resnonsihilitv cuv- tors had "made [Jenkins] pay hack the money for the
crr.4 11 I, r\pCrlCd 1h.11 ) < I U W I : ~ Idml.ldl./.i YUUI*CII'shoes." Jenkins' supporting statement did not deal with
*.II\ thv .,uth~>ro,r.J ullllc,rni itenl, ss l ~ r l e din the Srw. whether Jenkins actually owed the $216.95 which had heen
rat\ I t > r i c M.~nual. l'art 4. .tnd Pc,rtaI Sewlie Manual deducted from his pay and paid to the Postal Service pursu-
S L ~ -h.ipIcr
( 420. P;.rt 422. I t you h.i,r. wmc qucna~n ant to his written authorization (see rn. 41 infro), nor, so far
I t l .I t a tem I.; uuthur17ctl. plcr\c as the record shows, did the grievance itself.
ritll c you may c o ~ ~ r uwith
n ~ or l t yuur uther supervi- On August 23. 1977. Postal Inspector Wilkowski sent
sc,r\ :md we will assist you where possible. Ilawever. I Moore a memarandum which stated that Witkowski had
murt warn )<ru that future inliactia~ossuch as o u t l i ~ ~ r d discussed Jenkins' grievance with steward John Doe on Au-
ahwe will result ill innbrr severe disciplinary acti<,n gust 15. 1977. This sumnvary. which was not received in
bring 1akr.n itgainst y o u including suspensions or re- ev~desceto pnwe the truth 01 the matter asserted, describes
a u v a l ihml the Portal Scrvicc. the uniun position as fullnws:
You may i~ppcalthis letter ofwarning in accordance
with Article XV <,I' the Bargaining Agreement w~thin SPO [security pulice officer] Jenkins was singled out
10 days from the dale you receive this letter. and had to go through a second different type o f inves-
tigation concerning miruse o f his uniform allowance.
'The parties stipulated that this is #,tie of42 substantially Why was Jenkins singled out lo he coerccd?The lnver
idce1ic;ll lcllrrs irsucd 011 July 22. 1977. tu security pulice tigative Memorandum prepared by SOlCs Paul Cruse
oliicers hy their inlmediate suprrrfin,ra under Division and Richard Scutt states they were instructed to con-
I'c,stal Inspector Moore's ;luthoricitit,n :and that these 42 duct a management inquiry. On what hasis. who in-
letters wrrr issurd :nr a result ol'thc insprutorr' i~ivestigation structed them? They must have gotten their informa-
01 thesr rn~ployer?in Fchru;iry and March 1977.'" Muorc tion from %,mewhere--prohahly the previous
invrrtigation conducted by the lnrpeclion Service.
Why didn't Mr. Jenkins' letter of warning pertain to
the first investigation?
Mr. Jenkins has a hearing next month amcerning

Acalrdinp to ihc attaehacns 1 0 t h ~Pn'al scw~~~'~prcheirinp motions

rur rn~mrnnryjudgmrnl (fn. 2 s ~ q r o l this
. arllcte deals w81h just cause md
pr'~td"rc. Llr dirriptill. The arlicl, dlxr "a in itrmr refir ,<> I.,,L.~or
 POSTAL SERVICF I51

the Inspector's investigation.?' I f that hearing results i n an February 2. 1977. were poslsl inspectors. the I\nt;11 Scr-
a find~ngin f;tvor of M r . Jcnktns, then any action taken vice dues not appear to question the Generid Counrrl'\ c . 8 ~
against him would he null and void. Therefore, he tenlion that Wringurrrn raghts would attach 11, thlr inter-
should not have k e n issued the lelter o f warning at view. which Jenkins' superior dnrccted h!m 10 i$llcnd and
this time. which he did not leave until the tnspectc~rsrxcurtd I~~III.
The summary further descriks management's position as because Jenkins ressonahly feared this intervicu wc,nld re-
follnws: sult in his discipline. I agree. Befbrr sslinp Jenhlns i t h ~ ~ t
the un~form-allowancematter. I'ostal lnrpectc,r 1l;tgcdurn
Disciplinary action taken against SPO Jenkins was told him that Hagedurn and Postal Inspecu~rSrr;trh;t~~were
based solely on the management investigatton con- investigating \,ariuus security police officers Ih;tt in~ghthc
ducted hy SOlCs Paul Cruse ;~ndRichard Scr,tt. Any involved i n misuse of the uniform :~llo\r;tnr.c and thi~tJcn-
previous invrstigali~,nwhich may have heen conducted kina mipht he one u f them. Moreover. Hugedc,rt~rhcn rc-
was not furnished Merrrs. Cruse and Scott. minded Jenkms o f the Mir<erlr dccir!on (384 11.5. 4361.
While no admirsiun of the ourrhase o f non-uniform which deals wtth the rlghts o f an individurl who i s ruh-
~hoebun the uniform dllouance was nude h? SPO Jm. jected to custodial ?,lice interrogation regardtng his sur-
klns tu SOIC Cruse and Scull, he acknouluJ~eJthnt pected commission o f a crime. Furthermore. Jenkins‘ supr-
he was repaying the Postal Service an amount of rior had required him to leave his gun. gun hrlt. and
$216.00. Also, the grievance form submitted hy the handculTs i n his locker hefure proceeding tu the intcrvlew.
union svatcs that SPO Jcnklns "made restitution fur and letters o f warning resulted l i a m more th;311 lhslf 01' the
whatever wrong that was done. He was led 10 believe postal inspeclnrs' interviews with other srcurlt? crllicrrs dur-
that no action would he taken against him after reslitu- ing the uniform-allowi~nceinvestigatwn.
lion was made." The Puslal Servlce principally contends th;tt 1s ((1 the
By letter dated August 23. 1977. Moore stated. "Griev- Fehruary 2. 1977. interview. no slatutor) rbgllts under
ance denied. Disciplinary action taken was warranted and Weingnrrm existed as to Jenkins because. as to th;tl inter-
considered timely in this case." This grievance could have view. he allegedly was entitled 10 and allcgedI> a;ts af-
been. hut was not, appealed to binding third-party arhitrit- fnrded constituti~malrights under M,r~nrlo.slap,,,. 184 L:S.
lion (see fn. 39 ; " I ) . 436. 1 aaree with the General Counsel that J r t k ~ ~ ;~llereJ
lr'
Moore testified that in preparing and issutng his decision enlitlem>nt to and alleged receipt ofMim,tdt rlghts are ;nl-
on the grievance, he relied on Witkowski's memorandum. material to the existence o f Wernxunen rights. I t IS true that
whose rec,~mmendationMoore a d a ~ t c drrrhorint. Witkou.. Mirondo and U'e#ngorrm share one very simtlar cthncitl
s k ~dud not t o t l r j Mourc iurlher te'stlfied that u, iar as hr. foundation--nanlelv. the k l i e l ' thal a lone 1ndivtdu:tl ir
knew. III the Postal S c r t ~ c c ' rhanJllng u f Jcnhtns' krlr\.+ncc.
nu da~ofrom Inspectnv Hulrne,' c r ~ ~ n j ntask a l ionre regard.
.~
suhiected to unfatr nrcssures when he i s cnmnelled.. \r.>thout
~~ ~

k i n g given the right to informed xssist.tnr.e. to s ~ ~ h i l1~t ~3n

t
ing Jenkins wereused. Holmes testified that he never pre- interview about his alleged shortcaminpa with tr.tinr.d inter-
pared an investigative menlorandurn regarding his criminal rogators empnuereJ to cause him to suNer itdvrrrc v*m\e-
investigation of Jenkins. and Moore testified that he never quences therefbr. Perhaps becaure of thts cornnwa r.thcotl
reeeived any such memorandum from Holmes. Holmes tes- foundation. both M,r<r,t,lo and lli.rnyarr<,r, rights include
tified that he retained Straehan's and llagedorn'r notes of the r ~ g h tto prelnlervlew consultatton wltll the rcpr~.\~.nI:I.
their interview with Jenk~nsi n Holmes' office: that they had
not been made available to Mcmrr: that nohod?. including However. the foundnttc~ns.and therefore in sitnliirant rc-
Scott or Cruse. had ever asked to see them: and that Scott specls the scope. of M,nordo r!$hts and lllvn,qrrrrrr~ r~phts
and Cruse had never contacted Holmes regarding Jenkins. are otherwire d~lTcrent.Thus. N",i,~psrrn, rtghts arc *t.itu.
Scott and Cruse did not testify. Hagedorn and Strachan lory rights crerted h) the K L R A with respect 10 p o ~ ~ t h l r .
testified on the Postal Servlce's hrhalf. hut they were not adverse acllon relating 1 0 empl<lynlenl. not %\nthrc\prcl tu
asked whether they had ever d!scussed Jenkins' case \\,~th possihlr criminal liahilit?, and do not ha\e :I\ tt11.11LL~IP
Scott
.~-.. o. Cruse.
.r ~ purpose the prolcutton o f the indi\.iduitl rmplu?cc u h o
Three or four other employees filed grievances regarding reeks represenlat~on.Rather. Il'rt,tgc~rrm uontempl;~terthat
their respective July 22 letters of warning. All were denied the union represenutlve will safeguard "not onl\ ihc par-
at the fiist step, and none o f them war a p p r ~ l e d ticular employee's tnlerest. but also the intcrc3ts thu en.
tire hargnining unit by cxercis~ngviptl:~nvr.I<,tt~ahccr8t;nin
H. Ana(vrir and Conrlurionr that the rmplo>er dms not tnltiate or continue :t p l . i ~ u t ~tll'w
impcaing punishment unjustly. The reprvrcm.ttnc'\ yrcr-
Weingorren held that an employee has a statutory right to cnce is an assurance lo other emplnyecs in the h;trga~nlng
refuse lo suhmit without union renresentation to an inter- unit that they. tao. c;tn uhtain h3s ;ad .end p18'1c111011 11'
view u ~ t h an employrr rcpre,entat,vc u h ~ c hhr rrs<unahl) called upon to attend it l ~ k einteruew." 4?II 1 .S .I[ 260
r I ' . S at 256 ?h7. l a ) -
Tcdri may rcsuat in h ~ Js ~ \ c i p l ~ n420 261. Further. although during ;I lt;ri,~grrrrc,t inlsrbtcu. the
inx to one stdc the f ~ c l sthat Jrnk~nr'cn>plo,rr ,\ the Pwtal unit,n representative i s present 18, ; l s u r t tbr ernplc>yeeand i s
~ e h i c eand thal the employer agents who [nterv~ewedh i n ~ expected to provide the rn,plo\cc with :I w>inr.\\ tcr what

2' tnrcr.nuat~y.
the hearing in ih. lnrtrnt ~ h . ! hcanng initla~~y
ror
W ~ . ~ U I C scptrmbrr
~ 19. 1977 11 p,r~pon.d on s r p t r m k r 16.1971.
a n d on uavi<rr r u h u a u c m dalrr
1 2 DEClSlOZlS OF NATIONAL 1.ABOR RELATIONS BOARD

actually happened during the interview. the union repre- might disadvantage the employec. This contention i s some-
. . - . .
rrntative can orcmrrlv elicit facts favorable lo the emolover
;IS well as to the employee and is not expected to render the
what difficult to reconcile with the Postal Service's further
contention, d~scussedinfro, that aRordsng thc cmployee thc
interview an adversary pnxeeding." Moreover. Weingarren r~ghtto such partlclpatron m~ghtlntcrfcrc w ~ t hthe cffcc-
is designed partly to enlpnwer the union represenlalivr to ti"eness of t h e ~ ~ n a l ~ i n s ~ e cinvcstigation.
tors I n any event.
discnurage unmeritorious grievances. 420 U.S. at 262-264. the choice of whether to hc reoresenled hv a union steward.
I n consequence of this Weingnrren mix of individual em- an attorney, both, or netther dur~ngan ~nvest~gation is nor.
plnyee rights under Scction 7 of the Act and any statutory mally confided to the employee andlor h ~ sbargalrung rep-
rights and interests possessed hy the union institutionally." resentative rather than to the employer who is conducting
the Wringarten class of cases implicitly hold that the em- the investigation of the employee. See Narional Can Corpo-
ployer i s under no ohligation affirmatively to advise the ration. 200 NLRB 11 16. 1123 (1972).
employee of his Weingurren rights. For s~milarreasons, al- I n my discussion up to this point, I have assumed with
though an emplvyee has the statutory ripht to refuse to Respondent that Jenkins was entitled to Miranda rights
hegin a Weingarren interview without n union representa- during the February 2 interview and that he was afforded
tive and to refuse to continue it u p n the emplnyer's rejec. such rights. However, I am by no means easy with respect
tion 01' an initial request during the interview for such a to either assumption. I t is true that, at least in some circum-
representative." the Wcingnrren class of cases implicitly stances, interrogation by a postal inspector does not consti-
hold that i f such requests are granted. the employee must tute a purely privatc interrogation, where Mironda is inap-
nroceed with thc interview. On the other hand. Mirondo plicable, but instcad may render relevant a determination
rights are aspects of the rights to counsel and against self- as to whether Miranda attached and was satisfied?' How-
~noriminatiunwhich the Constitution affords to individuals ever. Mironda rights exist only after a person has bccn
as such in connection with criminal investigations. The in- taken into custody or otherwise deprived of his freedom of
terrogators are required affirmatively to advise the interro- action in anv -
. sinnificant wav, or where soecial circum-
gated perwn of his Mir'lnda rights. 384 U.S. at 478-479. \lances cxrst whlrh render the law enforcement officials' bc-
Moreover. the attorney at a Mirntrda interview is expected hav~orsuch as to overbear thc person's WIII to reslst and
m act as a wholehearted advocate fur his client (subiect. of hnnn abut a confess~onno1 freel! selfdeterm~ned" Dur-
course, to his ohligations as officer of the court) and may ing h ;e February 2 interview in ihe instant case, Jenkins
not ethically subordinate his client's interest to the interests was told that he was not under arrest, and it is at lcast
of the bargaining unit or its representative. Also, the inler- arguable that Miranda rights were not generated by the fact
rogared person may terminate his own parlicipalinn in the that Jenkins (himself a law enforccment otliccr) had wme
interview st any time. even when the interview is attended pursuant to the instructions o f his superior on the job and
by the counsel uhom he requested. Miranda. 384 L1.S. at by that superior's instructions to leave Jenkins' gun and
444 445." handcuffs in his locker ~ r i o rto the interview." Further-
Nor can i t he said that the Minmndtr protections are in all more, when Jenkins askeb during the interview whcther he
respects "greater" than the Wringnrrm protections. While could get a lawyer, Hagedorn said that the interview was an
an-attnrney wcmld likely he more familiar than a union investigation and that a lawyer could not s i t in on an inves-
renresentative with the emnlavec's riehts under the crim~nal tigation and further asked whether Jenkins thought he
should have legal counseling for defrauding the Govern-
ment. I t is at least arguable that at that point Jenkins was
the uniform allownnce. retentban of his job. and the disci-
nlinarv
, ~ ~ ~ and
~ ., -
. - ~ arlevancr-nrhitration nrucedure. Furthermore.
the union representative costs the employee no money. the
improperly denied any Miranda rights which the circum.
stances o f the interview may have generated. Miranda, 384
U.S. at 444-445. Indeed. if Miranda rights were generated
reorrsentat~vris ordinarilv (as here) immediately available.
by the circumstances of the February 2 interview, Jenkins
~~~~ ~~
.
and the emolnvee , is likel" to have had some firsthand OD-
portunity l o assess the representative's competence. On the
other hand. the employee wuuld have to affirmatively seek
out an attornev, n d h t well have difficulty linding one
whose ahililies he knew something about. and wouldbrob- .
us. 972.
ahly have l o pny him. Respondent suggests that representa-
tion hv a lav on~onsteward during a criminal investigation
"~ c r k w i r hv. UnitrdSclrrr~,425 U.S. I 4 1 119161; un,,cdSznres v Fluger.
.Id 541 F.2d S78.580-581 11th Cir. 19161.
--
,I Wlmnxarwn. 420 U.S. a l 260.262-261: Cllmvr Molyhf<num. 227 NLRB
at IIW: Kwv,nn. Surl6 W b p , D i ~ r ~ l uolKrysnanr
.n . Cvnlolldvrrd InlllurrI<>,
Inc, 211 <LRB W1 t19711. also read a~pumonedMtmn& warnlngto hmm at the ~ e b r k r i 3inarviri.
:'Howrvtr. the Beard has rwmlt) hrtd that lvr~ngorrrnn b l r are por- which war held a! Jenkinr'orn rcqucsl. Marrovcr. S~rachsnarlificd. "Our
x r w d by ernplnyrcs who an n o ~in a unlan-reprcrmadhsrgsining unit. on~lruelionr~ 8 t hrelard lo M;mndn i s that Hzrond. .urn<%inlo applisalion
. 214 NLRB llG4 (I978I.
(ilomnr P l o l , ; ~ ~Inr.. durins a criminal invcslimlion sllthrl ~mlluhenl LCtnlcrvirw rcvalvrr lo
" Wnngonm. 420 US. at 256-259. Mdd Od Cumvrunun. 196 NLRB
1012 (I972], ~nfc~vrcmml denied 482 F.2d 841 (llh Cs. 19711 (per ihcn
Clrcv81 Judgr John Prvt SLercnr) Porl~nnror ihc Board's .Mabit decision
vtrr qul,lod w l h approval in H'cln~urrm. supra to ihcindividud." s~rarhmndid not rrLr at all I; ~h; l rrlafrd
E v s l o b ~ aor
I.rornp.rc ohr "Mzmndu" film urrd b) ~ h Poslal
r SINICZ which tlalrr. circumrlanrcs of lhc intcrutlv.
"You aim have !he rlghl fu stop anrvcr~ngsf any lime unltl you I'Scc Oregon r. Molhirrron. 91 S.Ct 71 1.713-114 (1971): Fitz$tmld, 545
calk LO 8 tawycr.' F2d 578: Boflrldv. Scorro/;lluhama. IS2 F l d t I t 4 t 5 l h Cir. 1911).
 UNITED STATES POSTAL SERVICE I53

may at least arguahly have heen entitled to Mim,tdo rights era1 public as well as against postal employees, laws regard-
(which admittedly he was not afforded) during his May 27 ing property of the United Slates i n the custody of the
interview with Cruse and Scott ahout alleged violation o f Postal Service, thc use of the mails. and other postal oi-
Poslal Service rules regarding the unifnrm allowance. Jen- fenses?' The laws enforced hy postal inspect<rrs.unlike or-
kins allended this interview. as well as the Fehruary 2 inter- ders i s s ~ ~ hy
r d the master o f a ship, are enforced through
view. because his suoerior instructed him to do so: and as conventional civil and criminal procedurer and do not in-
memhrrs of lhr Po,ldl 5rrv8cr. rrrurlt) pollre ior.r C ~ L S C volve the safely a1 sea o f human hringr. ships. and cargo.
and Scott had the power trr euC,rcr Poslal Tcrvlcc rulr, anJ Of course. Weingarreti righb extend l o interviews regarding
regulations and to make arrests (including arrests o f postal alleged crimtnal acts. Indeed. Weingarren itself involved a
employees) which could involve the use o f handcuKs.m grocery store employee who was accused o f fraudulently
I n view o f my ullimate conclusion herein thal Jenkins' underpaying for groceries and o f eating lunches at a starc
Weingarfen rights were unaffected hy any rights he may facility without paying inr them. See also Mobil O i l 196
also have posessed or been accorded under Mirundo, I NLRB 1052.
necd not and do not determine whether. as to the February Furthermore. the Postal Service's conduct evinces a con-
2 interview. he possessed Mirando rights and they were clusion hy il that adherence to H'eingnrten does not i n fact
honored. However. I do regard as militating agninsl the impair effective performance o f lhe postal inspectors' du-
Postal Service's Mirondo defense herein its implicit requore- ties. Thus. Holmes' memorandum about the unifarm-allow-
men1 that in each instance involving an interview hy portal ance investigation lo Moore on June 29. 1977. some 3
inspectors (if indeed not by security officers as well). the weeks after Holmes received the report from Security Offi-
employee. the inlcrrogaton, and the Board must determine cers Cruse and Scot1 ahout their interview with Jenkins in
whether Mirando attached (and. perhaps. whether il was Union Steward Danzels' presence. suggests that the files o f
satisfied) before they can determine whether Wein~orrrtt 12 security officers who during interviews will1 the postal
rights existed. Cf. fn 28 sr~pm.No like prohlem was pre- inspeclors had k e n given their Mirnttdn rights and who
sented in Mr. Verne,, Tanker Cn,,t/,n,!v v. h'.l..R.B.. 549 had then declined to discuss !he uniform-allowance mauer
F.2d 571 (9th Cir. 1977). on which the Postal Service hrav- or were suspected nf making false negative rlatemenls could
ily relics. The Court there held, as an nlternative hasis for not be handled hy use o f documents ohtained through
rejecting the Board's finding of a U'eingnrren violation. that grand jury suhpena and should "receive adnlinistrative con-
while "at sea" a seaman dms not have the statutory righl to sideration in the sanle manner as the . . . Jenklns matter."':
refuse to submit to a master's orders to attend a Wei,t~orr- Further. the Postal Servicc issued to Jenkins. a f v r the
cn-type invesligatory inarview without union representa- Crusc-Scoll inlerview where he was atiorded il'ringnn',,.,r
tion. Whether a seaman is or is not "at sea" i s a good dcnl r~ghtsand allegedly without regard to anyth~npdercloped
easier lo determine. for the seaman and the master as well during his interview with Postal Inspectors Hngrdnrn and
as the Board, than whether .Mirnndtr attaches and is ratis- Strachan. suhslantially the same letter o f warning which i t
lied. A more significant ditierence hetween MI. V OP
II,,I issued to 42 other enlployees on the hasis o f interviews with
Tanker and the instant case i s lhc nature of the interests the postal inspectors where no union represenlalive was
wh~ch.in the Court's view. exclude U'cingnrrrn righls whtle present. Mnreover. Regional Chief Inspeclor lar~~rence's
a vessel is at sea. The Court relied on Federal law. w h ~ h Ma? 1977 letter to Division Postal Inspector M w r r indi-
charges tbc ship's master with respon';ihility for the safety cates that the Postal Service's 1975 national agreemrnl with
of ship. cargo. and crew and. i n order to enshle him to nthcr postal crafts contains an crprcrr provision sRording
discharee the right to union representatinn during at least certain
" this resnonsihililr. cives him authorit, to main-
>

lain strict discipline. including the authority summarily to kinds of invesligatlve interviews. Indeed. page II o f the
punish willful disobedience at sea hy plartng the dirobedi- Postal Service's "Verified hfemorandum in Supprt of Mo-
en1 seaman in irons and on hread and water. I n the Instant tion for Surnntary Judgment." filed i n September 1977 and
in May 1978. avers. "Respondent Postal Service [has] recog
case the interest which allegedly excludes Wcing~rrrmis the
public interest in the postal inspectors' discharge o f their
power by slatute and regulation to enforce. against the gen-
. -~ . . . - .
nized lthel, eeneral o r i n c i ~ l el a f N'ein~arrenl i n our nauonal
cran hargaining units since 1973-wa? before the Suprenlr
Courl endorsed the Board's construction o f Section 7 o f the
BThc C d r orfcdcrrl Rcgulrllonr pruvid~,. "Momkndll~r1l.S. Posnrl Act."
Sennre ~ c u n l ,furcr shall r r c n i w ihr prcrsorrpcciat potbemen probldcd
by40 U.S.C.$18 and,hall k rcrpon,lh~cfor mrc7rclny th. rcgutatl~nr ,n thl,
-
For the foreeolns. " reasons I reiecl the Poslal Service's
I,,
defenses lo thc compl.,~nt the ektent that such defenses
~ c l c u nin a manner ,hat wit1 prnlccl Postal Smire provrty:' 19 CFR rcl) cm the Sdprcme Collrt's M~rnndodcc~s~on.
232.Mp). SIctlon 231.6 rorbidr conduct on porlsl pruprlp which include* I n 11s nrtcfthr Postal SC~VSCC also i u ~ ~ e s~n
t spasslng that
dllordrrly conduct. carryingwcrponr or crplorives. pmhling. uu of alcohol
or d r u p rarflng haurd lo pcnunr or ihingr, &ngcrour dnving. and dc. it was under no duty to comply with a 6 requeil for i n i o n
nructlonor p r ~ p r 4 ~ .1:s.c. 5318 gir.~ po~rrmen, on F ~ ~representation
~ ~ made
~ I hy Jenkins. because union representa-
proprly. Le povcrs or rhwiw, and mnnahln irrcepl = w ~ cor cavil pro.
<IS) I0 .nrorcc..law, r<>r thc pro,<<,,"" orpru,nl and praperty. to prrr<nt
. . = R a y s or unlawht aucmbl8cr. and to
b r u l c r or the mace to st~oorcsr 'I 18 U.S.C. (IObt. 39 1:S.C. 12001t1111. 39 CFR 132.5. YYttgl. Thcw
cnlorcr roll. n adrn~n#,l,.~.~r SLIC% and rrgulrlons R~lhcr%omInr ~ . n n . povr,r ~ntludcthr p w c r lo makr and dnshurr ruttcct~on. rcpardnng ~ m -
,,on, I#*,"d"J<d in h e P0,l.t %r.l<c'\ wcur,.) fore< manvat hhWh cn* propcrt? paid msnc) srdrrr, c t ~ n u m sdug. drmagr h> the puhlcr to poltat
n t o ~ s ,#cia% lo 4 11SC O I R nrlhrt ihan $118 Thr KCJIII, rcrrr rnrn.8 cqwpment. c.0.d. charger rmbutrd bs an rrnptnree. rertam ktndr nr rcr.
spc~ihcatlycmpowers V C Y ~ I Y ~ ~ r ~ l n ''10 n t rnlorcr
l Postal Service rule? and cnun. darorpane#c*i s purlmaster:' rccounls, ralar) orrrprymmns, or ~ m -
rrgulrl8oni md conlams tnrlrvclnonr rogardin~urc ol fimr in anrrlr. rp pn,pcr payments nf vnlrorn?altovrnrrr
rifi<atlyincluding arrcrls nr p o r l a t \rrrarc cmplo)cer. md regarding i#\rat,' ' 1 Hw<~<,. lhlr war "ill 1" far, .ton<,rn to ,",,,l,
handruns.
 live* n ~ t ylh;t\.c Iwcn >l~l>jrct> ~ 1llle' vely ~ n r c a l l g i t l i ~111~ ~ll I l i r c : 217 K l . K I i V)'." Ilct,xc\rt. 11, Inlcrrr. recent d r c ~ s ~ u n s .
rsclrd lpitrtly ;tg;si~)rlSuokln*. bl<hlreuvr.~. itn!a),lg lhc s c c t ~ r ~ l ? I I W ll,?:,,d I,;,\ ,eqt,,tc,l 11,~r<sl,3r:,l,'>,, <,1'11,e .VI<,l,,.~ ',,do CI,,
dlicers wh<>cvenlu;tll? rr.ce!rrd Ir.ller> (11 warning in F L ~ I I > F ~ h! reqiIlrl!lg ; t l l i l ~ l l l i t l i bC(IIICL.I~C>~~ ~ I~I'\uL.II prrsunnrl action.
quencc d l h i r i ~ n c s t ~ g a werv l i t ~ ~l ~u u c ~ l ' l l ~~c ~ n T P~~ ~l ~ CnS C I I - .\,,~elh~~r~r~c,n ll~li~l~,~,,horar.
~ll <.,,,trl,<e(,. 227 NI.RB 1223
lalives who111Jcnki115i ~ l e n l i l i c d II>C ~ ~ c ~ sLnsl?ecl~>r>
l;il ~IIII. 1 7 ~ I II II ; ll-r ~tnpluyees dis-
i n 6 tliu Vchruitry 2 ttnrtvlr\v. l l ~ w r v c r Iberr. . 1% no cl:11111 <,1 LII.II~C~I tnr SLI\~CIIIICJ 1c)i III,I~III~ lill>~ clittn>s thiu a I-ellow
c v i ~ l r n r r III:II ;IT?\ ~ r ~ \ c s l ~\vim>
~~ ~
~ i C\CI.
~ l i 1li1c~11.d
~ ~ ~ ill lllr C,,,~>I~~:CC'\ ,,,I,,,>\<:,A \V>*,L r<l.,l~:,Il: ('C~I,/,L.,I (;n,c,,r., ,!I'
other iw,, w l ~ c > lhv ~ n i ~ i t t ~ w1~c l .%I the >IC\V.LIII w h u a t ~ e r ~ d ~ l':lt/or,lrcr. ~l 227 N I K H I ? I I II ' J ' / l ~ ( l ~ i ! c hi!nd l ~ ; ~~xcisicm01
Jenkins' M:ty ~ n l u r v ~ u w : ~IIJ
11111 . l e ~ l k ~ nexprcn,
r prvlkrcncc I;ty<~ll' IIIIIICC :):LI,~,I?~o>FI. liiul i!llfi)l. ? W C C ~~C C~ L I I I S ~ 01
IUr :my por1lrtll:tr 1 1 1 3 1 1 3 0 r ~ . ~ ~ ~ ~ ~ ? ~1 ~lnule. ~ l l lIIIOI.L.~~\UI,
itllw. li~u pr<xIurtlon).
Ihal IWII s c c ~ ~ r t c~llicc!>
ly i n cII:~<~c c ~ ~ ~ k l uIcnkttn' c l ~ ~ ~hcc- l Sldl Ic!yu,g I<> amc \I~Ic II~C k1,ny 1'1.17 ~ ~ ~ r c r ~2nd ~ t lhe
cw
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s
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 IINITED STATES POSTAI. SERVICE IS7

2. T:tkc the follauing ntlirlnatirc action which is nercs- laup. We have heen ordered to post this notice. We illtend to
rary to ellecturtr the policies o f the Act: c a r p out thr order of the Board and nhide hy the follow-
( a ) Strike and physicidly remove liruln i l a records and In*:
files any refercrtce l a the letter o i w a r n i n g issued to Eddie W I \VII.I. SOT require any cntployee to suhnl~tl o en
I.. Jenkins on Jul) 22. 1911. tntervirw with our representalive.; \vl,~chhe rrasonahly
(b) Pay Eddie L. Jmkinr $216.95. a.ltI1 interest. as set fr:lrr mrght r e u l t i n his disci1,line %hi16 dcn>tng his
Ihrth In that ~ o r t i o ao f this l ) c c i s i ~ ~entitled
n "The Kcm- request liir union reprrventatian during the illlcrulcw.
edy ." We \VII I. s o l i n any like or related m;bnner inleriere
. of the
(c) Post at its facilities i n Chicago. I l l i m ~ i r copies with. restrain. or coerce cn~plo?ccsIn the ererci%eof
attached nttlice marked " A p p r n d i ~ . " ~Copie* uf said no- the r~ghtsguaranteed then? h! Srruon 7 of #he N:I-
tice, on forms provided hy the Rcg1ani8l Director for Rr- tional L : t h r Relalions ,\GI. its :trnmdcd.
gion 13, after hsing duly rignetl h> Krspondrnt's represcnl- I t h.as heen fi,und thiit wc ishued i~JuI> 22. 1977.
alive. shall he posted h? !I imnledimel> topon recc.lpl letter n i warnlng to Eddie L. Jcf~kinr.and dcn~anded
thereof. and he ntninta~ncdhy i t fur 60 i.c~nrrcutive days and reccived $?16.95 ihrnl him. in consequence o i our
thereafter, in conspicuous pbacrs. including all pbirrs where conclusic,nr hsserl partl) on an tntcrue\\. with Jenkins
notices to empluyecs are cu*tomarily posted. Rrasonahlr during which he was unlawiill) d e n i d o n l ~ ~reprc- ll
stepr sh;tll he taken hy Rrrpt,nclcnt to insure lhat said nn- ,rnt;ttion. \YE \VI.I strike and physicisll? rrnlovr iron1
tlces i t r ~ .1101 alt~red.del'ac~tl,l>rcovered h? any other mate- oar records and liles any reierrncc to lhls leuer of
rial. warning and return the $216.95 to Jenkins. u.ith inter-
(d) Notlfy the Rrpional Ilirector for Region I>.tn u'rll- est. The National I.ahor Relatic,ns Act and the Board's
ing, within 20 days lirlm the date o f this Order. what stepr Order perntit us u, issue a secnntl letter i>l'u.;lrning to
Respondent has taken to camply herewith. Jenkins and to require another money parntenl Cram
him. hoth mouvated by the same alleged conduct by
him which led to the July 22. 1977. Ieuzr of wsrlllng
and the $216.95 payment hy ~IIII.hy using means snd
procedures which rlu not u ~ o l ; ~ tthr e S;ltional I.;hh>r
Relaliol~sAct. as amended.

NnrlrE To EMPI~IYF~S
P o s r r n BY O a n t ~n r rllti
N ~ r l o h h l L. ~ H O RRFI KrlONS BOARI)
A n Agenc) u l t h e United Stales Covernlne~lt
After a hearing at which all partics had the opportunity lo
prcsent evidmce. i t has heen decided that we violated thc
 CHI?? POSTAL lXS.=EtTOii
W1Shln5iJh 3 C PC254

Mr. Killiam Burrus

Sen2rel Executive Vice President
h e r i c e r , Postal Workers Union, AFL-tIO
817 1 4 t h street^-N.Y.
S e s h i n ~ t o n ,DC 20005
C e ~ rMr. Burrui:
Tnis r e p l i e s t o your &y 10, 1982 l e t t e r t o Senior Assistant P o s = x s t e r
General Joseph Morris ccrncerning t h e r o l e of stewards o r union represents-
t i v e s i n i n v e s t i g a t o r y i n t e r v i e n s . Specifical 1y , you expressed concern
t h a t t h e I n s ~ e c t i o nService has adopted a policy t h a t union r e ? r e s e n t e t f v e s
be l i m i t e d t o t h e r o l e of a passive observer i n such i n t s r v i e n s .
Q l e = s e be a s s u r e d t h a t i t i s not I n s ~ e c t i o nService policy :bet cnion
.-e?resentatives r a y only p a r t i c i p a t e as passive o o s e r v e s . Ye f a l l y
rec3cnize t h a t t h e r e p r e s e n t a t i v e ' s r o l e or Durpose i n inves:icatorr
int9.&iewS i s t o safehuard t h e i n t e r z s t s of i h e . i n d i v i d u a l e:aprcye<as well
a s t h e e n t i ' k bargaining u n i t and tirat Yne r o l e of passive observer ney
s e m n e i t h e r purpose. Indeed, we believe t h a t a union r e p r e s o n t z t i v s m a y
Properly a t t m p t t o c l a r i f y t h e f a c t s , suggest o t h e r sources o r - i n f a n a t i o n ,
and g e n e r a l l y assist t h e ~ ~ p l o y ei ne a r t i c u l a t i n g en ex?lana:ion. AT t h e
same time, as was recognized i n t h e Texacl opinion you quored, an Inspectar
has no duty t o bargain with a union regresentative and may properly i n s i s t
on hearing only t h e enployee's own account of t h e i n c i d e n t under inveszigation.
,Me a r e n o t unmindful o f your r i g h t s and o b l i g a t i o n s cs a c o l l e c t i v e bargaining
r e p r e s e n t a t i v e and t r u s t t h a t you, i n turn. a p p r e c i a t e t h e obligations an6
r e s p o n s i b i l i t i e s o f t h e Inspection Service as the law enforcenent a n c i t h e
U. S. Postal Service. In o u r view, t h e i n t e r e s t s of a l l can be p r o ~ e c r e d
and f u r t h e r e d i f both union representative and Inspector appr3ech invesiiga-
t o r y interi.iews i n a good f a i t h e f f o r t t o deal f a i r l y and reasonably w i t h
each o t h e r .
. Sincerely,
.-
 TEXACO, INC., HOUSTON PRODUCING DIV. 361
Texaco, Inc., Houston Producing Division and Oil, needed representation. The foreman replied that he
Chemical and Atomic Workers International had already reported the matter to the Company's
Union, Local No. 4-367, AFLCIO. Case district superintendent and, thus, that the matter
23-CA-227 1 was out of his hands. He also stated Alaniz did not
need union representation as he was not a union
November 20.1967 member. Alaniz had, as noted, worked as a porter
for some 20 years, had something less than afourth
DECISION A N D ORDER grade education, could read English very little,
spoke Spanish at home, and testified in this
proceeding through an interpreter.
The company controller's office undertook to in-
vestigate the matter and scheduled a meeting for
On June 8, 1967, Trial Examiner Ivar H. Peter- November 17. Alaniz was extended the opportuni-
son issued his Decision in the above-entitled ty to attend the meeting to defend himself. The
proceeding, finding that the Respondent had not en- Union, on the ground that Alaniz was within its
gaged in and was not engaging in the unfair labor recognized unit, requested the right to represent
practices alleged in the complaint and recommend- him at the meeting. The request was denied. The
ing that the complaint be dismissed in its entirety, meeting was held as scheduled; Alaniz attended and
as set forth in the attached Trial Examiner's Deci- at the outset requested that the Union be permitted
sion. Thereafter, the General Counsel and the to represent him. His request was also rejected by
Union filed exceptions to the Trial Examiner's the Company. One of its representatives stated
Decision and supporting briefs. there would be no interview if Alaniz insisted on
Pursuant to the provisions of Section 3(b) of the union representation, adding that Alaniz was free to
National Labor Relations Act, as amended, the Na- go if he wished. However, Alaniz remained, was
tional Labor Relations Board has delegated its questioned, and then was given a statement
powers in connection with this case to a three- prepared by the Company to sign. In the statement,
member panel. which he signed, Alaniz conceded he had taken 2
The Board has reviewed the rulings made by the gallons of Company kerosene to spray weeds but
Trial Examiner at the hearing and finds that no not "with the thought of stealing but only because
prejudicial error was committed. The rulings are of the convenience," promised to do his job in a
hereby affirmed. The Board has considered the manner which would do credit to him, and asked
Trial Examiner's Decision, the exceptions, briefs, that consideration be given "on past service to Tex-
and the entire record, and finds merit in certain of aco." Alaniz was given a suspension of 24-112 days
the exceptions of the General Counsel and the (16-112 working days) without pay and restored to
Union. Accordingly, the Board adopts the findings duty on November 30. By letter dated December
of the Trial Examiner only to the extent consistent 3, the Company notified Alaniz that it felt the
herewith. suspension lenient and wholly justified and warned
On the morning of November 5, 1965,' Alaniz, him that any future similar or other disciplinary of-
a company porter for some 20 years, was using fense would subject him to discharge.
kerosene to spray weeds on company property. He During the period here involved there was in ex-
placed in his car a Zgallon can of kerosene, con- istence a company-union contract containing a
cededly belonging to the Company. At lunchtune grievance procedure. Neither the Union nor Alaniz
when Alaniz started to go home in the car, the filed a grievance at any time.
production foreman saw the can in the car, con- The complaint alleges in substance that the Com-
fronted him concerning the kerosene, and pany violated Section 8(a)(l) and (5) of the Act by
suspended him without pay. After lunch Alaniz at- refusing to allow a union representative to be
tempted to return to work, but was again told he present at the November 17 meeting. The Trial Ex-
was suspended. At the time Alaniz was part of a aminer concluded that the alleged 8(a)(S) violation
unit of employees represented by the U n i ~ n He.~ could be found only if the meeting and its outcome
was not, though, a union member. Later in the day, involved the adjustment of a grievance within the
Whitten, the Union's field steward, learned of the meaning of Section 9(a) of the Act. But he found
incident and called the foreman about the matter. tha no grievance had been raised concerning
He requested that it be handled on the local level, Alaniz' situation and that even assuming it had, the
complained that the Union should have been meeting was not concerned with its adjustment.
notified of the incident, and added that Alaniz There was, thus, in his view of the case no 8(a)(5)

1All dales referto 1965 and professional smployecs, all employscs at the Houston garac and
2Thc Unwn i s the recogmzed bargalnnng agent of the follow~ngap- warehouse, all D ~ v ~ s ~ ocmployssa,
nal temporary ehmnmsn and mdmcn.
propnate U N ~ foremen, rotary drillers, head roustabouts, and all other supcrv~saryem
All hourly rated praduct~onand malntcnance employees In the Com- ploycss)
pany's South Texas D ~ v ~ s ~(except
a n clerical, adm8nn%uatlvc,technmal.

168 NLRB No. 49

 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation.= With respect to the alleged 8(a)(l) viola- fully denied the request of Alaniz for representation
tion, he found no interference with Alaniz' rights in by the Union and refused to deal with the Union at
denying him union representation at the meeting the November 17 meeting. Conseauentlv. the
because he could have filed a formal grievance and meeting and its results are t h e d by ~ e s ~ o n d e n t ' s
thereby assured himself such representation. In unlawful activities. and it is. therefore. necessarv in
view of his findings, the Trial Examiner recom- order to provide a full and effective remedy to
mended the complaint be dismissed. We are of the recreate insofar as possible the status quo prior to
opinion, however, that the Trial Examiner took too the meeting. Accordingly, we shall order the
narrow a view of the issues before him. Respondent to strike from its records any
As the record shows, the November 17 meeting references to the meeting and what occurred there,
was not simply part of an investigation into some al- including all copies of the statement signed by
leged theft and Alaniz was not invited to attend Alaniz at the close of the meeting and the
solely to provide the Company's representatives December 3 letter of reprimand sent Alaniz. We
with information. Rather the meeting was con- shall also order it to revoke its decision that Alaniz
cerned essentially with Alaniz and his alleged theft, be suspended for 24-112 days because of his alleged
the facts of which were known to management misconduct on November 5, and so notify him. We
representatives some 2 weeks earlier, and more shall further order the Respondent to give Alaniz
specifically with the Company's concluding its the original (i.e., signed copy) of the statement he
"case" against Alaniz in order to provide a signed on November 17, and notify him that it is
"record" to support disciplinary action, if deemed withdrawing and considering of no effect its letter
appropriate. Thus it is clear that on November I7 of reprimand dated December 3.
the Company sought to deal directly with Alaniz The General Counsel and Union request that we
concerning matters affecting his terms and condi- also order the Respondent to make Alaniz whole
tions of employment. Yet, noted, the employees for such loss of pay and other benefits he suffered
in the unit had selected the Union to deal with the as a result of his suspension. However, Respond-
Respondent on such matters and there is no ent's illegal conduct occurred after Alaniz was
evidence that either Alaniz - assuming he could suspended without pay and it is not alleged that the
have done so - or the Union had waived to any ex- suspension itself was unlawfully caused. Further-
tent the right of representation or had agreed to more. that Resoondent would have reinstated
channelize disputes concerning such right into the ~ l a n i with
z backpay had it dealt with the Union on
procedures of the contract grievance provisions. November 17 is at best a speculative consider~tion
Consequently, we find in the circumstances here concerning the merits of Res~ondent'sdisciplinary
that the Respondent's refusal to respect Alaniz' action, aria is not for us to resolve. ~ o w e i e r the
,
request that the bargaining representative be per- possibility that Respondent's unlawful conduct did
mitted to represent him at the meeting interfered adversely affect Alaniz can be fully remedied by or-
with and restrained him in the exercise of his rights dering in addition to those matters covered above
guaranteed by Section 7 of the Act. Also in view of that Respondent meet with Alaniz and the Union
Alaniz' request for union representation at the upon Alaniz' request within 5 days of the date of
meeting and the Union's evident willingness to this Decision and Order for a consideration de novo
represent him- both conveyed to management- we of those matters dealt with at the November 17
find that the Respondent's refusal to deal with the meeting. We shall also order that the Respondent
Union on that occasion transgressed its statutory take no further action with respect to Alaniz' al-
obligation to bargain with the Union concerning the leged misconduct until after the expiration of the
terms and conditions of employment of the em- above specified 5-day period or, if Alaniz requests
ployees it represents. Accordingly, we find that the a meeting, until after such meeting has been con-
Respondent by the above conduct violated Section cluded.
8(a)(l)and (5) of the Act.

1. The Respondent is engaged in commerce

Having found that the Respondent has engaged within the meaning- of Section 2(6) and (7) of the
in unfair labor practices in violation of Section Act.
8(a)(l) and (5) of the Act, we shall order that it 2. The Union is a labor organization within the
cease and desist therefrom and take certain affirma- meaning of Section 2(5) of the Act.
tive action designed to effectuate the policies of the 3. At all times material, the Union has been the
Act. It has been found that the Respondent unlaw- exclusive representative of the employees in a unit,

8 Sec. 9(e) pmvtdes in pan that an employee has the nght to preset a ment." That provlston on its face is concerned w t h a rltuallon where an
gnsvancc d~rectlylo h a employer and have 11adjusted without ~nterven- employee ss not, contrary lo the matter before us, reeking unlon represen-
tlon of the bargantng reprcrcntattvc, provnd~ng"that the bargalnlng
r~pre~emative has been gwcn the oppartumty to be present at such a4ust-
--.- -~
cstmn Con-raucnllv.
~~~~ ~~ ~~
~ ~~

not d~opaseafthe 8(a)(5) issue before us

~.
,. Bndone the above om of Scc 9181 inaoo1,cablc dues
 TEXACO, INC., HOUST(3N PRODUCING DIV. 363
of which Alaniz has been at such times a member, aid or protection, or to refrain from any or all such
appropriate for the purposes of collective bargain- activities.
ing within the meaning of Section 9(a) of the Act. 2. Take the following affirmative action which
4. By denying Alaniz his request that the Union is necessary to effectuate the policies of the Act:
represent him at the November 17, 1965, meeting, (a) Strike and physically remove from its records
the Respondent violated Section 8(a)(l) of the Act. and files any reference to the meeting of November
5. By denying the Union the right to represent 17, 1965, and to decisions or actions based upon
Alaniz in accordance with his request at the that meeting, including all copies of the statement
November 17, 1965, meeting, the Respondent vio- signed by Alaniz on that date and all copies of the
lated Section 8(a)(5) and (1) of the Act. letter of renrimand dated December 3. 1965: but
~ - ~ ~ - ~

6. The aforesaid unfair labor practices are unfair nothing in this Order shall be constmedas adverse-
labor practices affecting commerce within the ly affecting Alaniz' reinstatement on November 30,
meaning of Section 2(6) and (7) of the Act. .,">.
14AC
7. All exceptions other than those relating to the (b) Revoke its decision, and notify Alaniz that it
aforesaid unfair labor practices are without merit has revoked said decision, that he be suspended
and are hereby overruled. without pay for 24-112 days because of his alleged
misconduct.on November 5,1965.
(c) Return to Alaniz the signed original state-
ORDER ment he signed on November 17,1965, if it still has
possession of such statement, and notify him that it
is withdrawing and considering of no effect its letter
Pursuant to Section lO(c) of the National Labor of reprimand dated December 3,1965.
Relations Act, as amended, the National Labor (d) Meet with Alaniz and the Union as his
Relations Board hereby orders that the Respond- representative for purposes of considering de novo
ent, Texas, lnc., Houston Producing Division, those matters dealt with at the November 17,1965,
Freer, Texas, its oEcers, agents, successors, and meeting if within 5 days of the date of issuance of
assigns, shall: this Order Alaniz requests such a meeting, taking
1. 'Cease and desist from: no further action with respect to Alaniz' alleged
(a) Refusing any employee in the unit of which misconduct on November 5, 1965, until after the
Oil, Chemical and Atomic Workers International above-specified 5-day period or, if a meeting is
Union, Local No. 4-367, AFL-CIO, or any other requested, until after said meeting has been con-
labor organization, is the legal bargaining represent- cluded.
ative permission to be represented by such labor (e) Post at its place of business, Freer, Texas,
organization at any meeting convened by the Em- copies of the attached notice marked "Appendix."'
ployer in which the employee is questioned about, Copies of said notice, on forms provided by the Re-
or required to defend himself against, his own al- gional Director for Region 23, after being duly .
leged misconduct in the course of his duties or oc- signed by Respondent's authorized representative,
cumng on, or in relation to, the Respondent's pro- shall be posted by the Respondent immediately
perty where the employee requests representation upon receipt thereof, and be maintained by it for 60
at the meeting by said labor organization. consecutive days thereafter, in conspicuous places,
01) Refusing permission to Oil, Chemical and including all plices where notices toemployees are
Atomic Workers International Union, Local No. customarilv posted. Reasonable steps shall be taken
4-367, AFL-CIO, or any other labor organization, by the ~ e i p o i d e n to
t insure that baid notices are.
to attend any meeting and to represent any em- not altered. defaced. or covzred by anv other
ployee at such meeting who is a member of a unit of material.
which it is the legal bargaining representative where (f) Notify the Regional Director for Region 23,
the purpose of such meeting is to question the em- in writing, within 10 days from the date of this
ployee about or to require him to defend himself Order, what steps have been taken to comply
against his own alleged misconduct in the wurse of herewith.
his duties or occumng on, or in ielation to, the
Respondent's property where the employee '
In the event that t h ~ Order
s a enforced by adeereeafs Unttcd States
reauests representation at the meeting-bv.said labor Coun of Appeals, there shall besubstttuted far the word3 "a Dec~slonand
Order" the words "a Decree of the Unlted States Court of Appeals En-
or&nizatioin. Corclng an Order "
(c) In any like or related manner interfering with,
restraining. or coercing its emalovees in the exer-
cise of th& right to sdf-organ[zaGon to form labor APPENDIX
organizations, to join or assist the above-mentioned
Union or any other labor organization, to bargain NOTICETO ALLEMPLOYEES
collectively through representatives of their own
choosing, and to engage in concerted activities for PursuTtnt to a Decision and Order of the National
the purpose of collective bargaining or other mutual Labor Relations Board and in order to effectuate
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policies of the National Labor Relations Act, as November 17,1965, meeting, and shall take no
amended, we hereby notify our employees that: further action with respect to his alleged
WE WILL NOT refuse any employees in the misconduct until after such meeting, if-he
unit of which Oil, Chemical and Atomic requests it, has been held.
Workers International Union, Local No. 4-367, WE WILL NOT in any like or related manner
AFL-CIO, or any other labor organization, is interfere with, restrain, or coerce our em-
the legal bargaining representative permission ployees in the exercise of their right to self-or-
to be represented by such labor organization at ganization, to form labor organizations, to join
any meeting we hold with the employee for the or assist the above-named Union or any other
purpose of questioning him about, or having labor organization, to bargain collectively
him defend himself against, his alleged miscon- through representatives of their own choosing.
duct. and 6 engage in concerted activities for tKe
WE WILL NOT refuse permission to Oil, purpose of collective bargaining or other mu-
Chemical and Atomic Workers International tual aid or protection, or to refrain from any or
Union, Local No. 4-367, AFL-CIO, or any all such activities.
other labor organization, to attend any meeting
and represent any employee who is a member
of a, unit of which it is the legal bargaining
representative where an employee attends a (Employer)
meeting set up by the Company for purposes
stated above and the employee requests the Dated BY
Union be present to represent him. (Representative) (Title)
WE WILL remove from our tiles all papers
and other references to the November 17, This notice must remain posted for 60 consecu-
1965, meeting with employee Alaniz and tive days from the date of posting and must not be
rescind all actions based in whole or in part altered, defaced, or covered by any other material.
upon such meeting, except our actions shall not If employees have any question concerning this
affect his reinstatement on November 30, notice or compliance with its provisions, they may
1965. communicate directly with the Board's Regional
WE WILL upon the request of Alaniz meet Oftice, 6617 Federal Oftice Building, 515 Rusk
with him and the Union as his representative to Avenue, Houston, Texas 77002, Telephone
consider anew the matters taken up at the 228-06 11.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Unlted Statea Postal Service and American Postal successors, and assigns, shall take the action set
Workers Unlon, Columbus, Ohio Area Local. forth in the said recommended Order.
Case 9-CA-13926(P)
DECISION
June 19, 1980
D E C I S I O N AND O R D E R
LEONARD M. WAGMAN. Administrative L a w Judge:
BY MEMBERS
JENKINS, PENELLO, AND Upon a charge filed on May 31, 1979, by the American
TRUESDALE Postal Workers Union. Columbus, Ohio Area Local, re-
ferred to below as the Union, the Regional Director for
On M a r c h 14, 1980, Administrative L a w Judge Region 9 of the National Labor Relations Board (herein
Leonard M. Wagman issued the attached Decision called the Board), on behalf o f the General Counsel.
in this proceeding. Thereafter, Respondent elifd ex- issued the complaint herein on July 19. 1979. alleging
ceptions and a supporting brief. that the Respondent. United States Postal Service, violat-
Pursuant t o the provisions o f Section 3(b) o f the ed Section B(aX3) and ( I ) of the National Labor Rela-
National L a b o r Relations Act, as amended, the N a - tions Acl, as amended.' by suspending employee Belram
tional L a b o r Relations Board has delegated its au- ..
J. Wilson for 5 davs without Dav because he ornsed a
thority i n this proceeding t o a three-member panel. grievance. Respondent, by its timely answer, denied
commission of the alleged unfair labor practices.
T h e Board has considered the record and the at-
Uoon the entire record, includinz " thc lestimonv and
tached Decision in light o f the exceptions and b r i e f
demeanor o f the witnesses, and after consideration o f the
and has decided lo aRirm the rulings. findings, and
briefs filed by the General Counsel and Respondent. I
conclusions' o f the Administrative L a w Judge and make the following:
to adopt his recommended Order.
ORDER
I.JURISDICTION AND THE LABOR ORGANIZATION
Pursuant t o Section Iqc) of the National L a b o r
INVOLVED
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended The Board has jurisdiction over the subject matter of
Order of the Administrative L a w Judge and the complaint by virtue o f Section 1209 o f the Postal Re-
hereby orders that the Respondent, United States organization Ac1.P The facility involved in this case i s
Postal Service, Columbus, Ohio, i t s offtcers, agents, Respondent's A i r Mail Facility at Columbus. Ohio. I t is
admitted, and I find, that the Union is a labor organira-
I Wc hcrebv amrm the AdminisIralive L.w Judmr'r conilvlion $hat lion within the meaning o f Section 2(5) of the Act.
th lsrlual $ ~ l d a l o n81 ~ W U C in (ha$ prnecdnng ir cnmprrabk In pnor
C ~ Y , whclnn the h a r d har held thsl ohccnllln vllcrrd hy .n cmp1oy.r 11. THE A1.LEOED UNFAIR LABOR PRACTICES
u part 01 fhc nl 8,stor 01 r o n m e d nrolcclcd .cl#rnlr wcrr no1 n.
gr." or egrcgiou; u lo remove <he bro~rlionof the Ael and warrant A. The Facts
th. cmploy~e's dinpline. E.8.. Fimh ,%kin#Compny. 132 NLRB 112
(1917). Ancd<on Tllrphonr d Tclwmph Co.. Ill NLRB 781 (1974): Thw The Union is the recognized collective-bargaining rep-
h w r Tml Compny. IQ NLRB 1179 (19M1, cnfd JJI F.M 584 17th Cir
IWJ) Wc nlro rprciflcally r e e l lhe argumrnl made in Ropandml's n. resentative o f a unit o f Respondent's employees at its Co.
ccplions 0h.l Alinaic Snrl Compny. 215 NLRB No. I07 (1979). mon. lumbus. Ohio, mail facilities, including the A i r Mail Fa-
d a m diffcrcnt conclusion. cility and the Main Post OFfice at 850 Twin Rivers
In Allnnlk Slrrl. a Board pan4 agreed l o dclrr lo .n arbilrnlor'r decl.
Can 1h.l ihr rnpandcnl had lawfully disharged an cmplayc for inrub-
Drive. Article I V of the applicable current collcclive-
ordinstion. Thc employ: hmd ukcd hi. forrman qmlion about aver. bargaining agreement between Respondent and the
time assignment% had received an answer. and h-d then ullrred an ob. Union is entitled "Grievance-Arbitration Procedure" and
r m c characariution of the foreman or his nnswer u the foreman provides in pertinent parts:
wdkcd away. In Bndlng lhal the arbitr.1 decision upholding ihc cmploy.
c'r d i r h s r p w u not mpugnnnt to !he Act. the majorily cmphasired
1h.t hi abwrnily w u unprovoked and wsr made on lhe production llmr Section I. Definition. A grievance is delined as a
during his warkina time. A p n lrom ihc procrdur.1 dislinftionl bclwrrn dispute, difference, disagreement or complaint be-
h r d review or .n arbitml awwd under Spielbw Monulocrurinp Camp tween the parties related to wages, hours, and con-
ny, I 1 2 NLRB 10CU (IPJS), and Board rrvirw of an adminislntivc law
ditions of employment. A grievance shall include.
judge's decision. Allnnlir Snrl i s hclumlly quilc di%tinguishablcfrom lhc
pr-t c u e Witurn. Ihr dncriminalce hrrrin. hmd received lupcrvivlry but is not limited to. the complaint o f an employee
pnniuion lo diwuu an rmpioyrc'r palentill gricvance, w u engaged in or of the Unions which involves the interoretation.
the formal invntig.lion of 1h.l grievance in his e&p.cily u a slrward. appl~cationof, or compliance with the provwions o f
and ullcred i dnglc, sponlsnmu. obrcnc remark, provoked .I l c u l in this Agreement or any local Mcmorandum of Un.
p.n by IhC failvrc of the suprviror with whom Wilson w u spr.kinp lo
provide an immedlnte .nd d i r r l answer to Wilron's inquiries. Wc agrcc dcrstanding not in conflict with this Agreemenl
with thc Adminialrstive h w 1ud.r that under lhrac circumn.ncn Wil.
son's uu of obwenc 1mnpu.g~ w& no1 so rgrrgioub u lo remove the
Section 2. Grievance Procedure-Steps
Act's proreclion from his grievance aclivilin.
Mrmkr Jcnkim did not p.nieip.tr in the Alionlic Scrd Decision, nnd 119 U.S.C. $151, e,*,
finds il unnccnury to dislinguilh that c w . I 3 9 U.S.C. gIOI. .I rq

250 NLRB No. 2

 UNITED STATES POSTAL SERVICE 5

Step 1: (a) Any employee who feels aggrieved must he heard Wilson end their exchange with: "You know
discuss the grievance with the employee's immedi- what, Mr. Gagc? You are a stupid as."'
ate supervisor within fourteen (14) days o f the date Following this conversation, Gage complained by
on which the employee or the Union first learned phone to his immediate supervisor about Wilson. That
or may reasonably have been expected to have evening, about 5-1/2 hours after the incident. Gagc
learned of its cause. The employee. if he or she so drafted a memorandum l o "Director. Processing Main
desires, may be accompanied and represented by the Post Oflice. 850 Twin Rivers D r . . . ."
giving his ver-
. .
cmolovee's steward or a Union reoresentalive. The
Union also may initiate a grievance at Step I within
sion o f his conversation with Wilson.
On or about May 4, Respondent issued a written
14 days of the date the Union lirst became aware of notice of suspension, which Wilson received on May 7.
(or reasonably should have become aware of) the The notice o f suspension announced that Wilson was to
facts giving rise to the grievance. be suspended for "live (5) working days beginning: 830
.
AM. May 21 . . ." The notice went on to recite
On April 17. 1979.1 part-time flexible employee James Gage's account of the incident of 'April 17, under the
Morgan, a bargaining unit employee who worked a 6. heading "CONDUCT UNBECOMING A POSTAL
hour shift (4:30 a.m.-IO:30 a.m.) at Respondent's Colum. EMPLOYEE-ABUSIVE LANGUAGE." Wilson suf.
bus, Ohio, Air Mail Facility brought a complaint to the fered the 5-day suspension without pay.
Union's steward, Bclram Wilson. Wilson, a 13-year em.
ployee of Respondent, was working as a claims and in- 8. Analysis and Conclusions
quiry clerk at Respondent's Main Post Oflice at 850
The General Counsel contends that the Postal Service
Twin Rivers Drive. Columbus. Ohio. The two met in a
violated Section 8(aM3) of the Act by suspending em-
hall at the Main post Office ifter Wilson had obtained
ployee &tram H. Wilson for 5 days because he pursued
permission from his supervisor to leave his work station.
a grievance on behalf of the Union. The General Coun-
Wilson's duties as the union steward included invcsti- .% I argue that Respondent by this conduct also im-
also
gation of employee complaints regarding supervisors, paired its employees' Section 7 rights6 and thereby vio-
warnings and other disciplinary action, discrimination. lated Section 8(aXI) of the Act. The Postal Service
and other matters aNecting unit employees. urges that "unprovoked namecalling of another human
Pan-tifile employee Morgan told Wilson that, after being lor the pure purpose of 'eNect"' was the reason for
completing 6 hours of work at the Air Mail Facility, Re. Wilson's punishment, and that he was not entitled l o the
spondent told him that he could have an additional 2 Act's protection at the time of his misconduct. Ifind that
hours' work at the Main Pwt Office under conditions Respondent's treatment of Wilson ran afoul of his rights
which annoycd Morgan. Morgan complained, that after
a 15-minute drive from the Air Mail Facility. Respond-
under Section 7 of the Act for the followinn reasons. -
In Prexorr lndvrrnol Pmducrs Company. 205 NLRB 51.
ent rquired that he wait an additional I hour and 45
52 (1973), the Board provlded the following gu~danccfor
minutes before clocking in. Morgan sought relief from
the instant case:
what he considered to be an onerous condition. After
nuking the complaint, Morgan IcR Wilson. The Board has long held that there is a line beyond
Immcdialely upon Morgan's departure, Wilson tele- which ernployces may not go with impunity while
phoned the Air Mail Facility and asked to talk to its engaging in protected concerted activities and that
acting manager, Otto Gage. When Gage got on the lele- if employees exceed the line the activity loseo its
phone, Wilson explained that he represented employee protection. That line is drawn between cares where
James Morgan and went on to ask about the 2-hour wait employees engaged in conccned activities exceed
rquired before Morgan could clock in on his 2-hour the bounds of lawful conduct i n a moment of animal
ahift at the Main Post Office. exuberance or in a manner not motivated by im-
Wilson and Gage discussed the matter at length. Gage proper motives and those flagrant cases i n which
did not provide a direct anawer. Instead, he reminded the miswnduct is so violent or o f such character as
Wilson that Morgan was a pan-time employee and that to render the employee unfit for further service.
he, Gage, could "work him six hours and send him
home." The discussion moved to Morgan's entitlement lo Application o f the Board's policy, as stated above, is
the same treatment u other part-timers who worked 8. found in Thor P o w r T m l Company. 148 NLRB 1379.
hour shifla and some ovenime. 1380 (1966). enfd. 351 F.2d 584. 587 (7th Cir. 1965).
Wilson o r d for an exolanation o f Mornan's 2.hour
unns-ry
.
wut ~ n i cxpluned
e lhnl ;his break In ~ G g a n ' swork 4 I n vvu. a l my annly~, and conslu.ion. bclov. I find il
to rnolvc $hi&iuw o l ~ ~ e d i b i l i t y .
ercvscd Respondent from paytng hlm for hts travel llme k.
7:
Wllson tcat~liedthat at h u r i n g this explanation he "told Employm shall have lhr nght lo ull+rs.niulion, to form. pin, or
Mr. Orge that was a stupid, a i d asinine policy and . .. u u s l lnbor orpaniutionr. l o b u p i n collsdvrly lhrough repmenll.
hung the phone up." t i v n or the??own ehoninn. and to rnenar in ~ h r~onecrled
r arlivi-
,in Cot the p u , OC ~ c o i l s l i v ~b.r&inins or other rnutu.1 .id or
Gage's testimony docs not contradict Wilson's account prots~ion, .nd ,halt .tu, have thc to from or .!I
until the final comment by Wilson. According l o Gage. such uliuilin except lo the rrlrnl #ha1such tight mmy k a N s l d
by an sprrrmcnt requiring mmbcnhip i n labor o r p n i u l i o n u n
a Unln. othcrwiw naled. all dam hrrcin o r c u r d in 1919. condition o~rmploymrnlu .uthorized in Ecc. I(nW11
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

There, an employee who was a member of a union g r i r v CONCLU~IONS OF LAW

ance committee, lost his temper during an informal dis-
1. The Respondent is an employer engaged in com-
cussion of an employee's grievance, and referred to his merce within the meaning of Section 2(2), (6), and (7) of
plant superintendent as "the horse's ass." The employer the Act.
thereafter discharged the employee because of this objec- 2. The Union is a labor organization within the mean-
tionable remark. The Board concluded that the discharge ing of Section 2(5) of the Act.
was unlawful. In reaching this result, the Board observed 3. By interfering with, restraining, and coercing its em-
that the remark was "part of the rrr gerroe of the griev ployees in the exercise of rights guaranteed them in Sec-
ance discussion . . . ." I48 NLRB at 1380. The Board tion 7 of the Act, Respondent has engaged in unfair
also adopted the Trial Examiner's balancing of the em- labor practices within the meaning of Section 8(a)(I) of
ployee's right to the protection of the Act while discuss- the Act.
i n g grievance
~ with the impropriety of accompanying 4. The aforesaid unfair labor practices are unfair labor
objectionable language, and the result favoring the em- practices aNecting commerce within the meaning of Sec-
ployee. 148 NLRB at 1380, 1388-89. tion 2(6) and (7) of the Act.
Applying the Board's policy as exemplified in Thor Upon the foregoing findings of fact, conclusions of
Power T w l , supra, I reach the same result here. Employ- law, and the entire record herein considered as a whole.
ee Wilson, acting in his capacity as the Union's steward, and pursuant lo Section I q c ) of the Act, I make the fol-
was discussing a possible grievance on behalf of a unit lowing recommended:
employee and, thus, was engaged in activity protected
by Section 7 of the Act. C t Hurrig Sash 4 d r Compo- ORDER'
ny, I n r , 154 NLRB 1567, 1571-72 (1965): Thor Power The Respondent, United States Posul Service, Colum-
T m l Company, supm. 148 NLRB 1380. 1388-99. Assum- bus, Ohio, its olficers, agents, successors, and assigns.
ing that Wilson used the words "stupid ass" toward Su- shall:
pervisor Oage, this utterance came in the course of that I . Cease and desist from:
discussion and, thus, was part of the res gesrae. (a) Interfering with, restraining, or coercing its em-
Finally, assuming that Wilson used that improper lan- ployees in the exercise of their rights as guaranteed in
guage. I find it to be no worse than that found in Thor Section 7 of the National Labor Relations Act, as
Power Tml, supm. Accordingly, I find that, by suspend. amended, by suspending o r otherwise punishing employ-
ing Wilson for calling Gage a "stupid ass" in the COUM ees because of the exercise of such rights.
of discussing a possible grievance. Respondent violated @) In any like o r related manner interfering with, re-
Section 8(a)(l) of the Act. In view of the remedy pro- straining, o r coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
vided below, I find it unnecessary to determine whether
Respondent also violated Section 8(a)(3) of the Act by fectuatc the policies o f i h c Act:
-
2. Take the followinn alfirmative action desi~nedto ef-
suspending Wilson. Ad An Incorpamrion, 238 NLRB (a) Make Bertram J. Wilson whole for any loss of pay
1124 (1978); Merlyn Bunney and Clarence Bunnej part. he suNered by reason of his unlawful 5.day surpension
nels d/b/a Bunney Bms. Consrruclion Company, 139 Said b a c k ~ a v s h a l lbe comouted in the manner k t forth
NLRB 1516 (1962). in the wciidn of this Dec;sion entitled "The Remedy."
(b) Expunge and physically remove from its records
Ill. THE REMEDY any suspension notices and any references thereto rclat-
Having found that Respondent has engaged in certain ing to the suspension of Bertram J. Wilson for 5 calendar
unfair labor practices, I shall recommend that it be or. days beginning May 21. 1979.
dcred to cease and dnisl therefrom. and to take other (c) Preserve and, upon request, make available to the
appropriate actions to remedy its unfair labor practicer. I Board o r its agcnls, for examination and copying, all
therefore recommend that Reswndent be rcquired to payroll records, social security payment records, time.
make Bertram 1. Wilson whole ior wages lost hy reasan cards, personnel records and reports, and d l other rec-
of the 5 d a y suspension levied upon him. with interest ords ncceuary to analyze the amount of backpay due
thereon to be c o m ~ u t e din the manner re scribed in F. under the terms of this Order.
(d) Post at ils Columbus, Ohio. facilities copies of the
W. Wmlwrrh ~ o m b 90~ NLRB . 289 (1950)~ and Flor- attached notice marked "Appendix."' Copies of said
ida Sleel Corpmrion. 231 NLRB 651 (1977).' notice, on forms provided by the Regional Director for
I further recommend that Reswndent be reauired to
and "I rcMrds Of and references lo In Ihe event no elcepliona am Sled as provided by k.102.16 of the
suspension from all of Respondent's records, wherein nut, d. Regula~ions the N,I~O~.I hhrR ~ I . ~ ~ . ~b, r d . ,hr find.
that suspension is now noted, and that Respondent be or- ins*. co~lusionsand rccommcndd Ordcr bccrin shall, u provided in
dered to post an appropriate notice to employees. k. 101.48 of the R u b and Regutslion., bc doptd by #he h a r d and
k o m c its finding. conclusions. and Order. and all objeclions therelo
sh.11 be dcrrned wived lor .I1 ourmu..
' In the even1 !h.t this 0~6;.i; mforcd by Judgmnt of a United
See, pnrr.11~.
/sir Plumbin, d Hmrin8 Co, I38 NLRB 716 (19621. S!@tn Coun a1 App.1.. the words in ihc notice reding "Patd by
The General Counul's rqunt for 9.pcrccs inlernt is rejected in ar- ordrr ut the Nsional Labar ReIationt Board" shall read "posted Punu.
eordaner with the b r d ' s policy u ut fonh in Florida Srrrl Carpororior ant m I ludsmenl of ihc United Stam Coun or ~ p p u t rEnforcing an
m~m. Order of the NaIion.1 l a b o r H~lllionrWard."
 UNITED STATES WSTAL SERVICE 7

Region 9, aner being duly signed by Respondent's au- T o engage in sell-organization

thorized representative, shall be posted by Respondent T o form, join. or assist any union
immediately upon receipt thereof, and be maintained b y T o bargain collectively through reprewnta-
it lor 60 consecutive days thereafter, in conspicuous lives o l their own choice
places, including all places where notices to employees T o engage i n activities together lor the pur-
arc customarily posted. Reasonable steps shall be taken p o x of collective bargaining or other mutual aid
by Respondent to illsure that raid notices are not altered. or protection
defaced, or covered by any other material. T o refrain from the exercise o f any or all such
(e) Notify the Regional Director lor Region 9, in writ- activities.
ing, within 20 days from the date o l this Order, what
steps the Respondent has taken l o comply herewith. WE WILL NOT in any like or related manner in.
tcrlere with, restrain, or coerce cmployees in the
APPENDIX exercise of rights guaranteed them in Section 7 of
the Act.
NOTICE T O EMPLOYEES WE WILL NOT suspend or otherwise punish any
POSTED BY ORDER OF THE employees for exercising such rights.
NATIONA~. LABOR RELATIONS BOARD WE WILL make Bertram J. Wilson whole lor any
A n Agency o f the United States Government 10% of pay he may have suNered by reason o f his
suspension for 5 calendar days beginning May 21.
After a hearing at which all sides had an opportunity to 1979
present evidence and state their positions. the National WE w1t.r expunge and physically remove from
Labor Relations Board found that we have violated the our records and files any suspension notices and any
National Labor Relations Act, as amended, and has or. relerences thereto relating to lhc suspension o l &r-
d c r d us to post this notice. tram J. Wilson beginning May 21. 1979.
The Act gives all employees these rights:
UNITEO
STATES POSTALSERVICE
 COOK PAINT AND VARNISH COMPANY AND PAINTMAKERS AND ALLIED TRADES
LOCAL 754 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF PAINTERS AND
ALLIED TRADES, AFL-CIO

Case 17-CA-8258

NATIONAL LABOR RELATIONS BOARD

258 N.L.R.B. 1230; 1981 NLRB LEXIS 1429; 108 L.R.R.M. 1150; 1981-82 NLRB Dec.
(CCH) P18,433; 258 NLRB No. 166

September 30, 1981

CORE TERMS: steward, interview, discipline, grievance, questioning,

representational, notice, National Labor Relations Act, Administrative Law, posted,
spill, investigatory, interrogation, regular, disciplinary action, union activities,
conversations, threatening, involvement, reiterated, plant, paint, duties, arbitration
proceeding, protected activities, arbitration hearing, rights guaranteed, written
material, union activity, blanket rule

[**I] SUPPLEMENTAL DECISION AND ORDER

By Fanning, Member; Jenkins, Member; Zimmerrnan, Member.

OPINION:
[*I2301 On November 30, 1979, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding, n 1 adopting a n Administrative
Law Judge's finding that Respondent Cook Paint and Varnish Company violated
Section 8(a)(l) of the National Labor Relations Act, as amended, b y threatening
employees Jesse Whitweli and Douglas Rittermeyer with disciplinary action for their
refusal t o submit t o interrogation by Respondent's attorney and other
representatives concerning an incident involving another employee as to which
arbitration had been invoked. The Administrative Law Judge also found that
Respondent further violated Section 8(a)(l) of the Act by threatening Union Steward
Whitwell with discipline for refusing to submit t o questioning by Respondent's
attorney and other representatives and refusing t o submit written material t o
Respondent concerning the same incident. I n its Decision, the Board found that,
inasmuch as Whitweli was entitled t o the protection of the Act as a regular employee,
it was unnecessary t o pass on whether his role as union steward entitled him to
additional [**2] protection. The Board ordered Respondent t o cease and desist
from the conduct found unlawful and to take certain affirmative actions designed to
effectuate the policies of the Act. Thereafter, Respondent filed a petition for review of
said Order and the Board filed a cross-application for enforcement with the United
States Court o f Appeals for the District o f Columbia Circuit.

n 1 246 NLRB 646.

 On April 2, 1981, a panel of the court of appeals issued its decision, n2 declining to
enforce the Board's Order and remanding the case to the Board for further
proceedings. I n its decision, the court determined that the interview of Rittermeyer,
a regular employee, did not violate Section 8(a)(l) of the Act. With respect to
Whitwell, however, the court noted that "very different considerations may be
relevant in considering the legality of an interview of a union steward that are not
present in the case of employees generally." n3 Accordingly, since the Board had
declined to pass on the issue of whether [ * * 3 ] Whitwell's position as union steward
entitled him to protections not available to employees generally, the court remanded
the case to the Board for further proceedings on that issue.

n2 648 F.2d 712 (D.C. Cir. 1981).

n3 Id. at 725.

Thereafter, the Board intormed the parties that they were entitled to file statements
of position on the issue remanded to the Board. Respondent filed a statement of
position.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated
- its authority in this
proceeding to a three-member panel.

The Board, having accepted the remand, respectfully recognizes the court's decision
as binding for the purposes of deciding this case.

The pertinent facts surrounding Respondent's interview of Union Steward Jesse

Whitwell are as follows. On February 2, 1978, employee Paul Thompson was involved
in an incident in Respondent's tank washing room which purportedly [ * * 4 ] resulted
in Thompson slipping and injuring himself. Whitwell, who was union steward for the
area of Respondent's plant where Thompson worked, testified without contradiction
that his initial involvement in the incident came about when Thompson and Working
Foreman Mallot approached him to discuss a paint spill that had occurred in
,Thompson's work area. Whitwell discussed the matter with Thompson and Mallot and
'
got the problem "straightened out." Several minutes later, Mallot and Thompson
returned to Whitweli with a dispute as to whether Thompson should clean up the spill
or continue with his regular duties. Whitweii told Thompson to continue with his
regular duties and then sought out Floor Supervisor Ervin Woolery. Meanwhile,
Thompson allegedly fell in the area of the paint spill and requested permission to go
to the doctor. The record reveals no further discussions involving Whitwell on that
day concerning the Thompson matter, n4

n4 As was indicated by the Administrative Law Judge, it is unnecessary for resolution

of this case to determine the merits of Respondent's actions concerning Thompson.
For our purposes, the significant facts concern Whitwell's role in the incident. For ail
practical purposes, the actions of Whitweli are undisputed.

As a result of the February 3 incident, Respondent decided to discharge Thompson.

Toward this end, a meeting was held on February 6. The meeting was attended by
Whitweil, Union Business Representative Fixler, and several management
representatives. Those present at the meeting, including Whitwell, discussed the
February 3 incident and Respondent reiterated its decision to discharge Thompson.
On the same day, the Union filed a grievance on behalf of Thompson.

[*I2311 Thereafter, the grievance was processed in accord with the parties'
collective-bargaining agreement. Whitwell, as steward for Thompson's department,
was directly involved in ail three steps of the grievance which failed to result in a
resolution of the matter. Pursuant to the contractual grievance procedure, the Union
invoked binding arbitration. The arbitration hearing was scheduled for May 3, 1978.

On April 21, 1978, Whitwell was called into the office of General Superintendent
Kelier. Already present were other management officials and William Nuiton,
Respondent's labor relations attorney. Nulton informed Whitweii that he was
preparing for the upcoming arbitration hearing and wished to question Whitwell as to
the [**6]February 3 incident. He told Whitwell that refusal to cooperate would
result in disciplinary action against him. Whitwell requested and was granted time to
discuss the matter with Business Representative Nash. Because Nash was not
available, Whitwell contacted Union Attorney Robert Reinhold who came t o the plant
and accompanied Whitwell into Keiler's office.

Upon resumption of the meeting, Nulton reiterated that Whitwell would be subject to
discipline if he refused to cooperate. Following a discussion and legal argument
between Reinhold and Nulton, Whitwell agreed to answer questions under protest.
According to Whitwell's uncontradicted testimony, Nulton then asked him a series of
pertaining to the events which occurred on February 3, Thompson's action
regarding the spill, and "conversations taking place between myself [Whitwell], Mr.
~hompson,Mr. Mallot, Mr. Woolery."

During the questioning, Whitwell revealed that he had kept contemporaneous notes
relating to the Thompson matter. Nuiton then "ordered" Whitwell to produce them.
Whitwell refused, stating that the notes were part of his union notebook. Nulton then
told Whitweii to produce the notes by 8 a.m. of the following [**7] day. Whitwell
did not comply with the directive but, instead, sent the notes to the Thompson case
arbitrator. On the next day, Respondent made no further request for the notes. n5

n5 With respect to the order to turn over the notes, we specifically adopt the
'Administrative Law ludge's finding that Nulton ordered Whitwell to produce them and
that Whitwell reasonably could not have viewed the directive as anything other than
a threat of discipline for failure to comply.
I n its decision, a majority of the court held: "As part of a contractual arbitration
procedure, an employer may conduct a legitimate investigatory interview in
preparation for a pending arbitration." n6 I t further held, however, that the
"interview may not pry into protected union activities." n7 I n the view of the court
majority, Respondent's interview of Rittermeyer was a legitimate investigatory
interview that did not pry into protected activities. With respect to Whitwell,
however, a majority of the court found that there may be "fundamental differences
[ * * 8 ] between an interview of an employee and an interview of a union steward."
n8 While cautioning the Board against promulgating a "blanket rule" immunizing
stewards from investigatory interviews relating to pending arbitrations, the court
remanded the case to the Board to determine whether Respondent's interview of
Whitwell constituted a lawful investigatory interview or an unlawful prying into
protected union activities.

n6 648 F.2d at 723.

n7 Id.

Upon review of the entire record, including the court's decision, we are of the view
that Respondent's interview of Whitweli, in the circumstances of this case, did
constitute an unwarranted infringement on protected union activity and,
consequently, violated Section 8(a)(l) of the Act.

I n reaching this conclusion, our initial inquiry involves examination of the role played
by Whitwell in the Thompson incident. From our review of the record, i t is clear that
Whitwell's involvement in the Thompson [ * * 9 ] incident arose solely as a result of
his status as union steward. I n this regard, we note that Whitwell did not become
involved as a result of his own misconduct. Nor was Whitweli an eye-witness to the
events that resulted in Thompson's alleged fall and his subsequent discharge.
,Instead, Whitwell initially was approached in his capacity as steward by Thompson
and Mallot who were engaged in a dispute over a paint spill. Whitwell conversed with
the two, attempting to "straighten out" the dispute. Several minutes later, Mallot and
Thompson returned to Whitwell to discuss further developments. At that point,
Whitweli gave his advice to Thompson and then sought out Supervisor Woolery.
Meanwhile, Thompson returned to his work area where he allegedly slipped and
injured himself. Thus, Whitweli became involved in the incident ab initio as a result of
his role as union steward.

Following the incident, Whitwell continued to act in a representational capacity.

Pursuant to the collective-bargaining agreement, Whitwell was Thompson's
designated representative at the first two grievance steps. I n addition, as found by
~. .the Administrative Law Judge, Whitweil acted in this representational capacity
[**lo] at the third step of the grievance process as well. I n short, from the
beginning [*I2321 of the Thompson incident, and up through each progressive
step of the grievance process, all of which occurred prior to the April 21 interview,
Whitwell's participation was a direct result of the execution of his duties as union
steward in representing Thompson.

Having determined that Whitwell's involvement in the incident arose and continued in
the context of his acting as Thompson's representative, our inquiry shifts to an
examination of the scope of Respondent's interrogation to determine whether the
questions pried into protected union activities and interfered with the employees'
exercise of their Section 7 rights. I n our view, the questioning exceeded permissible
bounds, pried into protected activities, and, accordingly, constituted an unlawful
interference with employee Section 7 rights.

As to the scope of Respondent's interrogation it is virtually undisputed, and we

specifically find, that Nulton sought to probe into, inter alia, the substance of
conversations between Whitweli and Thompson. Indeed, the scope of Respondent's
probing is highlighted by Nulton's order t o Whitwell to [**ill turn over the
contemporaneous notes concerning the incident which he had taken in his capacity
as steward. Significantly, {he order was reiterated even after Whitwell informed
Respondent's representatives that the notes were part of his "union notebook" that
he regularly kept in carrying out his union functions.

Clearly, the scope of Respondent's questioning exceeded the permissible bounds

outlined by the court and impinged upon protected union activity. For while questions
posed by Nulton may be termed "factual inquiries," the very facts sought were the
substance of conversations between an employee and his steward, as well as the
notes kept by the steward, in the course of fulfilling his representational functions.
Such consultation between an employee potentially subject to discipline and his
union steward constitutes protected activity in one of its purest forms. To allow
Respondent5hereto compel the disclosure of this type of information under threat of
discipline manifestly restrains employees in their willingness to candidly discuss
matters with their chosen, statutory representatives. n9 Such actions by Respondent
also inhibit stewards in obtaining needed information from [**I21 employees since
the steward knows that, upon demand of Respondent, he will be required to reveal
the substance of his discussions or face disciplinary action himself. I n short,
Respondent's probe into the protected activities of Whitwell and Thompson has not
only interfered with the protected activities of those two individuals but it has also
'cast a chilling effect over all of its employees and their stewards who seek to
candidly communicate with each other over matters involving potential or actual
discipline.

n9 I n its brief, Respondent advances the argument that Whitwell, pursuant to the
bargaining obligations of Sec. 8(d), was obligated to turn over documents in his
possession relating to the Thompson grievance. We find no merit in such a claim.
Initially, we note that, while the cases cited by Respondent do refer to a union's
obligation to supply relevant information for the purposes of collective bargaining,
Respondent has advanced no case support for the unique proposition that notes kept
by a steward in the course of representing employees are subject to the
requirements of supplying relevant bargaining information. Yet, even if we were t o so
hold, which we do not, we could not endorse Respondent's additional claim that the
Union's obligation to supply such information can be unilaterally enforced against a
steward by means of a threat of discipline for failure to comply. For if, indeed, the
information was relevant to collective bargaining and Respondent was entitled to
obtain it, our Act provides the appropriate mechanism for Respondent to assert its
rights. Respondent, however, rejected that course and sought to short circuit the
process through threats and coercion. We firmly reject the concept that an employer,
in its quest to obtain information, may unilaterally determine the relevance of the
information and its entitlement to obtain the information and then set about
enforcing its determination through threats of discipline.

Finally, in view of the court's admonition against our promulgation of a "blanket

rule," we wish to emphasize that our ruling in this case does not mean that all
discussions between employees and stewards are confidential and protected by the
Act. Nor does our decision hold that stewards are, in all instances, insulated from
employer interrogation. We simply find herein that, because of Whitwell's
representational status, the scope of Respondent's questioning, and the impingement
on protected union activities, Respondent's April 21, 1978, interview of Jesse
Whitweli violated Section 8(a)(l) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent, Cook Paint and
Varnish Company, Kansas City, Missouri, its officers, agents, successors, and
assigns, shall:

1. Cease and desist from:

(a) Threatening union shop stewards with discipline for refusing to submit to
questioning by Respondent's counsel or other representatives, or to submit written
material kept in the course of the steward's representation of employees, concerning
any matter involving a unit employee when the steward is [**I41 contractually
,bound or authorized to represent such employee in a grievance or arbitration
proceeding and the steward has acted in such representational capacity.

(b) I n 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.

[*I2331 2. Take the following affirmative action designed to effectuate the policies
of the Act:

(a) Post at its plant 3, in North Kansas City, Missouri, copies of the attached notice
marked "Appendix." n10 Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including ail places where notices t o employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered,
defaced, o r covered by any other material.

n10 I n the event that this Order is enforced by a Judgment of a 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."

(b) Notify the Regional Director for Region 17, in writing, within 20 days from the
date of this Order, what steps the Respondent has taken to comply herewith.

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing a t which all sides had an opportunity to present evidence and state
their positions, the National Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has ordered us to post this notice.

WE WILL NOT threaten union shop stewards with discipline for refusing
t o submit to questioning by our counsel or other representatives, o r to
.submit written material kept in the course of the steward's
representation of employees, concerning any matter involving a unit
employee when the steward is contractually bound or authorized t o
represent such employee in a grievance or arbitration proceeding and
the steward has acted in such representational capacity.

WE WILL NOT in any like or related manner interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.

COOK PAINT AND VARNISH [ * * I 6 1 COMPANY

 This repor: covers s e l e c t e d cases of i n t e r e s t t h a t were
decided during che period from March ti'ro;'l?h Septe&er 30,
1.394.. It d i s c u s s e s cases which wer+ decicieri cpon a r e F e s t
f o r advice from a Regional Director o r on eppezl from a
Recional D i r e c t o r ' s dismissal of u z f a i r l z b o r praczice
c h ~ r g e s . I t a l s o sunmirizes cases i n which I sous>: znZ
obtained Eoard aurhorization t o i n s z i t u t e injunction
proceedings under Seccion 10(j) of rhc Ac:.

&& LT
.*
Frederick L. Feinstein
General Course2
g e t t i n g t h e Zmpioyer t o e i t h e r s i ~ a. bargaining agreenent
o r cease doing business. The Union edmitted a s much when i t
t o l d t h e Employer t h p t cbe "games waul6 stop" if t k e
Em2loyer would s i g a concracc. Zn a d d i t i o n , t h e evideace
of m p r o t e c t e d s u b s t a n t i a l siow-dohx a d sabotaae a c t i v i t i e s
sup?ozted t h s conclusion t h a t the Uzion was ensased i n
a c ~ r e s s i v ecampaim t o use t h e unprarected conduct of
p a z c i z l s i r i x e s t o zcnieve i t s goals. The Union's c a m p a i s
u l t i m a t e l y succeeded i n c l o s i n g down t h e Employer.

We f u r t h e r decided t h a t , since t h e s t r i k i n g employees

bac! t o have known t h a t t h e y were p e r i i c i p a t i n g i n = s z r a r e g
of i n t e - m i t t e n t s t r i k e s , each emgloyee's conduct was
Uilprotected r e g a r d l e s s of whether he o r she engaced i n one,
two, or a l l t k e e of t h e uz,protec.ted. stoppages. As t h e
Bozzd s t r e s s e d i n +; r T-1 w,supra, 1 0 7 lX7riIj zt
1 5 5 0 , t h e employe: t h e r e , faced with i n t e m i c t e n t s t r i k e s
t h a t were t o t a l l y dLsru3king i t s business, "was not r e q u i r e d
t o pause c u r i n g the heat of t h e 5:rike to'examine i n t o t h e
.
t i e p e e of knowledge of each [ s i r i ~ e r l a l l of whop. were
[ a c t i n g on b e h a l f ] t h e same Union. I t was s u f f i c i e _ ? = . ..
t b t each of the [ s t r i k e r s ] was a p a r t i c i p a n t i n thp~s t r i k e
s i r a t e g ...* 107 NikIi a= 1551-1552. Accordingly, we decided
t o dismiss t h e chzrges.

o= nqiov c;..~=-&
caw-*-.= ,$ir'n -=r;niq"=-
T
nv
c
-
v

Ir. er,orher case csnsidered c i c r i z ~t h i s p e r i c d , we

c s ~ c l u d e 2t h a t zrr employer could no: l a w f u l l y disci?Line a
uoior. steward f o r r e f u s i n g t o provide it with a w r i t t e n
tccal;.t of an e~loye.eP-'sconCiuct witnessed a s a r e s u l t of
he: performance of h e r &ties as steward.
The 2 ~ l o y e r ' sp l a n t maraagerhat r e w e s t e d the stewazd
t o a t t e n d t meetins, a l o n c with an e q l o y e e and t h e
err.?loyee's supervisor, concerning possible d i s c i p l i n e of t h e .
ergloyee. A t t h e end of t h e meetinc che employee was
t e z x i n a t e s an2 t h e grwLp l e f c the o t f i c e . As they walked
i z r o t h e a d j o i n i n 9 h z l l , t h e employee a l l e g e d l y t o l d t h e
p1ar.t marzager that he was " a r o t t e n , no good b a s t a r d , [and
i f =he e q l o y e e ] hat h i s money r i g h t now [he'd1 azae: [ t h e
r a z a g e r j o u t s i d e as6 kick h i s . Tne plan: manaaer
=old :be s u p e r v i s s r zzd t h e scewart t:%: he wanter!
s:azenen:s from then s e r t i n g f o r t h what t h e e w l o y e s had
=.hid. K2en t:?e s:enird objec:ed shs was advised thaz she
~ 3 ~ be 1 2s ~ h j e c : 3: discharge if s:?= 1L5 no: p r o v i d ~t h e
 statement. The steward thereupon s&aiitted the statement as
clirected.
we conclu3ed that the threat of discharce unlawfully
Interfered with the individual's prctected risht ;o serve as
union stewzrd. E3though the discharqeci employee's
intemperate reukrks may not have been protected, the stewzrd
would never have witnessed the ou-2xrst but for her role as
stewed. The outburst, which occurre; as the parties were
leaving the plant naoagerzs office, was not viewed as
separale from the events for which the stewzrdlsat:endance
had been required, but rather, was considered as parc of the
"ret gestae of the grievance discussion." Cf., mn- Dowey
Tool,148 1379, 1380 ( 2 5 5 5 ) , er.f0d.,351 ~ . z d
5 8 5 (7th Cir: 1965). Further, eve% i5 the disciplinary
meeting were found to have ended prior to the outburst, the
steward's role was considered a continuous one, inasmuch as
the discharged employee still had a risht t m File a
contractual gxievance protestins his cischerr;~,and the
stewzrd would likely be involved in that process. It was
therefore concluded that the threat occurred during a rime
when the individual wzs rcting as steward.
Further, the threat was deer;=d to have 2 chilling
effect on the steward's right to reprssen: the dischzrgee
and other employees in aa atmosphere free of coercion. A
requirement that stewards, under tbxeat of disch=ge,
prep^-e written reports on the conduct cf employees they
have been requested to represent, cleezly coqromises the
steward's obligation to provide, end hn employee's ris3t to
receive, effective representation. Emgloyees will be less
inclined to vigorously puzsue their ~iovancesif they know
that the employes can require theLr regresentztiveto
prepare regorts on their conduct at such meet%cs, includinc
spntaneous outbursts which may or nay not be proteetee.
The Board has also recosizea that eziplcyer efforts to
cfictate the manner in which a union must presen: its
crievance position may have a stifling effect on the
s~ievanc~e machinery and could "so heavily weis5 the
mechanism in the employer's favor 2s to render it
ineffective as an instrument to satisfactorilv resolve

&scharged for calling the general manager a liax &wins a

sievance meeting on the employee's prior discipline.) 9y
placin~the steware u n d c threat cf &ischarge if she resuseci
to supply the statement the Employer was deemed to have
stifled vigorous opposition to its ~rievance/discipLine
decisions and to have haavily weichtee the grievznce precess
i n its ow, favor.
 While acknowiedgin~that a uxioz steward does no: erjoy
absolute immunity from ein;iloyer interrogrtion, the Board, in
its decision on remand .:i , - 258
hL3a 1230 (1981), held : :la : an eqloyer had unlawfully
threateced to discipline a steward for zefusing to submit to
a pre-arbitration interview and refusing to make available
notes taken by the steward while processing the grievance
that was being arbitrate<. The Board noted that the steward
had not been an eyewitness to the events, a d that his
involvement occurred solely as a result of his processing
the grievance as union steward. The Sosrd then noted that
the notes sought by the employer were the substance of
conversations between the employee and th= steward, and that
such consultations were "protected accivity in one of its
purest forms." The Boar6 concluded that to allow the
employer to compel disclosure of suck izformanion under
t-keat o : disciplioe manifestly restrained employees in
their willingess to c a d + l y discuss mhtters with their
representative. The Board adaed that such-employer condcct
cast a chillins effect over all em?loye~s and stewards who
seek to conmunicace with each other ove: potential jirievance
matters and also incibite6 stewares in obzai~ingneede6
infonation since the steward wccld k ~ o wthat, upon demand
of the employer, he wouid be required to reveal the subject
of his discussions or face disciplizary action himself.
We concluded that while there were.factua1 differences,
Coo4 is consistent with a finiins that the Employer's
threat to the steward in the instant c=se violated the Act.
Thus, while && D?'"' izvolved er.?lcyer attewts to
discover the contents cf employee c~m~zications to a
szeward, both cases inv~lvethe s=:si:ivity of a steward's
status vis-a-vis the en?:sloye=s helshr r=?resen:s. Thus.
like the steward in - , the sceward herein was not
involved in the misconduct that was the subject of the
meeting or that occurred immediately thereafter. was present
solely,because of her sratzs as steward, an& was compelle5
m d e z t&eat cf &ischarge to provide a written account of an
event to which there were other witnesses, makiag her
version merely cumulative. If a.n Eployer were permitted to
threaten stewards with discipline for failing to cooperate
in employer investigati~nsin circwstznces such as these,
it would place a stewars in 2 position of sharp conflict of
interests, having to choose between protecting his job azd
provilinc effective an5 strenuocs representation to the
employee he was chosen o : represer=.
~ ~ ~ ~ ~ s wei ~aurhorizad
g l y , the issuance of an
apprcpriate Sectior. E l a ) 1): com?laist.
4 .
DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Unlted States Postal Senlce and American Postal successors, and assigns, shall take the action set
Workem Union, Columbus. O h i o Area Local. forth in the said recommended Order.
Case 9-CA-13926(P)
DECISION
June 19, 1980
DECISION A N D O R D E R
LEONARD M. WACMAN. Administrative Law Judge:
BY MEMBERS
JENKINS,PENELLO, AND Upon a charge filed on May 31. 1979. by the American
TRUESDALE Postal Workers Union. Columbus, Ohio Area Local, re-
ferred to below as the Union, the Regional Director for
O n M a r c h 14. 1980. Administrative L a w Judae Region 9 o f the National Labor Relations Board (herein
Leonard M. w a g m a n issued the attached ~ e c i s i o n called the Board), on behalf o f the General Counsel.
in this oroceedina. Thereafter.. Resoondent filed ex-
ceptiois and a supporting brief.
. issued the complaint herein on July 19. 1979, alleging
that the Respondent. United States Postal Service, violat-
Pursuant t o the provisions o f Section 3(b) o f the ed Section 8(aM3) and (I) of the National Labor Rela-
National Labor Relations Act, as amended, the Na- tions Act, as amended.' by suspending employee Betram
tional L a b o r Relations Board has delegated its au- J. Wilson for 5 days wilhout pay because he pressed a
thority in this proceeding t o a three-member panel. grievance. Respondent, b y its timely answer, denied
T h e Board has considered the record and the at- commission o f the alleged unfair labor practices.
tached Decision in l i a h t o f the exceotions and brief Upon the entire record, including the leslimony and
demeanor o f the witnesses, and after consideration o f the
and bas decided t o a k r m the rulings, findings, and
briefs filed by the General Counsel and Respondent. I
conclusions' of the Administrative L a w Judge and make the following:
t o adopt his recommended Order.
ORDER
I.JURISDICTION AN0 THE LABOR ORGANIZATION
Pursuant t o Section I q c ) of the National L a b o r
INVOLVED
Relations Act, as amended, the National L a b o r Re-
lations Board adopts as its O r d e r the recommended The Board has jurisdiction over the subject matter of
Order o f the Administrative L a w Judge and the complaint by virtue o f Section IZW o f the Postal Re-
hereby orders that the Respondent, United States organization Act.Z The facility involved in this case is
Postal Service, Columbus, Ohio, its officers, agents, Respondent's A i r Mail Facility al Columbus. Ohio. I t is
admitted, and I find, thal the Union is a labor orgsniza-
I Wc hereby aliirm the Adminirlnlivc L.w Judge's ean~lurionih.1 lion within the meaning of Section 2(5) of the Act.
lk f.ctunl liluauion .I i u v c in ,hi$ praerding is ~am~...bk to prior
e u n whrrcin the b a r d has held ihnl Dbvrnitin ullcrcd by an employe 11. THE A1.LEGED UNFAIR LABOR PRACTICES
u p r l of lhr n~8rrIor of concened prMslcd activity wore not so fl..
grant or rgregiavs u lo rcmovr the prolslman of thc Acl and warrant A . The Facts
~ h r. m p I o y ~ ~dirlplinr.
'~ E.8. Fimh Bakin8 Company. 232 NLRB 171
(1911): American Telephone d Tefqmph Ca.. 111 NLRB 182 (1974): Tho,
P a n r h f Company. 148 NLRB I119 (19M). cnfd JJI F U 584 (7th Cir.
The Union is the recognized collective-bargaining rep-
1965). We alra rprciflc~llyr r k l ihr srgumcnl made in Rnpondcnll rn- resentative o f a unit o f Respondent's employees at its Co-
dmm I diNercnl canclurion.
.
ccplions that A I I ~ I I Y Steel Company. Y J NLRB No. 101 (1919). m8n.

11 Illanbr St,<l. b h l panel agreed lo drkr m .n i#holralor'rdm.

soon that ihc rnpondrnl h a l.urull, d~r.h.tped an cmplo)rc 10, snsub.
ofdon.lln Thc cmolo)n: had uked hns f a r m a n a q m l o n .bout over.
lumbus, Ohio, mail facilities, including the A i r Mail Fa-
cility and the Main Post Ofice at 850 Twin Rivers
Drive. Article I V o f the applicable current collective-
bargaining agreement between Respondent and the
t i m luignmcolr hadrsavd an awwrr. and had ihen uttered an ob. Union is entitled "Grievance-Arbitration Procedure" and
vene charaelmulian or the foreman or his answer u thc fornnnn provides in pertinent parts:
wmlked away. I n findins that t h . srbilr.1 dmision upholding the employ.
ce'l diuhnw w u no1 mouln.nl lo the Act. the maiotilv emohatired
IM hb oGenity w u unp;Goked and was made on ih; produe~;on nmr Section I. Definition. A grievance is delined as a
du"n8 his working lime. A p n from the prardur.1 dislinclions hctwrrn dispute, difference, disagreement or complaint be-
b r d rcvirw of an arbi1r.l award under S p i e I k ~M@nufinurin8
~ Comp tween the parties related to wages, hours, and con-
my, I 1 2 NLRB I O M (1955). and b r d review 01 an adminiYrative law
ditions of employment. A grievance shall include.
pr-t
-
iudee's dwhion. Alfmtic Strrl is f.ctuallv avilr dinin~uirhabtefrom the
.
c u r . Willan. Ihr dirriminale her& had rcecived suprviary but is not limited to. the complaint o f an employee
prmilaion lo diruu an rmployrc'%palcntiml grievance, w u mgagcd in or of the Unions which involves the interprctalion.
the formal invnlig.tion of lhal grievancr in his capmiry u a strwsrd. application of, or compliance with the provisions of
and ulfclrd a s~nglc s p o n l a n r o ~obwcnc
~ rcmar. plnrnkcd at l e u 1 in
p n b) I k h l u r e 0 1 t h ~srprroar walh whom W o l v n w u i p b l n p lo this Agreement or any local Memorandum o f Un-
pnovdc in immednllr vld dorml anbrcr lo Wohan's #nyvnrnn We ssre derstanding not in conflict with this Agreement.
-0th the Adm.n l l r l l l r c L.w Jidpr !hat under ihcac c!rrumlt.ncn WII.
a n ' s u u of obsscnc Innguagt w u no1 egregious u to remove ihc Section 2. Grievance Procedure-Steps
Act's prolrelion from hi, gdevanec x l i v i t i a .
Member Jcnkinn did no# pnieip*lc in the Arlanric S l e f Dsiaion. and ' 29 U.S.C.$151, n w ,
finds it unnrcnury lo disfinpuilh that c u r . ' 19 U.S.C.$101. e t ~ q .
250 NLRB N o . 2
 UNITED STATES POSTAL SERVICE 5

Step 1: (a) Any employee who feels aggrieved must he heard Wilson end their exchange with: "You know
discuss the grievance with the employee's immedi- what. Mr. Gage? You are a stupid ass."'
ate supervisor within fourteen (14) days of the date Following this conversation. Gage complained by
on which the employee or the Union first learned phonc to his immediate supervisor about Wilson. That
or may reasonably have been expected to have evening, about 5-1/2 hours after the incident. Gage
learned of its cause. The employee, if he or she so drafted a memorandum to "Director. Processing Main
desires, may be accompanied and represented by the Post OFfce. 854 Twin Rivers D r ..
. ." giving his ver-
employee's steward or a Union representative. The sion of his conversation with Wilson.
Union also may initiate a grievance at Step I within On or about May 4. Respondent issued a written
14 days of the date the Union first became aware of notice of suspension, which Wilson received on May 7.
(or reasonably should have become aware 00 the The notice of suspension announced that Wilson was to
facts giving rise to the grievance. be suspended for "five (5) working days beginning: 8:30
AM. May 21 . . . ."
The noti? went on to recite
On April 17. 1979,"art-time flexible employee James Gage's account of the incident of April 17, under the
Mornan. a barasininn unit emolovee who worked a 6. heading "CONDUCT UNBECOMING A POSTAL
hi;sh,ft (4:3ta.m.-i0:30 a . m j a; Respondent's Colum. EMPLOYEE-ABUSIVE LANGUAGE." Wilson suf-
bus. Ohio. Air Mail F a c ~ l ~brought
ty a complaint to the fered the 5-day suspension without pay.
Union's steward. Bctrnm Wilson. Wilson, a 13-year cm-
ployee of Respondent. was working as a claims and in- 8. Analysir ond Conclusions
quiry clerk at Respondent's Main Post OFfce at 850
The General Counsel contends that the Postal Service
Twin Rivers Drive, Columbus. Ohio. The two met in a
violated Scction 8(aH3) o f the Act by suspending em-
hall at the Main Post Ofice after Wilson had obtained
ployee Betram H. Wilson for 5 days because he pursued
permission from his supervisor to leave his work station.
a grievance on behalf o f the Union. The General Coun-
Wilson's duties as the union steward included investi- sel also argues that Respondent by this conduct also im-
gation of employee complaints regarding supervisors, paired its employees' Section 7 rights' and thereby vio.
warnings and other disciplinary action, discrimination. lared Section 8(aXI) of the Act. The Postal Service
and other matters affecting unit employees. urges that "unprovoked namecalling of another human
Pert-tir.ie employee Morgan told Wilson that, after being for the pure purpow o f 'effect"' w u the reason for
completing 6 hours of work at the Air Mail Facility. Rc- Wilson's p~~nishmcnt, and that he was not entitled to the
spondent told him that he could have an additional 2 Act's protection at the time of his misconduct. Ifind that
hours' work at the Main Post Ofice under conditions Respondent's treatment o f Wilson ran afoul of his rights
which annoyed Morgan. Morgan complained, that after under Section 7 of the Act for the following reasons.
a 15-minute drive from the Air Mail Facility. Respond-
I n PrPscolr Industrial Products Company, 205 NLRB 51.
ent required that he wait an additional I hour and 45
52 (1973), the Board provided the following guidance for
minutes before clocking in. Morgan sought relief from
lhc instant case:
what he considered to be an onerous condition. After
making the complaint, Morgan left Wilson. T h e Board has long held that there is a line beyond
Immediately upon Morgan's departure. Wilson tele- which employees may not go with impunity white
phoned the Air Mail Facility and asked to talk to its engaging in protected concerted activities and that
acting manager. Otto Gage. When Gage got on the tele. i f employees exceed the line the activity loses its
phonc. Wilson explnincd that he represented cmployee protection. That line is drawn between caws where
James Morgan and went on to ask about the 2-hour wait em~loveesennancd in concerted activities exceed
required before Morgan could clock in on his 2-hour thibdunds o r i a w r u ~conduct i n a moment of animal
shift at the Main Post OlTtcc. exuberance or in a manner not motivated by im-
Wilson and Gage d i r u d the matter at length. Gage proper motives and t h m flagrant cases in which
did not provide a direct answer. Instead, he reminded the miswnduct is ao violent or of such character as
Wilson that Morgan was a part-time employee and that to render the employee unfit for further service.
he, Gage, could "work him six hours and rend him
home." The discuuion moved to Morgan's entitlement to Application o f the Board's policy, as stated above, is
the same treatment u other part-timers who worked 8. found in Thor Powr Tool Compmy. 148 NLRB 1379.
hour shifu and mme overtime. 1380 (1964). enfd. 351 F.2d 584, 587 (7th Cir. 1965).
Wilson prcwed for an explanation or Morgan's 1-hour
I n v k w or my malysi. and mnstun~wbclow. I find it unnccnvry
wait. Gage explained that this break in Morgan's work
excuscd Respondent from paying him for his travel time.
Wilmn testified that at hwring this explanation he "told
10
.k. 1:
r in* o ~ c r d i b i l i l p .
r ~ l v this

Ernptoym shall have lk right to wtlargmiulion, to (on. pin, or

Mr. Oage that was a stupid, and asinine policy and . .. ruirlInbar organiutions, l a hrgnin cottecdvrty lhrnvgh rcprena-
hung the phone up." IIVC.or $heorown ch-ing. and la cnpgr in Mhrr conccrfrd nrlivl.
Gage's testimony does not contradict Wilson's account lio ror the pu- of sotleclivc hrglining or other mau.1 .td or
protection. .nd shntl mlu, hnvc ihr right to refrain from any ot .I1
until the final comment by Wilson. According to Gage, such v l i v i l i a n e c p l la lk extent that such right mmy bc .llcctd
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

There, an employee who was a member of a union grirv-

ance committee, lost his temper during an informal dis-
I. The Respondent is an employer engaged in com-
cussion of an employee's grievance, and referred to his merce within the meaning of Section 2(2), (6), and (7) of
plant superintendent as "the horse's ass." The employer the Act.
thereafter discharged the cmolovee because of this obiec- 2. The Union is a labor organization within the mean-
tionable remark. The Board concluded that thc discharge ing of Section 2(5) of the Act.
was unlawful. In reaching this result, the Board observed 3. By interfering with, restraining, and coercing its em-
that the remark was of the res gesrae of the gricv- ployees in the exercise of rights guaranteed them in Sec-
ance discussion . . . ." 148 NLRB at 1380. The Board tion 7 of the Act. Rnpondent has engaged in unfair
also adopted the Trial Examiner's balancing of the rm- labor practices within the meaning of Scction 8(aXI) of
ployee's right to the protection of the Act while discuss- the Act.
ing a grievance with the impropriety of accompanying 4. The aforesaid unfair labor practices are unfair labor
objectionable language, and the result favoring the em. practices awecling commerce within the meaning of Sec-
ployee. I48 NLRB at 1380, 1388-89. tion 2(6) and (7) of the Act.
Applying the Board's policy as exemplified in Thor Upon the foregoing findings of fact, conclusions of
Powr Tool, supra. I reach the same result here. Employ- law, and the entire record herein considered as a whole.
ee Wilson, acting in his capacity as the Union's steward, and pursuant to Section IWc) of the Act, I make the fol-
was discussing a possible grievance on behalf of s unit lowing recommended:
employee and, thus, was engaged in activity protected
by Section 7 of the Act. C t Hurrig Sash & Door Compa- ORDER7
ny. h c , I54 NLRB 1567. 1571-72 (1965); Thor Power The Respondent, United States Postal Service. Colum-
Tool Company, supra. 148 NLRB 1380. 1388-89. Assum- bus, Ohio, its oflicers, agents, successors, and assigns.
ing that Wilson used the words "stupid ass" toward Su- shall:
pervisor Oage, this utterance came in the course of that I. Cease and desist from:
discussion and, thus, was part of the res gesrar (a) Inlcrferi~~g with, restraining, o r coercing its em-
Finally, assuming that Wilson used that improper Ian- ployees in the exercise of their rights as guaranlecd in
guage. I find it to be no worse than that found in Thor Seclion 7 o f the National Labor Relations Act, as
Powr Tool, supra. Accordingly, I find that, by suspend- amended, by suspending o r otherwise punishing employ-
ing Wilson for calling Gage a "stupid ass" in the course ees because of the exercise of such rights.
of discussing a possible grievance. Respondent violated (b) In any like or related manner interfering with, re.
Scction 8(aXI) of the Act. In view of the remedy pro- straining, or coercing its employees in the exercise of
rights guaranlecd them by Section 7 of the Act.
vided below. I find it unnecessary to determine whether 2. Take the following allirmative action designed to ef-
Respondent also violated Section 8(a)(3) of the Act by fectuate the policies of the Act:
suspending Wilson. Ad A n Incorporalion, 238 NLRB (a) Make Bertram J. Wilson whole for any loss of pay
1124 (1978); Merlyn Bunney and Clarence Bunney, ppon- he suNered by reason of his unlawful 5.day suspension.
n e e d/b/a Bunney B m Consrrucrion Company. 139 Said backpay shall be computed in the manner set forth
NLRB 1516 (1962). in the section of this Decision entitled "The Remedv."
(b) Expunge and physically remove from its records
111. THE REMEDY any suspension notices and any references thereto rclat-
Having found that Rnpondent has engaged in ccrtaia ing to the suspension of Bertram I. Wilson for 5 calendar
unfair labor practices. I shall recommend that it be or. days beginning May 21. 1979.
dercd to c e a v and dnist therefrom, and to take other (c) Preserve and, upon request, make available to the
snnroariate
.rr.-r actions to
.. remedv its unfair labor oractice.. I-
~~~ ~~~~~~~
Board Or its agents, for examination and copying, all
therefore recommend that Rapondent be required to payroll records, social security payment records, time-
m ~ k cr t r a m I. wilJon whole for wages lost by reason cards. personnel records and reports, and all other rec-
of the 5 d a y suspension levied upon him, with interest Ords ncceuary to Ihe of backF"'y
thereon to be computed in the manner prescribed in F. under the terms of this Ordcr.
W. W d + ~ r r hCompany, 90 NLRB 289 (1993). and Nor- (d) Post at its Columbus, Ohio, facilities copies of the
marked ..Appendix,..a Copies of
ida Srcel Corpmrion. 231 NLRB 651 (1977).' notice, on forms provided by the Regional Director for
I further recommend that Respondent be required to
and 'I' records and the In the event no exception, .re Bled .I 102.46 of thc
povided by k.
suspension from all of Respondent's records, wherein RUI, d.. ti^^^ 01 ,he N.1ion.t L.W, k r d . the find.
that suspension is now noted, and that Respondent be or- bngr. conclulions, and rmomrnmdd Ordcr krcin shall, rr pmrided in
dercd to post an appropriate notice to employees. Scc. 102.48 of thr R u b nnd Rcgul.tionr, k dopted by the b r d snd
k a m e ils findinn.. ronclurions. and Ordcr. and all obvelionr therelo
rhdl k drrmed wiived lor 811 pu-.
' In the cvcnl Ih.1 lhin Ordcr is cnroreed h m Judgment or Unnted
a See, gmcnlly, biz P i u m b i n ~d H w l i n ~Co.. I38 NLRB 716 (1962). Slat" Courl of Appeals. ~ h cwotdl in the notice rcad~ng"Paled by
The Gcncrnl Counul'r r q w u for 9-prrcml inlernl ir rejected in ac- o d c r ul l h r Nn1an.l Labar Rclationt Board" shall read "Paled Pursu-
~ordancewith the Board's noliiy u set fonh in Florida l e < i C~arpronor ant lo ludgmmc or ihc Unilrd Smtn Coun of Aoplls Enrorcina an
wpm. Ordcr oTihcNarion.l b b o r Relllionr B a r d . "
 UNITED STATES mSTAL SERVICE 7

Region 9, afler being duly signed by Respondent's au- T o engage in self-organirslion

thorized representative, shdl be posed by Respondent T o form, join, o r m i s t any union
immediately upon receipt thereof, and be maintained by T o bargain collectively through representa-
it for 60 consecutive days thereafter, in conspicuous tives of their own choice
places, including all places where notices to employees T o engage in activities together for the pur-
are customarily posted. Reasonable steps shall be taken p o x of collective bargaining o r other mutual aid
by Respondent lo insure that said notices are not altered. or protection
dchced, or covered by any other material. T o refrain from the exercise o f any o r all such
(e) Notify the Regional Director for Region 9, in writ- activities.
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith. WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
APPENDIX exercise of rights guaranteed them in Section 7 of
the Act.
NOTICETOEMPLOYE- WE WILL NOT suspend o r otherwise punish any
POSTEDBY ORDER OF THE employees for exercising such rights.
NATIONAL LABORRELATIONS BOARD WE WILL make Bertram 1. Wilson whole for any
An Agency of the United Stales Government 10sof pay he may have suffered by reason of his
suspension for 5 calendar day$ beginning May 21.
Alter a hearing at which all sides had an opportunity to 1979.
present evidence and state their positions, the National WE WI1.L expunge and physically remove from
Labor Relations Board round that we have violated the our records and files any suspension notices and any
National Labor Relations Act, as amended. and has or. references thereto relating to the suspension of &I.
dered us lo post this notice. tram J. Wilson beginning May 21, 1979.
The Act gives all employees these rights:
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

United States Postal Service and American Postal such, was in continuing to talk about their griev-
Workers Union, AFL-CIO (San Angelo, Texas ance as they walked along. When the employees
Local). Case 16-CA-8366(P) and the supervisors reached the timeclock, Super-
August 15. 1980 visor Love turned and said, "I am giving you a
direct order. I want you to go back to work now."
DECISION A N D ORDER After what was by all accounts a momentary hesi-
tation, and apparently before Love had to repeat
the order, the two employees complied with it.
We agree with the Administrative Law Judge's
On February 19. 1980, Administrative Law conclusion that to permit Respondent to bifurcate
Judge Burton Litvack issued the attached Decision the conduct in issue, as our colleague apparently is
in this proceeding. Thereafter. Respondent filed ex- willing to do. "would enable an employer by its
ceptions and a supporting brief. own whim to define the nature of ~ r o t e c t e dactivi-
Pursuant to the provisions of Section 3(b) of the ty . . . ." Moreover, from a praciical standpoint.
National Labor Relations Act, as amended, the Na- some latitude must be aiven to ~articioantsin these
tional Labor Relations Board has delegated its au- incidents. Indeed, although w e might wish it other-
thority in this proceeding to a three-member panel. wise, it is unrealistic to believe that the principals
The Board has considered the record and the at- involved in a heated exchange can check their
tached Decision in light of the exceptions and brief emotions at the drop of a hat. Of course, employ-
and has decided to afirm the rulings, findings, and ees can lose the protection of the Act by conduct
conclusions of the Administrative Law Judge and that fairly can be characterized as opprobrious o r
to adopt his recommended Order. extreme. In the instant case, however, neither ap-
We agree with the Administrative Law Judge's pellation is warranted. Thus, as shown above, the
linding that Respondent violated Section S(a)(l) of employees merely continued to dispute verbally the
the Act by issuing warning letters to employees merits of a grievance after tempers had run high on
O'Harrow and Woods in connection with a griev- both sides and after they were told to return to
ance meeting held on February 2, 1979. In con- work. As indicated previously, the interval be-
cluding otherwise, our dissenting colleague argues tween being told to g o back to work and the em-
that, even i f the events that culminated in the im- ployees' compliance with that order was very brief
position of discipline were part of the res gesrae of and was not marked by violence or abusive lan-
the grievance meeting, the employees' "insubordi- guage on their part. And Respondent does not con-
nate conduct" in ignoring an order to return to tend, nor does the record show, that the employ-
work was "so extreme" as to render their conduct ees' conduct had any adverse imoact on the work
unprotected. We find our colleague's argument un- of other employees, or otherwise had consequential
persuasive. disru~tiveeffects. Accordinalv, we see no reason
In the first place, it is worth noting that the dis- to st;ip these employees of &; protection afforded
sent discounts almost out-of-hand the reason most them by the Act.
prominently advanced by Respondent for its con-
duct, i.e.. the employees' alleged "loud, abusive ORDER
and profane language," and instead insists that the Pursuant to Section 10(c) of the National Labor
reason Respondent acted was the employees' al- Relations Act, as amended, the National Labor Re-
leged refusal to return to work. Apparently the dis- lations Board adopts as its Order the recommended
sent recognizes that, in the circumstances here. Re- Order of the Administrative Law Judge and
spondent could not rely on the employees' lan- hereby orders that the Respondent. United States
guage as a lawful ground for imposing discipline; Postal Service, San Angelo, Texas, its oficers,
hence, the dissent seeks to focus on the employees' agents, successors, and assigns, shall take the action
alleged "insubordination." However, the facts d o set forth in the said recommended Order.
not support the dissent's analysis.
In brief, this is not a case where employees ada- MEMBER PENELLO, dissenting:
mantly refused to leave the meeting room when Contrary to my colleagues. I would reverse the
asked to pursue their grievance later and lo return Administrative Law Judge and find that Respond-
to work. Nor is this a case in which the employees ent did not violate Section 8(a)(l) and (3) by issu-
tried to impede others who sought to leave. Here. ing warning letters to employees O'Harrow and
the two employees followed the two supervisors Woods for their insubordinate conduct in ignoring
back to the workroom floor. At least to this point direct orders to return to work at the end of a
their only "insubordination." if i t can be called grievance meeting. As no exceptions were filed to
251 NLRB No. 33
 UNITED STATES POSTAL SERVICE -.
. $ I.

the Administrative Law Judge's recommendation I agree with my colleagues that the Administra-
that the other allegations of the complaint be dis- tive Law Judge was correct in finding that O'Har-
missed, I would dismiss the complaint in its entire- row and Woods were engaged in the informal reso-
ty. lution of a potential grievance at the February 2.
The facts in this case may be stated briefly. Em- 1979, meeting and that they were thus essentially
ployees O'Harrow and Woods are president and insulated from discipline for insubordinate state-
vice president, respectively, of the Local Union ments made to management oflicials during this
which represents the employees at Respondent's protected collective-bargaining activity, unless
facilities in San Angelo, Texas. In late January their conduct was so opprobrious o r extreme as io
1979, O'Harrow and Woods were warned vqbally warrant the denial of such protection under thc
on several occasions by their supervisor, Robert Act. I also agree with my colleagues that the con-
Nichols, about talking while working next to each duct of O'Harrow and Woods during the grievance
other on the distribution line. On February 2. 1979, meeting in the conference room was not so oppro-
they observed John Love, manager o f mail proc- brious o r extreme as to deny them the protection
essing, talking to two other employees on the dis- of the Act.' However. I disagree with the major-
tribution line. Thinking that this demonstrated that ity's conclusion that the conduct of O'Harrow and
management had a double standard about employ- Woods after leaving the conference room at the
ees talking while working on the distribution line. end of the meeting was not s o opprobrious o r ex-
they asked Supervisor Nichols to arrange a meet- treme that it became unprotected. Assuming, with-
ing with Love about this problem. Love, Nichols. out deciding, that the Administrative Law Judge
O'Harrow, and Woods then met in a small confer- properly found that the events which occurred nut-
ence room where grievance meetings are usually side the conference room just after the meeting
held. After a heated discussion as to whether man- ended were part of the res gesme of the grievance
agement had the right to talk to employees work- meeting. I would conclude that the insubordinate
ing on the distribution line, Love stated that the conduct of O'Harrow and Woods in ignoring
meeting was over, ordered O'Harrow and Woods direct orders to return to work was, in the circum-
to go back to work, and stated that they would stances of this case, so extreme as to become un-
resume the meeting later when everyone had protected.
calmed down. Love and Nichols then left the con- In my opinion, the behavior of O'Harrow and
ference room, but O'Harrow and Woods followed Woods after Love terminated the grievance meet-
them out into the distribution area stating that the ing went beyond verbal insubordination, since they
Union would not tolerate this situation. As neither engaged in overt acts by defying two of Love's
O'Harrow nor Woods had shown any signs of orders that they return to work. Furthermore, it
complying with Love's Iira order that they return should be noted that their second refusal to return
to work, Love turned to them and stated, "I am to work as ordered occurred in a production area
giving you a direct order . . . . I want you to g o during working time when other employees were
back to work now." O'Harrow and Woods did not likely to be present2 Under these circumstances.
move o r respond to this second order, but rather their overt acts of defiance would clearly tend to
continued to harangue Love and Nichols. When undermine Respondent's right to maintain order
Love started to repeat the order a third time. and respect. Thus, their failure to return to work
O'Harrow and Woods finally stopped arguing and when ordered to d o s o was not protected even
walked away to their work stations. though they continued to discuss their grievance.
On February 3. 1979, Nichols gave O'Harrow Therefore. I would find that Respondent did not
and Woods warning letters, signed by Love, which violate Section B(a)(l) and (3) of the Act when it
stated that they were being warned for insubordi- disciplined O'Harrow and Woods for ignoring sev-
nation. Specifically, both letters described the con- eral direct orders to return to work.3
versation at the meeting on February 2, 1979,
noting that O'Harrow had "used loud, abusive and I in lhir connection. 1 note th.8 their only mtnmduc! war O'Wrrau',

profane language," both letters stated that Love uw of several prnrmc words and one obrcenc word. nonc of whlch wcrr
u s 4 ar epithelr d~recfcdI. the mmnsemml omeirl*. and lhir m!w.ondur.l
had terminated the meeting and had asked the em- m u r r ~ din 6 ornv.!c confcrcncc rmln our of the mcuncc uf othcr ern.
ployees to return to work: noting that neither em- ploym.
1 Thc Board has urvally conridrrcd such factom rclcu.nl to ihr drlrr.
ployee had done so but rather they had "kept mination IS la whethct an crndoycc h u lost the prolrcl8nn e r f h r Acl h)
making attempts to interrogate Mr. Nichols and in pro,n.ld .mu.nrd kr.
w r Love]," and .both letters noted that Love had rg.. Arlanrir Sted Campny. 243 NLRB No. 10: I11191.

lo 8ive them three direct orders to return to their

' Althau8h thc warning lcllcrr ikvrd to O'Harmw and Wlxrd\ d r .
scr8b.d #he cvcnls which wrurred durnng ihr griernncc rnceftng and
work assignments before they would d o so. (imnnvrd
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Moreover, i t continues t o disturb me that cases mision o f any unfair labor practices. A l l parties were aT-
o f this nature are still congesting the Board's forded full opportunity to appear, to introduce evidence.
docket and wasting the Board's scarce resources, at and to examine and cross-examine witnesses. Briefs were
a time when the Board is struaalina t o coDe w i t h a Sled by counsel for the General Counsel and by Re-
dramatically expanding c a s e E d a n d a ' g r o w i n g spondent and each has been carefully considered.
backlog o f cases awaitina hearina. This case should Upon the entire record in the case, and from my ob-
never h a v e been litigaied t o Board decision; a servation o f the demeanor o f the witnesses, and having
carefully considered the post-hearing briefs, I make the
rather i t should have been deferred under Collyer' following:
t o the grievance and arbitration procedures agreed
upon b y the parties in their collective-bargaining
agreement. T h e majority's decision here illustrates
once again m y colleagues' lack of wisdom in nar- I. JURlSUlCTlON
r o w i n g the application o f Collyer. In view o f the The complaint alleges, the answer admits, and I Snd
national labor policy favoring collective bargaining that jurisdiction is asserted herein by virtue o f Section
and the arbitration of disputes, the Board should 1209 o f the Postal Reorganization Act, 39 U.S.C. 8 101.
encourage the parties to resort t o their existing et seq., herein called the PRA.
conlractual methods for private dispute resolution
rather than promoting litigation before the Board 11. T H E LABOR ORGANIZATIONS
o f such relatively m i n o r issues. Accordingly, I Although the status o f American Postal Workers
w o u l d dismiss the complaint in its entirety. Union, AFL-CIO, herein called the Union, i s not alleged
in the complaint, the record establishes that said entity
rcfur O ' H a r n > r ' r urr: n l "loud, rhu%lrc,and profan. Iangurgc" at ihr engages in collective bargaining with Respondent, has
m r ~ t i n g .I wuuld find !ha! Rr\pnndcnl dirclphntd lhrm r d c l y hccrure ,r negotiated successive collective.bargaining agreements
the,. rsi1urr. ,u rc,urn ,<a work when urdcred in do m. I r m conrinccd
lhrl ~ h cr u l c r n ~ r in r ihr l r l l r r b to ihc c v m t s uf ihr meeting were nncrely with Respondent on a national basis, with the most
bncludcd a\ hxvkgrovnd ldrnlifying ihc particular mrcting involved and recent of said agreements, effective from July 21, 1978.
giving Re>pondml'r p r i t i u n as 1 ~ 1the lrgilimalr rerums for Love'$ rc. until July 20, 1981, and represents employees in the proc-
Iuonv in Icrminating the mrcting and ~rrdcrongihc mployrcs hack #a essing o f grievances. Accordingly, I find that the Union
vurk I note lhal ihc rcrurd r e v c a l ~thrl O'Harrow and Wcuds wcrc 8"-
n,lrrd in morc lhrn one grievance mccling on Fcbruary 2. 1979. and that is a labor organization within the meaning of Section
,hr r.m,ng l v l l r r ,rwcd lo W<""J\ r1.u referred 1" i d c r i u r l w.r*ing ((1 2(5) o f the Act. Unired Stater Postal Service, 208 N L R B
O'tlarnlx'\ language at ~ h mcelnng r md 1w ihc other evenlr or the me*. 948 (1974). Additionally, the complaint alleges. Respond-
it18 cvrn lhc~ughW<xd, himsell had no! u x d any sbusivr or pmfanr tan-
ent admits, and I find that the Local is a labor organiza-
waer or mpaecd in any inruhrdinalr conducl during lhc mrtt,,>g
' Lirllur Inxulnrrd Wire 4, Aullund Welarn Sysfrrn. Ca. I92 NLRB tion within the meaning of Section 2(5) of the Act.
811 lIV711. My rwwr on d~rerrvlhaur rrccnlly k e n rcllalcd at length in
ROY R~uhinum. hr. d/b/v Roy Rohinrvn Ch*rrol'v. 218 NLRB R l ? (19771. Ill.ISSUES
md Memkr Walthrr'>and my dissent in G c n t n l Amrriron lmnrponurron
Ccxplrunun. 21s NLRB 808 (1977). I.Whether Respondent, on or about February 3, 1979.
violated Section 8(a)(l) and (3) of the Act by issuing
DECISION written reprimands to employees because said employees
engaged in union o r other protected concerted activities?
STATEMENTOF THE CASE 2. Whether Respondent. on or about February 2, 1979.
BURTON LITVACK, Administrative Law Judge: This violated Section 8(a)(l) o f the Act by threatening to
case was heard by me in San Angelo, Texas, on Septem- write up employees because of their union membership.
ber I8 and 19. 1979, pursuant to a complaint issued by activities, and desires?
the Regional Director for Region 16 on May 25. 1979. 3. Whether Respondent, on or about February 2, 1979,
pursuant l o an original and a first amended charge filed violated Scction B(aX1) of the Act by orally threatening
by American Postal Workers Union. A F L C I O (San to file insubordination charges against employees because
Angelo, Texas Local), herein called the Local, on March of their union membership, activities, and desires?
5. 1979, and April 30, 1979, respectively. The complaint 4. Whether Respondent, on o r about March 28. 1979.
alleges, in substance. that United States Postal Service. violated Section 8(a)(I) and ( 5 ) o f the Act by bargaining
herein called Respondent, violated Section @)(I), (3). directly with its employees?
and (5) of the National Labor Relations Act, hercin
called the Act, by dealing directly with cmployees in IV. THE ALLEGED UNFAIR LABOR PRACTICES
derogation of their designated representative for pur-
poses of collective bargaining, Section 8(a)(l) and (3) of A. The Allrged Threars and the Warning Norices
the Act by issuing warning notices to employees because
I.Facts
they engaged i n union or other protected concerted ac.
tivities, and Section 8(aXI) o f the Act b y threatening cm- The record establishes that the San Angclo, Texas,
ployces with discipline and the issuing o f written repri. Post Ofice consists o f two separate facilities, a main
mands because of their union membership, activities, and building and a secondary facility called the Herring Sta-
desires. Respondent filed an answer, denying the com- tion, and that during the period January through March
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

approximately 2 minutes. A t approximately that same cording to O'Harrow, he was likewise searching for Ni-
time, according to Robert Nichols, he was called over chols in order to obtain permission to speak to W w d s
by O'Harrow and W w d s who staled that they would about a grievance. While looking for Nichols. O'Harrow
like to speak to Lovc. Nichols thereupon walked over lo passed through Love's ofice. According to O'Harrow,
Love and, according to Love, told the latter that Woods Love asked i f he could help. O'Harrow replied, "Idon't
and O'Harrow wanted a meeting because "they think suppose so unless you know where Roben Nichols is."
that we can iron out some of the problems we have been Love responded that he did not know where Nichols
having around here i f we gel together and have a little was and asked why O'Harrow wanted him. O'Hsrrow
discussion." Lave assented to the meeting, and, a few replied that he wanted to discuss a grievance, and Lovc
minutes later. Nichols brought O'Harrow and Woods lo replied. "Ihave already told him and Woods that ycu
the conference room where Love was waiting for them. cannot discuss the grievance." According l o O'Harrow.
According to both Love and Nichols. O'Harrow sat he and Love then walked out of Love's ollice and were
down on one of the desk chairs, leaned back in the chair. ioined by P.G. Ecomomidas. the customer service man-
placed his legs on the desk, and clasped his hands around ager O'Harrow teslilicd that he askcd Ecornom~daswhy
the back of his head. Love and Nichols generally cor- hc was not being given permisqion to discuss a grievance.
roborated each other as l o what was said during lhe and Ecomomidas replied that hc d ~ dno1 know At that
meeting. Thus, they testified that O'Harrow began the point, according to 0 ~ a r r o w .Monreal, the postmaster,
meeting by asking Love. "What the hell were you talk- walked over to them and asked what the problem was.
ing to those two employees about?" Love asked O'Har- After O'Harrow told him, Monreal suggested that they
row what he meant, and O'Harrow replied that he go into the o m u .
wanted to know i f Love was talking about ollicial busi- By this time, according l o O'Harrow, both Nichols
ness or "were you just bullshilling with the employees?"
and Woods had joined them. Accordingly, Monreal,
Love responded that he did not appreciate the way
Love, Nichols. Woods, and O'Harrow entered an oflice
O'Harrow was talking to him and asked O'Harrow not
where H. D. Sanders was already present. Monreal
to speak in that manner. O'Harrow thereupon accused
Love of evading the issues and responded that he would began the discussion by asking Love what was wrong.
Love replied that he told O'Harrow that the latter could
speak to Love with "any language Idamn well please in
here." O'Harrow then asked once again whether Love not discuss a grievance. O'Harrow asked Love why, and
was ' 3 j u bullshitling with the employees." Love re- Love replied. "the next time you put your finger in my
sponded that what he was talking about with the two face and talk l o me lhat way I am going to file insubor.
employees was not oflicial business and that such was dination charges against you." O'Harrow responded,
none o f O'Harrow's business either. A t that point, both asking Love why he wanted to file insubordination
Woods and O'Harrow slated that Nichols had spoken to charges against him. Love replied. "You're not going to
bolh o f them about excessive talking and that, if manage- talk to me that way and poke your Anger in my face and
ment were going to talk to the employees about exccs- the next lime you do it, I'm going to charge you with
sive talking, management had no right to talk to the em- insubordination." T o that, according to O'Harrow, he
ployea. A t that point, with O'Harrow and Woods re. said. "Why don't you go ahead and charge me with in.
pealing that management was unfair, Love announced subordination?Tove responded, "Iwill the next time
that the m u t i n g was over, that he wanted O'Harrow you poke your finger in my facc and talk in that
and Woods to go back to work, and that they would manner." A t that point, Monreal said that, since Nichols
resume the meeting when everyone had calmed down. had given O'Harrow and Woods permission to discuss
Love and Nichols then left the room. However, O'Har- the g"evance, he (Monreal) would permit them l o go
row and Woods followed, repenting that the Union ahead and discuss the grievance, and the meeting ended
would no1 tolerate what was happening. The four o f at that point. On cross-examination. O'Harrow admitted
them reached the employee timeclock, and Love turned that he did not deny Love's accusalion that he (O'Har-
to O'Harrow and Woods, slating, "Iam giving you a row) put his linger in Love's face but averred that he
direct order. Iwant you to go back to work and Iwant had no knowledge to what Love was referring.
you to go back to work now." Neither O'Harrow nor Love testified to a dinerent version o f the facts. Thus.
Woods moved; however, as Love attempted to repeat according to Love. at approximately 830 a.m. on Febru-
the command. the two e m ~ l o v ~iusl s s l o ~ ~ etalkinn
d ary 2. O'Harrow came through his ollice walked into the
and walked away. Dunng the keeling, ac&ding to N; outer oflice, and then came back into Love's ollice.
chole. O'Harrow and Woods were not yelling but rather Love asked if he could help. O'Harrow replied. "Who
were '?just talking loud" and they used no curse words the hell made you the ollicial helper around here."
other than "bullshitling." Finally, both Lovc and Nichols O'Harrow then turned to leave again, but Love s t w d
denied lhat Lnvc ordered Nichols to watch O'Harrow up, slating "What in the world is wrong with you." A t
m d Woods and to write them up if necnsery. lhat point, with Love standing no more than a foot from
Robert Nichols testified that, at 8:15 that morning, O'Harrow, the latter turned around and said, while
W w d s approached him and said that he wanted l o talk pointing a finger at Love's face, "Get your ass back in
to his steward. Nichols replied that Woods should go to your ofice and get back there now." Accordinq to
the conference room and that he would tell O'Harrow Love, he replied that O'Harrow could not speak to him
about the meting. N~cholsthereupon proceeded to look like that. O'Harrow responded by asking Love what the
for O'Harrow but could not find him. Meanwhllc, ac- latter was going to do about it. Love replied that he
 UNITED STATES PI3STAL SERVICE 251

could give O'Harrow a warning letter or write him up. 1. Insuhrdination: Specifically on 2-2-79 you
O'Harrow then asked if Love had any witnesses, and .
and Full-time Clerk J.S. Woods. . requested. thru
after Love said that he did not. O'Harrow replied that it your immediate Supervisor R.L. Nichols, a meeting
was Love's word against his. Love responded that he between the four of us. A t 0505 this requested
could still give O'Harrow a warning letter. and O'Har- meeting was held. A t that lime you questioned my
row turned and left the office. talking to employees on the work r w m f l w r , be-
Love further testified that, at approximately 8:45 a.m., cause you had had a discussion with M r . Nichols
O'Harrow came back through his o f i c e carrying a brier that concerned ercessive talking on the previous
case. Ecomomidas was in Love's oilice, and Love asked day. You used loud, abusive, and profane language.
O'Harrow never to stick his finger in Love's face again When I asked you to refrain from using such lan-
or talk to Love like he did previously. O'Harrow asked guage in our conversalion, you stated. "1 will use
if Love was threatening him. A t that point. Ecomomidas any language that Idamn well please." A t this point
interrupted, saying that such was not a threat but that I terminated the meeling and asked you and Mr.
Love just did not want O'Harrow talking like that. Woods l o return to your work assignment. You and
O'Harrow responded by again pointing his finger at Mr. Woods did not comply with my request and
Love and saying, "Iwill talk anyway I want to.'' Ac- kept making attempts to interrogate Mr. Nichols
cording to Love. Monreal then entered the room and and myself. Ihad to give you and Mr. Woods three
asked what was going on. O'Harrow responded by direct orders to return l o your work assignment
saying that Love was obstructing the grievance proce- before you would do io.
dure. Love replied that he did not want O'Harrow stick- 2 Insubordination: Specifically on 2-2-79 at
ing his finger in Love's face and talking to him like he 08:30 you came into my omce carrying an attache
had done. O'Harrow rewated that Love would not let case. You walked thru my officc into the outer
him d~rcuesa grtcvance: Monrcal told him to go ahcad oN1ce and returned. As you were leaving Iasked if
and have the d~xussion,and the mccting ended Ican help you and you replied, pointing a finger in
Jack Woods leslifird l o the f o l l o ~ t n gconversations on my face. "who appointed you helper around here?"
the morning of February 2. A t approximately 10 a.m., Istated that maybe you should return to your work
after the first class mail had been distributed, he and Ni. assignment and you told me "shut up and get back
chols were in the conference room waiting for O'Har- into your omce." I asked you to remove your
row l o arrive. John Love entered the room and told Ni- finger from my face and to not talk to me in that
chols that, unless Woods told him specifically what he
wanted to discuss. he would not allow Woods to speak
manner. You asked me what I was noinn to do
about it and Istated that I would give you a letter
- -
to O'Harrow. Woods replied that. under those circum- o f warning. You said "good, let3 gel i t on."
stances, hc did not want to have a meeting with O'Har-
row at that time and left the conference room to return Also on February 3. Nichols gave s warning letter.
to work. Neither Nichols nor Love denied the occur- dated February 2 and signed by Love. to Jack Waods.
rence of, or the substance of, this meeting. Woods next The letter stated the following reason for the warning:
testified that, at approximately 12 noon, he and O'Har-
row walked into Monreal's oilice where Love and Eco. Insubordination: Specifically on 2-7-79 you and
momidas were already present. According to Woods, he Full-time Clerk R. P. O'Harrow ..
. requested thru
and O'Harrow asked Monreal for permission to have a your immediate Supervisor R. L. Nichols a meeting
grievance meeting. Monreal said that they could have between the four of us. A t 0505 this requested
the meeting because Nichols had previously given per- meeting was held. A t that time Mr. O'Harrow's lan-
mission. At that point. Love turned to O'Harrow and guage was loud. abusive, and profane. I terminated
said that, i f he ever spoke to him that way again, he the meeting and asked you and Mr. O'Harrow l o
(Love) would write him up for insubordination, O'Har- return l o your work assignment. You and Mr.
r o w did not corroborate the occurrence o f this meeting. O'Harrow did not comply with my request and
and Woods did not recall any 830 or 9 a.m. meetings kept making attempts to interrogate Mr. Nichols
with Monreal on that day. and myself I had l o give you and Mr. O'Harrow
On February 3, Nichols gave O'Harrow a warning three direct orders to return to your work assign-
letar, dated February 2 and signed by Love. The letter ment before you would do so.
stated the following reasons for the warning: 2. Conclusions
Louc's lnlimnny w a cormboralcd hy ofhrr vilnnwr. Thus. H u k n Paranraah Ma) o f the comolaint allenes that Reswnd-
S m d c n !nliAcd that. vhilr he war sinling in nn outer omcc during the ent v i z a t l d ~ i c i i o n8(a)(l) d f the ~ c t l w h e nLove h e g -
or ~ ~ 2. hch ovrrhr.rd
~ L ~~ V C . wvcrl~~ timn ~ -I am edly instructed Nichols to put O'Harrow and Woods
astinp you, plelw. not to rhakc your Anger in my race." and lhsl he
heard O'Harrow reply. "Whn arc you going s do about it?"* lhrn
back l o work, to watch them, and to write them up if
heard Lnvc r c ~ w n d ,"I will wrirr you up" Alr,. R o k r l Nichols. who necessary. O'Hsrrow and Woods attributed this stale-
lrrlifird th., he war no, "re*", during any of the i l l l e r c o n r c ~ l i n n , men1 to Love during the 5.30 a m , meeting in the Her-
knwrcn Love md O'llrrmr, !rr!~ficdthat whilc hc wa* warchtny for ring Station conference room on February 2. Both Ni-
O'Harrorr n appn,~~malclyII 30 ihal morrmiog. he hcrrd Lour nrlr. "I
a.kcd P.I. don'# finger in fare F~W.IIY.
chols and Love specifically denied that Love made such
Mnnrcal cnrroboraled the urnion of ihc convcrrallon givrn hy 1.uvr a statement. I credit their denials. Neither O'Harrow nor
alter Monrcal enlcrcd the dlwurrian wllh O'Harrou. Woods impressed me as forthright or truthful witnesses
258 DECISIONS OF NATIONAL ABOR RELATIONS BOARD

and both appeared vindictive toward Respondent be- assignments. I n describing this meeting, counsel for the
cause o f the procedural changes which were instituted Oeneral Counsel contends that "O'Harrow and Wwds
by Monreal. Also, on some points, they specifically con- were attempting to process a grievance." over supervi-
tradicted each other and, on others, they could not cor- sors speaking l o them regarding talking when working
roborate each other. Moreover. I found incredible while supervisors were permitted to interrupt the work
O'Harrow's assertion that he did not know to what Love of other unit employees during worktime and engage in
was referring during their later convenalion o f that nonolficial business. If, in fact. O'Harrow and Woods
-
mornine when Love accused O'Harrow o f shakinc ~~~~
u his
~

linger at Love and speaking in an insubordinate manner.

~~ were cnaaaed in the orocessine of a erievance. the
Board h& adi it ion ally held that while emGloyees a& en-
This i s especially compelling, for O'Harrow neither gaged in collective bargaining, including the presentation
denied Love's accusation at the time nor demanded an of grievances, they are essentially insulated from disci-
explanation as to what Love was talking about. Finally. pline for statements made to management representatives
in contrast to O'Harrow and W d s . Love and Nichols which, i f made in another context, would constitute in-
appeared to be honest and candid witnesses and general- subordination. Ryder Truck Lines. Inc., 239 N L R B 1009,
ly corroborated each other where necessary. According-
ly. Icredit the testimony o f Love and Nichols regarding
.
1010 (1978). Moreover. "the lack o f . . diplomacy does
not render conduct unprotected. Any attempt t o dictate
this conversation and shall recommend that paragraph the exact language l o be used in a collective-bargaining
qa) o f the complaint be dismissed. atmosphere can only have the affect o f stifling that bar-
As l o paragraph q b ) of the complaint, inasmuch as gaining." Howaiion Hauling Service. Lld., 219 N L R B 765,
Love admitted that, during his 8:30 a.m. conversation
766 (1975).
with O'Harrow on February 2, he threatened O'Harrow
with a warning letter, the determination as to whether Respondent's defense thal O'Harrow and Woods acted
said statement was violative c f Section 8(a)(l) of the Act in an insubordinate manner during the 530 a.m. meeting
depends upon an analysis o f the surrounding circum- rests upon three bases. First, Respondent argues that
stances. I n this regard, for the aforementioned reasons O'Harrow and Woods were not engaged in protected ac-
and inasmuch as his testimony was corroborated by tivity and, more specifically, that the meeting was not
other witnesses. Icredit Love as to this convenation and lor the purpose of adjusting a grievance. I n support of
specifically discredit the testimony o f O'Harrow. Thus. I this argument. Respondent asserts that neither O'Harrow
believe thal Love uttered his threat to O'Harrow only nor W w d s announced to Nichols that they wished to
aner the latter shwk his finger in Love's face and or- hold a grievance meeting, that the proper parties for the
dered Love to "get your ass back in your omce and get first step o f the grievance procedure were not present,
back there now" and after O'Harrow sarcastically de- that no grievance was ever filed over the incident, and
manded to know what Love could do about O'Harrow that the purpose of the meeting war solely to "dress
speaking in that manner. Further, while O'Harrow may down" Love. While Respondent may be accurate that
-
well have been searchine for Nichols l o ask oermission
to lnvestlgate a grievance when he cntercd Love's off~cc.
the technical procedures of the contractual grievance
procedure were not followed, I nevertheless believe that
O'Harrow clearly was not engaged in protected actlvltscr the parties were involved in grievance adjusting during
when he spoke to Lovc In the above.deacnbed insubnrdl this meeting. Thus, Love admitted that, prior to the
nate manner. Moreover, there is no credible evidence meeting, Nichols told him that the purpose uf the meet-
that Love uttered his threat in response to any protected ing was that, "[O'Harrow and Wwds] think that we can
concened activities in which O'Harrow may have been iron out some of the problems we have been having
engaged. Rather, Ibelieve that Love was responding to around here i f we get together and have a little discus-
what he perceived as insubordination by an employee. sion." Moreover, even i f the technical procedures of the
"The right of an employer to maintain order and to insist grievance and arbitration machinery were not followed,
on a respectful attitude by his employees toward their "the informal resolution of latent grievances is a recog-
supervisor is an important one." Court Square Press. I n c . nized, and indeed, essential component o f . . . [a] griev-
235 N L R B 106, 109 (1978). Accordingly, Ishall rccom- ance procedure. Without such informal resolutions, there
mend that paragraph q b ) of the complaint be dismissed. is a risk of destroying the effectiveness of that procedure
With respect to paragraphs qc). 7, and 8 o f the com- by weighing it down with formalized grievances." R$er
plaint, Respondent admits that warning notices, dated Truck Lines, lnc.. supro at LO1 1. Also, both Love and Ni-
February 2 and signed by John Love, were issued to em- chols admitted that the main subject o f the meeting was
ployces O'Harrow and Woods but denies that said warn- the complaint by O'Harrow and W w d s of unequal treat-
ing notices were issued in response to their attempts l o ment-clearly, I believe, a grievable subject. Finally, I
process a grievance. Analysis o f the two warning letters believe that employees must be assured of being treated
reveals that one o f the reasons for the warning letter to as equals as much in informal meetings as informal ones
O'Harrow and the sole reason for the warning letter to and that they must be confident o f beine able to sneak
Wood was their conduct during the meeting with Love their minds without fear o f discipline. I f such fear eiistr.
and Nichols at 530 a.m. in the Herring Station confer- I believe that effective and, indeed, meaningful collec-
ence r w m on February 2. I n particular, the letters asscn tive-bargaining can never occur.
that O'Harrow used "loud, abusive, and profane lan- Respondent next argues that, even i f the 530 a.m.
guage." and thal neither O'Harrow nor W w d s complied meeting constituted protected activity. O'Harrow and
with Love's request to return to their respective work Woods engaged in such "opprobrious conduct" so as to
 UNITED STATES POSTAL SERVICE 259

lose the protection o f Section 7 of the Act. While the warning notice l o O'Harrow which defines as insubordi-
Board did recognize in Hawoiion Hauling. supra, that if nation O'Harrow's conduct during the 5:30 a.m. meeting
an employee engages in opprobrious conduct during col- is violative o f Section 8(a)(l) and 0 )of the Act. Like-
lective bargaining he may lose the protection o f the Acl. wise. I believe that the February 3 warning notice to
it has never really defined the term "opprobrious." How- Woods which cites Woods' conduct during the 5:30 a.m.
ever, in a recent decision, the Board held that it would meeting as insubordinate is also violative o f Section
examine four factors in determining whether an employ- 8(a)(l) and (3) o f the Act. Ryder Truck Liner. I n c , supra:
ee's conduct at a grievance meeting would result i n the Hawaiion Hauling Service. Lrd.. supra.
loss of the protection of the Act. Arianric Sreel Company.
245 N L R B No. 107 (1979). These factors include the lo- 8. The Alleged "Direr1 Dealing"
cation of the meeting, the subject matter o f the meeting.
the nature of the conduct, and whether any employer I . Facts
unfair labor practices may have provoked the outburst
According to the testimony of employee Louis C.
by the employee. Herein, while there is no evidence that
Loe, a mail clerk at the Herring Station, and Huhert D.
Respondent committed any unfair labor practices which
would have provoked the conduct o f O'Harrow and Sanders, a relief supervisor. Loe approached Sanders at
Woods, their actions can hardly be classified as "extreme approximately 1030 a.m, on March 22 and requested
behavior." Sea-LandService, Inc.. 240 N L R B 1146 (1979) permission to spak to O'Harrow. Sanders gave his per-
(disoent of Member Penello). Thus. Nichols admitted that mission and, therealier, Loe and O'Harrow met in the
the only curse word used by O'Harrow was "bullshit- conference room in the rear of the facilitv. A few m i n
ling" and that neither O'Harrow nor Woods was shout- Utes later, as O'Harrow and Loe were just beginning
ing but rather merely "talking loud." Further, according their meetlng, Sanders entered the conference room and
to Nichols, the word "bullshitting" was uttered by announced that he had overlooked some procedural mat-
O'Harrow during a question about what Love was talk. ters. He turned to Loe and asked him for the nature of
ing to employees McClausky and Edborg that morning- the meeting and how long Loe bclieved the meeting
"well, was it omcial business or were you just bullshit- would last. Loe responded that he had a medical prob-
ling with them?" Furthermore, the location o f the meet- lem but that he did not know how long the meeting with
ing was the conference room which. 1 believe, was cus- O'Harrow would last. Thereupon, Sanders turned to
tomarily used for grievance discussions, and I have pre- O'Harrow and asked the same question. O'Harrow re-
viously held that the mcetinq did, indeed, involve the in. plied that he did not know and told Sanders that, unless
formal adjusting o f a matter which was perceived by the latter wished to discuss the grievance. he must leave
O'Harrow and Woods as an employee grievance. Ac- the room. A t that point, an argument ensued between
cordingly, while the conduct o f O'Harrow and Woods O'Harrow and Sanders regarding the right of the latter
may have been reprehensible to Love, it cannot be classi. to inquire into the nature o f the grievance and the esti-
fied as "opprobrious" or "extreme" so as l o deny O'Har- mated time that it would take to investigate it. Finally.
row and Woods the protection o f Section 7 o f the Act. @Harrow slated l o Loe that he was going to terminate
Sea-Land Service. I n c , supra; Ryder Truck Lines, Inc.. the grievance discussion because Sanders was interfering
supro: Thor Power Tcei Company. 148 N L R B 1379 (1964). with the process. Thereupon. O'Harrow picked up his
Finally. Respondent asserts that O'Harrow and Woods brief case and left the conference room. Sanders and Loe
- -
continued to arpuc with Love after the meetinn had been
terminated and that employees do not have the right to
also left the room but continued their discussion outside.
Sanders told Loe that he did not want to do anything
keep a supervisor captive l o a barrage o f "indiscriminate which would interfere with Loe callinn a doctor but that
rhetoric" after a grievance meeting has ended. I n s u p he should not permit a procedural dGpute between the
pon. Respondent cites United Stares Postal Service, 242 Local and management to interfere with his right to
N L R B No. 39 (1978). Contrary to Respondent. I find present a grievance. According to Sanders, Loe replied
that decision by the Board to be inapposite as it involved that he felt any sick leave discussions were questioning
allegedly unlawful discipline for the act offiling a griev- his integrity and stated, "Ihave tried i t your way, now
ance, while the instant case involves disci~linefor con- I'm going l o try it theirs." The meeting essentially ended
duct engaged in by union representatives dunng the p m - at that point.
err;ng o f a gnevance Furthermore, Respondent ha^ Approximately 5 or 6 days later. Loe was on his way
m m ~ n g l ybifurcated the conduct o f O'Harrow and to the timeclock to punch out at the end of the day
-.
woodsy finding ~ r o l e c l e dthat which cccurred orior l o when he met Sanders. According to Loe. Sanders initiat-
Love's announcement and unprotected that which oc. ed the discussion, staling. "Louie, I know you have a
curred thereafter. Such an argument, however, would health problem. Ihaven't wen your grievance and until I
enable an employer, b y its own whim, to define the have seen your grievance. Ican't rule on it." Loe replied
nature o f protected activity, and I believe that such an that he would have to talk to O'Harrow. Sanders re-
argument i s repugnant to the policies o f the Act. More- .
sponded. "You don't need Pat . . or anyone else to
over, and contrary to the contention of Respondent, I represent you in a grievance. You can come l o me, we
believe that the entire conduct o f O'Harrow and Woods can discuss i t , and chances are we can work something
during the 5:30 a.m. meeting was within the res gestoe o f out." According l o Loe, he responded that he would
the grievance meeting. Arianric Sreel Compony, supm. have to see O'Harrow and walked away. For the most
Accordingly. I believe that the portion o f the February 3 part. Sandcrr' version o f the conversation corroborates
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

that o f Loe. Thus, according to Sanders, he began the OFs LAW

Co~ctusto~
conversation by asking Loe i f he had filed a grievance.
I.The National Labor Relations Board has jurisdiction
Loe responded that he had not and, according to Sand-
over this matter by virtue o f Section 1209 o f the Postal
ers, he replied. "You know, until you discuss this with
Reorganizational Act.
your supervisor, until he knows what the problem is,
there is nothing in the world that he can do for you. You 2. The Union and the Local are labor organizations
within the meaning o f Section 2(5) o f the Act.
can sit down and talk to your supervisor about it. You
don't have to have the Union at step one to discuss a 3. By issuing a warning notice, which i s partially based
grievance, you can sit down and talk l o your supervisor on his conduct during the presentation o f a grievance, to
and maybe you can work it out . . . ." Sanders testified employee R. P. O'Harrow. Respondenl violated Section
that Loe ended this conversation the identical way he 8(a)(L) and (3) of the Act.
ended their earlier meeting, stating. "Ihave tried it your 4. By issuing a warning notice, which is solely based
way, now I'm going to try it theirs." upon his conduct during the presentation of a grievance,
to employee Jack F. Woods. Respondent violated Sec-
2. Conclusions tion 8(aXI) and (3) of the Act.
5. These unfair labor practices affect commerce within
Counsel for the General Counsel, without supplying the meaning o f Section 2(6) and (7) of the Act.
any case support, argument, or rationale, asserts that 6. Respondent did not violate Section 8(a)(l) and (5)
Sanders' conduct constituted direct dealing with bargain- o f the Act by dealing directly with its employees.
ing unit employees in violation o f Section 8(a)(l) and (5)
7. Respondent did not violate Section 8(a)(l) of the
o f the Act. Respondenl does not dispute that Sanders in-
Act by threatening its employees with the imposition of
vited Loe to discuss a grievance but contends that Sand- any disciplinary action or by threatening to write them
ers' invitation was merely a restatement of the collective- up because of their union membership, activities, and de-
bargaining agreement. Respondent further argues that.
even i f Sanders attem~tedto individuallv barnain with
Loe, such should not be deemed unlawful inasmuch as it
. - sires.

had a negligible impact on the Local's ability to act as

the bargainkg representative for Loe. As ndted above, Having found that Respondent engaged in unfair labor
step one o f the contractual grievance and arbitration pro. practices. Ishall recommend that it be ordered to cease
cedure contemplates a meeting between the grievant and and desist therefrom and to take certain affirmative
his immediate supervisor, and "the employee, i f he or she action designed to ellectuate the policies o f the Act.
so desires may be accompanied and represented by the Having found that Respondent unlawfully issued a letter
employee's steward or a Union representative." Thus. o f warning to employee Jack F. Woods, I shall recom-
the contract m a k s permissible, but not mandatory, that mend that it be required to revoke and expunge from its
an employee be accompanied by a union representative,
Moreover, analysis o f the testintony of both Loe and
records all cooies o f said letter and take no action aeainst
Woods based, in whole or in part, on that warning letter.
-
Sanders leads to the inescapable conclusion that Sanders Having also found that Resvondent unlawfully issued e
was, in fact, merely setting forth for Loe what the con- letter of warning to employ;e R. P. arrow
based, in
tract provides-that, at the initial stage of the grievance part, on his conduct during the presentation o f a griev-
procedure. Loe would have to meet with Sanders and ance. I shall recommend that it be reauired to revoke
that, i f he so chose. Loe did not need a union representa- and expunge from its records those portions of all copies
tive present when he spoke to Sanders.' Furthermore. o f said letter which refer to O'Hsrrow's conduct durinp,
there is no evidence that Sanders pursued the matter the 5:30 a.m. meeting on February 2 at the Herring Sta;
with Loe or coerced Loe into discussing the merits of tion and take no action against O'Harrow based, in
the grievance, that Sanders' actions in any way hindered whole or in part, upon that portion o f the letter of warn-
Loe in filing a grievance over his problem, or that either ing which refers to O'Harrow's participation in said
Loe or the Local, on behalf of Loe, ever attempted to meeting.8
file a formal grievance over Loe's problem. Accordingly. Upon the basis o f the entire record, the findings o f
I do not believe that, by a preponderance of the evi- fact, and the conclusions o f law and pursuant to Section
dence. General Counsel has established that Respondent I q c ) o f the Act. I hereby issue the following recom-
violated Section 8(aX1) and (5) of the Act by dealing di- mended:
rectly with bargaining unit employees. Accordingly. I
shall recommend that paragraph 13 o f the complaint be
dismisxd. " I have prcviourly cuncludcd hrrrln #ha! U'Hnrrow wr\ rcling in an
inwtwrdinrlc manner when he uonlronled lnvl: ohc I r f l e r ' ~0fir.c a!
, the wording or ihe grirvancc-arhi~rationpa>vlrion (or ihe
7 c l ~ e r l y by B J O a m cm Fchruary I . Acrordingly. Icamludcd that Laur'r ~ h r r a flo
exislmng collective-bargainins agrccmcnl. the Unlon h u cxprruly walvcd file charg~sbawd on lhdl inuidrnl wa\ not unlawrul. Thur, inulrrr a* #he
any mlndltory right to be prrvn, during firn.r,cp gricrancc mrclmgr Fcbrwlry I warning mvlicc rrlvrr lo lhr! inchdent. I find in n> k lawrul.
Such. Y.~VCI has k e n unclioncd by ih. Board and thr cuura. Thr Duv Mc,mwcr. in*smuch a\ Ihe two inr-idmlr appear to b w p r a t c and unrr.
Chrmkol Compmy. 215 N L R R P I 0 11910, revrrud on slhrr grclvndr lrlrd and ar lhc laler mnR,nta!icm apvarr lo h. wpdraw ground\ rclr
U n ; # s d S n ~Workers
l aJAmrrim. AFL-C/O v ,\!l..R.B. 536 F l d 5 I l l O d mnruhordi81ution. I rhvli tun! urdrr lhal ihc cororr lrllcr hr. rcuc>ked and ex-
Cir. 1976). punged rr<,m ~ ~ ~rccordr
~ ~ ~ d ~ t ' ~
 UNITED STATES P'OSTAL SERVICE

APPENDIX
The Resrondent. United States Postal Service. San
NOTICE T O EMPLOYEES
Angelo, ~ i x a s ,its olliccrs, agents, successors. and as-
POSTEDBY ORDEROF THE
- . shall:
sinns.
NATIONAL LABOR RELATIONS BOARD
I.Cease and desist from:
(a) lssuinn !cttcrs of re~rimandsto or threateninn to
discharge o; discipline employees because of their pro-
- A n Agency of the United States Government

tected parlicipation in grievance meetings. After a hearing at which all sides had an opportunity to
(b) I n any like or related manner interfering with, re- present evidence and state their positions. the National
straining, or coercing employees in the exercise of their Labor Relations Board found that we have violated- the
~~~~-

rights under Section 7 of the Act. National Labor Relations Act, as amended, and has ar-
2. Take the following amrmative action which is dered u s to post this notice.
deemed necessary to eflectuate the policies of the Act: The Act gives employees the following rights:
(a) Revoke and expunge from its records the letter of
warning issued to Jack F. Woods on February 3. 1979. T o engage i n self-organization
and take no action against him based, in whole or in T o form, join, or assist any union
pan, on that reprimand. T o bargain collectively through reprexnta-
(b) Revoke and expunge from its records those por- lives o f their own choice
tions of the letter of warning issued l o R. P. O'Harrow T o engage in activities together for the pur-
on February 3, 1979, which refer to his participation in a pose of collective bargaining or other mutual aid
530 a.m. meeting on February 2 at the Herring Station or protection
and take no action against him based, in whole or in T o refrain from the exercise of any or all such
part, on that ponion o f the letter o f warning. activities.
(c) Post at its San Angelo, Texas, facilities copies of
the attached notice marked "Appendix."'" Copies o f said WE WILL NOT issue letters o f reprimand to our
notice, on forms provided by the Regional Director for employees or threaten them with discharge or disci-
Region 16, after beinn dulv sinned bv Rawndent's au- pline because of their protected participation o f
th&zcd riprcscntativ;, s h i l b; by I; immcdlately grievance meetings.
upon receipt thereof, and be maintained by it for 60 con. WE WILL NOT in any like or related manner in-
seculive days thereaner, in conspicuous places, including
terfere with, restrain, or coerce our employees in
all olaces where notices to emolovees are customarilv
the exercise of the rights guaranteed l o them in the
posicd Rearonable step shall be'laien by Respondent tb
insure that ratd notices arc not altered, defaced, or cov- Act.
ered by any other material. WE WILL revoke and expunge from our records
(d) Notifv the Renional Director for Region 16. in all copies o f the letter o f warning issued to Jack F.
wntlng, w ~ i h ~LOn dais from the date of thtr Grder, what Woods on February 3. 1979, and WE WILL take no
steps the Respondent has taken to comply hcrcw~th action against Jack F. Woods based, in whole or in
I T I S FURTHER RECOMMENDED that the complslnt part, on that letter o f warning.
should be d i s m i d insofar as it allcnes that Reswndent WE WILL revoke and expunge from our records
. ,. ..
violated Section 8(aX1), and (5) o f t h c ~ c bv
t d i r k 1 deal- those portions of all copies of the letter o f repri-
mand issued to R. P. O'Harrow on February 3.
ing with its employees and that Respondent violated Sec-
tion 8(aXI) of the Act by threatening to discipline em- 1979, which refer to his participation in a grievance
p l o y m or to write up employees because o f thcir union meeting and WE WILL take no action based, in
membership, activities, and desires. whole or in part, on that portion of said letter of
warning.
* I n lhc even$ no cxecpliont arc filed u provided by k.102.46of the
Rule and Rcgulmaions or the ~ation.1 b b o t ~clationr~omrd,the find.
i n p conclusions. snd mmammnded Older hrrcin shall, u pfovidd in
Src. IOl.48 or the Rule d Rcgul.lianr bc adopfed by the h r d and
trsamr its Cndingr. conslwionr and Order. and at1 abjmlions lhrrrto
s h l l bc dlcmed waived for .ti pur-.
' O In lhc evcnl l h l l this Order is enforced by a Judgment of a United
S1.t" Coun or Amah. Ik words in the notice reidin8 "Paled by
O I ~ or V ~h~ . t i ~ ~ ~ ~t ~ t . t i ~h ~ ,r c,h.~
i -polled pursu.
ant lo a Judsmrnl or the United State Coun of Ap~alrEnforcing an
Order of the Nslional h b o r Relntian, h r d "
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

United States Postal Service and Patricia L. Moore. the argument which ensued, Ward gave Moore
Case 32-CA- 13I I(P) several direct orders to return to her workplace.
Moore ignored the orders, protesting that she had
September 30. 1980
a right to remain with, and represent, the men.
DECISION A N D ORDER Ward threatened to write her up if she did not
return to work, but Moore kept insisting that she
BY C H A I R M AFNA N N I NAGN D MI:MRERS had a right to remain with the employees, telling
JENKINS A N D PENEI.I.O them that they did not have to speak with Ward
On March 26. 1980. Administrative Law Judpe without the presence of their union steward.
avid ~1 ~ c ~ d n a issued
ld the attached ~ e c i s i E n Moore finally left, and Ward proceeded to instruct
in this oroceedine. Thereafter. the General Counsel the men that production work does not stop when
filed exceptions a n d a supporting brief, and Re- the production sheets are collected but continues
spondent filed an answering brief, until 515, followed by 10 minutes of cleanup of the
Pursuant to the provisions of Section 3(b) of the work area for the employees on the next shift.
National Labor Relations Act, as amended, the Na- After the meeting, the e m ~ l o y e e stold Moore that
tional Labor Relations Board has delegated ils au- they had not been disciplined. Moore inquired
thority in this proceeding to a three-member panel. whether Ward had said anything about wriline. her
he Board has considired the record and the at- up for disobeying him and requested their aisist-
tached Decision in light of the exceptions and ance i f he did so. On July 21, Respondent issued
briefs, and has decided lo affirm the rulings, find- Moore a 5-day suspension notice, effective July 26.
ings, and conclusions of the Administrative Law 1978, alleging insubordination for refusing to obey
Judge only to the extent consistent herewith. Ward's orders on July 17.
The Administrative Law Judge found that Re- As previously noted, the Administrative Law
spondent suspended Union Steward Patricia Moore Judge found that Moore was suspended solely be-
solely because of insubordination to Supervisor cause of insubordination to Ward. He also found
Ward on July 17, 1978. We find, contrary to the no interference with the employees' Section 7
Administrative Law Judge, that Moore was sus- rights because Ward's instructions to the three em.
pended for engaging in protected union and con- ployees constituted a "run-of-the-mill shop.floorm
certed activity, in violation of Section 8(a)(l) and conversation which did not involve their protected
(3) of the Act. rights and, consequently, did not entitle them to
Otis Ward was, at all pertinent times, a supervi- union representation, under the doctrine of
sor on the 9-10.530 tour at Respondent's Bulk Mail N.L.R.B. v. J. Weingarfen. Inc., 420 U.S. 251
Center involved herein. The incidents which led to (1975). He concluded, therefore. that Moore's at-
Moore's suspension occurred on July 17 when tempted intervention on the employees' behalf was
Ward discovered employees Carson, Welch, and
not protected activity. Moreover, the Administra.
Goepfert in break areas rather than a1 their work
stations after the final production count sheets had live Law Judge noted Moore failed to comply with
the collective-bargaining agreement requirement
been collected but before the work shift had ended.
Ward addressed each of the employees separately, that she obtain permission from her supervisor
telling them "officially" that "you are not on your (Ward) before leaving her work station to engage
job," warned them. "Don't let it happen again." in union business.
and subsequently entered disciplinary warnings in We do not agree with the foregoing analysis of
their records. The employees then met with the Administrative Law Judge. Assuming that
Moore, their union steward, related what had tran- Ward's instructions to the employees did not in-
spired with Ward, and requested her advice and as- volve their Section 7 rights, his "official" warning
sistance. Moore agreed to investigate the incident to them, which they, in turn, presented to Moore
and then left her work station for the purpose of as informal grievances, clearly involved those
conducting this union business without first obtain- rights and was the sole basis for Moore's interven.
ing her supervisor's (Ward's) permission to do so as tion. Moore's effort to investigate those grievances
required by the contract. Moore appeared as Ward at the request of the disciplined employees was
began to explain the work schedule to the employ- within the scope of her ollicial union functions and
ees and was told by Ward that "This is not union constituted protected concerted activity.' Ward's
business."' Moore responded by asserting her right
to represent the employees. During the course of
..
' Ward adm#t!cd that he a\,urncd Mcxrre wn t>n u n x m hvrlnrn hr- , ~ r ri . 8 ~~ u d p r .the proncctcd nvlurc o l r unson ;lcward.. cnndur.~15 not
c a u u #hat w m ~ h cmly
r isme Mtx,rr rrmk~'la Ward. Conllnvd

252 NLRB No. 83

 UNITED STATES I'OSTAL SERVICE 621

opening statement to Moore, i.e.. this i s not union AMENDID CONCL.US~ONS

OF LAW
busineis, made it abundantly clear to Moore that Substitute the following for the Administrative
Ward was bent on preventing her from performing Law Judge's Conclusion of Law 2:
her officiul duties and also plainly demonstrated the "2. By discriminatorily suspending Patricia L.
futility of her requesting permission to engage in Moore by notice o f July 21. 1978, for engaging in
union business. While we agree with the Adminis- protected union and concerted activity in the per-
trative Law Judge that union stewards are not formance o f her duties as union steward, Respond-
immune from being disciplined for insubordination. ent has violated Section %(a)([) and (3) of the Act."
we find no insubordination here. We find, instead.
a conscious intent to preclude Moore from carry- ORDER
ing out an official, and protected, union function. pursu.int to Section IO(c) of the National Labor
which Moore protested, without engaging in con- Relations Act, as amended, the National Labor Re-
duct which can be reasonably and objectively lations Board hereby orders that the Respondent.
viewed as ins~bordinate.~ Certainly, Moore's con- United States Postal Service, Richmond. California,
duct involved neither a refusal to work nor a dis- its officers, agents, successors, and assigns, shall:
ruption of work production, and her conduct did 1. Cease and desist from:
not exceed "acceptable bounds" and lose the pro- (a) Discriminating against employees for engag-
tection o f the Act.' Ward may have considered ing in protected union and concerted activity while
Moore's conduct as a challenge to his authority. performing the duties o f union steward.
but the fact remains that he provoked the confron- (b) I n any other manner interfering with, re-
tation by his unwarranted interference with straining, or coercing employees i n the exercise of
Moore's protected right to investigate the griev- their Scction 7 rights.
ances. 2. Take the following aflirmative action designed
Accordingly, we find that Respondent's suspen- to effectuate the policies o f the Act:
sion of Moore interfered with her protected union (a) Make whole Patricia L. Moore for any loss
and concerted activity, i n violation o f Section of earnings occasioned by her disciplinary suspen-
sion issued on July 21, 1978. in the manner de-
8(a)(l) and (3) of the Act. We shall therefore order
scribed in this Decision.
Respondent to cease and desist from engaging in
(b) Expunge any record o f the disciplinary sus-
the conduct found unlawful herein, to post an ap-
pension of Patricia L. Moore issued on July 21.
propriate notice, and to make Moore whole for any 1978.
loss of wages or other benefits she suffered as a (c) Preserve and, upon request, make available to
result o f her s~spension,~ and to expunge any the Board or its agents, for examination and copy.
record of her suspension. ing, a l l payroll records, social security payment re-
cords, timecards, personnel records and reports.
and all other records necessary to analvze the
amount o f backpay due under .the terms-of this
~ n t t r c l ydcpndcnl on whether thr rmpl%lyrninvotvcd c r r r cnllllrd.
under Wtmgar,cn. lo rrqucn union rcprcwnlatinn. Ralhcr. r, long ar hlr Order.
or hcr cllortr do not crc& "lhc baundarie or scctplablc mndurl." a (d) Post at its San Francisco. California, place o f
union rrprcwnmtiur's stking lo honor an activily. puo1it.v .Wonv/oounng business copies of the attached notice marked "Ap-
Company. I95 NLRB I 9 1 119721 Sm .I- G l n r m l Motorr Cr8rparation.
Inland Dirhlon. 111 NLRB 41 (19711. pendix."' Copies of said notice, on forms provided
Sic Pnnbumh Pmu Company. 214 NLRB ( 0 8 . 411-412 11911). by the Regional Director for Region 32, after

man~-wcrc no! -
con,r.ry l" M e m k r Pmrlln. Mrnrc'r conducl did no, conni,"lr in-
subardlna~ionprnvading "ample juwfirarinn" for her ru,pcnrmn. Rslher.
Mmre's cT(nrts on bch8lf or #he rmptnym-lhough pcnlslcnt and ad*-
injurious or dl,rvptlve ar lo k unprolccled. Mnsrr'b
xlians. at wonl. were inrvllicicnlly wriaur lo drprnvc an emptoycc p r .
forming hi. or hcr dull" a 'ecmrd o f ihr pnl%lion of the Act. See
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent imrnedi-
ately upon receipt thereof, and be maintained by i t
for 60 consecutive days thereafier, in conspicuous
Carrrpillor Tmranor Compnv. 242 NLRB 521 0919l. places, including all places where notices to em-
1 H.cLpay shall hr computed ~n ihr manner wl forth in E W Wml. ployees are customarily posted. Reasonable steps
w r # h Company. 90 N L R B 289 1IPJOl. wolh inlrrrrl rr prcwrihrd in Nor-
,do l r t l Corpolu,ton. 231 NLRB 611 11971l. Scr. gcncrslly. /sir Plvmhlng shall be taken by Respondent to insure that said no-
4 Hm,ing C o . I I R NLRB 716 (tPb2) In aceordancc cilh hlr dlrvnl on tices are not altered, defaced, or covered by any
0lympic MsdiroI Corpmnon. 2X) NLRH No. I1 lIPRO1. M c m k r Jcnk~nr other material.
.
would award
- ..
infrrrst on ihc backnav due h a d on the formula VI lorlh
I ~ L ~ C I ~ .
In.rmuuh a, ,h. rccnrd rrrrn lo an unretal<d grUvunct arh,lr*,,.n " In !he rvenl chat ,hi* Ordcr i, rnhlrecd by s Judgment or a Untwd
pmwecdmginvolving Rcrpcmdml'r a l l c g n l diwhrrgc 01 Mmrr prior ic> S111e< Court of Appalr. uhc cords tn ihc nnlicr readtng "PIISIC~ By
c nr her %urp.oon round untvulul hrrrbn. c c shall d r k r
the ~ m c ~ n i vdate order of the Nuitmrt L ~ h Rclaf~onr
r B o a r d ~ h s l read
l "R,slrd P u r w
IO ihc compliance vsgr or ,hi* pnrcrding rr?crlulll?n 111 any p8ltcntldl ant ICI u Judgmrnl of the Unuvd Slate\ Cuvrl of Appralr Enr*,rc#ngm
m p c ! ihrrerrom im #he ~ n \ t a n lhrckpay order Ordrr !he Nalnonal I.rhlr Rclat8c>n\ Rcrard."
62 6 DECISIONS OF NATIONAL LALIOR REt.ATIONS BOARD

(e) Notify the Regional Director for Region 32. this procedure. Under these circumstances. I would
in writing, within 20 days from the date of this find that Respondent did not violate Section 8(a)(l)
Order, what steps Respondent has taken to comply of the Act by suspending Moore and would, there-
herewith. fore, dismiss the complaint in its entirety.
MCMnER PENEI.I.O. dissentine: APPENDIX
Contrary to mycolleagu&, 1 would affirm the
Administrative L a w Judge's finding that the sole NOTICE T O EMPI.OYEES
reason Respondent suspended employee Moore POSTEDBY ORDEROF THF.
was because of her insubordinate conduct directed NATIONAL LABOR REI.ATIONS BOARD
at Supervisor Ward. An Agency o f the United States Government
Briefly, the record reveals that Supervisor Ward
discovered three employees away from their work WE WILI. NOT suspend or otherwise disci-
stations after the final production work sheets had pline, or take any other discriminatory action
been collected but the shift had ended. Ward ex- against, employees because they engaged in
plained to them that work did not stop until 530 protected union and concerted activities while
and warned them not to let il happen again. The performing the duties o f a union steward.
employees then informed Union Stewad Moore as WE WI1.I. NOT in any oiher manner interfere
to what took place with Ward. Meanwhile, Ward with, restrain, or coerce employees in the exer-
decided to explain to the employees the rules con-
cise o f their rights to self-organization, to
cerning the work scheduled for the end of the day.
form, join, or assist any labor organization, to
As he attempted to do so, Moore arrived on the
bargain collectively through representatives of
scene and interrupted Ward's presentation by tell-
their own choosing, to engage in concerted ac-
ing the employees that they could quit work when
tivities for the purposes o f collective bargain.
their production sheets had been turned in. The ar-
ing or other mutual aid or protection, or to re-
gument became more heated in the presence o f I S
frain from any and all such activities.
or 20 employees. Ward gave her several direct
orders l o return to her work station but Moore WE WILL reimburse Patricia L. Moore for
continued to argue and interfere with Ward's at- any loss of wages or other benefits occasioned
tempt to instruct the employees as to the correct by her suspension issued on July 2 1, 1978, plus
work schedule. Because o f this disruption, Ward interest.
was forced to continue the discussion with the em- WE WILI. expunge from all records any and
ployees in a private office. Initially, Moore at- all references to the suspension of Patricia L.
tempted to join the discussion i n the office and dis- Moore issued on July 21, 1978.
obeyed several direct orders by Ward to return to
her work area. Finally. Moore left and was subse-
quently suspended.
I n my view, Respondent had ample justification DECISION
for suspending Moore for insubordination. Moore STAIEM'NT OF THE CASE
successfully prevented Ward from discussing the
work schedule with the employees on the work DAVID P. MCDONALD,Administrative Law Judge:
floor. I n the presence of I 5 to 20 employees, This mutter was heard in Oakland. California, on May
Moore not only intirrupted the discussion but also 24. 1979.' The complaint. issued November 30. by the
Regional Director of the National Labor Relations
attempted to countermand Wards' express instruc-
Board for Region 32, i s based upon a charge Filed Octo-
tions to the employees concerning the correct ber 19, by Patricia L. Moore, an individual. The com-
workd schedule and ignored several direct orders plaint alleges that the United States Postal Service,
to return to her work area. Such conduct under- herein called the Respondent, violated Section 8(a)(l)
mined Wards' authority placing him in a position and (31 of the National Labor Relations Act, herein
where i t appeared that he could not function as a called the Act.
supervisor. Futhermore, under the collctive-bar- All parties were afforded full opportunity to partici-
gaining agreement. Moore had no right to leave pate, lo introduce relevant evidence, to examine and
her work area to conduct union business without cross-examine witnesses, lo argue orally and to tile briefs.
first obtaining permission from her supervisor. The Post-hearing briefs were filed on behalf of the General
record discloses that the practice has been for the Counsel and the Re~pondent.~ Upon the entire record,
steward to contact the supervisor when reporting
I All dues hvrcin rdrr 11, 1978, unlra stherwmx indivaled.
to work in the morning and arrange a schedule for ' The <irn.r.l cuunxl'r umlppclwd n,.,,,,n ,o mrkr crr,a,n Eclrrw-
conducting an investigation. Moore failed to follow trim, 3" the ,runrrr,pl i, hcreh) granlcd.
and fr<>mmy nh\urv;~l~o~t 01 lhc wilr~rsrrrilnd their dr. thu~ltrh\r.rvcd l i l w r r d Cursl~n*illlng ;,I unanlhur tahlc.
muunnr. I mukc Ihc following: who) ~.xplnined~ . v ~ r y n nhall c lei! Ihu wcnl 11) the uuru.
lcriis since hu hild ntvlhing elsc 11, d o I n lhu ;$djoining
Iclckcr rcrvm. Ci~spfcrl,who wdr playing dnminob, did
t ~ t , ~d f ~ ~n r cxpl;sna~ino fnr hi< U ~ S C ~ B Crr,,"~ C the w ~ k
I.J I ' M I S I l I l ' I ION
;nru;t. Wnrtl r p k c I,?hnlh men wparaluly and rcilcraled
l'hc l'o~litlRcc~rg;!ni,itIit>n Acl, 3') 1l.S.C. l2Ol- 120~1, lhu disuursion hc had wilh Welch. As he lull lhu arcin he
hcruin cnllcd I'RA. p r ~ v i d ~i.l ~ t f.~ r"/ill. lhitt 1 1 1 ~U t ~ i l c ~ l , i ~ ~ l l udnwl!
tl thu infnrmalion cnnourning the di%cu*ria>nr
Slule* I'<>*I~I Service \hull hc ruhjuul 10 lhu pn~viric,t>*trf in his onleh,r>k und prncvedcd I<, ring I. Hu lerltlicd lhat
Ihr Nalionill I.ilha>r Kclation+ AEI. 10 the crlunl 11131 in- 11 war his usual L.uslom 10 jol dnwn dircurvic,n* in order
c~~nrirtcnl wilh pr#vvi\ion*<IF lhu I'HA. 11, verify lhu crmvcrrution. I F he iailud 10 nolu an invi.
dent lhurc was illways the pnsrihllily that r n umpL,yue
11. I111 1 A H l l H iIHliANl/.A IIOIC INVOI VI:Il
would d~.ayi t in !he luluru.
The Hu*pondunl udmils ;tsd I lincl l h i ~ l(he Misil- Nuilher Carslrn nor Grrupfcrt lurlified at Ihc huaring.
hundlerr Utiin~s.l . 0 ~ 1 1 1 3112, hcruin cullucl ihu Union, ir $8 Ilnwcvur. Welch lcrlilicd and ruhvluntirlcd Ward'* reci-
lahw ~,rgi~ni,.i~lic~n wilhin llte munninp n T Svr.li,,ll 2 ( 5 ) of litliiu~of the incident hut providcd a rlighlly difirent
Ihe Acl. vcr\iun ur l a lhc urrnunding fuclr and ca~~verrillinnr.
W~.lchreculled that ihe lhrec of lhcm I L ~ lhe
I wtwk uruu
Ill. 1'111: Al.1 C.<;l:lJ l!Nl A I M IA H f l H I'HACIIC 1.S hccuuru no (mu war there. They assumed uvurynnu had
lull hecuuve the ccrunl sheets had heen pickcd up. llrrrd
A. Iluckl(mu,rd
nn ihir ;~rsumplir~n they slowly left the area und walked
The unil of the I'arslal Service involved ill this coslro. l u lhc cufclcris, whurc he ral and smoked a vigarcllc.
versy is the Rurpondcnl'* Stru Prancircr> Hulk Mail Oli, ;uppcilrud und sleled l o all of them. "Well. I'm going
Center. hcruin urllcd lhu HMC, localcd in Richn~,md. l o muke lhir ofliciul. You are not on ynur joh." As he
Califnrnia. Oli* Wanl hilr heen cmpltryed hy the l'nrlul lurncd and walked nul. Ihe men glanccd ul cvuh nlher
Servicc frrr 22 yuilrr and ilr a ruperviror during lhe larl wilh ;a hewildured expression and (hen follnwcd him oul
10 yuarr. On July 17. hc w r r ill charge a l T n u r 2. ring I Ihc d l ~ ~Tngelhcr. r. Welch. Csrran, and Gc~cpferlpro-
and ring 2 nf lho nc,nm~chinahlc uulsider>, hcruin called ceeded I n ring I where lhc limcclock ir located and
NMO. where lhey saw I'at Moore. the Union's shcrp rleward."
The N M O reclkm ir dividcd inlo two work "rear A1 thut time Welch relared the facts and asked her
called rings. The mailhundlurr manually sort parcels. why did he make such u statemen1 when. "lherc wasn't
which cannol he rrrrlud hy machine because they are nnyhody clsc around the ring, what werc we supposed to
either ltro heavy. awkward, ar fragile. The procedure dr~,sit lhcrc und work hy our?ielver." Moore rcapondcd.
consists of rnailhsndlcrr wrling the parcels frcrm a hell lo "I will go talk lu Olir ahoul it. I will sce what is ihc
vrrious roller lahl' armr and I~L.II hy zip cndc into COI- prohlcm." To which. Wclch wid. "Okay."
taincrs lhut arc irrnsparlcd tn rlallo.
Monre'r rnrmnry 01 Wclch'r cnmmen!~werc slightly
Tour 2 hcginr a1 9 um. and cxlvndr 1~ 5:30 p.m. He.
differunl. Shc arrcrls (ha1 Welch and Gaeplurl quolcd
lwren 5:IJ p.m. and 5 2 5 p.m. Ihv handlers are requircd
1,) clcrn up lhcir wark urea in prcparirtinn hrr lhc nurl
Ward ur staling. "Ynu urv nul of your work arua, !his is
. . an nfficiul diroussion" and then they asked her il they
lour.
A1 5 2 3 p.m. Ihe employee%are allnwcd l a lcave the had u grievance. Mcn~retold them that she lhnughl lhcy
work area and wurhup. might have u grievance, and i f il wcrc agrceahle wilh
During the day lhe superviwr nr his designee, hourly. lhem rhu would make an appcrinlmunl wilh Otis l o hcar
collects prcrduulinn rhcelr (~.ount sheets) in ihv N M O his verric~nand lhen meel again through the oflicial
ares. Thcrc shrelr provide management wilh an uccuralc gricvance procedure.'
arressrnenl of the vnlume of mail which is placed nn the The men then leaned nn the railing of the hreak area
cnnveynr hellr hy !he employees. The supervisor tallies which is on the work floor, near the limcclrrk and lour
the inkrrmalinn und port lhc resulls an a hullelin hoard. office. Ring numhcr I ir also iocaled in ihe same area.
Thc larl prnduclion rheel pickup is normully hetwccr~3
and J:l5 p.m. V l l h o u ~ hltlr rrnlrd 03 "old rr 111 ihc e s w l Ikx~lwsnmd ihr drllrncr
On July 17. Wvrd wnl an cmploycc 10 pick up the h,turcov lllr l~merltrk,hrwk srrr. Tour smee. sad rlnp numlxr I. ~ h r
sheel* frnm the far end o f lhc wnrk area whilt: hu prn.
cccded l o ring 2. Upon arrival he oh%rvrd cmly twn or
three employees inrtuad of eight. b h h y Wclch. Edwurd
Carwn, and Glen Gocpfcrl were among the mirring
~ c r ~ ~ m a tor
lhrulrtl ill ihr umr p ~ r r uarea
4 Mculrr d,~.ltlh.d i h #,~P",~Ec
~ .
u ) wc1r.h. Mtwrr. and wrrd wtvuld indicvlr l h r l i h q mrr rll
l und clnly nhon dlslancc .par#.
~IIX.NI"IC ~l!.lll,i"~ ar 4hrrr nep.
I. 'l'hr .hasp *lvuurd mwlr w l h ihu prieranl id inrr.ltync. ~ h r
pn8hl~.sAa upp?##nlrnrnl a mrdr v~lhihr r u p r v # u > rklr r mwmu
men. In an cNnrl l o locale thc mirring umploycer he en. (17 dlrcurr i h r pn>hlrnb.l'hr rupcrr6ua ,r6,~#dn hlr ulm*rr in wrll-
I,.,, l,,m,
Icred the cafeteria where he fnund Hnhhy Welch. Welch
explained he lhnughl he war Ihmugh ftlr the day since
~ h cprnductinn rlipr had hcen picked up. Word claims he
cxplaincd i n him lhal wnrk did IIIII slop unlil 5 3 0 and
added. "Jusl consider lhir a dircusricm. You kitc~wthal
lhir had been discurwd. Dnn'l lel i t hnppcn apoin." I l u
628 DECISIONS OF NATIONAL LABOR RELATIONS HOARD

Otis picked up the production sheets from ring number 2 Moore asserts that immediately after her conversation
about %IS. At this time he observed the men by the with Welch, she apprt~rchedOtis as he picked up the
break area and reflected upon Welch's assertion thut he count rhect from ring I. As she spoke, they were walk.
felt his work was finished when the sheets were picked ing towdrd the Tour office, where he would complete
up. Otis decided thal he should explain to them the rules his .iranerwork.
. Shc erolsined that the men had come to
and regulations concerning the work scheduled for the her concerning tlte ''Ji\cu\>ion'' and rhc wanted to know
end of each day. As he walked up to the group he said. whut he thought wa\ ~n\alvudIn the ,~tuatic,n. Although
"You really believe thut wc quit work at ten minutes to hv told her hu dld not uant her to a d r w people thcy
five?" As he began to explain he schedule, Miss Moore could quit when the count sheets were cdlected, she
appared and he turned to her and stated. "This i s not denied she had ever given such advice. She simply
union b u r i n e ~ r . "She
~ then began to tell the men thcy wanted the rules ~Arrifiedsince other supervisors had not
could quit work anytime their production sheets had crbjecled to the practice of quilling when the sheets were
been turned in. As the argument became more heated. a collected. At this point, they were 10 to I 5 feet from the
crowd of I S to 20 employees began to listen. A l l Parties Tour Office, people were gathering for washup and the
agree. Moore had not sought permission to l e ~ ~ vher e men were in the break area near the Tour Office. Otis
work station as required by the agreement between the called over to Glen and Bobby. Moore testified:
Union and Respondent.Ward gave her sever111 direct
orders to return to her work station, but she simply con- I t looked like he wanted to discuss the problem
tinued to argue and interfere with his attempts to instruct with them . . . and I felt that considering that i t
the men as to the correct work schedule. Since he was looked like i t wa* going to be based on the same
unable to confer with the men, he decided to use a pri- subject matter, that I should be present and at any
vate office and therefore he turned to the men, saying. rule, he told me that he wanted me to leave, to
"Will you three gentlemen come with me, please."' As return to my work assignment. And. I said that I
he entered the oflice he requested several supervisors to had been requested to represent Bobby and Glen
leave and invited the men to en1er.O As Moore began to and I intended to do so.
enter. Otis asked. "Where are you going?" and she re- A t the time. I think-1 don't remember exactly all
sponded. "I'm going in there loo." The argument inlensi- the words spoken it got rather heated. Voice were
fied with both Otis and Moore raising their voices. getting loudet..
Again he gave her several direct orders l o return to her
work area which she ignored and continued to argue. As Rick Peter, another supervisor for the Respondent.
After several direct orders she suddenly and abruptly walked out o f the inner ofice, he saw Moore shouting to
stopped and walked out. H e then turned to the men and the employees over Otis shoulder that they did not have
raid: to talk to Otis and advising "Iwouldn't talk to them i f
What I wanted to explain to you gentlemen outside there wasn't a shop steward." As the argument in-
was that we don't stop working when the surviror creased. Olis gave her several direct orders ro return to
picks up the production sheet. We stop working at her work station. Initially she responded by stating it
5:IS. We clean-up, push all the dollies. the floor was washup time and therefore there was not any work
dollies to their proper stall. push hampers, SP&R's to perform. Then she repeated her statement that she
or whatever. to their proper destination. This i s all I represented these people and should be present. Otis
wanted to tell you out there. You guys can get up again warned her that if she disobeyed his direct order
and leave. he would write her up. As the group moved into the
Tour ofice she observed several supervisors. Although
There was no evidence introduced which would indicate she experienced some doubt in her mind as to the nature
that Welch. Carson, or Goepfert requested the presence of the forthcoming meeting, she again refused to leave
or assistance of a shop steward; nor was there itny evi- when ordered to do so by Otis. She was not certain i f
dence that Otis guestioned or disciplined them at this the men were about to be disciplined and summarized
meeting. her position at the hearing by testifying:
I can't say that I thought that it was going to be
Ward sdmittrd that whcnevrr Mtxlrc approached him, he auumed
rhc was on union burins$rincr ah*, was ihc only lime *he rpukr la him. further disciplinary action, or what. I was con-
Article XVII. rrctinn 3. Rights or Stuwardr: cerned that Otis would not intimidate these people
Sccticln 3. Riahtr or Sawsrd*. Whcn i t i s ncccrulrv for. r acward !IS as Par as their filing a grievance about a discussion
trsvc his work are8 in inverligalr and adjust grievance or lu invmli- that had already occurred, and Ireally was unclear
gslc r ,prcnnr. prnblcnl drlcrminr whrlhrr la 61c r grirumcr. he
rcgur.t lxrmirsion from hnr immrdi.te rupcrvs.r .ml such rr.
as lo what further actions would be taken against
y u n l rhall not k unrca%on.bty denied. them. I t was a concern of mine, but not in terms of

-cur .I
During his icnimony. Welch claimed hc fcarrd r rurpen<ionwould
#heur.ond rnectin8.However. on crurq-cxrm&nrlion, lhc hllow.
ing prlian or his amdavit wrr read lo him. "Olir lnld me and other cm-
determining whether I should be there or not. I t
was the intimidation factor that I was worried
about.
.
dovccr
. in come with him in ihr Tour Oflice. I thoulhl he I., going~. m
t a diruruon. I guns, like he did: Hr rrrpondrd lo lhir aflidrvit
g ~ v ur
by inrwrring. "Idid not know what he wa. going tn do."
Finally, upon hearing another direct order, she advised
nick peters. nab W~LL,. DO" ~ ~ ~ n ~md h~ r d H,,I~.-
R.IP~ , wrre Bobby and Glen not go into the inner office but leave
among #hesupoviulrr who tm the rcnm at Ward'$request. with her. They entered and she left the Tour olfice.
 UNITED STATES M S T A L SERVICE 629

When Bobby and Glen came out of the ofice they ex- ing thc employee of, and acting upon, a previously
plained to Moore that they had not been disciplined but made disciplinary decision.
simolv received instructions as to the nroner ouittinn
tlmc . ~ o o r ctestified that Welch had told he; t h c ' d ~ s c u ~ In the present case the supervisor held three separate
won in the cafeter~auould he dropped Howerrr. Wclch meetings with the men. The first encounter occurred in
dld not mention the dtrmls-al of the d~rcu%slnn tn htr tev the area of the cafeteria and locker roam. A t that time.
timony. I n fact. he said he was so angry he was not Otis questioned the men as to why they were not work.
-
. . attention." Moore then innuired as to whether
"navina
Otis had made any reference to her receiving a writeup
-~~~
ing and informed them: "Just consider this a discussion.
You know that this had been discussed. Don't let i t
for disobeying a direct order. Welch explained that noth- happen again." None of the men requested the assistance
ing was mentioned concerning her insubordination. As o f a union represcntative during this first meeting. Therc-
they left the building she told ihem. "Well. Iwould like fore, regardless o f how this initial meeting is classified.
support in case i t did, since they were there and saw ev- the protections afforded by Weingonm simply do not
erything that happened." arise since union assistance was not rought.
Ancr the men left the oftice. Otis filled in a blank During the subsequent two meetings both outride and
letter form indicating he had a discussion with them.* in the Tour Olfice. Otis never questioned the men. I n
The form was then typed for his signature. Since he was vain, he attempted to instruct the men as to the proper
off work the following 2 days, he did not sign the letters work schedule. When i t became impossible for him to
until July 20. Immediately, upon his arrival at home, he speak due to Mwre's shouting and general interference.
reduced the event of the day to writing. When he re- he had no other choice but to move the meeting inlo a
turned to work on July 20, he conferred with his super- private ofice. Finally, with the door closed and without
intendent. A l Bowen. Moore's personnel recurd indicated further interference he was able to review the schedule
she had a prior incident of insubordination with another in a few minutes. Other than Otis. Welch was the only
supervisor. His written report was submitted to Bowen witness who attended the third meeting and who also
with a recommendation to suspend Moore for 7 days (5 testified. Although he readily admits he was not atten-
actual work days), due to her insubordination. Otis ex. tive, he did recall receiving instructions as to his work
plained that as a result o f her direct challenge to his au- schedule. There was no evidence adduced which would
thority in the presence o f I5 to 20 employees he looked allow one to find that the supervisor questioned or disci-
ridiculous, was prevented from exercising his duties as a plined these men at either the second or the third rneet-
supervisor, and in effect was run from the work floor by ing. He simply instructed and that does not fall within
her interference. The recamendation was approved and a the purview of Weingarrm. The Board has indicated that
letter of suspension was issued on July 21. it will not apply the rule requiring representation at in-
terviews "to run-of-the-mill shopfloor conversations."
Analysis as, for example, the giving of instruction^ or training or
needed corrections of work techniques. ,V.L.R.B. v.
I n N.L.R.R. v. Weingarfen. 404 U.S. 251 (19751. the Weingorlen. supro; Quatify Monufocruring Compmy. 195
United States Supreme Court held that an employer vio- N L R B 197. 199 (1972); AAA Eguipmenr Service Company.
lated section 8(aHI) ofthe Act by denying an employee's 238 NLRB 390 (1978). Therefore. the three occasions
request that a union represcntative be present at an inves- when Otis spoke to the men did not evolve into a situa-
tigatory interview which the employees reasonably be- tion which evoked the protection of Weingangorfen on their
lieved might result in disciplinary action. The Board con- behalf. On the first occasion, they simply had not re.
cluded that the Supreme Court's decision in Weingarfen quested the assistance of a union representative. On the
applied to any interview, whether labeled investigatory second and third occassions they were neither questioned
or disciplinary, so long as the employee reasonably be- nor disciplined but simply instructed as to the proper
lieves the interview may result in disciplinary action. work schedule. Certainly, a work schedule under these
Cerrtfled Grocer.< of ColiJhrnio. Lfd. 227 N L R B 121 l circumstances is a "run-of-the-mill hop.floor convera-
(1977). enforcement denied 587 F.2d 449 (9th Cir. 1978). tion."
Subseguently. the Board has overruled, in part, i!s Ccrri- The General Counsel has urged that Ward's testimony
e
diJ Grocers decision in Boron Rouge Worer Work5 Com- i s not creditable. Idisagree. Whenever there are facts in
pany. 246 N L R B No. 161 (1979). Thus. the Board now conflict between Ward. Moore, and Welch. I credit
holds that: Ward. He testified in a clear, concise, and convincing
manner. Although cross.eramined vigorously, his testi-
[Ulnder the Supreme Court's decision in Weingar- mony remained largely consistent, with the only rignifi-
fen. an employee has no Section 7 right to the pres- cant discrepancies being the type explainable by the
ence of his union representative at a meeting with effect of passage o f time and the frailties of memory. See
his employer held solely for the purpose of inform- Bruce Duncan Company v. N.L.R.R.. 590 F.2d 1304. 1109
(4th Cir. 1979). I n contrasr. Welch seemed 1e.w respon
rive to the questions and he admitted he war so angry
with Ous that he did not listen to everything and was
O n July It. t q l s . I d#'uu\\cd the f n l l o r ~ n g i n h i ~ ~ ~ ~ oonly n ahle to recall a few words. I t should also be noted
vllh 4 Employer. r : # r taking m u8vau- that he teslified that he feared possible discipline when
~ h n r l l c dhrrak i n ihc Caretcr8r n 4 I0 n m he was told to enter the Tour Office. However. %,hen he
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Unlted States Postal Service and New Haven Con- and overtime. Under that policy employees were
neeticut A r a M I , American Postal Workers required to punch out for lunch at the exact minute
Unfon, AFL-CIO. Cases 39-CA-8W(P) and their break was scheduled to stan. Similarly, em-
39-CA-1045(P) ployees were required to punch back in at the
22 November 1983 exact minute their break ended. Employees who
failed to punch their timecards precisely when due
DECISION A N D O R D E R to resume work were docked overtime pay. When
BY CHAIRMAN DOTSONA N D MEMBERS employees argued that precise clocking would be
ZIMMERMAN AND HUNTER difficult on shifts where large numbers of employ-
ees had to punch the clock, the Respondent agreed
On 19 November 1982 Administrative Law that supervisors would be authorized to adjust the
Judge Raymond P. Green issued the attached deci- timecards of employees who were unable to
sion. The Respondent filed exceptions and a sup- comply with the policy due to congestion around
porting brief, and the General Counsel filed an an-
swering briefs.
...-..".-.
th- rl-L.
On 3 February Winn inadvertently punched out
The National Labor Relations Board has delegat-
for lunch at 959. 1 minute early. When the lunch
ed its authority in this proceeding to a three-
member panel. break ended, Winn, who desired to punch the
The Board has considered the decision and the clock at 10:29 in order to show a 30-minute lunch
record in light of the exceptions and briefs and has break, was unable to reach the clock because his
decided to affirm the rulings, findings.' and conclu- coworkers were gathered there. Thus, he clocked
sions of the judge only to the extent consistent back in at 10:30 and, as a result, would be docked
with this Decision and Order. for 1 minute of overtime. Winn approached Acting
The judge found that the Respondent issued a Supervisor Harold Feeley to have the card correct-
letter of warning to William Winn because of his ed, and Feeley responded that, inasmuch as he was
protected activities, thereby violating Section only an acting supervisor, he would have to seek
8(a)(3) and (I) of the Act. The Respondent has ex- the approval of Mark Sullivan, manager of mail
cepted to that finding, arguing that Winn was disci- processing. A few minutes later Feeley advised
plined for cause and not because of his protected Winn that Sullivan was unwilling to correct the
activities. We find merit in the Respondent's excep- timecard because he had witnessed no congestion
tions. near the clock.6 Shortly thereafter, Sullivan ap-
As more fully set forth in the judge's decision, peared on the work floor and asked Winn what the
Winn served as the Union's chief steward from problem was. Winn explained the situation which
1976 to May 1981 and as an alternate steward from had existed. When Sullivan reiterated his refusal to
May 1981 to February 1982.z On 10 February correct the timecard, Winn became loud and argu-
Winn was reappointed chief steward. Although mentative. Sullivan accused Winn of putting on a
Winn was an aggressive steward3 who enjoyed the show for the employees and Winn in turn accused
loyalty of his coworkers, he was not a model em- Sullivan of being ignorant and belligerent. During
ployee. Winn had been given letters of warning in the argument, Sullivan, who did not raise his voice,
December 1980 and April 1981. He also was coun- invited Winn to file a grievance about the time-
seled orally on at least two occasions in 1980 and card. Winn rejoined that he would file a grievance
one in 1981.' whenever an employee experienced a similar prob-
The incident which led to the issuance of the I I lem. Asked by Sullivan if he was threatening man-
February warning letter in issue related to a newly agement, Winn responded that it was not a threat,
implemented policy about timeclock procedures that he intended to grieve all timecard adjustment
I Repandent h u cxccplcd in w m r or the judge's credibility findings. problems. It is clear that during the confrontation
The hard's nuhlishcd policy is not lo overrule an adrninistnlivc law several employees stopped working and looked on.
judge's crcdibilily remlulians U ~ Nthe slmr prepandcram or 111 the When Sullivan told Winn to return to his work
relevan! cvidsnc. canvinm us that thcy arc insorrcsl. Slandard Dry
Wall Pmlucrs, 91 NLRB JU (191% enfd 188 F.2d 162 (Id Cir. IPJII. area, the latter did so and operations returned to
wc have E.~.~uIIY emmined ihc record and find no basis rot reversing normal. A short time later, Sullivan took Winn
the findinp.
Unlnr alherwiac indiealed. .I1 datrs hcrrinallcr arc in 1981. away from the work floor for a discussion of
a I n . 1. 10*.month pc.od in 1978 or 1919, Winn liicd appro&im.lcly Winn's unruly conduct, and, again, Winn became
Ir.mo nrievanen, nrnrlv all o f which were lhlrr withdrawn by the loud and argumentative.
union.
The j v d ~ cadmitted cvidcncc concernin$ thcv incidents only to
prove that diripiinary action wrr mkcn and no! for purpara of proving Thc judge found that. ~n fact. ~ h carea near ihc timeclock w u con.
the underlying conduct. gnad.

268 NLRB No. 34

 POSTAL SERVICE 213

On II February Sullivan issued to Winn the fol- the employer to demonstrate that it had a legiti-
lowing letter of warning: mate, permissible reason for its actions such that
On Wednesday, 2-3-82, Supervisor, Walt the disciplinary action would have laken place
Dmiello, had to instruct you to stop shouting even in the absence of the protected wnduct. .
and disrupting operations on the workfloor. In the instant case, the judge found, and we
agree, that the Oeneral Counsel established a prima
After that lame day, you became loud and facie case. Thus, the warning letter on its face
abusive towards me, shouting personal, derog- shows that it was motivated in part by Winn's
atory remarks and threatening to file multiple

. prlevances in order to harass management.

When told to lower your voice, you refused to
.comply. At that point, I took you off the
workflwr for a discussion, where you contin-
promise to file grievances on behalf of all other
employm whose timecards were not w m c t e d
when there was congestion a the timeclock. Clear-
ly, such action would be protected concerted activ-
ued the shouting and your belligerant conduct. ity.' However, we further find that the Respondent
has met its requisite burden of proof by demon-
After our mating, you spent over 25 minutes strating that it had a legitimate, permissible reason
away from your assigned work area, in the for disciplining Winn and that it would have done
mens' lavatory.' Just this past December, Su- so even in the absence of Winn's protected activi-
pervisor Joe Oambardelia [sic] had to order ty.8
you out of the lavatory after being absent from Winn, the Respondent showed, became exces-
the assigned work area for an extensive period sively loud and insulting while discussing his time-
of time. 1 have personally observed you leav- card with Sullivan. When asked to contain himself,
ing the lavatory with folded newspapers in he would not. Ultimately, his actions caused fellow
your back pocket, following long absences employees to stop work, albeit briefly, thus disrupt-
from your assigned work area. ing operations at the facility. The Respondent also
Your failure to perform work as assigned, dis- showed that, over a 2-year period, Winn had been
ruptive conduct and lack of cooperation are disciplined at least five times. In Soufhwsfern Bell
unacceptable. As you have previously been Telephone Co., 260 NLRB 237 (1982). we stated
nnde aware of your responsibilities and obliga- that in the administration and rmlution of griev-
tions in this area, in the future, these non-pro- ances under the collective-bargaining agreement,
ductive work habits and boisterous, verbal at- because of the nature of these endeavors, tempers
tacks on supe~isorswill not be tolerated and of all parties flare and comments and accusations
will l e d to disciplinary action. are made which would not be acceptable on the
The judge found, and we agree, that Sullivan plant floor.* However, here Winn was not engaged
was motivated by two factors in giving the warn- in the formal pursuit of a grievance. Rather, Winn
ing. One waa Winn's insubordinate wnduct on the reacted with insubordination when his request to
work floor, specifically. shouting, making personal have his timecard adjusted waa refused. The Board
insults, and causing the cessation of normal oper- recognizes the right of the employer to maintain
ations. The other factor was Winn's threat to file order and respect in the wnduct of its business.I0
multiple grievances. The judge found that the Winn's derogation of a reasonable order to quiet
warning was "motivated in large part" by the latter down by continuing to shout on the work floor,
factor and. therefore, that the disciplinary action hurling personal insults, and disrupting operations
taken aminst Winn waa violative of Section 8(aM3) . .. . constituted unprotected activity and gave the Re-
md ( l ) k the Act. We disagree. spondent a legitmate. permissible r e m n to disci-
In Wnghf Llnr. 251 NLRB I083 (1980), the pline Winn, and we so find. We further find that
Bolrd set forth a test of causation to be applied in the Respondent has met its burden to prove that it
clses involving actions based on "dual" -motives, would have issued the warning to Winn even in
one of which is permissible and one of which is un- the absence of his protected conduct. The record
lawful. Under that test, the General Counsel is first shows that Winn had been disciplined at least five
required to establish a prima facie case sumcient to
support the inference that the protected conduct . .. and &vitm Mh.
see Fir.h hkim a.211 NLRB 112 0971): .- Ca v.
NLRe. 186 ~ . i 64i(lrc
d Cir. 8913).
was a "motivating factor'' in the employer's deci- Mmkr Hunter .arm lh.1 lhc R a p d e n t ' * maduct in iluins a
sion. If this is utablished, the burden then shifts to wminn to Winn w u molivnld bv Winn'r iwbrdinalion, ud lhl lk

@ Tb.JW&edid n* m l v r I&d i b i l i t y mflisl concernin'lhc Re- conduct c n ~ indby Wlnn.

apmdds .I*ptm lh.1 Winn l p t I J minute in the mm's bvaory Scc .I- Atlantic Stnl a, 113 N L R B 814 (1919): m d NLRB v. 11ii.
ad WIM'. denial O( *.Idkwbn. In v k v or the fault we re-h nair Tml Work. 151 F.ld Ill (llh Cir. LW.
Lmh,vr n d it u n r r s a r t y lo deckle lhil IPUC. S o u t b m t m e l l Ttkpholr Ca. wpm.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

times in the Z-year period preceding the warning in chief steward from about 1976 to May 1981 and an dter-
issue here, and that those instances o f discipline re- note steward from Mav 1981 to Fcbruarv 1982. Durinn
lated t o conduct akin t o that shown in the instant the latter perlod, another employee. ~ o d i r i c k~ e n n e d ;
case. T h e record also shows that, in a n effort t o was the chief steward, but when he resigned the position
r lac ate Winn and end t h e d i s r u ~ t i o no f the work- on February 8. 1982. Winn was redesimlted - as the chief
place, Sullivan told Winn that h i could file a griev- steward onPebruary 10, 1982.'
ance over Sullivan's refusal t o channe t h e timecard. The distribution clerks, of which there are about I8 to
Based o n the foregoing, w e find,-contrary t o the 20, work from 4 a.m. to 1230 p.m. and they have their
judsc, that Winn was issued the letter o f warning lunch break from 10 a.m. to 10:30 a.m. They are reapon-
sible for sorting the mail by letter carrier routes and they
because o f his insubordinate conduct and that Re- do so bv taking-travs
spondent would have issued the warning even . of unsorted mail and olacinn them
into cu6byholes in something which is calldd a dTstribu-
absent Winn's avowal t o file numerous grievances tion case. (Each clerk works at his own cue.) As the de-
if circumstances warranted it. Accordingly, w e l i v e r ~trucks leave the m t ollice soon &r 8 a.m.. it is
shall dismiss the complarnt. imperative that the maii be sorted by that hour bkause
any mail left over will not be delivered until the follow-
ORDER ing day. When the cask of sorting the mail is not accom-
T h e complaint is dismissed. plished by 8 a.m., it is dcacrikd as "missing the mail" or
alternatively as a "first class failure." The record indi-
DECISION cates that during a period prior to 1980 there was a high
STATEMENTOP THE CASE incidence of first-class failures. However, this problem,
according to Winn, had largely abated at the time of the
RAYMONDP. GREEN. Administrative Law Judge: events herein.
These consolidated cases were heard by me on July I The record also nlablishes that during a period prior
and 2, 1982, in Hartford. Connecticut. The charge in to 1981, there was a considerable degree of friction be-
Cue 39CA-809(P) was filed by the New Haven, Con- tween management and the Union due in part to a clash
naticut A r a Local. American Postal Workers Union. of personalities between Winn as chief steward and the
AFL-CIO (the Union), on August 27. 1981, and an post ofice's supervisors. In this respect. John Dirzus.
amended charge in that case was filed on October 14. president of the Union. testified that in January or Feb-
1981. A complaint based on that charge was issued by ruary 1981 he had a conversation with the then Postmas-
the Off'cer-in-Charge of Subregion 39 on Oclobn 15, ter Gallagher regarding overall labor relations. He slates
1981. The charge in Case 39-CA-IWS(P) was filed by that during this conversation he suggested that one of
the Union on March 8. 1982. and a complaint thereon the problems was that Winn and Kennedy were strong
was issued on April 12, 1982. Thereafter, on May 4.
1982. the complaints were consolidated for hearing. personalities who had control over the work force and
In substance the allegations of the complaints are that that this was resented by Sullivan and the other supervi-
William E. Winn was given written warnings on April 7, sors. Dirzus also testified that he told Gallagher that he
1981. and February 11. 1982, because of his activities as a (Dirzus) had heard that supervisors were going around
union shop steward and because of his other protected and saying that Sullivan was out to get Winn and that
concerted activities. the latter better watch himself. He states that Gallagher
Based on the entire record herein. including my obser- responded by saying that he thought this was wrong and
vation o t the demeanor of the witnesm, and after con- that he would deal with it even if he had to discipline
sideration of the briefs filed, 1 hereby make the following the supervisors.
In connection with the general labor relations atmos-
phere at the post ollicc, it is noted that in I978 or 1979.
Winn, over a 3. or Cmonth period, filed approxinutely
I.JURISDICTION 14.000 grievances involving such things as the floors and
Jurisdiction is asserted by virtue of Section 1209 of the venetian blinds being dirty. All of those grievances were
Poslal Reorganization Act. The parties also agree that later withdrawn by the president of the Union. It is dso
the Union involved is a labor organization within the noted that, according to Winn, labor relations calmed
meaning of Section 2(5) of the Act. down after the laving of Postmaster Brennen, and it ap-
pears that this cooling down occurred after the above-
It. THE OPERATIVE FACTS noted g r i e v a n ~were withdrawn.
Mark Sullivan assumed the position of manager of mail
processing on November 29, 1981. Thereafter, on De-
Thc Union is the recognized collective-bargaining rep- cember 23. 1980 (prior to the ICQ) statute of limitations
resentntive of ceruin of the Reswndent's employees in- period). Winn was issued a written warning by supervi-
cluding the distribution clerks at at its ~ i l f o r d Connecli-
; sor Gambradella. The warning slated:
cut Post Off~ce.W~lliamWlnn, a distribution clerk h u .
at various t i m e served as the Union's chief steward and
as an alternative steward. In this respect, he was the
1 Knnrdy
rliliblc for .mimd hi. parilion u chkl tlcw.rd
ruprvimry paition in the pml ON-.
h w r he kc-
 POSTAL SERVICE 277

On 12-15-80 at 10:45 a.m. you became loud and acting Supervisor Anthony Vano.* The warning read as
abusive towards me when questioned about the follows:
nature of your union business.
This letter of warning is being issued to you due to
The U.S.P.S. Standards of Conduct . . . states that your unsatisfactory work performance in distribu-
"Employees are expected to maintain satisfactory tion assignments. Deficient areas in your perform-
personal habits so as not to be obnoxious or offen- ance include:
sive to other persons . . ."
(I) Amount of work.
You have been made aware, on many occasions, of (2) Conslantly leaving your distribution clue. to
your obligations in this regard. This letter of warn- talk to others.
ing will serve as written notice that further behav- (3) Obnoxious and disruptive conduct.
iour in this manner will result in the administration (4) Lack of cwperativeness.
of progressive discipline.
As you have been made aware of your responsibil-
The Union filed a grievance concerning the above- i l i a and obligations in this regard prior to this
noted warning and it was settled in March 1981 at the letter, an improvement is anticipated. Failure to d o
third step of the grievance procedure. This settlement so wuid result in further disciplinary action. You
was memorialized in a letter dated April 2. 1981. from may appeal this action within 14 days of receipt as
District Director Employee and Labor Relations J. A. specified by Article XV. Section 2 of the National
Sprague, to Robert Caracciolo, a National vice president Agreement.
of the Union. In pari, the letter reads:
According to the General Counsel's theory, Winn and
The grievant denies that he was abusive toward his Kennedy were blamed by Vano for a "first class failure"
supervisor. However, it appears that the grievant which, according to Winn, occurred about April 5 or 6.
has been involved in similar situations in the past He postulates that since neither Winn nor Kennedy
and that he contributed to the incident that oc- could possibly be blamed for that occurrence, and given
curred in this case. other evidcnce of animus against them, then the reason
given for Winn's warning must be pretextual and there-
In an effort to resolve this matter and alTord the fore motivated by discriminatory reasons. The Paul
grievant the opportunity to improve his conduct, Service takes the position that it did not blame either
the Lctter of Warning will be removed from the Winn or Kennedy for the "first class failure." and that
grievant's record. the April 7 warning to Winn was not, in any way, relat-
ed to or ca& by that incident. In effect. the Respond-
The Union expects Management to conduct them. ent s u m s lo argue that the General Counsel has c r a t e d
selves in a business like and professional manner. It a strawman, which when knocked down, is being used to
is also expected that Union oflicials will conduct prove the allegation.
themselves in a similar manner. There is in fact, no dispute that about the first week of
It is additionally noted that apart from a formal warn. Aoril 1981 the distribution clerks "missed the mail." In
cdnneclion therewith, both Winn and Kennedy testified
ing there is, pursuant lo the collective-bargaining agree- that they, and they alone, were blamed for that incident
ment, a lower level of discipline called a "discussion." by Acting Supervisor Vano. In this respect. Winn testi-
(See art. 16, sec. 2 of the National Agreement.) A formal fied that, alter he received the warning, he asked Vano
discussion is generally conducted in private between the about it. He slates that Vano sdid that the warning relat-
employee and the supervisor involved, and does not ed to the fact that "we" misvd the mail and that he was
result in any record being placed into the cmploya's of- acting under orders from Sullivan. Similarly. Kennedy
ficial personnel record. However, such discussions are in testified that. aficr the firatslau filurc, he had a formal
the nature of warnings (albeit not grievable), and super- discussion with Vano who told him that his work ocr-
visors, as a matter of practice, make a memoranda of formance that mornlng was not satisfactory and thai he
such discussions for their own records. In the present (Kennedy) had not p r o d enough trays of m i l . Kcn-
case, the Respondent introduced into evidcnce the nedy asserts that, when he told Vano that he was mistak-
memoranda of various "discussions" held with Winn en nnd asked why he wrs being singled out, Vano re-
from April 2. 1980, to February 5. 1981. By and large. plied that he was under instructions from Sullivan and
these discussions involved alleged incidents where Winn that Kennedy was not the only p e m n being disciplined.
left his work area, did less than the normal amount of Vano testified that, although there was a firstclass fail-
work, made too much noise, and used loud, boisterous, ure, he did not blame either Winn or Kennedy for its oc-
and on occasion profane language. currence as neither was at fault. He further testified that
neither was disciplined because of that event. In the case
B. The Warning of April Z 1981 of Kennedy. Vano states that he had a formal discussion
Five days after the previous warning to Winn had
been withdrawn, he received another warning from * .
with him on March 31. 1981 (prior to the firstslass fail-
.
Vmno, who narnully is letter cartier. w u r u i ~ n r dto k I m p
rwy suprvisor in the abuncc of Ik regular suprvisor. Wsllrr Dmirllo.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

ure), relating lo Kennedy's p r o d ~ c l i v i t y .Vano

~ also Q. Yes?
states thal the warning to Winn was not in any way re- A. NO.
lated to the first-class failure, but rather was related to Q. Did you say anything like that lo Mr. Winn?
his observation of Winn's performance and conduct over A. I might have said something like that, that
approximately a 2.week period of time, during which he Mr. Sullivan's going to get all the 8 balls, that are
(Vano) was the acting supervisor. Vano further testified not working. 1 might have said thst.
that before issuing the warning, he spoke to Sullivan Q. Have you had any conversations with Mr.
about Winn's conduct and was told that Winn had had Sullivan . . . where he said anything regarding get-
prior "discussions." According to Vano, he decided, ting or taking retaliatory action against Mr. Winn?
with Sullivan's concurrence, that a letter of warning was A. Not to my knowledge.
the appropriate measure to take in Winn's case because ....
of the prior "discussions." In relation to Winn's warning, Q. Have you had any conversations with him
Vano agrees that it is not unusual for distribution clerks where he criticized Mr. Winn's conduct as a Union
to talk at their cases or to take breaks from time to time. steward?
He acknowledges that the nature of their work makes A. He might have when they were discussing
this imperative. He asserts, however, thal from his obser- grievances at Step 2 o r something like that.
vation, both Winn and Kennedy were excessive in this Q. D o you remember what he said?
respect, that they were excessively noisy, and that this A. Like he was loud and boisterous during the
affected not only thcir performance but also the produc. step 2 meeting or whatever, maybe in that context.
tivity of the other employees. yes.
Following the warning lo Winn, a grievance was filed Q. Did he ever suggest that maybe we ought to
by the Union. It appears from the record that this griev- take disciplinary action against Mr. Winn becaux of
ance was discussed at the first, second, and third steps of his activity as a union steward7
the contractual arievancc orocedure. Basicallv. the A. No.
Union charged inUthe grievhce that management was
harrassing Winn on account of his union activities and In order lo understand the events leading up to the
that the warning was an improper imposition of disci- February I I warning, a certain amount of background is
pline because Vano had not had a previous "discussion" necessary. It appears that sometime in January 1982, the
with Winn. Curiously, although Winn asserts that the Postal Service instituted a timeclock policy to deal with
resxln given by Vano for the warning was Winn's re- unearned overtime. In essence, the then Officer-in-
sponsibility for the firstclass failure, nothing in the Charge of the Milford Post Ofice. Andrew Pace, an-
grievance memoranda relates lo that subject. That is, it nounced, inter alia, that when employees t w k their
appears that neither the Union nor the Company lunch breaks they were required to clock out and back in
claimed, during the precessing of the grievance, that the at the precise times of their break. Thus, for the distribu.
August 7 warning was in any way related to the h t - tion clerks, since their lunch break was from 10 a.m, to
class failure on April 5. Therefore, to this extent, the 10:30 a.m.. they were required to punch out at precisely
documentary evidence tends to support Vano's conten- 10 and punch back in at precisely 10:30. Employees who
tion that the warning was not related to the first.class made a habit of not follow in^ this orocedure were sub-
failure. ject to formal disciplinary di&ussiok. When employees.
When the grievance was denied by the Respondent at at a meeting, suggested that there might be occasions
the third step, the Union did not pursue it to arbitration. when they could not follow the procedure because of
C. The Warning of February 11. 1980
-
connestion -
at the timeclock. Pace aareed that. if an em.
ploycc was unable lo punch his card at the precisely cor.
According to Winn, sometime in December 1981, he rcct minute becaux of congestion. the supervisor would
had a conversation with his supcrvisor, Joseph Gambra- adjust the employee's timecard to show the correct time.
della. He slates that Gambradella told him to watch him. On February 3, 1982 (7 days before Winn resumed the
self and not d o anything "off color" because Mark Sulli- aosition as chief steward). Winn. throuah inadvertence.
van was out to get him. Kennedy testified that on one punched out for lunch at 9:59 a A. winnlertified that h;
occasion during the winter, when he was talking with returned from lunch before 1029 a m . but because of
Ombradella, he told the latter that he could not believe congestion at the timeclock (due to people and materials
that Gambradella had told Winn that Sullivan was out to near the clock), he could not punch in until 10:M a.m., I
get him. He states that Gambradella responded by minute after his allotted time for lunch. (As a result, he
saying, "yes it was a fact." received credit for 59 minutes of overtime that day in-
Joseph Garnbradella's testimony as to the above was as stead of for 60 minutes.) Winn testified that he then ap-
follows: proached Harold Feeley, an acting supervisor, and asked
him to change his timecard by I minute because he had
Q. At anytime. . . have you advised or told Mr. been held up at the timeclock. Winn slates that Feeley
Winn thst Mr. Sullivan was out to get him? said he would have lo bring the problem to Sullivan and
A. Spfcifically to get him, specifically? that when Feeley came back from the o a c e he denied
Winn's request. According to Winn, when he asked why,
'Thc Rnpondcnl intmduced into evidr-, u R. Exh. 2. a copy or Feeley said that Sullivan said he was late. Winn states
that he told Feeley that Pace had agreed that the super-
V"mo's norm d.ling lo a "dis'uuion" with Kennedy on M w h 31.
 POSTAL SERVICE 279

visors should alter the timecards when there was conges- he does not remember anyone swearing during this con-
tion, whereon Feeley said. "What do you want from me. frontation, but he docs concede that other employees
I'm acting" (i.e.. acting supervisor). stopped work to see what was going on.
According l o Winn, shortly aRer his conversation Sullivan testilied that on February 3 he was standing
with Feeley, Sullivan came out and asked him what the out on the work floor with Feely when the men wcrc
problem was. He states that he explained the problem to clocking in from the lunch break and that he did not ob-
Sullivan who nevertheless refused to alter his timecard. serve any congestion. H e states that about 10:40 he war
Winn asserts that he pressed Sullivan about his timecard. on the floor whcn Winn came over and started shouting
whereon Sullivan said that Winn was putting on a show about why he would not change Winn's timecard. Ac-
for everybody and that he should "keep it down." Winn cording to Sullivan, Winn called him an "egotistical bas-
states he said that Sullivan was being ignorant, and that tard" and said that he was ignorant and belligerent. Sulli-
Sullivan repeated that he (Winn) was putting on a show, van slates that he told Winn to lower his voice and to
and demonstrating how loud he could yell. According to
knock OR the personal insults, but that Winn continued
Winn, he rejoined that Sullivan was being boisterous
l o shout. According to Sullivan, he lold Winn that if he
himself, whereupon Sullivan told him to go back to his
wanted to file a grievance he could, whereon Winn said,
seat. According to Winn, he told Sullivan that he too
was being belligerent and that he (Winn) was sorry "we "Ifyou want grievances, we'll give you grievances;
had to go back to square one o f . . . lousy labor rela- we're the guys who filed 14.000 grievances." He states
tions." He states that he funher told Sullivan that he he asked Winn if he were threatening to harass manage-
would file a grievance everytime any o f the employees ment, whereon Winn replied fhat it was not a threat, it
had a similar timeclock problem. According to Winn. was a promise. Sullivan asserts that he asked Winn l o go
Sullivan asked. "are you threatening me." whereon he into the swing room to talk privately, but that Winn kept
told Sullivan thal he was not threatening, but that whcn up the shouting and the insults. According to Sullivan.
he said he was going to file grievances he meant it. At he did not raise his voice l o Winn's shouting and he
this point, according to Winn. Sullivan directed him to states that. during this incident, the other employees
go back to his seat and he did. stopped work to look. H e slates that he then spoke to
According l o Winn, about 3 or 4 minutes later. Sulli- Winn in the swing room, aller which Winn requested
van approached him and asked l o see him privately. lime to call Dirzus in New Haven. Sullivan asserts that
Winn stater that Sullivan then counseled him about being he was later told b y Fecley that the latter had seen Winn
loud and boisterous toward him and arguing on the work go l o the bathroom with a newspaper and stay there for
floor. He states that, during this discussion, he argued 25 minutes.
back and told Sullivan that i f the latter wanted the con. Feeley was called as a witness b y the Respondent. He
versation OR the floor he should have indicated that im. testified that about 1030 he was talking with Sullivan'
mediately. Winn states that aner the counseling he spoke when Winn came over about the timeclock problem.
to Kennedy (still the chief steward) and told him about Feeley states that when he referred Winn to Sullivan.
what had happened, after which he made some calls to Winn then approached Sullivan and asked him to change
the Union in New Haven. Winn denies that he called his timecard. H e states that Sullivan refused whereon
Sullivan an "egotistical bastard," or that he spent 25 min. Winn became very loud and Sullivan asked him to lower
Utes in the men's room aner his counseling by Sullivan. his voice. According to Feeley. Sullivan asked Winn i f
With rnpect to the above. Kennedy testified that he were going to file 14.W grievances and Winn an-
Winn could not punch his timecard on time because swered afi7rmatively. (In this respect. Feeley testified
there was congestion at the timeclock that day. H e con- that it was Sullivan and not Winn who first said anything
firms that Winn asked Feeley to change the timecard and about the 14.W grievances.) According to Feeley.
referred Feeley to the prior agreement with Pace. Ken- whereas Sullivan spoke in a normal speaking voice.
nedy states that Feeley went to see Sullivan and that. Winn was talking in a loud voice. Although asserting
when Sullivan came out, he told Winn fhat he would not that he heard the entire conversation between Winn and
change his timecard. Although not hearing all the words Sullivan, Feeley did not confirm the latter's assenion
said. Kennedy testified that Winn started arguing with that Winn called Sullivan an "egotistical bastard." He
Sullivan and raised his voice. He also states that Sullivan also testified that later i n the day Sullivan asked him if
accused Winn of putting on a show to impress the men Winn had gone to the bathroom and al what time.
and that he further accused Winn o f disturbing the work- Feeley states that he told Sullivan that Winn had gone at
room floor. According l o Kennedy, he heard Winn say 11:40 a.m. with a newspaper, and had come out at 1295.
that Sullivan was ignorant and belligerant and that he
As noted above. Kennedy resigned as chief steward on
would file a grievance on behalf of anyone whose lime-
February 8 and Winn was omcially appainted l o thal p
card was not corrected when there was congestion. Ken-
silion on February 10, According to Kennedy, he told
nedy states that at this point. Sullivan asked if Winn was
Sullivan on February 8 that Winn would be replacing
threatening him, to which Winn said that i t was not a
him as chief steward.
threat and that he (Winn) had filed a lot o f grievances in
the past. (Recall the 14.W grievances previously filed -
by Winn.) Kennedy asserts that both Sullivan and Winn
* Hc at- %).r rhd hc d d nor x c any mngntion. Howcvcr he con-
ccdm that at InY) a.m. he and Sullivan wcrr ~ngagedin canvervlion
were yelling at each other although acknowledging that m d lhaf they were %landingahom1 50 in IIm fcn away Irom the lirnr.
Sullivan's yell is a lot softer than Winn's. He states that CIWL
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

O n February 11, 1982, Sullivan issued a written warn. application, or compliance with these provisions of the
ing to Winn. The warning read as follows: aareement. Accordinglv. the oroblem that Winn raised
4 t h respect to his timecard wbuld clearly be a grievable
On Wednesday, 2-3-82, Supervisor. Walt Daniello. matter under the terms of the collective-bargaining
had to instruct you to stop shouting and disrupting agreement, especially in view o f the prior agreement by
operations on the ~ o r k f l w r . ~ Pace relating to this subject matter.
ARer that same day, you became loud and abusive
towards me, shouting personal, derogatory remarks Discussion
and threatening to file multiple grievances in order There is credible evidence in this case that at least for
to harass management. When told to lower your some time thcre has existed a fairly high level of tension
voice, you refused to comply. A t that point. Itook between the management of the Milford Post Oflice and
you ONthe workfloor for a discussion, where you the Union's stewards at that location. I t also seems ap-
continued the shouting and your belligerant con- parent that a focal point of that tension related to the
duct. personality of Winn who, as a vigorous union steward.
ARer our meeting, you spent over 25 minutes away was perceived by some o f the supervisors, including Sul-
from your assigned work area, in the mens' lavato- livan, as enjoying the loyalty of the employees. I t also
ry. Just this past December. Supervisor Joe Gam- seems, by Winn's own account. that the level of tension
bardclia, had to order you out of the lavatory after between the Union and management calmed down after
being absent from the assigned work area for an ex- the prior Postmaster. Brennen, had left the Milford facili-
tensive period o f time. Ihave personally observed ty. I t is o f course possible that Sullivan, even with the
you leaving the lavatory with folded newspapers in abatement o f tension, continued to harbor resentment
your back pocket. following long absences from and suspicion o f Winn. Nevertheless, in the context of
your assigned work area. this case, the General Counsel must establish that, in the
Your failure to perform work as assigned, disruptive particular circumstances which gave rise to the two
conduct and lack o f cwperation are unacceptable. warnings involved, those actions were motivated by dis-
As you have previously been made aware of your criminatory and nonlegitimate reasons.
responsibilities and obligations in this area, in the Insofar as the April 7 warning, the General Counsel
future, these non-productive work habits and h i s - asserts that Winn and Kennedy were told by Vano that
terous, verbal attacks on supervisors will not be tol- the reason for Winn's warning, as given to them by
erated and will lead to disciplinary action. Vano (the first-class failure), cannot be true. He argues
that it therefore follows that the reason must be a ore-
I n connection with the warning to Winn, Sullivan tes- text. According to the General Counsel, i f the reason for
tified that he decided to give the warning because he did the warning is a pretext, it must be concluded that the
not think there was any reason for Winn to shout and warning was issued because of discriminatory reasons,
c.a- w-~a- commotion
~ ~ on the workroom floor. Smificallv. given the past hostility between management and Winn
he mentioned the personal insults and the ellect they had who was an an~ressiveshoo steward. I n this resDec1. I
on stopping the operation. Sullivan states that hc initially can not help biiadmire the'~enera1Counsel's gwmetri.
recommended to his superiors that Winn be suspended cally organized "proof." However, i f one or more of his
but was told that a warning would be the proper step in postulates gives way, then his ultimate conclusion would
the progressive disciplinary system. Although Sullivan. be significantly weakened.
in his testimony, asserted that the warning was not issued The Respondent denies that the warning isued to
because of Winn's threat to file multiple grievances, that Winn or the formal discussion given to Kennedy was, in
m n i o n cannot be credited in view of the specific refer- any way, related to the first-class failure. That is. Vano
ence to that subject in the warning letter itself. testified that neither Kennedy nor Winn was responsible
According to Winn, about March 1. 1982, he had a for that event and that neither was warned on that ac-
conversation with Supervisor Ronald Joseph. He states count. Thus, the Respondent's argument strikes at one of
that during this convenation Joseph said that he thought the key postulates o f the General Counsel's theory.
the argument over 1 minute was ridiculous, and that namely, his contention that the reason given.for the
Winn should just stay out Sullivan's sight because, "he's warning was pretextual in nature.
going to get you i f he gets the chance." Joseph, a wit-
Vano denied that neither his "discussion" with Kenne-
ness called by the Respondent, testified, in substance,
dy nor his warning o f Winn was related to the firstclass
that he told Winn that Sullivan was going to get Winn i f
the latter did not stop the loud talking on the floor when failure. Rather, he asserts that based on his observation
of their performance during the period when he was an
he was arguing with Sullivan.
I n connection with this case, it is finally noted that the acting supervisor he was faced with two employees who
collective-bargaining agreement, at article IS, section I. simply were not performing enough work and, in the
case of Winn, was disturbing other employees during
defines a grievance as a "dispute, dillerence, disagrec-
men1 or complaint between the parties related to wages. worktime. I n this respect. Ishall note here that Iwas fa-
hours, and conditions of employment." Grievances are vorably impressed b y the demeanor o f Vano, who struck
not limited to complaints involving the interpretation. me as an honest witness. Moreover, the documentary
evidence tends to support Vano's assertion that the "dis-
ID..~Io. however, d ~ dnot tntiry i n chis prwredinp. cussion" with Kennedy and the warning to Winn were
 POSTAL SERVICE 281

nor related lo the first-class failure. In lhis regard, al- Nevertheless, the inquiry does not stop there, as the
though Kennedy states that his formal discussion wilh evidence clearly establishes that Winn, during his con-
Van0 look place ailer the first-class failure the evidence. frontation with Sullivan, began shouting on the work-
as reflected by Vano's teslimony and notes, indicates rhal room floor and that he called Sullivan ignorant and bel-
the "discussion" occurred on March 31, about 5 days ligerent.' The evidence also indicates that it was Winn
before it occurred. Also. the documentpry evidence re- and not Sullivan who did the shouting as even Kennedy
veals that the Union filed a grievance as to Winn's April indicated that Sullivan's shout was a lot sohcr than
7 warning and the respective positions of the parties are Winn's. Additionally, it is concluded, based on the
set forth on the grievance forms. Yet there is not a single record as a whole, that Winn continued to shout after
reference in any of the grievance forms to the first-clas- Sullivan told him to quiet down and that as a result of
failure, and it d w s not appear that, at any time during this argument the other employees stopped their work to
the first three steps of the grievance procedure, either watch what was going on.
parly contended thal Winn's warning was related to that In the context of protected activity by employees. a
occurrence. T o my mind this silence is damaging to the certain degree of leeway is allowed in terms of the
Charging Party's awertion that Winn had been told by manner in which they conduct themselves. Thus, in
Vano that the warning was due l o his responsibility for Berrcher Mfx. Corp., 76 NLRB 526 (1948), the Board
the first-class failure. For if, as shown by the General stated:
Counsel, Winn could not have been at fault, it would
A frank. and not alwavs comolimenlarv. exchange
seem logical that the Union would have used the same of vtcws must be expected and perm8lt;d the ne.;
pretext argument during the grievance discussions. In llators ifcollectivc bargalnlng IS to be natural rather
fact, the absence of any discussion about the first-class than sulted. The negotiators must be frec not only
failure during the grievance meetings (which of course to put forth demands and counlerdemmda, but al&
were contemporaneous with the evena), leads me to be- to debate and challenge the statements of one m-
lieve that the prealert argument is indeed a post hoc ra. other without censorship, even if, in the counc of
lionalization, intended l o set up a strawman. As such. debate, the veracity of one of the participants ocu-
and because I shall credit the testimony of Vano, it is sionally is brought into question. If an employer
therefore recommended that this allegation be dismissed. were free to discharge an individual employee be-
The warning issued to Winn on February 11 is, in my cause he resented a statement made by that employ-
opinion, a more complicated issue. There is no doubt in ee during a bargaining conference, either one of
my mind that on February 3, Winn asked to have his two undesirable results would follow: wllective
timecard changed to reflect the fact that he had taken a barnainina would c e a x to be between c a u l s (an
3Ominuc lunch break, as required, and that he did not c m ~ l o ) u h a v ~ nntr
g parallel method of rct'aliat~&),
reach the clock on time due to congestion. There also is or c m p l o y m would hcntate ever to partic~patcper.
no dispute that, with respect lo the timeclock situation, sonally in bargatntng ncgouatlon,, lcav~ngsuch mat-
Pace, on behalf of management, had previously agreed ters entirely to thcirrepresenlatives.
with the employees that in the event an employee could
not reach the timeclock on lime a supervisor on duly We d o not hold, of w u w , that an employee may
would be authorized to change the timecard. While it never be lawfully discharged because of what he says o r
may seem that Winn's request to change his timecard by docs in the course of a bargaining conference. A line
I minute was a request over a relatively minor issue, it exists beyond which an employee may not wilh impunity
cannot be said thal his problem was not a grievable go, but that line must be drawn "between c u a 'where
matter under the terms of the wllective.bargaining employees engaged in concerted activities exceed the
agreement. Moreover, as Winn was the alternative shop bounds of lawful wnduct in 'a moment of animal eauber-
steward at the time, it cannot be said that his indication ance' (Milk Wagon Driwn Union v. Meadowmmr Doiries.
to Sullivan that he would file grievances everytime the 312 U.S. 287. 293) o r in a manner not activated by im-
Company refused to change timecards resulling from proper motives, and those flagrant cases in which the
congestion was purely an individual as opposed to con- misconduct is so violent o r of such serious character as
certed comolaint. Indeed. it seems to me that in some to render the employee unfit for further service."
measure ~uilivanissued the warning precisely because he Similarly, in NLRB v. Thor h w r Tool Ca. 351 F.2d
feared thal Winn, as a shop steward. would file multiple 584. 587 (7th Cir. 1965), the court allinned the Board's
grievances as he had done in the past. This conclusion is wnclusion that the employer violated the Act when it
of course based on the warning itself. which establishes discharged a grievance commiltecman who, during the
prima facie that a reason for th; warning was because of course of a grievance meeting, called the employer's rep.
the perception that Winn, as shop steward, would file resentative a "how's as."' The w u n stated:
grievances relating to the timecard problem. Since the
filing of grievances by employees and shop stewards is ' As Feeley did rmt cormbo.ab Sullivan's w n b n lhat Wlnn ulld
considered to be protected concerted activity, a warning the former an "c@Iiltierl buurd." 1 shall not conclvdr ih.1 this cpilhel
issued to deter such activity would, a fortiori, be viola- w., "d.
Slc also Cmwn C ~ ~ n l P~lmlrum
al Core r NLRB. 4Y) F M 724 IIlh
tive of Section 8(a)(l) of the Act.' Cir. 1970): Soulhurrem 8.11 Telephone Ca. 1M NLRB 117 (1982): h f ~ l
S l l r i e . 230 NLRB I (I9BO): M u F m o r d Ca. 239 NLRB MY 11919:
' St.. .
c g Fimh &ling Co. 231 NLRB 711 (1911). and Hawiian haul in^ S I n i e , 1 I Q NLRB 763 (1911).
282 DECISIONS OF NATlONAL LABOR RELATIONS BOARD

As other cases have made clear, flagrant conduct by opprobrious conduct, l o x the protection o f the
of an employee, even though occurring in the Act.
course of section 7 activity, may justify disciplinary The decision as to whether the employee has
action by the employer. O n the other hand, not crossed that line depends on several factors: (I) the
every impropriety committed during such activity place o f the discussion: (2) the subject matter of the
places the employee beyond the protective shield of discussion: (3) the nature o f the employee's out-
the act. The employee's right l o engage in concert- burst; and (4) whether the outburst was, in any
ed activity may permit some leeway for impulsive way, provoked by an employer's unfair labor prac-
behavior, which must be balanced against the em- tice.
ployer's right to maintain order and respect. N L R B T o reach a decision, the Board or an arbitrator
v. Illinois Twl Works. 153 F.2d 811 (7th Cir. 1946). must carefully balance these various factors.
Initially, the responsibility to draw the line between Here the arbitrator considered the factors which
these conflicting rights rests with the Board, and its the Board considers, and concluded that the em.
determination, unless illogical or arbitrary, ought ployee's discharge was warranted and based on rea-
not be disturbed. I n the instant case we cannot say sons not repugnant to the Act. He noted that the in-
that the Board's conclusion that Tinsley's remark cident occurred on the production noor during
was within the protection o f section 7 was either working time (not at a grievance meeting), that the
unreasonable or capricious. employee's question about overtime expressed lcgili-
mate concern which could be xrieved. and that the
I n Arbnlic SIeel Co.. 245 N L R B 814, 816 (1979), the supervisor had investigated an; answered his qucs-
Board was called on l o decide whether an arbitrator's tion promptly; but, nevertheless, the employee had
decision was repugnant to the Act where the arbitrator reacted in an obscene fashion without provocation
had sustained the discharge of an employee who, in the and in a work setting where such conduct was not
course o f raising an overtime complaint, used obscene normally tolerated. He further considered the em-
language to a supervisor during the regular work shin in ployee's past record and concluded that, considered
the production area. The Board stated: together, this record established a reasonable basis
for the discharge.
According l o the Administrative L a w Judge, We find nothing in the arbitrator's decision that
Chastain's question about overtime constituted a i s reounnant to the Act. Indeed, a contrary result in
grievance and protected concerted activity. There- this a;& would mean that any employee's olfhand
fore, when Chastain used the term "lying son of a complaint would be protected activity which would
bitch," or "m- r- lie" (or "liar"), the Administra shield any obscene insubordination short of physical
tive Law Judge reasoned that this conduct, as a violence.That result would not be consistent with
part o f the res gesfae o f the grievance, was also pro- the Act. . . .
tected. As support for this conclusion, he relied on
two lines of precedent. The first group o f cases The distinction between protected, albeit erhuberant
dealt with formal grievances or negotiating sessions conduct in the context o f a grievance or negotiation
which were conducted away from the production meeting, as opposed to similar conduct elsewhere, was
area. There, in the heat o f discussion, an employee further set forth in New P m e s Gear, Div. of Chrysler
uttered an obscenity or used extremely strong lan- Carp.. 49 N L R B 1102 (1980).- I n that case. the adminis-
guage. I n that context. the employee's conduct was trative law judge, i n a decision adopted by the Board,
found to be protected as part of the res gesrae. dismissed an allegation involving a shop steward who, in
Under the other line o f precedent, represented by the course of arguing about a work problem, refused the
Merlyn Bunney and Clarence Bunney. prrners, d/b/a foreman's order to stop shouting and refused an order to
Bunney Bmr. Consrrucrion Company, and Inrerbom leave the production ollice. The Administrative Law
Conrmcrors. Inc.. the Board concluded that an indi- Judge stated:
vidual employee's complaint under the contract Respondent acknowledges that loud talk and
-
about workina conditions constituted protected con- cursing is not uncommon i n a plant environment,
certed activity. The employee in question, however. however, i t contends that personal insulting remarks
made no obscene or insulting statement. such as those Allen directed towards Mooney do
The Administrative Law Judge cited no deci- not have to be tolerated, specially when carried to
sions, however, and we know o f none, where the the point o f insubordination. Iagree, a distinction
Board has held that an employee's use of obscenity between a steward's aggressive union activity and
to a sulvrvisor on the ~ r o d u c t i o nfloor, following
.a improper behavior is that, in the former, the slew-
question concerning working conditions, is protect- ard diligently represents his constituents' interests
ed as would be a spontaneous outburst during the
heat of a formal grievance proceeding or in con- E r also h ! o l Swvim. 2% NLRR 1 rn. 1 (19So). whrrc lk Borcd
tract negotiations. T o the contrary, the Board and held (hat a rhop steward engaged in the "formal invmig.lion" of *
gncrancc did not lou LCprolrtion of the Act when he urnred a
the courts have recognized (as did the Administra. "s~nslc. s p n a n r o u r obrcne rcmarv to a rupcrviwr. Howrvcr. $he
tive Law Judge in passing) that even an employee Board did not. 1h.1 the rhop sl=ward's remark w u provokd. in pan, by
who is engaged in concerted protected activily can. the supcrviwr's failure to anrwcr his inquirin.
 WSTAL SERVICE 183

by seeing to it that the contract is not violated and nection with the rettlement of a prior grievance involv-
that the grievances arc prcwntcd fairly and with the ing Winn, both the Union and the Employer had mutual-
primary purpose of obtaining satisfactory results in ly agreed that their respective rcpracntatives should
an amicable and procedurally correct manner. Im- conduct themselves in a professional and burinns like
proper or unprotected conduct is demonstrated by a manner.
steward who while processing grievances makes There is, in fact, little doubt in my mind that the type
personal attacks on foremen and resorls to obnoa- of overreaction by Winn is not the type of conducl
ious obscenities. He refuses to follow the established which would be conducive to a ralional and mutually
procedure in an orderly manner to the point of in. productive collective-bargaining relationship. This is not
subordinalion. Such was Allen's conduct toward lo say, however, that his conduct on this occasion went
Foreman Mooney. beyond the pale o r that the warning was privileged.
I reject the position of the General Counsel that Unlike the h c t s in Arlanric Stet1 Ca, supra, New P a -
Allen's conduct can be classified as shop talk. He e5s Gear, supra, and the other cases cited by the Re-
pursued Mooney relentlessly and insubordinately. spondent, 1 d o no1 perceive that Winn's conduct w u
Moreover. Allen was not disciplined because he nearly as insubordinate as the activities referred to in
cursed Mwney but because he would not leave those cases. For example. I have concluded that Winn
Mwncy alone so that Mwncy could d o his job. did not ux obscene language during his confrontation
Allen continued to follow Mwney while engaging with Sullivan. Also, while it is true that the argument
in loud and abusive conduct and he threatened to caused other employees to stop work, the evidence
continue to engage in such improper behavior for herein does not show that this confrontation. as in the
the remainder of the shift. It was at that point that caw of New Process Gear, was of an extended o r pro-
Allen was suspended for insubordination. longed nature. Moreover, il is apparenl from the warning
The employees' right to engage in concerted ac- letter itself that its issuance was motivatcd not merely be-
tivity may permit some lee-way for impulsive be- cause of Winn's boisterous conduct, but at least in equal
havior, which must be balanced against the employ- measure because Winn had informed Sullivan that he
er's right to maintain order and respect. NLRB v. would file grievances on behalf of other cmploym cn-
Thor Power Tml Company. 351 F.2d 584 (7th Cir. countering the same problem. Although Sullivan may
1965), enfg. 148 NLRB 1379 (1964). In Calmos have perceived this "threat" as one which involved an
Combining Co.. rupra. 184 NLRB 914. 915, in a intent by Winn to harass management with multiple
~lrikinglysimilar situation as in the instant case. the grievances, it must be said that the problem at issue was,
Board stated: in fact, a grievable matter, and that Winn's pailion was
We agree with the Respondent that Harts' re- consistent with the agreement made with Pace. In sum-
fusal to follow the direct order to stop shouting mary. I therefore conclude that the warning issued lo
and his abusive language constituted unprotected Winn was motivated in large part because of Sullivan's
activity . . . . Harts no1 only refused to cease concern that Winn, as shop steward, would file griev-
w. -
shoutin.. but dared Oshins to discharge him.
Thus. Harts' continued intransigence was not s
ances pursuant to the collective-bargaining agreement. I
also find that Winn's conduct on February 3, in connec-
pan of the rer gerroe of the gncvance d~scuss~on tion with his conversation with Sullivan, was not so
Rather, the order to stop shouting was a rcasona- egregious as to remove his activity from the protstion
blc and lawful order that should have been of the Act. Accordingly. it is concluded that the warning
obeyed, and his refusal to d o so was not related issued to Winn on February 11, 1980, was violative of
to Harts' protected processing of the grievance. Section 8(aXI) and (3) of the Act.
OF LAW
CONCLUS~ONS
In view of the case law cited above. it seems to me
thal the question as to whether the February I1 warning 1. The Respondent, the United States Postal Service, is
to Winn was violative of the Act is precariously close. I an employer engaged in commerce within the meaning
have concluded that, although Winn had a legitimate of Section 2(2). (6), and (7) of the Act.
basis for complaining about his timecard, he nevertheless 2. The Union is a labor organization within the mean-
escalated the argumcnl with Sullivan lo a point beyond ing of Section 2(5) of the Act.
which was reasonable given the nature of his complaint. 3. Bv issuing a letter of warning to William Winn on
There is also no doubt as to the fact that Winn kept ~ e b r u &11.
~ -1982. because of cinn's notification to
shouting at Sullivan on the workroom floor aner the management that he would file grievances pursuant to
latter told him to quiet down and return to his seat. In the collective-bargaining agreement, the Respondent v i e
this regard, I also conclude that, during the confronta- lated Section 8(aMI) and (3) of the Act.
tion, Winn made insulting statements to Sullivan and that 4. The aforesaid unfair labor practices anect commerce
the heated remarks by Winn attracted the attention of within the meaning of Section 2(6) and (7) of the Act.
the other employees who stopped work. Further, the 5. Except to the extent herein found, the Respondcnl
evidence in this case indicates that this was not the first has not violated the Act in any other manner.
time that Winn had been overly boisterous, and in con- [Recommended Order omitted from publication.]
87 S.Ct. 565 Page 1
385 U.S.432,87 S.Ct. 565,64L.R.R.M. (BNA) 2069,17L.Ed.2d495,54Lab.Cas.P
11,639
(Cite as: 385 U.S. 432,87 S.Ct 565)

Standards; Employers' Liability. Most Cited Cases

N. L. R. B. v. Acme Industrial Co., (Formerly 106k383(1))
U.S.111. 1967. Supreme Court granted certiorari to consider sub-
stantial question of federal labor law.
Supreme Court of the United States
NATIONAL LABOR RELATIONS BOARD, Peti-
tioner,
v. 231H Labor and Employment
ACME INDUSTRIAL CO. 231HXII Labor Relations
No. 52. 231HXII(C) Collective Bargaining
231Hk1116 Disclosure of Information
Argued Nov. 14,1966. Relevant to Bargaining
Decided Jan. 9, 1967. 231Hk1117 k. In General. Most Cited
Cases
Petition to review and set aside an order of the Na- (Formerly 232Ak179 Labor Relations)
tional Labor Relations Board, wherein Board filed Employer has general obligation to provide inform-
cross petition to enforce order issued against em- ation that is needed by bargaining representative for
ployer. The Court of Appeals for the Seventh Cir- proper performance of its duties. National Labor
cuit, 351 F.2d 258, set aside order and denied en- Relations Act, $5 8(a) (5). (d), 10(a) as amended 29
forcement and certiorari was granted. The Supreme U.S.C.A. §$ 158(a) (5). (d), 160(a).
Court, Mr. Justice Stewart, held that order of Board
requiring employer to furnish union information
that would allow union to decide whether to pro-
cess a grievance was consistent with express terms 23 1H Labor and Employment
of National Labor Relations Act and with national 23 1HXII Labor Relations
labor policy favoring arbitration and union was not 231HXII(C) Collective Bargaining
required to take grievance all the way through arbit- 231Hk1111 Duty to Bargain Collectively
ration for determination of relevancy of requested 231Hk1113 k. Nature and Scope of
information, notwithstanding provision for binding Duty in General. Most Cited Cases
arbitration of differences concerning meaning of (Formerly 232Ak179 Labor Relations)
agreement. Duty to bargain extends beyond period of contract
negotiations and applies to labor-management rela-
Reversed and remanded. tions during term of an agreement. National Labor
Relations Act, $5 8(a) (S), (d), IO(a) as amended 29
West Headnotes U.S.C.A. $5 158(a) ( 3 , (d), 160(a).

[I] Federal Courts 170B -459

170B Federal Courts 231H Labor and Employment

I70BVII Supreme Court 23lHXII Labor Relations
17OBVII(B) Review of Decisions of Courts 231HXII(H) Alternative Dispute Resolution
of Appeals 231HXII(H)4 Proceedings
170Bk455 Decisions Reviewable and 231Hk1559 Grievance Proceedings
Grounds for Issuance 231Hk1562 k. Disclosure; Discov-
170Bk459 k. Labor Relations and ery. Most Cited Cases

O 2008 ThomsonlWest. No Claim to Orig. U.S. Govt. Works.

87 S.Ct. 565 Page 2
385 U.S. 432,87 S.Ct. 565,64 L.R.R.M. (BNA) 2069,17 L.Ed.2d 495,54 Lab.Cas. P 11,639
(Cite as: 385 U.S. 432,87 S.Ct 565)

(Formerly 232Ak179 Labor Relations) volving the obligation to furnish information that
Employer had duty to furnish union information allows a union to decide whether to process a griev-
which was necessary in order to enable union to ance.
evaluate intelligently grievances filed. National
Labor Relations Act, $5 8(a) (5). (d), 10(a) as In April 1963, at the conclusion of a strike, the re-
amended 29 U.S.C.A. $$ 158(a) (5). (d), 160(a). spondent entered into a collective bargaining agree-
ment with the union which was the certified repres-
entative of its employees. The agreement contained
two sections relevant to this case. Article I, s 3,
231H Labor and Employment provided, 'It is the Company's general policy not to
231HXII Labor Relations subcontract work which is normally performed by
231HXII(I) Labor Relations Boards and Pro- employees in the bargaining unit where this will
ceedings cause the layoff of employees or prevent the recall
23 IHXII(1) I In General of employees who would normally perform this
231Hk1669
-
~ Exclusive. Concurrent. work * * *.' In Art. VI, s 10, the respondent agreed
and Conflicting Jurisdiction that '(i)n the event the equipment of the *434 plant
231Hk1678 Grievances and Arbit- * * * is **567 hereafter moved to another location
ration of the Company, employees working in the plant *
231Hk1678(2) k. Particular Dis- * * who are subject to reduction in classification or
putes. Most Cited Cases layoff as a result thereof may transfer to the new
(Formerly 232Ak506 Labor Relations) location with full rights and seniority, unless there
Order of National Labor Relations Board requiring is then in existence at the new location a collective
employer to furnish union information that would bargaining agreement covering * * * employees at
allow union to decide whether to process a griev- such location.'A grievance procedure culminating
ance was consistent with express terms of National in compulsory and binding arbitration was also in-
Labor Relations Act and with national labor policy corporated into the collective agreement.
favoring arbitration and union was not required to
take grievance all the way through arbitration for The present controversy began in January 1964,
determination of relevancy of requested informa- when the union discovered that certain machinery
tion, notwithstanding provision for binding arbitra- was being removed from the respondent's plan.
tion of differences concerning meaning of agree- When asked by union representatives about this
ment. National Labor Relations Act, $$ 8(a) (5), movement, the respondent's foremen replied that
(d), IO(a) as amended 29 U.S.C.A. $8 158(a) (5). there had been no violation of the collective agree-
(d), 160(a); Labor Management Relations Act, ment and that the company, therefore, was not ob-
1947,$301,29U.S.C.A. 5 185. liged to answer any questions regarding the ma-
chinery. After this rebuff, the union filed 11 griev-
**566 *433 Norton J. Come, Washington, D.C., for ances charging the respondent with violations of the
petitioner. above quoted clauses of the collective agreement.
E. Allan Kovar, Chicago, Ill., for respondent. The president of the union then wrote a letter to the
Mr. Justice STEWART delivered the opinion of the respondent, requesting 'the following information
Court. at the earliest possible date:
In NLRB v. C & C Plywood Corp., 385 U.S. 421,
87 S.Ct. 559, 17 L.Ed.2d 486, decided today, we '1. The approximate dates when each piece of
dealt with one aspect of an employer's duty to bar- equipment was moved out of the plant.
gain during the term of a collective bargaining
agreement. In this case we deal with another-in- '2. The place to which each piece of equipment was

O 2008 Thomson~West.No Claim to Orig. U.S. Govt. Works.

87 S.Ct. 565 Page 3
385 U.S. 432,87 S.Ct. 565.64 L.R.R.M. (BNA) 2069, 17 L.Ed.2d 495,54 Lab.Cas. P 11,639
(Cite as: 385 U S , 432,87 S.Ct 565)

moved and whether such place is a facility which is 1409, the United Steelworkers v. American Mfg.
operated or controlled by the Company. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403,
as articulating a national labor policy favoring ar-
'3. The number of machines or equipment that was bitration and requiring the Board's deference to an
moved out of the plant. arbitrator when construction and application of a
labor agreement are in issue. We granted certiorari
'4. What was the reason or purpose of moving the to consider the substantial question of federal labor
equipment out of the plant. law thus presented. 383 U.S. 905, 86 S.Ct. 893, 15
L.Ed.2d 662.
'5. Is this equipment used for production else-
where.' **Sf58 [21[3] There can be no question of the gener-
al obligation of an employer to provide information
The company replied by letter that it had no duty to that is needed by *436 the bargaining representative
furnish this information since no layoffs or reduc- for the proper performance of its duties.National
tions in *435 job classification had occurred within Labor Relations Board v. Truitt Mfg. Co., 351 U.S.
five days (the time limitation set by the contract for 149, 76 S.Ct. 753, 100 L.Ed. 1027. Similarly, the
filing grievances) prior to the union's formal re- duty to bargain unquestionably extends beyond the
quest for information. period of contract negotiations and applies to labor-
management relations during the term of an agree-
This refusal prompted the union to file unfair labor ment.National Labor Relations Board v. C & C Ply-
practice charges with the National Labor Relations wood Corp., 385 U.S. 421, 87 S.Ct. 559, 17
Board. A complaint was issued, and the Board, L.Ed.2d 486;National Labor Relations Board v. F.
overruling its trial examiner, held the respondent W. Woolworth Co., 352 U.S. 938, 77 S.Ct. 261, 1
had violated s 8(a)(5) of the Actml by refusing to L.Ed.2d 235. The only real issue in this case, there-
bargain in good faith. Accordingly, it issued a fore, is whether the Board must await an arbitrator's
cease-and-desist order. The Board found that the in- determination of the relevancy of the requested in-
formation requested was 'necessary in order to en- formation before it can enforce the union's statutory
able the Union to evaluate intelligently the griev- rights under s 8(a)(5).
ances filed' and pointed out that the agreement con-
tained no 'clause by which the Union waives its The two cases upon which the court below relied,
statutory right to such information.' and the third of the Steelworkers trilogy, United
Steelworkers of America v. Enterprise Wheel &
FN1. National Labor Relations Act, as Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d
amended, 61 Stat. 141, 29 U.S.C.A. s 1424, do not throw must light on the problem. For
158(a)(5). those cases dealt with the relationship of courts to
arbitrators when an arbitration award is under re-
[I] The Court of Appeals for the Seventh Circuit re- view or when the employer's agreement to arbitrate
fused to enforce the Board's order. 351 F.2d 258. It is in question. The weighing of the arbitrator's
did not question the relevance of the information greater institutional competency, which was so vital
nor the finding that the union had not expressly to those decisions, must be evaluated in that con-
waived its right to the information. The Court ruled, text. 363 U.S., at 567, 581-582, 596-597,80 S.Ct.
however, that the existence of a provision for bind- 1352, 1360-1361. The relationship of the Board to
ing arbitration of differences concerning the mean- the arbitration process is of a quite different order.
ing and application of the agreement foreclosed the See Cary v. Westinghouse Corp., 375 U.S. 261,
Board from exercising its statutory power. The 269-272,84 S.Ct. 401,407-409.11 L.Ed.2d 320.
court cited United Steelworkers v. Warrior & Gulf
Navig. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d

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87 S.Ct. 565 Page 4
385 U.S.432,87 S.Ct. 565,64L.R.R.M. (BNA)2069, 17L.Ed.2d495,54Lab.Cas.P11,639
(Cite as: 385 U.S. 432,87 S.Ct 565)

Moreover, in assessing the Board's power to deal upon the probability that the desired information
with unfair labor practices, provisions of the Labor was relevant, and that it would be of use to the uni-
Act which do not apply to the power of the courts on in carrying out its statutory duties and responsib-
under s 301, FN' must be considered. Section ilities. This discovery-type standard decided noth-
8(a)(5) proscribes failure to bargain collectively in ing about the merits of the union's contractual
only the most general terms, but s 8(d) amplifies it claims.M6 When the respondent**569 furnishes
by defining 'to bargain collectively' as including the requested *438 information, it may appear that
'the mutual obligation of the employer and the rep- no subcontracting or work transfer has occurred,
resentative of the employees to meet at reasonable and, accordingly, that the grievances filed are
times and confer in good faith with respect to * * * without merit. On the other hand, even if it appears
any question arising *437 (under an agreement) * * that such activities have taken place, an arbitrator
*.'"43 And s 10(a)FN4provides: 'The Board is might uphold the respondent's contention that no
empowered * * * to prevent any person from enga- breach of the agreement occurred because no em-
ging in any unfair labor practice * * *. This power ployees were laid off or reduced in grade within
shall not be affected by any other means of adjust- five days prior to the filing of any grievance. Such
ment or prevention that has been or may be estab- conclusions would clearly not be precluded by the
lished by agreement, law, or otherwise * * *.' Thus. Board's thresh-old determination concerning the po-
to view the Steelworkers decisions as automatically tential relevance of the requested information.
requiring the Board in this case to defer to the Thus, the assertion of jurisdiction by the Board in
primary determination of an arbitratorms is to this case in no way threatens the power which the
overlook important distinctions between those cases parties have given the arbitrator to make binding in-
and this one. terpretations of the labor agreement."'

FN2. Labor Management Relations Act, FN6. Cf. 4 Moore, Federal Practice
1947.61 Stat. 156,29 U.S.C. s 185. 26.16(1), 1175-1176 (2d ed.):
'(1)t must be borne in mind that the stand-
FN3. Cf. United Steelworkers of America ard for determining relevancy at a discov-
v. Warrior & Gulf Co., 363 U.S. 574, 581, ery examination is not as well defined as at
80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409;'The the trial. * * * Since the matters in dispute
grievance procedure is, in other words, a between the parties are not as well determ-
part of the continuous collective bargain- ined at discovery examinations as at the
ing process.' trial, courts of necessity must follow a
more liberal standard as to relevancy.'
FN4. 61 Stat. 146,29 U.S.C. s 160(a) Id.,at 1181:
'Examination as to relevant matters should
FN5. See Sinclair Refining Co. v. be allowed whether or not the theory of the
N.L.R.B., 306F.2d 569,570 (C.A.5th Cir.). complaint is sound or the facts, if proved.
would support the relief sought.'
But even if the policy of the Steelworkers Cases
were thought to apply with the same vigor to the FN7. This case, therefore, differs from
Board as to the courts, that policy would not require N.L.R.B. v. C & C Plywood Corp., 385
the Board to abstain here. For when it ordered the U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486,
employer to furnish the requested information to where the Board's determination that the
the union, the Board was not making a binding con- employer did not have a contractual right
struction of the labor contract. It was only acting to institute a premium pay plan was a de-

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 Page 6 of 6

87 S.Ct. 565 Page 5

385 U.S. 432.87 S.Ct. 565.64 L.R.R.M. (BNA) 2069,17 L.Ed.Zd495.54Lab.Cas. P 11,639
(Cite as: 385 U.S. 432,87 S.Ct 565)

termination on the merits. See C & C Ply-

wood, at 426 of 385 US., at 563 of 87
S.Ct. and n. 10.

Far from intruding upon the preserve of the arbitrat-

or, the Board's action was in aid of the arbitral pro-
cess. Arbitration can function properly only if the
grievance procedures leading to it can sift out un-
meritorious claims. For if all claims originally initi-
ated as grievances had to be processed through to
arbitration, the system would be woefully over-
burdened. Yet, that is precisely what the respond-
ent's restrictive view would require. It would force
the union to take a grievance all the way through to
arbitration without providing the opportunity to
evaluate the merits of the claim.ms The expense
of arbitration might be placed upon the union only
for it to learn *439 that the machines had been re-
legated to the junk heap. Nothing in federal labor
law requires such a result.

FN8. See Fafnir Bearing Co. v. N.L.R.B.,

2 Cir., 362 F.2d 716,721:
'By preventing the Union from conducting
these studies (for an intelligent appraisal of
its right to grieve), the Company was, in
errence, requiring it to play a game of
blind man's bluff.'

[4][5] We hold that the Board's order in this case

was consistent both with the express terms of the
Labor Act and with the national labor policy favor-
ing arbitration which our decisions have discerned
as underlying that law. Accordingly, we reverse the
judgment and remand the case to the Court of Ap-
peals with directions to enforce the Board's order.

Reversed and remanded.

N. L. R. B. v. Acme Industrial Co.

385 U.S. 432, 87 S.Ct. 565, 64 L.R.R.M. (BNA)
2069, 17 L.Ed2d 495.54 Lab.Cas. P 11,639

END OF DOCUMENT

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Westlaw
76 S.Ct. 753 Page 1
351 U.S. 149.76 S.Ct. 753.38 L.R.R.M. (BNA) 2042,100L.Ed. 1027.30Lab.Cas. P 69,932
(Cite as: 351 U.S. 149,76 S.Ct 753)

P ployer's refusal to furnish information while claim-

NATIONAL LABOR RELATIONS BD. v. TRU- ing financial inability to pay wage increase might
ITT MEG. CO. support finding of refusal to bargain in good faith,
U.S. 1956. and because of importance of the question, Su-
preme Court granted certiorari. National Labor Re-
Supreme Court of the United States lations Act, § 8(a)(5), (d) as amended by Labor
NATIONAL LABOR RELATIONS BOARD, Peti- Management Relations Act, 1947, 5 101, 29
tioner, U.S.C.A. $ 158(a)(5), (d); Labor Management Re-
v. lations Act, 1947, § 204(a)(l), 29 U.S.C.A. §
TRUITT MANUFACTURING CO. 174(a)(l).
No. 486.

Argued March 29,1956

Decided May 7, 1956. 23 l H Labor and Employment
23LHXll Labor Relations
Proceeding wherein the Court of Appeals, Fourth
Circuit, 224 F.2d 869, refused to enforce an order
- -
23 11-IXII(C)Collective Baraainine
2 3 1 ~ kI
l16 Disclosure of Information
of the National Labor Relations Board which had Relevant to Bargaining
found that an employer had failed to bargain good 231Hk1118 k. Particular Subjects of
faith. The case came to the Supreme Court on Cer- Disclosure. Most Cited Cases
tiorari. The Supreme Court, Mr. Justice Black, held Formerly 232Ak179 Labor Relations)
that an employer's refusal to attempt to substantiate In determining whether statutory obligation of
a claim of economic inability to pay increased good-faith bargaining has been met, National Labor
wages may support a finding of a failure to bargain Relations Board has right to consider an employer's
in good faith. refusal to give information about its financial
status. National Labor Relations Act, 5 8(a)(5), (d)
Reversed. as amended by Labor Management Relations Act,
1947, 5 101, 29 U.S.C.A. 5 158(a)(5), (d); Labor
Mr. Justice Frankfurter, Mr. Justice Clark and Mr. Management Relations Act, 1947, S 204(a)(l), 29
Justice Harlan, dissented in part. U.S.C.A. 8 174(a)(l).

West Headnotes [3] -1113

[I] Federal Courts 170B -459 231H Labor and Employment

231HXII Labor Relations
170B Federal Courts 23 lHXII(C) Collective Bargaining
170BVII Supreme Court 23 1 H k l l l l Duty to Bargain Collectively
17OBVII(B) Review of Decisions of Courts 231Hk1113 k. Nature and Scope of
of Appeals Duty in General. Most Cited Cases
170Bk455 Decisions Reviewable and (Formerly 232Ak177 Labor Relations)
Grounds for Issuance While Congress has not compelled agreement
170Bk459 k. Labor Relations and between employers and bargaining representatives,
Standards; Employers' Liability. Most Cited Cases it does require collective bargaining in the hope that
(Formerly 106k383(1)) agreement will result. National Labor Relations
Because of conflict of opinion as to whether em-

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76 S.Ct. 753 Page 2
351 U.S. 149,76 S.Ct. 753.38 L.R.R.M. (BNA) 2042,100L.E.d. 1027.30Lab.Cas. P 69,932
(Cite as: 351 U.S. 149,76 S.Ct 753)

Act, 8(a)(5), (d) as amended by Labor Manage- 1947, § 101, 29 U.S.C.A. § 158(a)(5), (d); Labor
ment Relations Act, 1947, $ 101, 29 U.S.C.A. § Management Relations Act, 1947, 5 204(a)(l), 29
158(a)(5), (d); Labor Management Relations Act, U.S.C.A. 5 174(a)(l).
1947, g 204(a)(l), 29 U.S.C.A. 5 174(a)(l).

231H Labor and Employment

231H Labor and Employment 231HXII Labor Relations
231HXII Labor Relations 231HXII(C) Collective Bargaining
231HXII(C) Collective Bargaining 231Hk1116 Disclosure of Information
231Hkllll Duty to Bargain Collectively Relevant to Bargaining
231Hk1114 k. Good Faith in General. 231Hk1118 k. Particular Subjects of
Most Cited Cases Disclosure. Most Cited Cases
(Formerly 232Ak179 Labor Relations) (Formerly 232Ak179 Labor Relations)
Good-faith bargaining, as required by statute As to whether employees are entitled to substantiat-
between employer and employees' representative, ing evidence from employer which claims econom-
necessarily requires that claims made by either bar- ic inability to pay increased wages, each case must
gainer should be honest claims, and this is true of turn upon its own facts, and inquiry must always be
an asserted economic inability on part of employer whether or not undercircumstances the statutory ob-
to pay an increase in wages. National Labor Rela- ligation to bargain in good faith has been met. Na-
tions Act, § 8(a)(5), (d) as amended by Labor Man- tional Labor Relations Act, 5 8(a)(5), (d) as
agement Relations Act, 1947, $ 101, 29 U.S.C.A. § amended by Labor Management Relations Act,
158(a)(5), (d); Labor Management Relations Act, 1947, 101, 29 U.S.C.A. 8 158(a)(5), (d); Labor
1947.9 204(a)(l), 29 U.S.C.A. § 174(a)(l). Management Relations Act, 1947, 8 204(a)(l), 29
U.S.C.A. 8 174(a)(l).

[71-1767(2)
231H Labor and Employment
231HXII Labor Relations 231H Labor and Employment
231HXII(I) Labor Relations Boards and Pro- 231HXII Labor Relations
ceedings 231HXII(I) Labor Relations Boards and Pro-
231HXII(I)6 Weight and Sufficiency of ceedings
Evidence 231HXII(I)6 Weight and Sufficiency of
231Hk1764 Refusal to Bargain Col- Evidence
lectively 231Hk1764 Refusal to Bargain Col-
231Hk1767 Conduct Constituting lectively
Refusal 231Hk1767 Conduct Constituting
231Hk1767(2) k. Failure to Refusal
Provide Information. Most Cited Cases 231Hk1767(2) k. Failure to
(Formerly 232Ak574 Labor Relations) Provide Information. Most Cited Cases
An employer's refusal to attempt to substantiate a (Formerly 232Ak574 Labor Relations)
claim of economic inability to pay increased wages Under circumstances of the case, record on certior-
may support a finding by the National Labor Rela- ari, including evidence that employer refused to
tions Board of a failure to bargain in good faith. furnish financial information while claiming eco-
National Labor Relations Act, 8(a)(5), (d) as nomic inability to pay increased wages, supported
amended by Labor Management Relations Act, National Labor Relations Board's finding of em-

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76 S.Ct. 753 Page 3
351 U.S. 149.76 S.Ct. 753,38 L.R.R.M. (BNA) 2042,100 L.Ed. 1027,30 Lab.Cas. P 69,932
(Cite as: 351 U.S. 149,76 S.Ct 753)

ployer's refusal to bargain in good faith. National The dispute here arose when a union representing
Labor Relations Act, 5 8(a)(5), (d) as amended by certain of respondent's employees asked for a wage
Labor Management Relations Act, 1947, 5 101, 29 increase of 10 cents per hour. The company
U.S.C.A. 5 158(a)(5), (d); Labor Management Re- answered that it could not afford to pay such an in-
lations Act, 1947, 8 204(a)(l), 29 U.S.C.A. 8 crease, it was undercapitalized, had never paid di-
174(a)(l). vidends, and that an increase of more than 2 112
cents per hour would put it out of business. The
**754 Mr. *I49 David P. Findling, Washington, union asked the company to produce some evidence
D.C., for petitioner. substantiating these statements, requesting permis-
Mr. R. D. Douglas, Jr., Greensboro, N.C., for re- sion to have a certified public accountant examine
spondent. the company's books, financial data, etc. This re-
Mr. Justice BLACK delivered the opinion of the quest being denied, the union asked that the com-
Court. pany submit 'full and complete information with re-
The National Labor Relations Act makes it an un- spect to its financial standing and profits,' insisting
fair labor practice for an employer to refuse to bar- that such information was pertinent and essential
gain in good faith with the representative of his em- for the employees to determine whether or not they
pl0yees.~'*150 The question presented by this should continue to press their demand for a wage
case is whether the National Labor Relations Board increase. A union official testified before the trial
may find that an employer has not bargained in examiner that '(W)e were wanting anything relating
good faith where the employer claims it cannot af- to the Company's position, any records or what
ford to pay higher wages but refuses requests to have you, books, accounting sheets, cost expendit-
produce information substantiating its claim. ures, what not, anything to back the Company's po-
sition that they were unable to give any more
FNl.'Sec. 8. (a) It shall be an unfair labor money.'The company refused all the requests, rely-
practice for an employer- ing solely on the statement that 'the information * *
'(5) to refuse to bargain collectively with * is not pertinent to *I51 this discussion and the
the representatives of his employees, sub- company declines to give you such information;
ject to the provisions of section 9(a). You have no legal right to such.'
'(d) For the purposes of this section, to
bargain collectively is the performance of **755 [I] On the basis of these facts the National
the mutual obligation of the employer and Labor Relations Board found that the company had
the representative of the employees to meet 'failed to bargain in good faith with respect to
at reasonable times and confer in good wages in violation of Section 8(a)(5) of the
faith with respect to wages, hours, and otb- Act.'llO N.L.R.B. 856. The Board ordered the
er terms and conditions of employment, or company to supply the union with such information
the negotiation of an agreement, or any as would 'substantiate the Respondent's position of
question arising thereunder, and the execu- its economic inability to pay the requested wage in-
tion of a written contract incorporating any crease.'The Court of Appeals refused to enforce the
agreement reached if requested by either Board's order, agreeing with respondent that it
party, but such obligation does not compel could not be held guilty of an unfair labor practice
either party to agree to a proposal or re- because of its refusal to furnish the information r e
quire the making of a concession * * *.' 49 quested by the union. 4 Cir., 224 F.2d 869. In Na-
Stat. 452-453, as amended, 61 Stat. tional Labor Relations Board v. Jacobs Mfg. Co.,
140-142, 29 U.S.C. ss 158(a)(5), 158(d), 196 F.2d 680, the Second Circuit upheld a Board
29 U.S.C.A. s 158(a)(5), (d). finding of bad-faith bargaining based on an em-

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76 S.Ct. 753 Page 4
351 U.S. 149,76S.Ct. 753,38L.R.R.M. (BNA) 2042,100L.Ed. 1027,30Lab.Cas.P69,932
(Cite as: 351 U.S. 149,76 S.Ct 753)

ployer's refusal to supply financial information un- sometimes been abandoned because of an employ-
der circumstances similar to those here. Because of er's unsatisfactory business condition; employees
the conflict and the importance of the question we have even voted to accept wage decreases because
granted certiorari. 350 U.S. 922,76 S.Ct. 211. of such conditions."s

The company raised no objection to the Board's or- FN3. 61 Stat. 154, 29 U.S.C. s 174(a)(l),
der on the ground that the scope of information re- 29 U.S.C.A. s 174(a)(l).
quired was too broad or that disclosure would put
an undue burden on the company. Its major argu- FN4. See Sherman, Employer's Obligation
ment throughout has been that the information re- to Produce Data for Collective Bargaining,
quested was irrelevant to the bargaining process 35 Minn.L.Rev. 24; Dunlop, The Econom-
and related to matters exclusively within the ics of Wage-Dispute Settlement, 12 Law &
province of management. Thus we lay to one side Contemp. Prob. 281, 290, What Kind of
the suggestion by the company here that the Board's Information Do Labor Unions Want in Fin-
order might be unduly burdensome or injurious to ancial Statements?, 87 J. Accountancy
its business. In any event, the Board has heretofore 368; How Collective Bargaining Works
taken the position in cases such as this that 'It is (Twentieth Century Fund, 1942) 453.
sufficient if the information is made available in a
manner not so burdensome or timeconsuming as to FN5. Daily Labor Report No. 156: A4-A5
impede the process of bargaining.'MZAnd in this (Bureau of National Affairs, Aug. 12,
case the Board has held *I52 substantiation of the 1954); 35 Lab.Rel.Rep. 106; Union Votes
company's position requires no more than Wage Freeze to Aid Rice-Stix, St. Louis
'reasonable proof.' Globe-Democrat, Nov. 25, 1954, p. 1, col.
4; Studebaker Men Vote for Pay Cuts,
FN2.0ld Line Life Ins. Co., 96 N.L.R.B. N.Y. Times, Aug. 13, 1954, p. 1, col. 5.
499, 503;Cincinnati Steel Castings Co., 86
N.L.R.B. 592,593. [4][5] Good-faith bargaining necessarily requires
that claims made by either **756 bargainer should
[2][3] We think that in determining whether the ob- be honest claims. This is true about an asserted in-
ligation of good-faith bargaining has been met the ability to pay an increase in wages. If such an argu-
Board has a right to consider an employer's refusal ment is important enough to present*153 in the
to give information about its financial status. While give and take of bargaining, it is important enough
Congress did not compel agreement between em- to require some sort of proof of its accuracy. And it
ployers and bargaining representatives, it did re- would certainly not be farfetched for a trier of fact
quire collective bargaining in the hope that agree- to reach the conclusion that bargaining lacks good
ments would result. Section 204(a) (1) of the Act faith when an employer mechanically repeats a
admonishes both employers and employees to claim of inability to pay without making the slight-
'exert every reasonable effort to make and maintain est effort to substantiate the claim. Such has been
agreements concerning rates of pay, hours, and the holding of the Labor Board since shortly after
working conditions * * *.'"' In their effort to the passage of the Wagner Act. In Pioneer Pearl
reach an agreement here both the union and the Button Co., decided in 1936, where the employer's
company treated the company's ability to pay in- representative relied on the company's asserted
creased wages as highly relevant. The ability of an 'poof financial condition,' the Board said: 'He did
employer to increase wages without injury to his no more than take refuge in the assertion that the
business is a commonly considered factor in wage respondent's financial condition was poor; he re-
negotiation~.~~Claims for increased wages have fused either to prove his statement, or to permit in-

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76 S.Ct. 753 Page 6
351 U.S. 149.76S.Ct.753.38L.R.R.M. (BNA)2042,IM)L.Ed. 1027,30Lab.Cas.P69,932
(Cite as: 351 U.S. 149,76 S.Ct 753)

Board did not so conceive the issue of goof-faith FNl.'The respondent contends that it was
bargaining in this case. The totality of the conduct under no statutory duty to confer with the
of the negotiation was apparently deemed irrelevant union after the second meeting since all of
to the question; one fact alone disposed of the the issues had been fully explored and the
case.'(I)t is settled law (the Board concluded), that position of botb parties expressed. Whether
when an employer seeks to justify the refusal of a this was true, however, was a question of
wage increase upon an economic basis, as did the fact which the Board found adversely to
Respondent herein, good-faith bargaining under the the respondent. Since at botb the meetings
Act requires that upon request the employer attempt the respondent took the position that dis-
to substantiate its economic position by reasonable cussion of wage increases would be futile
proof.'llO N.L.R.B. 856. because it was financially unable to make
them, and since it refused to discuss the
This is to make a rule of law out of one item-even if other subjects at all, the Board was justi-
a weighty item-of the evidence. There is no warrant fied in concluding that the respondent had
for this. The Board found authority in National refused to bargain in good faith as the Act
Labor Relations Board v. Jacobs Mfg. Co., 2 Cir., requires. Collective bargaining in compli-
196 F.2d 680. That case presented a very different ance with the statute requires more than
situation. The Jacobs Company had engaged in a virtual insistence upon a prejudgment that
course of conduct which the Board held to be a vi- no agreement could be reached by means
olation of s 8(a)(5). The Court of Appeals agreed of a discussion.'National Labor Relations
that in light of the whole record the Board was en- Board v. Jacobs Mfg. Co., 2 Cir., 196 F.2d
titled to find that the employer had not bargained in 680, at page 683.
good faith. Its refusal to open its 'books and sales
records' for union *I56 perusal was only part of the The Labor Board itself bas not always approached
recalcitrant conduct and only one consideration in 'good faith' and the disclosure question in such a
establishing want of good faith.""The unfair mechanical fashion. In Southern Saddlery Co., 90
labor practice was not founded on this refusal, and N.L.R.B. 1205, the Board also found that s 8(a)(5)
the court's principal concern about the disclosure of *I57 had been violated. But how differently the
financial information was whether the Board's order Board there considered its function.
should be enforced in this respect. The court sus-
tained the Board's requirement for disclosure which 'Bargaining in good faith is a duty on both sides to
'will be met if the respondent produces whatever enter into discussions with an open and fair mind
relevant information it has to indicate whether it and a sincere purpose to find a basis for agreement
can or cannot afford to comply with the Union's de- touching wages and hours and conditions of labor.
mands.'l96 F.2d 680, 684. This is a very far cry in- In applying this definition of good faith bargaining
deed from a ruling of law that failure to open a to any situation, the Board examines the Respond-
company's books establishes lack of good faith. ent's conduct as a whole for a clear indication as to
Once good faith is **758 found wanting, the scope whether the latter has refused to bargain in good
of relief to be given by the Board is largely a ques- faith, and the Board usually does not rely upon any
tion of administrative discretion. Neither Jacobs nor one factor as conclusive evidence that the Respond-
any other court of appeals' decision which has been ent did not genuinely try to reach an agreement.'90
called to our attention supports the rule of law N.L.R.B. 1205, 1206.
which the Board has fashioned out of one thread
drawn from the whole fabric of the evidence in this The Board found other factors in the Southern Sad-
case. dlery case. The employer had made no counter-
proposals or efforts to 'compromise the contro-

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76 S.Ct. 753 Page 7

351 U.S. 149,76S.Ct. 753,38L.R.R.M. (BNA) 2042, 100L.Ed. 1027.30Lab.Cas. P69,932
(Cite as: 351 U.S. 149,76 S.Ct. 753)

versy.' Compare, McLean-Arkansas Lumber Co.,

Inc., 109 N.L.R.B. 1022. Such specific evidence is
not indispensable, for a study of all the evidence in
a record may disclose a mood indicative of a de-
termination not to bargain. That is for the Board to
decide. It is a process of inference-drawing,
however, very different from the ultra vires law-
making of the Board in this case.

Since the Board applied the wrong standard here,

by ruling that Truitt's failure to supply financial in-
formation to the union constituted per se a refusal
to bargain in good faith, the case should he returned
to the Board. There is substantial evidence in the
record which indicates that Truitt tried to reach an
agreement. It offered a 2 ID-cent wage increase, it
expressed willingness to discuss with the union 'at
any time the problem of how our wages compare
with those of our competition,' and it continued
throughout to meet and discuss the controversy
with the union.

*I58 Because the record is not conclusive as a mat-

ter of law, one way or the other, I cannot join in the
Court's disposition of the case. To reverse the Court
of Appeals without remanding the case to the Board
for further proceedings, implies that the Board
would have reached the same conclusion in apply-
ing the right rule of law that it did in applying a
wrong one. I cannot make such a forecast. I would
return the case to the Board so that it may apply the
relevant standard for determining 'good faith.'

U.S. 1956.
National Labor Relations Bd. v. Truitt Mfg. Co.
351 U.S. 149, 76 S.Ct. 753, 38 L.R.R.M. (BNA)
2042,100 L.Ed. 1027,30 Lab.Cas. P 69,932

END OF DOCUMENT

O 2008 Thomsoflest. No Claim to Orig. U.S. Govt. Works,

 extended the existing collective-bargaining agreement to
" . February 28,2005. Section 23 of the contract, applicable
20S70. s / w vbgrqh;col w o f k ~ f i memn
~ l so'rhm mngrcr;om cm only to Disneyland Park, provides, in pertinent part, that:
be ;m1uded;n ,ha boundwl"",~.

Disneyland Park and Disney's California Adventure, During the terms of the Agreement, the Employer
Divisions of Walt Disney World Co. and Inter- agrees that it will not subcontract work for the purpose
national Association of Bridge, Structural and of evading its obligations under this Agreement. How-
Ornamental Iron Workers, Local 433, A F L ever, it is understood that the Employer shall have the
CIO. Case 21-CA-35222 right to subcontract . . . , where the subconh.acting of
September 13,2007 work will not result in the termination or layoff, or the
failure to recall fmm layoff, any permanent employee
DECISION AND ORDER qualified and classified to do the work.
BYCHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER In a February 11, 2001 letter, the Union's attorney,
On May 15, 2003, Administrative Law Judge Lana H. David Rosenfeld, requested, in pertinent part, that the
Parke issued the attached decision. The Respondent filed Respondent provide the Union with information concern-
exceptions and a supporting brief and a reply brief. The ing the Respondent's subcontracts that were arguably
General Counsel filed exceptions and a supporting brief within the Union's jurisdiction. In requesting the infor-
and an answering brief. mation Rosenfeld wrote that "The Union has observed
The National Labor Relations Board has delegated its that there have been a number of subcontracts within
authority in this proceeding to a three-member panel. Disneyland for work covered by the agreement within
The issue before the National Labor Relations Board is Local 433's jurisdiction. The Union is concerned that
whether Disneyland park', violated Section 8(a) (5) and such subcontracting may not comply with the terms of
(1) of the Act by failing to provide the Union with re- the agreement."
quested information. Having considered the decision and In a March 11, 2001 letter, Jennifer Larson, Respon-
record in light of the exceptions and briefs, we adopt, for dent's laborlcast relations manager, answered that "Sec-
the reasons given by the judge, her dismissal of the alle- tion 23 of the Collective Bargaining Agreement specifi-
cally allows for subcontracting of any work. . . when it
gation that the Respondent unlawfully refused to permit
the Union to view subcontracts and files relating to the will not result in the termination or layoff, or failure to
recall from layoff, any permanent employee qualified
bidding and performance of the subcontracts. We re-
verse the judge's finding that the Respondent violated and classified to do the work. [Iln light of the explicit
Section 8(a)(5) and (1) by refusing to provide the Union language of the contract, [the information request is]
apparently unnecessary . . . We would be happy to give
with the dates of each subcontract, nature of the work,
the dates upon which the work was performed, and the your request further consideration if you could explain
with some level of detail the relevance of this request
name of the subcontractors performing unit work. Ac-
cordingly, we dismiss the complaint in its entirety.
....
On March 22, 2001, Rosenfeld responded by stating
Background that the Union believed there had been an increase in
The Respondent is engaged in the business of operat- subcontracts.
ing a retail hotel and two entertainment facilities: Dis- On April 3, 2001, Larson responded, stating that there
neyland Park and Disney's California Adventure. The had been no layoffs of Local 433 employees, and thus
Respondent and Union have been parties to successive the Respondent did not believe that a contractual issue
collective-bargaining agreements covering job classifica- existed at that time. Larson offered to further consider
tions involving primarily facility maintenance, repair, the request if the Union would explain the relevance of
and rehabilitation. The latest collective-bargaining the information to its role as the employees' collective-
agreement initially concerned only Disneyland Park and bargaining representative.
was effective from March 1, 1998 to February 28, 2003. On April 9,2001, Rosenfeld replied: "At least one iron
In 2000, as part of a deal to include the newly created worker has retired and has not been replaced. Addition-
theme park, Disney's California Adventure, the parties ally, no new steward has been hired at the new theme
park. It is plain that Disneyland is reducing its work
' As discussed herein, although the complaint lisls as Respondents
both Disncyland Park and Disney's California Adven~re, two divisions
of Walt Disney World Co., the contract provision at issue in conjunc-
tion with the alleged violation applies only to Disneyland Park.

350 NLRB No. 88

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

force and subcontracting additional work. It is for these forming work within the Union's jurisdiction from Janu-
reasons the information is requested."2 ary 1, 1999 to present, the date of each subcontract, the
On May 10, 2001, Larson informed the Union: "you nahlre of the work, the name of the subcontractors, and
have failed to provide any reason which would lead to a the dates the work was performed. The Respondent ar-
viable claim under our Collective Bargaining Agreement. gues that the information requested by the Union is ir-
The Company has the explicit right to determine the relevant under the terms of the collective-bargaining
number of employees and how they are utilized to run agreement, because the Respondent had the unfettered
the business." Larson informed Rosenfeld that the Re- right to subcontract so long as the subcontracting did not
spondent did not believe it was obligated to fumish the result in the layoff or failure to recall from layoff a bar-
requested information. gaining unit member. The Respondent noted that no
On June 17, 2001, Rosenfeld responded: "Your letter member of the bargaining unit was laid off or denied
takes the position Disney will not provide any of the sub- recall. Further, the Respondent asserts that it cannot be
contracts. I want to make it plain we seek only subcon- found to have evaded the agreement because the agree-
tracts that involve work arguably or possibly performed ment does not contain any provision requiring the Re-
by Iron Workers." spondent to maintain its work force at a particular level,
The Judge's Decision require them to refrain from reducing the work force, or
otherwise protect the work force from reduction.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to furnish the Un- The Charging Party's Exceptions
ion with a list of all subcontractors performing work The Charging Party argues the judge erred in finding
within the Union's jurisdiction from January 1, 1999 to that the Respondent did not violate Section 8(a)(5) and
present, the date of each subcontract, the nature of the (1) by failing to provide information concerning the bid-
work, the name of the subcontractors, and the dates the ding process to the Union. The Charging Party contends
work was performed. The judge deemed this informa- that the judge cannot reasonably find, on one hand, that
tion relevant to the Union's efforts in determining information relating to subcontracting is relevant, but on
whether evidence exists of an attempt by the Respondent the other hand, find that information relating to the bid-
to evade its contract obligations through the erosion of ding process and performance o f thc contracts is trrcle-
unit work.
However, the judge found that the Respondent did not
--
vant The Charging Panv . further asscrts that inform31111n
relating to the bidding and performance of the contract is
violate Section 8(a)(5) and (1) of the Act by refusing to relevant because it could help the Union convince the
allow the Union to review the subcontracts or any files Respondent to limit or reduce subcontracting. Thus, the
Respondent maintains regarding the bidding and per- Respondent was obligated to provide the information.
formance of the contracts. The judge found that this in- Applicable Law
formation did not appear to be of probable or potential
An employer has the statutory obligation to provide,
relevance to the question of whether the Respondent was
on request, relevant information that the union needs for
evading its bargaining obligation, and that neither the
the proper performance of its duties as collective-
Union's counsel nor the General Counsel explained how
bargaining representative. NLRB v. Truitt Mfg. Co., 351
obtaining such information would assist the Union in
U.S. 149, 152 (1956); NLRB v. AcmeIndustrial Co.. 385
determining whether the Respondent violated the agree-
U.S. 432,435-436 (1967); Detroit Edison Co. v. NLRB,
ment. The judge found that the Union's generalized,
440 U.S. 301 (1979). This includes the decision to file or
conclusory explanations of how the information would
process grievances. Beth Abraham Health Services. 332
assist the Union in evaluating whether the Respondent
NLRB 1234 (2000). Where the union's request is for
violated the Act did not trigger an obligation on the Re-
information pertaining to employees in the bargaining
spondent's part to provide the information.
unit, that information is presumptively relevant and the
The Respondent's Exceptions Respondent must provide the information. However,
The Respondent contends that the judge erred in find- where the information requested by the union is not pre-
ing that it violated Section 8(a)(5) and (1) by refusing to sumptively relevant to the union's performance as bar-
furnish the Union with a list of all subcontractors per- gaining representative, the burden is on the union to
demonstrate the relevance. Richmond Health Care, 332
'As noted above, this case concerns only Disneyland Park and sec. NLRB 1304 (2000); Associated Ready Mixed Concrete,
23 of the collective-bargaining agreement. Thus, the Respondent's Inc., 318 NLRB 318 (1995), enfd. 108 F. 3d 1182 (9th
failure to hire a union steward for Disney's California Advenhlre is not
relevant. Cir. 1997); Pfrzer, Inc., 268 NLRB 916 (1984), enfd. 736
 DISNEYLAND PARK 3

F.2d 887 (7th Cir. 1985): A union has satisfied its bur- Discussion
den when it demonstrates a reasonable belief, supported We find that the Respondent was not obligated to pro-
by objective evidence, that the requested information is vide the Union with the requested information about sub-
relevant. Knappton Maritime Corp., 292 NLRB 236, contracting. Insofar as the judge found no merit to the
238-239 (1988): allegations, we agree with her for the reason she cited
Information about subcontracting agreements, even and those set forth below. However, contrary to the
those relating to bargaining unit employees' terms and judge's conclusions on those allegations that she upheld,
conditions of employment, is not presumptively relevant. we find that the Union failed to adequately support the
Therefore, a union seeking such information must dem- relevance of the information. As previously shown, the
onstrate its relevance. Richmond Health Care, 332 requested information was not presumptively relevant
NLRB 1304, 1305 fn. 1 (2000). because it concerned subcontracts. Richmond Health
The Board uses a broad, discovery-type standard in de- Care, supra. Further, the information's relevance was
termining the relevance of requested information. Poten- not apparent from the surrounding circumstances. Pur-
tial or probable relevance is sufficient to give rise to an suant to section 23 of the collective-bargaining agree-
employer's obligation to provide information. Id. To ment, the Respondent could subcontract, provided that
demonstrate relevance, the General Counsel must present the subcontracting did not result in a termination, layoff
evidence either (I) that the union demonstrated relevance or a failure to recall unit employees from layoff. How-
of the nonunit information,' or (2) that the relevance of ever, the Union made no such claim. The Union ex-
the information should have been apparent to the Re- plained only that it "observed that there [have] been a
spondent under the circumstances. See Allison Co., 330 number of subcontracts within Disneyland for work cov-
NLRB 1363, 1367 fn. 23 (2000); Brazos Electric Power ered by the agreement;'' that it believed there had been an
Cooperative. Inc., 241 NLRB 1016, 1018-1019 (1979), increase in subcontracts; and that "at least one iron
enfd. in relevant part 615 F.2d 1100 (8th Cir. 1980). Ab- worker has retired and not been replaced [and] no new
sent such a showing, the employer is not obligated to steward has been hired at the theme park [thus] [i]t is
provide the requested information. plain that Disneyland is reducing its workforce and sub-
contracting additional work." We find these explana-
'Our dissenting colleague takes issue with our relianceon Richnrond
Heollh Core, supra and Associaled Ready Mixed Concrete. Inc., supra,
tions insufficient, under the circumstances, to explain the
noting that those cases, unlike the instant casc, were summary judgment relevance of the requested subcontract information.
cases involving newly cenitied unions. However, we cited those cases There was no claim that any employee had been termi-
solely for the principle, which our disscnting colleague recognizes as nated or laid off, and no claim that any employee, previ-
current law. that a union must demonstrate the relevance of information
requests concerning nonunit information, such as information concem-
ously laid off, had not been recalled. Further, there was
ing subcontracting. no claim that any such action was caused by subcontract-
' Our dissenting colleague contends that Knoppton Mo~ilimeCorp. ing. Given that the unit appears to be s i ~ e a b l e the
, ~ Re-
is inapplicable to the instant casc because there, the information request spondent's failure to hire a replacement for one retiring
concerned the cxistcnce of an alter ego relationship. She wntends that
employee does not, by itself, reasonably suggest that the
thc Board applies a different standard to information requwts conccm-
ing subcontracting than it does alter ego relationships. However, her Respondent was the cOllective-bargaining
reliance on Sourhern Col@rnia Gus Co.. 344 NLRB No. 8 (2005), is to agreement. In order to show the relevance of an informa-
no avail. In that case, while the judge did discuss the necd for an in-
formation request to have a "logical foundation'' and "factual basis[,l"
tion request, a union must do more than cite a provision
he also found that there was "[alrnple objective ovidcnce" ta support
of the collective-bargaining agreement, It must demon-
the union's information request. id., d i p op. at 6. I" making this find. strate that the contract provision is related to the matter
ing, the judge referenced, inter alia. Shoppers ~ o o dWarehouse, 315 about which information is sought, and that the matter is
NLRB 258 (1994). a case, like Knapplon, which concerned an alleged within the
. . ~union's
~ ~ ~ resnonsihilities
- ~r .
-~~ ~ . -~. ~ as-~ the ~collective-
~~ ~-~~~~~~
~~~ - -
alter ego relationship, h sum, the Board applies a uniform standard for bargaining representative, Here, it has not been shown
evaluating the relevance of information requests involving mamrs
outside the bargaining unit, although it has sometimes articulated this that the Union had a reasonable belief supported by ob-
standard using slightly different language. jective evidence that the information sought was rele-
The union's &planation of relevance must be made with some pre-
cision; and a generalized, eonclusory explanation is insufficient to
Yant, ~ h ~we find ~ that ~ thef Union~ failed
~ ~ to meet
, its
trigger an obligation to supply information. Island Creek Coal, 292
burden. Compare Schrock Cabinet Co., supra (relevance
NLRB 480, 490 fn. 19 (1989). see also schrool cabinel CO., 339 demonsaated).
NLRB 182 fn. 6 (2003).
'Although the exact size of the unit is not clear, the fact that the unit
is comprised of at lcast 53 job classifications suggests that this is a
large unit.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Praft & Lambert, 319 N L R B 529, cited by the dissent, facts showing the layoffs, a different result may well
actually supports our view. In that case, the union have been obtained.'
showed that three employees had lost their jobs, and no ORDER
loss was due to retirement. By contrast, the Union here
showed one loss, and that was due to retirement. It was The complaint is dismissed.
Dated, Washington, D.C. September 13,2007
not due to any of the events which would trigger an obli-
gation to furnish information, i.e., termination or layoff
or failure to recall.
Robert J. Battista, Chairman
We recognize that article 23 begins with a general sen-
tence prohibiting the Respondent from subcontracting
"for the purpose of evading its obligations under this
Agreement." However, even assuming arguendo that Peter C. Schaumber, Member
this sentence is to he read independently from the re-
mainder of the article, the Union never made the claim
that any subcontracting had that evasive purpose. Nor
(SEAL) NATIONAL LABOR RELATIONS BOARD
were the surrounding circumstances such that the Re- MEMBERLIEBMAN, dissenting.
spondent should have been aware that this was the Un- In finding that the Union was not entitled to the suh-
ion's concern, and was its basis for requesting the infor- contracting information it requested, the majority reaches
mation. a result that is at odds with well-settled principles. Here,
Finally, the judge relied on Union business agent Mi- the parties' collective-bargaining agreement includes a
chael Couch's testimony, at the hearing, in finding that provision on subcontracting, and the Union invoked that
the Union's concern was that the Respondent was possi- provision in seeking information, citing facts that
bly evading its agreement obligations, and that the Union prompted its concern that the agreement was being vio-
thereby demonstrated the relevance of the requested in- lated. No more was required to trigger the Respondent's
formation. Michael Couch testified that he "noticed our duty to disclose the requested information. The major-
guys, our bargaining unit employees in the shop, were ity's approach here would effectively require proof that
sitting in the shop while non-union people were out there the Union had a meritorious grievance. But that is not
doing the work they normally do, which, to me, is a vio- the law.
lation of the agreement.'' That testimony suggests, at 1.
most, that work was being - subcontracted to nonunionized A liberal, "discovery-type standard" governs infoma-
employers. It does not suggest, or even claim, that sub- tion-request cases under Section 8(a)(5) of the Act.
contracting caused terminations, layoffs, or nonrecalls.
Nor does the testimonv show that anv suhcontractine had
an evasive purpose. Couch's testimony cannot serve to
- NLRB v. Acme Industrial Co., 385 U.S.432,437 (1967).
As the majority acknowledges, this standard applies even
in subcontracting cases, where the relevance of the in-
establish that the Union provided to the Respondent a
formation must be established, not presumed.' All that is
sufficient factual basis to establish relevance at the time required is a showing of a "probability that the desired
the information request was made.' Furthermore, rele- information was relevant, and that it would be of use to
vance was not shown for the first time at the hearing. As
the union in canying out its statutory duties and respon-
mentioned above, Couch's testimony did not explain sibilities." Id. Thus, the "union's burden is not an ex-
how the requested information would be relevant to sup- ceptionally heavy one." SBCMidwesf, 346 N L R B No. 8,
port an arguable violation of the contract.
We do not suggest that the union, in order to acquire Because the Union failed to back up its claim, we disagrce with our
the information must prove a breach of contract. We dissenting colleague's statement that 'the Union's fachlal assertions
simply conclude that the union must claim that a specific regarding the apparent erosion of the bargaining unit, coupled with its
provision of the contract is being breached and must set reference to the contract terms concerning subcontracting," satisfied its
burden.
forth at least some facts to support that claim. For exam- ' Contrary to the Board's current approach, there are good reasons to
ple, if the Union here had clarified that employees had treat subcontracting information as prerumptively relevant, particularly
been laid off, and if it had backed up that claim with where the information is sought in connection with a potential or pend-
ing contractual grievance. Subconmting is a mandatory subject of
'Allison Co., supra at 1367 fn. 23 (2000): Broros. 241 NLRB at
bargaining under the Act. FibreboardPoper Products Corp, v NLRB,
1018-1019 (1979). We do not pass on whether such a belated request. 379 U.S. 203, 213-214 (1964). And when a collective-bargaining
if supponcd, would trigger an obligation to supply the information. agrccmcnt spccifieally addresses subcontracting, the union's efforts to
paliec the agreement obviously implicate its representational function.
 DlSNEYLAND PARK 5

slip op. at 3 (2005) (finding an 8(a)(5) violation involv- formed work within its jurisdiction since January I,
ing request for suhcontracting information). 1999, the date of the subcontract, the nature of the work,
The asserted need to police compliance with a contract the dates on whioh it was performed, and the name of the
provision on subcontracting can establish the relevance subcontractor. The Union also sought to review the sub-
of subcontracting-related information, apart from any contracts and associated files regarding the bidding and
showing that an actual grievance has or would have performance of those contracts.
merit. See, e.g., Schrock Cabinet Co.,339 NLRB at 182 Describing the task of gathering more than 3 years of
fn. 6 (2003) (union established relevance by advising data as "onerous" and "oppressive," the Respondent
employer that it requested information "for the purpose asked the Union for a more detailed explanation of rele-
of assessing potential grievances pursuant to the parties' vance, as well as whether the Union was claiming that
existing collective-bargaining agreement").2 Only where suhcontracting had resulted in the loss of work for per-
a union has "no basis for even suspecting that the [em- manent employees.
ployer] might he in breach" of a contractual suhcontract- The Union modified its request, asking only for the
ing provision will the Board reject a claim for suhcon- past year's suhcontracts and stating it had observed that
tracting information. Detroit Edison Co., 314 NLRB the number of suhcontracts had increased. The Respon-
1273, 1275 (1994).' dent replied that the contract allowed for suhcontracting
11. absent a layoff, and repeated its request for a more de-
tailed explanation of relevance. The Union asserted that
The facts here are straightforward. Over the course of
the Respondent was reducing its work force and pointed
more than 4 months, the Union requested, and the Re-
to the Respondent's failure to replace retired iron worker
spondent declined to provide, information relating to the
Richard Halashak, and to the fact that no steward had
Respondent's subcontracting practices.
been hired for the California Adventure theme park. The
With respect to Disneyland Park, article 23 of the
Respondent countered that not replacing one employee is
agreement provides that the Respondent "will not sub-
not a contract violation and characterized the request for
contract work for the purpose of evading its obligations
the past year's subcontracting history as unreasonable.
under this Agreement," hut permits contracting under
The Union answered that it was asking only for suhcon-
specified circumstances. Those circumstances include
tracts affecting work within its jurisdiction. The Re-
where suhcontracting will not result in the termination,
spondent did not reply.
layoff, or failure to recall employees. With respect to
At the hearing in this case, the Union reiterated the ha-
Disney's California Adventure, the agreement granted
sis for the information requests. Business agent Couch
the Respondent the "unrestricted right to subcontract or
testified that "our guys, our bargaining unit employees in
outsource work," except where the subcontracting is
the shop, were sitting in the shop while non-union people
permanent and results in layoffs.
were out there doing the work they normally do, which,
Beginning with a letter dated February 11, 2001, the
to me, is a violation of the agreement.''
Union stated that it had observed "a number of subcon-
tracts within Disneyland for work covered by the agree- 111.
ment within Local 433's jurisdiction" and expressed its The majority holds that the "Union failed to ade-
"concern that such suhcontracting may not comply with quately explain the relevance of the requested informa-
the terms of the agreement." The Union asked the Re- tion." In the majority's words:
spondent to provide a list of all subcontractors that per-
In order to show the relevance of an information re-
' Indeed, in Meeker Cooperative Light & Power A n n . , 341 NLRB quest, a union must do more than cite a provision of the
616, 618 (2004). the Board found an 8(a)(5) violation cvcn where the collective-bargaining agreement. It must demonstrate
collective-bargaining agreement had no specific provision related to that the contract provision is related to the matter about
suhcantracting. Sec also W-LMolding Co., 272 NLRB 1239, 1240-
1241 (1984) (finding violation despite conhacNal provision reciting
which the information is sought, and that the matter is
that "nothing in this Agreement shall he eonsrmed or interpreted to within the union's responsibilities as the collective-
rcsaiel the right of the Company to subcontract production," based on bargaining representative.
asserted allempt by employer to wade striker-recall agrcemenl).
' A s one leading treatise obsclvcs, "a union is entitled to infomaion But this test, as the majority articulates it, was met. In
regarding the suhconhacting of work even Ulough the employer insists seeking information about suhcontracting, the Union
it is complying with the contrael requiremenu." I American Bar Asso-
ciation, Section of Labor &Employment Law. The Developing Labor cited a contract provision that governed suhcontracting;
Low 936 (5th cd, John E. Higgins Jr., ed. 2006) (foomotc callccring the provision obviously was "related to the matter about
cases omitted). which the information [was] sought." Policing the con-
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tract, in turn, ohviousl was part of the Union's represen- Here, the Union pointed not only to a relevant contrac-
tative responsibilities! This is not a case, then, like Is- tual provision, hut also to facts prompting its concern
land Creek Coal, supra fn. 4 , where the union merely that the contract might have been violated: an apparent
offers a "generalized, conclusionary explanation," such increase in the volume of subcontracts and a nossible
as the need "to intelligently
- and effectively represent the
~
decrease of two bargaining-unit positions (the Respon-
bargaining unit employees," with no mention bf a possi- dent's failure to replace a retired employee and its failure
ble contract violation at all. 292 NLRB at 490 fn. 19. to hire a steward), coupled with the union business
The real CNX of the majority's position is its view that agent's observation that unit employees seemed to be
the Union failed to point to facts that "reasonably suggest idle while subcontractors were busy with hargaining-unit
that the Respondent was not honoring the collective- work.6 Given the contract's broad prohibition against
bargaining agreement" and that the Union did not dem- subcontracting "for the purpose of evading . . . obliga-
onstrate "a reasonable belief supported by objective evi- tions" under the agreement, this factual basis was suffi-
dence that the information sought was relevant." The cient to support the Union's information request, even
majority interprets the agreement to prohibit subcontract- without an actual layoff? In the circumstances of this
ing only where it results in a layoff or a failure to recall case, the Union's factual assertions regarding the appar-
employees from layoff, and observes that the Union cited - - unit.. couoled
ent erosion of the bareainine . with its refer-
no actual layoff or failure to recall. As for the agree- ence to the contract terms concerning subcontracting,
ment's prohibition against subcontracting by the Re- fully satisfied the discovery-type standard that govems
spondent "for the purpose of evading its obligations un- here.
- .
der this Aereement." the maiorih,, asserts that the Union
neither claimed that subcontracting had that purpose,
The Board's precedent is instructive on this point. In
Pratf & Lambert, Inc., 319 NLRB 529 (1995), the union
"nor were the surrounding circumstances such that the sought subcontracting information to police compliance
Respondent should have been aware that this was the with a contract provision that subcontracting of
Union's concern." .
maintenance work.. orovided it did not "result in the dis-
In apparently demanding reliable, objective evidence placement" or "lead[] to layoff' of any maintenance em-
that an actual violation of the contract has occurred be- ployees. The Board rejected the employer's contention
fore information must be provided, the majority sets the that the information sought was irrelevant because there
bar for the Union higher than our precedent supports.5 had been no displacement or layoff of employees, citing
See, e.g., W-L Molding Co., supra, 272 NLRB at 1240 the union's demonstration that the maintenance depalt-
(actual instances of contract violations not required, nor ment "had lost approximately three employees
. . over the
must information that triggered information request be course of a year and that those employees have not been
"accurate, nonhearsay, or even ultimately reliable"). See renlaced." 319 NLRB at 529 fn. 1. The Board observed ~ ~

also Public Service Eleclric & Gas Co., 323 NLRB 1182, that the evidence did not establish that the lost employees
1186-1 188 (1997), enfd. 157 F.3d 222 (3d Cir. 1998). had retired, and that the interpretation of the contract
provision was "not an issue that is properly before the
"Without question, information concerning subcontracting of unit Board. Id. The Union's showing here is comparable.
work is relevant to a union's performance of its representational func- While it mav not suffice to demonstrate a violation of the
tions." IslandCreek Cool Co., 292 NLRB 480,490 fn. 18 (1989), enfd.
899 FZd I2222 (6th Cir. 1990). See, eg., AKSleel Corp., 324 NLRB parties' agreement, it is enough to trigger the Respon-
173. 184 (1997); Ohio Power Co., 216 NLRB 987. 992 (1975). cnfd. dent's duty to disclose the requested information.
531 F.2d 1381 (6th Cir. 1976). Tellingly, the majority relies on no case law that genu-
'To begin, the majority em in apparently relying on Knopplon inely supports its position. In passing, the majority cites
Mnraime Corp., 292 NLRB 236 (1988), to asscn that a union must
demonstrate a "reasonable belief supported by objective evidence for
requesting . . . information" that is not presumptively releuanL The majority "assum[es] arguendo that rclcvance can be explained
Knopplon involved not subcontracting information, sought in connec- far the first time at the hearing." Board precedent, however, has long
tion with the possible violation of a contrachral provision, but rather established this point. See, e.g.. Broros Eleclric Power Cooperolive,
information related to the existence of an alter ego operation. The 241 NLRB 1016. 1019 (1979). enfd. in relevantpart 615 F.2d 1100 (5th
majority cites no Board decision to support its suggestion that this Cir. 1980). Scc also Conlracl Flooring Syslems, 344 NLRE No. 117,
standard applies in cases involving information requests concerning slip op. at 1 (2005).
subcontracting, where a union in good faith invokes a contrachlal pm- ' That provision sharply distinguishes this case from Connecricur
vision on that subject. Compare Souhern Colr/ornio Gas Co., 344 Yankee Alomic Power Co., 317 NLRB 1266 (1995), where the eanuact
NLRE No. 8, slip ap. at 5-6 (2005) where the Board adopted a judge's prohibited only subcontracting that resultcd in "loss of continuity of
decision invoking a differently mieulated standard (holding that infor- employment or opportunities for permanent promotions" far unit em-
mation request concerning subcontractors, based on safety concerns, ployees and the number of unit positions during the relevant period had
must be supported by "logical foundation" and "factual basis"). substantially increased.
 DISNEYLAND PARK 7

clearly inapposite summary judgment decision^.^ The Alan L. Wu, At&, for the General Counsel.
majority also cites Schrock Cabinet Company, supra, but Jeffrey K. Brown. Any... of Los Angeles, California, for the
there the Board found a violation of Section 8(a)(5), rely- Respondent.
ing on the union's assertion that it sought subcontracting Tom B. Fox, Director Labor Relations Disneyland Resorf, of
information to consider potential grievances pursuant to Anaheim, California, for the Respondent.
DavidA. Rosenfeld, Atfy., of Oakland, California, for the Char-
the collective-bargaining agreement. 339 NLRB at 182
gingParty,
fn. 6. The Board reiterated that the "potential merits of
any particular grievances" are immaterial. Id. DECISION
.. .
1V STATEMENT OF THE CASE

A union surely is not required to wait for the substan. LANA H. PARKE,Administrative Law Judge. This case was
tial erosion of bargaining unit work before it may prop- tried in Los Angeles, California, on March 31, 2003. Pursuant
to charges filed by International Association of Bridge, Stmc-
erly seek information necessary to police compliance ural and ornamental iron workers, ~ 0 ~ ~ 1 4M 3 3 , ~ (the - ~ ~
with a collective-bargaining agreement's subcontracting union), the ~ ~~i~~~~~~ ~for ~~~i~~
i 21 ~of the ~ ~ ~~ ~ l i
provision. Vigilant monitoring-what the Union sought Labor Relations Board (the Board), issued a comolaint
~~
~~~~r~
~
and no-
~~~~ ~~.
to practice h e r e i s consistent with the duty of fair repre- tice of hearing (the comilaint) on October 9, 2002.' The com-
sentation. plaint alleges that Disnevland Park and Disnev's Califomia
Contrary to the majority, I would order the Respondent ~dventure;~ivisionsof Walt Disney World ~ o : ( ~ e s ~ o n d e n t )
violated Section 8(a)(5) and (1) of the National Labor Relations
to provide the Union with the subcontracting information
that it requested: a list of subcontractors performing - -
Act (the Act), bv. failing and refusine to furnish the Union with
information necessary for, and relevant to, the Union's collec-
work, the date of each subcontract, when the work was
tive-bargaining representation obligations.
performed, and the name of the subcontractor. The judge On the entire record and after considering the briefs filed by
correctly ordered production of this information. I would the General Counsel and Respondent and the oral argument of
go further, however, in ordering the Respondent to per- the Charging Party, I make the following
mit the Union to review the subcontracts themselves and
FINDINGS OF FACT
the Respondent's files reaarding the bidding of subcon-
tracts and their ?hat remedy% necessary I. RIRISDICIION
to enable the Union to grasp the scope, scale, and nature Respondent. a Delaware comoration. with its nrimarv offices
of the and amusement park located'in ~naheim,~aiifornia,is en-
Respondent's subcontracting gaged in the business of operating retail hotel and entertainment
- vractices.
. and their con-
fa;ilities. During the repr&entat&e 12-month period preceding
g ~ i t y w i t hthe collective-bargaining a g r e e ~ n e n t . ~
the complaint, Respondent derived gross revenues in excess of
Dated, Washington, D.C. September 13,2007
$500.000 and purchased and received at its amusement nark
valued in excess of $50,000 directly from points ou$ide
the State of California. Respondent admits and I find that it is
Wilma B. Liebman, Member an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the ~ct.'
NATIONALLABORRELATIONSBOARD 11. ALLEGED UNFAIR LABOR PRACTICES

A. The Collective-Borgoining Relationship

The majority's reliance an Richmond H d h Core, 332 NLRL3
1304 (2000), in which the Board granted in part and denied in pan the Respondent and the Union have been patties to successive
General Counsel's motion for summaly judgment, i s misplaced. In that collective-bargaining agreement, the latest of which is effective
ease, the Board found that before bargaining for an initial contract, an by its terms fiom March 1, 1998, to February 28, 2005 (the
employer unlawfully failed to provide a newly-ccnified union with a agreement). The agreement covers at least 53 separate work
variety of information regarding the unit employees, but remanded for
hearing the issue of whether information concerning subcontracting classifications associated, primarily, with facility maintenance,
was unlawfully withheld. Most significantly, then: was no contract in repair, and rehabilitation work? The ameement was initiallv
cxistcnce between thc panics. Associated Ready Mired Concrete, 318 negotiated to run until February 28, 2007. In 2000, the parties
NLRB 318 (1995), cnfd. 108 F.3d 1182 (9th Cir. 1997). also cited by agreed that the terms of the agreement would cover, as modi-
the majority, involved the same situation. In this ease by contrast, the
Respondent and the Union were parties to a collective-bargaining 'All dates an: in 2002 unless otherwise indicated.
agreement and the Union's information request related directly to the ' Where not otherwise noted, the findings herein are based on the
Rcspondea's complianec with a subcontracting provision. pleadings, the stipulations of eounscl, andor unchallenged credible
See, e.g., SBC Midvest, supra, 346 NLRB No. 8, slip op. at 4. evidence.
' The classifications are listed in schedule A, subsection V of the
agreement.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

fied, a newly constructed and conjoining amusement park, Dis- employees, the Company agrees to subcontract or out-
ney's California Adventure. The agreement was extended by 2 .
source exclusively to "union contractors . .
years; the modifications are reflected in the addendum to the
agreement and apply only to Disney's California Adventure.
....
The provisions relating to subcontracting are as follows: 2. The process described. . . above shall apply only to
work that is being permanently subcontracted or out-
SECTION 23 sourced and not to any work that is being subcontracted or
SUBCONTRACTING outsourced on a temporary or seasonal basis, as well as for
During the terms of the Agreement, the Employer .
special events or one time events. . For this type of work
agrees that it will not subcontract work for the purpose of or operation, the Company shall have the unrestricted right
evading its obligations under this Agreement. However, it to subcontract or outsource to the vendor of its choice!
is understood and agreed that the Employer shall have the
right to subcontract when: (a) where such work is required B. The Union's Request for Infomalion
to be sublet to maintain a legitimate manufacturers' war-
ranty; or @) where the subcontracting of work will not re- In late 2001, at a meeting between Respondent and the Craft
sult in the termination or layoff, or the failure to recall Maintenance Council, Mr. Couch expressed the Union's con-
from layoff, any permanent employee qualified and classi- cem with Respondent's subcontracting of bargaining-unit work.
fied to do the work; or (c) where the employees of the In early 2002, while present at the amusement park, Mr. Couch
Employer lack the skills or qualifications or the Employer saw employees of two companies, Welding Unlimited and Par-
does not possess the requisite equipment for carrying out rot Construction, performing work he believed to be within the
the work; or (d) where because of size, complexity or time bargaining-unit parameters. Mr. Couch could not find the
of completion it is impractical or uneconomical to do the companies' names on a list of employers signatory to collec-
work with Employer equipment and personnel.' tive-bargaining agreements with the Union. He believed the
two companies to be "nonunion" based on that and on union
Modifications applicable to Disney's Califomia Adventure steward r e o o ~ . At~ that time. and at all relevant times. no
read: employee covered by the agreement's unit description was on
Section 23. Subcontracting layoff.'
By letter dated February I I, the Union's attorney, David A.
The 1998 Maintenance Agreement at Disneyland is Rosenfeld (Mr. Rosenfeld), wrote to Respondent in pertinent
herebv modified to reflect that the orohibitions oertainina part as follows:
to su6contracting set forth in ~eciion23 shali have no
force or effect and shall be replaced as follows: ... The Union has observed that there [have] been a number
A. With respect to any okration as set forth in Section of subcontracts within Disneyland for work covered by the
2 (Recognitions), B.I andlor B.2., of this Agreement, the agreement within Local 433's jurisdiction. The Union is con-
Employer shall have the unrestricted right to subcontract cerned that such subcontracting may not comply with the
or outsource this work or operation even if at some date terms of the agreement.
subsequent to the effective date of this Agreement the Please provide a list of all subcontracton which have per-
Employer chooses to operate any of said facilities or op- formed work within Local 433's jurisdiction for the period of
erations under the terms of this Agreement. January 1, 1999 m present. For each such subcontract, pm-
B. 1.a. With remect to any overation initially overated vide the date of the subcontract, the nature of the work, the
by the Employer uhder the terms of this ~ ~ r e k m d nthe t, dates upon which it was performed and the name of the sub
Employer shall have the unrestricted right to subcontract contractor.
or iutsource this work/ooeration. but will discuss with the
union the impact of such a decision prior to engaging in
such subcontracting or outsourcing of work. Within thirty Thcse provisions are modifications of the agreement made in 2000
md npply only to Dlmcy', Caltfomla Advenr~rz
(30) days of the final selection of a vendor, the Company ' Uluon rteurrd, Il!om>s (i. Mt,nln, eonfinncd hr hdJ 1.dJ Mr
will provide the union with a description of the work to be Ca~chl b l cmplayccr o i WelJ~nsUnllm~tedand 4 Pandl Consl~uclio!~
performed by the vendor and the reasons that the Com- subcontractor had performed work that foll within the agreemcnl unit
pany is planning on subcontracting or outsourcing work. description snd that the employees had said they were not membcn of
The union may then propose alternative or additional ven- the ion.
dors for consideration by the Company prior to the final ' As necessary, Respondent hires temporary employees to supplc-
vendor selection being made, H ~the final
~ selection
~ ment
~ the work~ force ~as in a recent
, renovation of thc Matterhorn ride.
ofthe vendor shall be at the discretion company, At the conclusion of the work, Respondent issues such employees a
notiec that states "end of assignment." The agreement provides, at
b, Where the decision of the Company to outsource Section 21 C. 4, that such temporary employees "shall not be utilized
and/0r subcontract work On a permanent basis, as longer than 180 consecutive calendar days as a Cssual.Tcmporarl
in paragraph B. 1 above, results in the layoff of Regular without bcing converted to regular employee stlrus. No
pany contends that such temporary employees arc "laid off' when their
This subcontracting provision applies only to the amuserncnl park work assignments end.
Disneyland.
 Please allow us an oppotlunily to review the subconhacts and Despite requesting some level of detail in your request, which
any files which Disneyland maintains regarding the bidding is broad, burdensome to gather, and appalently unnecessary,
of that contrsct and the performance of the contract. you have failed to provide any reason which would lead to a
By letter dated March I I, Jennifer L. Larson (Ms. Lanon) viable claim under our Collective Barmining Aereement.
laborlcast relations manager for Respondent answered, in perti- The Company has the explicit right to deiermiie thi number
of employees and how they are utilized to run the business.
nent part, as follows:
You mention only one employee, who retired, and was not
As vou know. Section 23 of the Collective Bargaining - - replaced. Such a determination is clearly within our rights
Agreement specificallyallows for subwnhacting of any work under Section 6 of our Collective Bargaining Agreement,
under the circumstances listed. In fact, one of the terms of Management's Rights and is not a violation of Section 23,
that section pmvides that subwnhacting is allowed when "it Subcontracting.
will not result in the termination or layoff, or the failure to re-
call from lavoff, anv permanent emplovee qualified and clar The Company sees no reasonable claim that would necessitate
sified to doihe work.;' Is the Union ciaimig that this wndi- providing a list of all subcontractors, the date of the subcon-
hact, the nahlre of the work, the dates upon which it was per-
tion exists? Attempting to gather information regarding sub-
wnhacts ovzr a three plus year period would be quite oner- formed and the name of the subconhactor,as requested.
ous, oppressive and, in light of the explicit language of the Letter dated June 17, Mr. Rosenfeld to Ms. L a m :
wnhact, apparently unnecessary. In any event, we would be Your letter of May 10 fakes the position that Disneyland will
happy to give your request further consideration if you wuld
not provide any of the subwnhacts. I want to make it plain
explain with some level of detail the relevance of this request. that~weare &king only subcontracts that involve work ar-
.. if vou
Additionallv. . wuld exolain whv. vou . want us to -go guably or possibly performed by lron Worken.
back for more than three years, especially since any conceiv-
able mievance must be filed within 15 days of the occurrence At the hearing, Michael Couch (Mr. Couch), union business
or it 6 waived, it would be greatly apprecihed agent, testified that he noticed that "our guys, our bargaining
unit employees in the shop, were sitting in the shop while non-
The following exchange of letters, in pertinent part, then fol- union people were out there doing the work they normally do,
lowed: which, to me, is a violation of the agreement."
Letter dated March 22, Mr. Rosenfeld to Ms. Larson: C. Positions of the Parties
This will acknowledge receipt of your letter of March 11. The General Counsel contends the Union needs the re-
Why [don't] you begin by giving this information for the last quested subcontracting information to perform its conhact ad-
year. The reason for this is that the Union believes that there
has been an increase in subwnhacts.
.
minishation duties. The reauest.. which relates to bareainineu
unit employees, meets the Board's broad discovery-type rele-
-
Letter dated April 3, Ms. Larson to Mr. Rosenfeld: vance standard. Since the information sought - concerns subcon-
tractors who employ nonbargaining unit employees, Board law
.
As I exolained in mv,nrevious letter. Section 23 of the Collec-
tive Bargaining Agreement specifically allows for subcon-
requires a special showing of relevance, which burden the Gen-
eral Counsel argues the Union has satisfied by showing a rea-
hacting of any work under the ci~cumstanceslisted. As there sonable belief supported by objective evidence that a violation
have been no layoffs of employees represented by the lron of the agreement may have occurred and that the requested
Workers Local 433, we do not believe that this is an issue at information would be useful in determining whether grounds
..
this time. As I also exolained in mv ~reviousletter. we would
exist for filing a grievance or unfair labor practice charges.
be happy to give your request further consideration if you The Union armes that Resoondent has not shown the reauest
could exolain with some level of detail the relevance of this for information- is burdensome8 that the Union has never
request, especially since any wnceivable grievance must be waived its right to such information, and that the information is
filed within 15 days of the occurrence or it is waived. relevant to the following appropriate concerns: (I) as a basis to
Letter dated April 9, Mr. Rosenfeld to Ms. Larson: approach Respondent with reasons why they should not sub-
conhact. (2)
. . to determine whether the subconhacts corndv . . with
At least one iron worker has retired and has not been replaced.
That ironworker is Richard Halashack. Additionally, no new the subcontracting provisions of the agreement, (3) to deter-
steward has been hired at the new theme park. It is plain that mine whether the contract has been complied with, and (4) to
Disneyland is reducing its work force and subconhaaing ad- explore potential grievances in such contractual areas as the
parties' intent to promote harmony between employer and em-
ditional work. It is for these reasons that the information is
requested. ployees, the restriction of subcontracting for the purpose of
evading the agreement, and the application of the new construc-
Letter dated May 10, Mr. Rosenfeld to Ms. Larson:
Enclosed is my lelter of April 9, to which I have not had a re- Although Respondent's rcply lenen to the Union speak of the bur-
sponse. Please respond. densome nahlre of the request, the evidence did not establish oncrous-
ness, and Respondent does not defend it5 refusal to give the infannation
Letter dated April 10, Ms. Larson to Mr. Rosenfeld: on that basis.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tion provisions of Section 31.9 The Union also argues that it is Detroit Edison Co.. supra at 1275. A union must explicate the
entitled to the information as it has never "waived . litsl.rights
- to relevance of requested information with some recision,'^ and a
bargain over subcontracting, either the decision or the effects, generalized conrluilonary explanstlon of rclrvdnce is "ins~ffi-
during the life of the agreement." ctcnt to trigger an obligation to supply tnformatlon that 1s on 11s
~ e i ~ o n d e n tpositcon
's is that where, as here, requested in- lice not ~resumnt~vclv relevant." Islund (.h'ek Lbol Cb. 202
formation is not presumptively relevant, a requesting union NLRB 480, 490 fn. <9 (1989), enfd. 899 F.2d 1222 (6th Cir.
must make a "precise" showing- of relevance. According to 1990), citations omitted. However, a union need not demon-
Respondent, the only acscplablc show~ngo t relevance must strate accuracy or reliability of facts relied on to support its
rclatc to the iuhcontract~ng'sdirect efiect on unlt mlployment. request and must only show that it has a reasonable basis to
Kcl\inu
-~~~, ~ -~~7~
on ~
% ~1)etroit
.- ~ - t..dison Cu. 314 NLRB 1273 (1994).. .. suspect a breach of the collective-bargaining agreement. See
Respondent argues that unless the Union can show or colorably Crowley Morine Services, Inc., 329 NLRB 1054, 1060 (1999).
claim that Resoondent's subcontracting.resulted in the contrac- Respondent points out that the agreement's subcontracting
tunlly prohlbtted "termloallon or Inyoif, or fatlurc to recall from provisions give Respondent a nearly unfettered right to subcon-
loyun" ol'a bar~alnlng-unltmember, it has not ovablished thc tract work that could be performed by unit employees except
ndcessary thresiold relevance to justify its request for informa- where the subcontracting would result in the termination or
tion. layoff, or the failure to recall from layoff, any qualified unit
employee." Respondent is correct that the agreement clearly
D. Discussion
establishes the conditions under which it may subcontract.
Under Section 8(a)(5) and 8(d) of the Act, an employer must Despite the Union's argument that it has not waived its right to
furnish a union with requested relevant information to enable it - over subcontracting during the life of the agreement,
bargain .
to represent employees effectively in administering and polic- thcrc is nu midterm reopener pro\ ision in the agreement; there-
ing an existing collective-bargaining agreement. NLRB v Acme fore, the agreement tbrecloses renegotiat~onof subcontrncttng
Industrial Co.. 385 U.S. 4232, 4 3 5 4 3 6 (1967). A-Plus Roof- - its term. Further. there is no evidence that anv of
issues durinr!
ing. Inc.. 295 NLRB 967, 970 (1989) enfd. NLRB v. A-Plus the subcontracting conditions were unmet. However, those
Roqfing, Inc., 39 F. 3d 1410 (9th Cir. 1994). Information that facts do not dispose of the issue herein. Information requested
relates directly to the terms and conditions of employment of to enable a union to assess whether an employer's subcinhact-
. .
the emolovees reoresented bv a union is presumptivelv. . relevant ing has violated a collective-bargaining agreement and to assist
as is information necessary for processing grievances under a a union in deciding whether to pursue a grievance is relevant to
collective-bargaining
. - agreement,
- including that necessary to a union's representative responsibilities. AK Steel Corp.. 324
decide whether to proceed with a grievance or arbitration. NLRB 173. 184 (1997); Island Creek Coal Co.. supra. Here,
As the General Counsel concedes, information about subcon- the Union specified the relevance of the requested information
tracting- ameements,
.. even those relating.to bargaining
. .unit em- in its April 9 letter to Respondent by expressing its concern that
ployees' terms and cond~tlonsof cntploymcnt, doer not constt- Respondent's subcontracting might be an impermissible at-
tutc prcsuntptlvrly relevant infurmation. Excel Rr$tbilitnlion.v tempt to reduce the unit work force.
. ,.
4 ll~rolrhLi.nrcr 336 NLRB No. 10. l'n. I (2001) (not re~drted In Section 23 of the agreement, Respondent "agrees it will
in Board volumes); Richmond ~ e a l i hCore. 332 NLRE 1304 not subcontract work for the purpose of evading its obligations
(2000); Detroit Auto Aucfion, Inc., 324 NLRB No. 143 under this Agreement." While the Union did not note that spe-
(1997);(not reported in Board volumes); Associated Ready cific provision in its demands for information, the Union stated
Mixed Concrete, Inc.. 318 NLRB 318 (1995). Therefore, "a in its original, February 11, request that it was "concerned that
union seekineu such information must demonstrate its rele- [Respondent's] subcontracting may not comply with the terms
vanuc." L ~ r Hc~I~uh~l~lurt~m.i
l $ 1 1 ~ supra st in. I.
anJ / 1 ~ ~ ~Cenlrr. of the agreement." The Union thereafter noted in its April 9
and cases cited therein. l'hiq rrquircment IS not unduly rertrlc- letter that one unit member had retired and had not been re-
tive. A union need only meet a liberal "discovery-type stan- placed and that no new steward had been hired at Disney's
dard," that is, a "probability that the desired information is California Adventure. Essentially, the Union charged Respon-
relevant. and that it would be of use to the union in carrying out dent with reducing the unit work force through attrition or re-
its statuiory duties and responsibilities." NLRB v. ~ c m lidus-
k fusal to hire and supplanting unit employees with subcontract
tries Co., supra at 437; Pittston Coal Group. Inc., 334 NLRB workers. The Union could reasonably view such conduct as an
690, at slip i p . 3 (2001) and cases cited therein. If the standard attempf by Respondent to erode unit work and, thereby, to
is met, the information must be produced. Super Valu Stores, evade its obligations under the agreement." Whether the Un-
279 NLRB 22 (1986). . . In determining- relevance, the Board
recognizes that "a union's representation responsibilities. . . '' WeslinghouseElecnic COT..,239 NLRB 106, 107 (1978).
encompass, among other things, administration of the current " As to Disney's California Adventure, Respondent may subcontract
contract and contknal monitohng of any threatened incursions cven if doing so results in the layoff of unit employecs. Cettain notifi-
on the work being performed by bargaining unit members." cation and permanent subcontracting pmvisions, as set forth in the
agreement addendum, are not at issue hcrcin.
" Although not communicated to Respondent. Mr. Couch believed
' Scztlon II pro\oder iur ncu canstructton pa) to u n ~ cntployee.
l 10-
\ol\r.J in [he ' hulldlng or errcusg of tklL911) new r~deror new build. that Respondent inexplicably under-utilized unit employees while sub-
ings.. . " contractors performed customaly unit work and that the subcontractors
were "nonunion." The Union apparently relied an Mr. Couch's per-
ion's view is accurate or persuasive is unimportant. Crowley whether Respondent was evading its agreement obli~ationsor
Marine Services, Inc., supra, 1062. Respondent's failure to to any of the'other possible contrict vioiations suggested by the
replace a retired unit employee, to hire a new steward, or to Union. In its correspondence with Respondent, the Union ex-
utilize unit employees, while not proving or even red flagging plained, variouslv. that it needed the information because the
any contract infraction, are factors that elevate the Union's subcontracting n&ht not comply with the terms of the agree-
concern above frivolous suspicion or a mere fishing expedi- ment, that the Union believed there had been an increase in
tion.'' Therefore, the Union is entitled to explore more fullv subcontracts. and. as discussed above. that the Union susoccted
the question of whether Respondent seeks to-evade its agree- Respondent was reducing its work fordc. In hls oral argument,
ment obligations. Respondent's argument that the information Kespondcnt's counsel specified potential amtract v~olat!,,nsthe
request can only be relevant if unit employee layoff or recall
denial exists ignores the Union's legitimate concern that Re-
-
Union wished to consider such a s the orovision relatine to the
parties' intent to promote harmony between employer and em-
spondent may be attempting to evade the agreement by reduc- ployees and the application of the new-constmction provisions
ing the work force. of Section 31 of the agreement. Neither the Union's counsel
In light of the Board's liberal discovery-type standard for nor counsel for the General Counsel explained how obtaining
evaluating information relevancy, the Union has asserted an information concerning subcontract bidding and performance
- .
areuablv valid reason for seekine.-. in the first Dart of its infor- would assist the Union in determining if any agreement viola-
mation request, the following information: a list of all subcon- tion had occurred or in formulating a grievance. The Union's
tractors performing work within the Union's jurisdiction for the generalized and conclusionary explanations of its bases do not
period of lanuary -1, 1999, to present, the date of each subcon- trigger an obligation to provide this information. Island Creek
tract, the nature of the work, when the work was performed, Coal Co., supra.I6 In the circumstances, I conclude the Union
and the name of the suhcontractor. Detroit Edison, supra, re- has not demonstrated any logical foundation or factual basis for
lied on by Respondent does not dictate a different result. The requesting information regarding subcontract bidding or per-
union in that case sought subcontracting cost data, which had formance.
no apparent connection to contractual provisions, and the union Accordinelv. I find the General Counsel met his burden of
conceded that the data would not suppon any claim of a con- proving tha%dspondent violated Sections 8(a)(5) and (I) of the
tract breach. While the reasoning of Defroif Edison applies to Act by failing to furnish the following information to the Un-
the second half of the Union's reauest. as set forth below. it ion: a list of all subcontractors performing work within the
docs not apply to the first halt' Iniomnl~onregarding subcon- Union's jurisdiction for the period of January 1, 1999, to pre-
tractors pertornting work within the Un~on'slurtsdiction, along sent, the date of each subcontract, the nature of the work, when
with subcontract dates, the nature of the work, when the work the work was performed, and the name of the subcontractor. I
was performed, and the name of the subcontractor may rea- further find that the General Counsel failed to meet his burden
sonablv be reviewed and analvzed to determine whether evi- of proving that Respondent violated Sections 8(a)(5) and (1) of
dence exists of an attempt to evade contract obligations through the Act by failing to furnish the following information to the
erosion of unit work." The Union need not show that the re- Union: review of subcontracts and any files which Respondent
auested information will be disoositive of the unit work-erosion maintains regarding the bidding of said subcontracts and their
qu:stwn hut only that it is relevant. I crrncludc that thc Union performance. Therefore, I recommend the complaint be dis-
has dr.m~~nrtrated the rcqutsite relevenrc and 1s ent~tledto the missed as to this laner request for information.
above information CONCLUSIONS
OF LAW
The latter part of the Union's information request, i.e., the
request to review Respondent's subcontracts and files regarding
. .
I. Resoondent is an emolover eneaeed in commerce within
thd bidding and the berformance of the subcontract, requires the meaning of Section 2(2j, (6),and?: of the Act.
further analysis. This latter information does not appear to be 2. The Union is a labor organization within the meaning of
of "probable or potential re~evance"'~to the question of Section 2(5) of the Act.
3. Employees employed in the classifications listed in
eeptions in formulating the information qucst, and his perceptions Schedule A, subsection V of the agreement behveen Respon-
support the Union's position that it was coneemed about Respondent's dent and the Union constitute an appropriate unit for the pur-
possible evasion of agreement obligations. poses of collective bargaining within the meaning of Section
" Thus, eases such as Detroit Edison Co.. supra (reasons not logi- 9fb)
. . of the Act.
cally or rationally relaled to thc information requested), or Uniontown 4. At all timer mntcnal. the Union has been, and IS now, the
County Market, 326 NLRB 1069 (1998) (failure to meet burden of exclus~vccollocti~c-bargalnlngrcpretrntative of Resp~~ndcnt's
showing a reasonable abjectivc basis for request), do not apply.
"The instant sihlation is different from that in Connecticut Yankee -
emolovees in the above unit within the meanine of section 9(b\
of ;he k t .
, .
Atomic Power Co.. 317 NLRB 1266, 1268 (1993, where the Board
rejected a union's argument it had a rcaronshlc belief in and coneem 5. By refusing to provide the following information to the
about "potential erosion of unit work," noting such a belief was unsup- Union on and afler February l I, 2002, Respondent has engaged
paned by the evidence, which showed bargaining unit positions had ~ ~-

subslantially increased. Here, no evidence has been produced to refute l6 The Union's argument that it has never waived its right to seek
the Union's asserted belief. subcontracting information bcgs the question. lrrcspcctive of waiver,
"Delroit Edbon Co., supra at 1274. the Union must demonstrate rclcvanee.
12 DECISIONS OF THE NATIONAL.LABOR RELATIONS BOARD

in unfair labor oractice conduct within the meaning of Section the Respondent's authorized representative, shall be posted by
R(a)(S) and ( 1 ) ; ~ thc Act a list of all subcontract&s perform- the Respondent immediately upon receipt and maintained for
ing work uithin thc Lln~on's]urisdictiun tbr the pcrtod of Janu- 60 consecutive days in conspicuous places including all places
ary 1, 1999, to present, the date of each subcontract, the nature where notices to employees are customarily posted. Reasonable
of the work, when the work was performed, and the name of steps shall be taken by the Respondent to ensure that the notices
the subcontractor. are not altered, defaced, or covered by any other material. In
6. The aforesaid unfair labor oractices affect commerce the event that, during the pendency of these proceedings, the
within the meaning of Section 2(6) and (7) of the Act. Respondent has gone out of business or closed the facility in-
7. Respondent has not otherwise violated the Act. volved in these proceedings, the Respondent shall duplicate and
REMEDY mail, at its own expense, a copy of the notice to all curcent em-
ployees and former employees employed by the Respondent at
Havina found that the Resoondent has eneaeed in certain un- any time since February l I , 2002.
fair ~abo;~ractices,I find t<at it must h e ordered to cease and (c) Within 21 days after service by the Region, file with the
desist and to take certain affirmative action designed to effectu- Regional Director B sworn certification of a responsible official
ate the ~oliciesof the Act
On these findings of fact and conclusions of law and on the
on a form omvided by the Reaion attesting - to the steos that the
~ e s ~ o n d ehas
i t taken-to compiy.
entire record, I issue the following recommended" Dated, San Francisco, California, May 15, 2003
ORDER
APPENDIX
The Respondent. Disneyland Park and Disney's California
Adventure, Divisions of Walt Disney World Co., Anaheim, NOTICETOEMPLOYEES
California, its officers, agents, successors, and assigns, shall ~ O S T I < illlY OKlleR l)FTI11-
1. Cease and desist from NATIONAL LABORRELAllONS BOARD
(a) Refusing to bargain collectively with the Union by refus- An Agency of the United States Government
ing to furnish the Union with the following information: a list The National Labor Relations Board has found that we vio-
of all subcontractors performing work within the Union's juris- lated Federal labor law and has ordered us to post and obey this
diction for the period of January 1, 1999, to present, the date of notice.
each subcontract. the nature of the work. when the work was
performed, and the name of the subcontractor. FEDERAL LAW GIVES YOU THE RIGHT TO
(b) In any like or related manner interfering with, restraining, Form, join, or assist a union
-
or coercine emolovees
them by Section 7 of the Act.
-
. > in the exercise of theriehts maranteed Choose representatives to bargain with us on your be-
half
2. Take the following affirmative action necessary to effec- Act together with other employees for your benefit and
tuate the policies of the Act: protection
(a) On request, bargain collectively with the Union by fur- Choose not to engage in any of these protected activi-
nishing- it with the followinn- information: a list of all subcon- ties
tractors pcrfium~ngwork within the Union's jurtsdiutton for the
penod of January I, 1999. to presml, the date of each subcun- WE WILL NOT do anything that interferes with these rights.
tract, the nahlreof the work,~whenthe work was performed, More particularly,
and the name of the subcontractor. WE WILL NOT refuse to bargain collectively with the lnterna-
(b) Within 14 days aRer service by the Region, post at its fa- tional Association of Bridge, Structural and Ornamental Iron
cility in Anaheim, Califomia, copies of the attached notice .
Workers. Local 433. AFGCIO (the Union), bv refusine to fur-
marked " ~ ~ ~ e n d i x .Copies
"" of the notice, on forms provided nish the'union with information. necessary and relevait to the
by the Regional Director for Region 21 aRer being signed by Union's performance of its responsibilities in representina- em-
ployees.
" If no exceptions are filed as provided by Sec. 102.46 of the WE WILL NOT in any like or related manner interfere with, re-
Board's Rules and Regulations, the findings, conclusions, and rceom- strain, or coerce you in the exercise of the rights guaranteed
mended Order shall, as provided in Sec. 102.48 of the Rules, be you by Section 7 of the Act.
adopted by the Board and all abjections to them shall be deemed WE WILL,on request, bargain collectively with the Union by
waived for all purposes. furnishing the Union with the first part of the information re-
'qfthis Order is enforced by a Judgtnent of the United States Court quested in its letter of February 1I, 2002.
of Appeals, the wards in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg- D I S N E Y ~ N PARK
D AND DISNEY'S CALIFORNIA
ment of the United States Coun of Appcals Enforcing an Order of the ADVENTURE,DMS~ON OF WALTDISNEY WORLDCO.
National Labor Relations Board."
 WOODLAlVD CLINIC 735
Woodland Clinic, a Medical Practice Foundation and nia. The parties have stipulated, and we find, that the Re-
Engineers and Scientists of California, MEBA, spondent is an employer engaged in commerce within the
AFLCIO. Cases 2MA-25680-3, 20-CA-26011, meaning of Section 2(2), (6), and (7) of the Act, and is a
20CA-26987-1, and 2MA-26987-2 health care institution within the meaning of Section 2(14)
July 12,2000 of the Act. The parties have further stipulated, and we
find, that the Union is a labor organization within the
DECISION AND ORDER
meaning of Section 2(5) of the Act.
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME 11. ALLEGED UNFAIR LABOR PRACTICES
Upon charges filed' by Engineers and Scientists of Cali- The issues presented are whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by: (1) failing to
fornia, MEBA, AFGCIO (the Union), the General Coun-
sel of the National Labor Relations Board issued an timely comply with the Union's request for the home tele-
amended consolidated complaint (complaint) on March phone numbers of unit employees; (2) failing to bargain
with the Union regarding the effects of the transfer of the
26, 1997, against Woodland Clinic, a Medical Practice
bargaining unit work performed by the materials manage-
Foundation (the Respondent) alleging that it had engaged
in certain unfair labor practices affecting commerce within ment department to a nonunion facility; (3) insisting to
impasse on a dues-cheokoff proposal that allegedly dis-
the meaning of Section 8(a)(5) and (1) and Section 2(6)
criminated against bargaining unit members hy charging a
and (7) of the National Labor Relations Act. Copies of the
4-percent service fee;2 (4) insisting to impasse on a pay-
charges and complaint were served on the Respondent.
for-performance wage system that allegedly provided for
The Respondent filed a timely answer denying the com-
direct dealing between the Respondent and unit employ-
mission of any unfair labor practices.
ees;' (5) in the absence of a lawful impasse, implementing
On July 10, 1997, the Union, the Respondent, and the
the pay-for-performance wage system and discontinuing
General Counsel filed with the Board a Joint Motion to
paying employees according to the wage step provisions
Transfer Proceedings to the Board and Stipulation of
of the expired collective-bargainingagreements; and (6) in
Facts. They agreed that the stipulation, with attached ex-
the absence of a lawful impasse, discontinuing subsidies
hibits, constitutes the entire record in this case, and that no
for Jazzercise classes attended by unit employees, discon-
oral testimony is necessary or desired by any of the par-
tinuing free coffee service for unit employees, reducing
ties. The parties waived a hearing, the making of findings
the cafeteria discount available to unit employees, and
of fact and conclusions of law, and the issuance of a deci-
changing its health insurance carrier, thereby causing
sion by an administrative law judge. On October 7, 1997,
changes in the health insurance benefits to unit ~mployeei
the Executive Secretary, by direction of the Board, issued
For the reasons set forth below. we find that the Resnon-
an order approving the stipulation, and 'ansferring the
dent violated the Act as alleged in numbers (1) and (2)
proceeding to the Board. The Respondent and the General
listed above. We further find, as set forth below, that the
Counsel thereafter filed briefs.
remaining allegations must be dismissed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel. A. Factual Background
On the entire record in the case, the Board makes the Since about 1980, the Union has been recognized by the
following findings of fact and conclusions of law and is- Respondent as the exclusive representative of the follow-
sues the following remedy and Order. ing two appropriate bargaining units of the Respondent's
FINDINGS OF FACT employees:
I. JURISDICTION All employees in the Respondent's Laboratory and X-
The Respondent, a corporation with an oftice and place Ray Departments in Woodland and Davis, California,
of business in Woodland, Califomia is engaged in the op- and the Laboratory and X-Ray Departments at Wood-
eration of a medical clinic providing outpatient medical land Memorial Hospital, which are operated by the
care. The Respondent, in the course and conduct of its Clinic; excluding Transcribers and the Receptionist in
business operations during the calendar year 1995, derived the X-Ray Department, the Histotechnicians and Cy-
gross revenues in excess of $250,000, and purchased and totechnologists in the Laboratory, confidential em-
received at its Woodland, Califomia facility products, ployees, guards and supervisors as defined in the Act.
goods, and materials valued in excess of $5000, which p n i t I.]
originated from points located outside the State of Califor-
' T h e complaint alleges that this proposed canuact clause is prahib-
' The charge and amended charge in Case 2WA-25680-3 were
iled by S e c 8(a)(3) and (I) ofthe Act.
tiled, respectively, an October 18, 1993, and Janualy 11, 1994. The
charge and amended charge in Case 2 M A - 2 6 0 1 1 were tiled, respec-
' The complaint alleges that this is a permissive subject o f bargain-
ing.
tively, on April 4 and May 27. 1994. The charges in Case 2 W A -
26987-1 and in Case 2WA-26987-2 were filed an October 25, 1995.

331 NLRB No. 91

736 .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All registered nurses, medical assistants, receptionists, B. Discussion
licensed vocational nurses, librarians and clerical em- 1. The Union requests information
ployees in the Respondent's Clinic in Woodland and
Davis, California, excluding X-Ray employees, op- Approximately midway though the course of the par-
ties' negotiations, the Union requested by lener dated Au-
tometrists, physicians, audiologists, guards and super-
visors as defined in the Act [Unit 11.1 gust 16 that the Respondent provide it with the home tele-
phone number of every employee in units I and 11. The
This recognition has been embodied in successive col- Union explained in its lener that it desired this information
lective-bargaining agreements for each unit. The most in order to "fulfill its obligation to communicate" with unit
recent agreements for each unit were effective from Au- employees. The Respondent did not respond to the Un-
gust 9, 1991, to August 8, 1993. At all times since at least ion's August 16 letter until September 7. By lener of that
1980, the Union, by virtue of Section 9(a) of the Act, has date, the Respondent informed the Union that "[wle are
been the exclusive collective-bargaining representative of reviewing your request and will provide you with informa-
the employees in each unit. tion in the near future." The Respondent on that same date
From about June 3 to Octoher 18, 1993; the Respon- distributed a memorandum to all unit employees notifying
dent and the Union engaged in negotiations for collective- them of the Union's information request, and stating in
bargaining agreements to succeed the agreements for both part that "the law requires us to comply with the Union's
hargaining units set to expire on August 8. Between June request . . . . We will he sending this information to [the
3 and Octoher 18, the parties met and bargained on 14 Union] on September 24, 1993."
dates, 9 of which occurred prior to the expiration of the The Respondent failed to do so, however. Rather, at the
agreements, and exchanged numerous winen proposals. parties' hargaining session held on September 30, the par-
About Octoher 8, the Respondent presented to the Union ties discussed the Union's information request, including
its last, best, and final contract offer (final offer) for units I the Respondent's asserted concerns about matters raised
and 11, which included its proposals discussed, infra, re- by several employees. The Union inquired as to the nature
garding dues-checkoff and the pay-for-performance wage of the concerns. The Respondent declined to specify these
system. At the close of the Octoher 8 hargaining session, concerns. The Respondent instead proposed that it would
the parties had in fact met and bargained concerning their distribute the Union's literature directly to employees.
contract proposals, had not reached agreement on the The Union rejected this proposal. The Respondent then
terms of successor collective-bargaining agreements for agreed to provide the Union with the requested informa-
units I and 11, and had concluded the prospect of reaching tion. The Respondent did not, however, furnish the re-
an agreement on that date. The Respondent, adhering to quested information to the Union until about Octoher 7.
its final offer for each unit, declared impasse at the close At the parties' hargaining session held the very next day,
of the Octoher 8 hargaining session. By lener dated Octo- Octoher 8, the Respondent presented its final contract of-
ber 18, the Respondent's counsel notified the Union of its fers for units I and 11, and declared impasse.
intent to implement, and in fact implemented, certain pro- The complaint alleges, and we find, that the Respondent
visions of its final offers, as further discussed below. The violated Section 8(a)(5) and (1) by failing to timely com-
General Counsel and the Union contend that the Octoher 8 ply with the Union's information request. It is axiomatic
impasse was not a valid impasse, because it was tainted by that an employer has an obligation to furnish to a union, on
the Respondent's allegedly unlawful hargaining conduct request, information that is relevant and necessary to its
concerning its dues-checkoff and pay-for-performance role as the exclusive bargaining representative of unit em-
proposals. ployees. Denoit Edison Co. v. NLRB, 440 U.S. 301, 303
Subsequently, the parties engaged in additional hargain- (1979); and NLRB v. Acme Industrial Co., 385 U.S. 432,
ing on the following topics more fully discussed below: 435-436 (1967). An employer must respond to the infor-
(I) discontinuation of subsidies for Jazzercise classes at- mation request in a timely manner. Leland Stanford Jun-
tended by unit employees; (2) reduction in the cafeteria ior University, 307 NLRB 75, 80 (1992). An unreason-
discount available to unit employees; (3) discontinuation able delay in furnishing such information is as much of a
of 6ee coffee service for unit employees; and (4) change violation of Section 8(a)(5) of the Act as a refusal to fur-
of the Respondent's health insurance carrier and resulting nish the information at all. Valley Inventory Service, 295
modification of certain health benefits available to unit NLRB 1163,1166 (1989).
employees. All the complaint allegations arise 6om the The parties in this proceeding have stipulated that the
course of the parties' negotiations for successor collective- information requested by the Union is necessary for, and
hargaining agreements for units I and 11, and the parties' relevant to, the Union's performance of its duties as the
subsequent hargaining on the laner four topics. We shall exclusive collective-bargaining representative of units I
address each complaint allegation in turn. and 11. An employer has a duty to timely furnish such
information absent presentation of a valid defense. See,
' A l l dates hereakr are in 1993 unless otherwise noted. e.g., Mary Thompson Hospital, 296 NLRB 1245 fn. 1
 WOODLA.ND CLINIC 737
(1989), enfd. 943 F.2d 741 (7th Cir. 1991); and NLRB v. nor maintenance and repairs to the Respondent's physical
Illinois-American Water Co., 933 F.2d 1368, 1377-1378 plant. Prior to October 18, two employees were working
(7th Cir. 1991), enfg. 296 NLRB 715 (1989). The Re- in that department, Bumie Row and Clyde Cook. Em-
spondent appears to argue that it delayed in providing the ployees Row and Cook were covered by the unit I1 collec-
information to protect the privacy interests of its employ- tive-bargaining agreement. About November 5, the Re-
ees. The burden is on the employer to demonstrate a "le- spondent closed the materials management department,
gitimate and substantial" confidentiality interest. Pennryl- and transferred the bargaining unit work of that depart-
vania Power Co., 301 NLRB 1104, 1105 (1991). The ment to the maintenance department at the adjacent hospi-
Respondent has failed to sustain that burden. tal, which is a nonunion facility. The Respondent there-
The Respondent declined to specify, when queried by upon laid off andlor terminated employee Row, and laid
the Union, the nature of any concerns regarding the re- off employee Cook. The Respondent caused Cook to be
quested information. Nor has the Respondent identified in transferred to the hospital, resulting in the reduction of his
its brief any evidence in the record that supports its as- pension benefits.
serted claim of confidentiality. A claim of confidentiality The complaint alleges that the Respondent violated Sec-
is an insufficient defense to a request for relevant informa- tion 8(a)(5) and (I) by failing to afford the Union an op-
tion where, as here, there was no evidence presented to portunity to bargain with respect to the effects of the trans-
support such a claim. Engineers Local 12, 237 NLRB fer of unit 11 work outside the bargaining unit. We find,
1556, 1559 fn. 9 (1978); Illinois-American Water Co., 296 for the reasons set forth below, that the Respondent vio-
NLRB at 724. lated the Act as alleged.6
We further find without merit the Respondent's conten- The Respondent notified the Union by letter dated Oc-
tion that its delay of approximately 7 weeks in providing tober 18 that it intended to lay off employees Row and
the requested information was minimal, and is thus insuf- Cook as of November 5. By letter dated October 21, the
ficient to support an unfair labor practice finding. Absent Union asked the Respondent to bargain regarding the im-
evidence justifying an employer's delay in furnishing a pact of the proposed layoffs. The Union further requested
union with relevant information, such a delay will consti- that the Respondent provide it with certain information
tute a violation of Section 8(a)(5) inasmuch "[als the Un- concerning the proposed layoffs. The Respondent, by let-
ion was entitled to the information at the time it made its ter dated October 27, provided the Union with the re-
initial request, [and] it was Respondent's duty to furnish it quested information. The Respondent did not, however,
as promptly as possible!' Pennco, Inc., 212 NLRB 677, make any response to the Union's request to bargain re-
678 (1974). The Respondent has presented no evidence garding the impact of the proposed layoffs. The Respon-
justifying its delay in furnishing the requested information. dent indeed provided no response to the Union's request
The Respondent indeed acknowledged on September 7 for effects bargaining, until a letter to the Union dated No-
that it was required by law to furnish the information. Yet vember 2, merely 3 days before the Respondent's stated
it failed to do so until one additional month had elapsed, November 5 deadline for the layoff of employees Row and
only I day before the Respondent declared impasse in Cook. The Respondent's November 2 letter inquired of
bargaining. This sequence of events severely diminished the Union whether it desired to conduct the effects bar-
the usefulness to the Union, at the time it was provided, of gaining separately or as part of the parties' overall negotia-
the requested information. The duty to furnish informa- tions. The Respondent on November 5 closed the materi-
tion requires a reasonable good-faith effort to respond to als management department, laid off employee Cook, and
the request as promptly as circumstances allow. GoodLife laid off andlor terminated employee Row.
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). The It is well established that an employer is obligated under
Respondent's failure to do so is violative of Section Section 8(a)(5) to bargain in a meaningful manner and at a
8(a)(5) and (1) of the ~ c t . ' meaningful time over the effects on employees of a deci-
2. The Respondent closes its materi- sion to close part of its operations. First National Mainte-
als management department nance Corp. v. NLRB, 452 U.S. 666,681482 (1981); and
Metropolilan Telefronics, 279 NLRB 957, 959 (1986),
Prior to about November 5, the Respondent maintained
a materials management department, which provided mi- enfd. mem. 819 F.2d 1130 (Zd Cir. 1987). The Respon-
dent's dilatory response to the Union's request for effects
'See, eg., Bundy Corp. 292 NLRB 671 (1989) (2-In-month delay bargaining precluded such bargaining 6om occurring at a
unlawful); Engineers Local 12, supra, 237 NLRB at 1559 (6-week meaningful time: before the closure was implemented.
delay unlawful). The Respondent failed to respond to the Union's October
The Respandent has filed a motion to sbike partions of the brief by 21 request to bargain until its letter dated November 2,
the General Counsel concerning the purported effect on the parties'
contract negotiations of the Respondent's failure to timely provide the
requested information. It is unnecessary to pass an the Respondent's The General Counsel does not contend that the Respondent had an
motion to strike, because the General Counsel's reply to the motion obligation to bargain about the decision to close the materials manage-
withdraws the portions of his brief at issue. ment department and uansfer the unit work of that department to a
nonunion facility.
738 DECISIONS OF THE NATIONA.L LABOR RELATIONS BOARD
even though the Respondent had notified the Union that it would check off union dues and remit the dues to the Un-
would implement the decision on November 5. The Un- ion, but would charge the Union a service fee of "8% of
ion's right to discuss with the Respondent how the closure such monies collected in consideration of service ren-
of the department impacts unit employees requires that dered." The Respondent subsequently reduced its pro-
bargaining occur sufficiently before actual implementation posed service fee to 4 percent.
so that the Union is not confronted at the bargaining table The parties have stipulated that they discussed their
with a fait accompli. Willamette Tug & Barge Co., 300 various proposals on dues checkoff at their bargaining
NLRB 282, 283 (1990). The Respondent's belated No- sessions. No agreement was reached, however, and the 4-
vember 2 offer to bargain was no substitute for a timely percent service fee proposal was included in the Respon-
response to the Union's effects bargaining request, which dent's final offers for units I and 11, presented at the Octo-
would have permitted good-faith bargaining to occur be- ber 8 bargaining session. The Respondent, adhering to its
fore the actual closure of the department on November 5. final offers, declared impasse at the close of that session.
Mefropolitan Teletronics, supra, 279 NLRB at 959. The By letter dated October 18, the Respondent notified the
parties have indeed stipulated that the Respondent trans- Union of its intent to implement, and in fact implemented,
ferred the materials management department unit work certain provisions of its final offer. The service fee pro-
'kithout affording the Union an opportunity to bargain posals were not implemented by the Respondent, however,
with Respondent over such conduct, andlor the effects because it had ceased checking off union dues on expira-
thereof, in advance of such actions!' (Emphasis added.) tion of the prior collective-bargaining agreements. On
We accordinelv find that the Resnondent violated Section January 10, 1994, the service fee proposal for both units
8(a)(5) and (ifby failing to bargain with the Union regard- was withdraw by the Respondent entirely.
ing the effects of the transfer of the bargaining unit work The parties have stipulated that the Respondent has not
performed by the materials management department to a charged any type of service fee for the payroll deductions
nonunion fa~ility.~ it makes for employee contributions to the United Way
3. The Respondent's dues-checkoff proposal charitable organization, health and pension trust funds,
401(k) plans, credit union, or wage garnishment. The
The parties' previous collective-bargaining agreements
General Counsel contends that the Respondent has vio-
for units 1 and I1 contained provisions for dues checkoff. lated the Act by insisting to impasse on a payroll deduc-
The parties during their negotiations exchanged various tion proposal that discriminates between union dues de-
proposals to replace the expired provisions. The Union ductions and deductions for these other entities, by charg-
proposed, inter alia, maintaining the existing dues-
ing aservice fee for the former hut not the latter.
checkoff system. The Respondent on October 6 proposed The complaint thus alleges that the Respondent's dues-
a new dues-checkoff system under which the Respondent checkoff proposal would have discriminated against unit
' We find meritless the Respondent's assenion that substantial ef-
employees because they were represented by the Union,
fects bargaining took place via correspondence beween the panies. which is prohibited by Section 8(a)(3) and (I) of the Act,
Much of that correspondence occurred after the closure of the depan- and thus the Respondent violated Section 8(a)(5) and (1)
ment on November 5, which confirms our finding that the Respondent by bargaining to impasse over the proposal.
unlawfully failed to bargain at a meaningful time. We also reject the
Respondent's contention that it was permitted to layoff or terminate
We fmd that the General Counsel has not proven that
Row and Cook by the terms o f the management functions clause, and Respondent insisted to impasse on a payroll deduction
assignment of work clause, that it implemented on October 18. We proposal which discriminated against union dues deduc-
have reviewed the terns of each o f the clauses, and neither clause tions. In order to prove discrimination it must be shown
waives the Union's right to effects bargaining. Challenge-Cook Bros,
282 NLRB 21.27 (1986), enfd 843 F 2 d 230 (6th Cir. 1988); and Borg
that the Respondent charges a service fee for union dues
Warner Corp., 245 NLRB 513, 518-519 (1979), enfd. 663 FZd 666 checkoff, while allowing payroll deductions without a
(6th Cir. 1981). een. denied 457 US. 1105 (1982). service fee for similar, nonemployee entities, other than
Member Hungen nates that the contract expired an August 3. Thus, the Union. See Lucile Salter Packard Children's Hospital
although he disagrees that a "waive? analysis is appropriate, he con-
cum in the result.
v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996), enfg. 318
Member Bmme nates that the management-rights and assignment- NLRB 433 (1995). In contrast, an employer does not dis-
of-work clauses on which the Respondent relies were not contained in criminate against union activity hy charging a service fee
the expired agreement but instead were unilaterally implemented by the for union dues checkoff while making without charge pay-
Respondent on October 18. The Respondent does not contend that its
f a i l k to engage in elfeels bargaining was authorized by any provision
roll deductions that are related to an employer's fringe
of the expired agreement. In these circumslances, Member Brame benefits package offered to its employees, such as health
agrees with his colleagues that the unilaterally implemented manage- care insurance plans or tax sheltered annuity plans. Pay-
ment-rights and assignment-of-work clauses do not justify the Respan- roll deductions for such employee fringe benefits are inte-
dent's failure to engage in effects bargaining. He finds i t unnecessary
to pass on whether the language in the disputed elauses could, under
grally related to an employer's necessary business func-
other circumstances, be read to "waive" the Union's right to effects tions and are not deemed evidence of discrimination. See
bargaining, or on whether such clauses, if included in the expired Lucile Salter Packard Children's Hospital v. NLRB, supra,
agreement, could be found to survive that agreement's expiration. 97 F.3d at 588-589; Price Chopper v. NLRB, 163 F.3d
 WOODLAIVD CLINIC 739
1177, 1183 (10th Cir. 1998), enfg. 325 NLRB 186 (1997). the discontinuation of paying employees according to the
The parties' stipulation shows that the payroll deductions wage step increase provisions of the expired collective-
for employee health and pension trust funds, and employee bargaining agreements. For the reasons set forth below,
401(k) plans are without dispute intimately related to the we shall dismiss these complaint allegations.
fringe benefits that the Respondent offers its employees, The parties' expired collective-bargaining agreements
and thus do not constitute evidence of discrimination. for units I and I1 provided employees, by job classifica-
With respect to the credit union, the Respondent argues tion, with annual wage step increases during each of the
that it is also an employee fringe benefit, not an "outside first 4 years of their employment. The expired agreements
business!' The General Counsel, who has the burden of did not provide for any pay-for-performance or merit pay
proving discrimination, has failed to adduce any evidence increases. During the parties' negotiations for successor
to the contrary. Therefore, we find that the payroll deduc- contracts, the Respondent advanced several different ver-
tions for the credit union similarly do not constitute evi- sions of a pay-for-performance wage proposal.
dence of discrimination. The Union was adamant in its objection to the Respon-
The Respondent's payroll deduction for the United Way dent having the freedom to implement any pay-for-
charitable organization also does not establish discrimina- performance wage system that did not provide the Union
tion. The Board has long recognized that an employer an opportunity to engage in collective bargaining concern-
does not discriminate against union-related solicitation by ing the criteria, procedures, timing, and amounts of wage
permitting a small number of isolated charitable or "be- increases under such system. In response, the Respondent
neficent" acts as a narrow exception to an absolute no- proposed to set parameters which addressed the Union's
solicitation rule. See, e.g., Hammary Mfg. Corp.. 265 concerns, and modified its proposal to state that any pay-
NLRB 57 fn. 4 (1982); Emerson Elecfric Co., 187 NLRB for-performance system shall meet certain minimum con-
294 fn. 2 (1970). The Respondent by proposing a dues- ditions concerning the appeal and evaluation process.
checkoff service fee likewise has not discriminated against The Union also complained during negotiations that the
deductions for union dues, merely because it permits one Respondent's proposed pay-for-performance plan was
single instance of charitable payroll deduction without a "undefined," because the Respondent did not have a final,
service fee. We further observe that the Respondent is detailed proposal to present. In response, the Respondent
required by law to carry out court-ordered wage garnish- modified its pay-for-performance proposal to require that
ment, and the Respondent's fulfillment of that obligation the Respondent bargain with the Union prior to implemen-
does not constitute discrimination. In sum, the General tation of any pay-for-performance system.
Counsel has not shown that the Respondent has sought to About October 8, the Respondent presented to the Un-
charge a service fee for union dues checkoff, while at the ion its final offer for units I and 11, which included the
same time permitting deductions without a service fee for following pay-for-performance wage proposal:
similar entities. We accordingly find without merit the (A) The wage rates set forth in Appendix A are
complaint allegation that the Respondent's dues-checkoff minimums. The wespondent] may pay any amount
proposal is unlawfully discriminatory. The Respondent in excess of those minimums in its sole discretion.
was thus privileged to bargain to impasse over its dues- The [Respondent] shall have the right to develop and
checkoff proposal, a mandatoly subject of bargaining,8 and implement a pay-for-performance system of its own
we shall dismiss the complaint allegation that it violated choosing . . . . Prior to implementing such pay-for-
Section 8(a)(5) and (1) by doing so.9 performance system the wespondent] shall notify the
4. The Respondent's pay-for-performance wage proposal Union of the proposed system and, upon request, meet
The complaint further alleges that the Respondent vio- and confer with the Union prior to implementation no
lated Section 8(a)(5) and (I) by insisting to impasse on a later than three (3) weeks prior to the proposed im-
pay-for-performance wage system which provided for plementation date.
direct dealing between the Respondent and the unit em- (B) Any pay-for-performance system implemented
ployees and, in the absence of a lawful impasse, imple- shall meet the following minimum conditions:
menting the pay-for-performance wage system, including ....
4. Any employee who disagrees with his perform-
"see, e.g., CJCHoldings, 320NLRB 1041, 1046(1996), affd mem. ance evaluation may file an appeal in writing within
I I 0 F.3d 794 (5th Cir. 1997). 10 days of notification of the results of the evaluation.
'The General Counsel additionally argues in his brief that the Re-
spondent's allegedly discriminatory dues-checkoffpmpasal is evidence
While the appeal process shall be determined by the
of bad-faith bargaining. See Albo-Woldension. Inc, 167 NLRB 695, [Respondent], it will provide for the right to be heard
716717 (1967), enfd. 404 F 2 d 1370 (4th Cir. 1968); and Allos Meral and the employee may he accompanied by an em-
Ports Co., 252 NLRB 205,220 (1980). enf denied in pertinent pan 660 ployee of histher own choosing. The final decision
FZd 304 (7!h Cir. 1981). In light of our finding that the General Coun-
sel has not show discrimination, however, we find no merit in the
regarding the performance review and the pay rate
General Counsel's contention,
740 DECISIONS OF THE NATIONAL . LABOR RELATIONS BOARD
shall be with the [Respondent], and shall not be sub- Contrary to the General Counsel's contention, we find
ject to the grievance and arbitration procedures herein. that the Respondent's proposal does not mandate direct
(C) Scale-see attached minimum scales. dealing. Rather, it mandates that bargaining with the Un-
During the term of this Agreement, no employee on ion take place prior to implementation of any pay-for-
the payroll as of October 8, 1993 shall have hisiher performance system and prior to any employee being
rate of pay reduced below hisher October 8, 1993 given a wage increase pursuant to such a plan. The Union
level, so long as the employee remains in their [sic] at such negotiations would be free to propose that it be
same classification. more directly involved with wage determinations than set
forth in the Respondent's proposed minimum conditions,
The Respondent insisted as a condition of reaching col- and to bargain for and achieve a more extensive role in
lective-bargaining agreements for units I and 11, that the merit pay determinations. The Union may indeed at nego-
Union agree to the Respondent's final contract offer, tiations veto the proposed minimum conditions, including
which included the pay-for-performance proposal. the provision that the Respondent meet directly with em-
As set forth above, the Respondent declared impasse at ployees concerning merit pay determinations. We thus
the close of the October 8 bargaining session. The R e tind meritless the General Counsel's contention that the
spondent thereafter implemented those portions of its final Respondent's proposal constitutes a permissive subject of
offers for units I and I1 that do not depend on the existence bargaining because it excludes the Union fiom any role in
of a collective-bargaining agreement to be enforceable, the determination of merit wage increases.
including the wage provisions set forth in the pay-for- Accordingly, for these reasons, we find that the Re-
performance proposal. The Respondent upon implementa- spondent's pay-for-performance proposal is a mandatory
tion thus abandoned the step increase system of the prior subject of bargaining, and we shall dismiss the complaint
contracts, resulting in what the parties have termed a wage allegation that the Respondent unlawfully bargained to
freeze. Employees hired after October 18 were compen- impasse over it.
sated under the terms of the Respondent's proposal ac- We shall also dismiss the complaint allegation that the
cording to the wage schedule attached to the final offers as Respondent unlawhlly implemented merit wage increases
Appendix A. The General Counsel acknowledges that at under its pay-for-performance system. The well-settled
no time did the Respondent ever grant merit pay increases general rule is that an employer may, on bargaining to a
pursuant to its pay-for-performance proposal. valid impasse, unilaterally implement changes in manda-
The Board holds that a merit wage increase proposal tory subjects that are reasonably comprehended within its
that confers on an employer broad discretionary powers is preimpasse proposals." There are certain limited excep-
a mandatory subject of bargaining on which parties may tions to the implementation-afier-impasse doctrine, how-
lawfully bargain to impasse. McClatchy Newspapers, 321 ever, including a merit pay proposal which confers on an
NLRB 1386, 1388 (1996), enfd. 131 F.3d 1026 (D.C. Cir. employer broad discretionary powers that necessarily en-
1997), cert. denied 524 U.S. 937 (1998)." The pay-for- tail recurring unilateral decisions regarding changes in
performance proposal here, which reserves substantial employees' rates of pay. The Board has explained that
discretionary power to the Respondent, is similar to the such unlimited managerial discretion over future pay in-
merit pay increase proposal at issue in McClafchy News- creases, without explicit standards or criteria, would leave
papers. the union unable to bargain knowledgeably on the deter-
The General Counsel, however, contends that the Re- mination of employee wage rates and unable to explain to
spondent's pay-for-performance proposal differs from that unit employees how such rates were formulated. Because
at issue in McClafchy, and constitutes a permissive subject such a circumstance would serve to destroy rather than
of bargaining which the Respondent could not lawfully further the bargaining process, an employer is obligated,
have pressed to impasse, because it permits the Respon- prior to the actual implementation of such merit wage in-
dent to deal directly with employees to the exclusion of the creases, to negotiate to agreement or to impasse "definable
Union. The General Counsel argues that under the condi- objective procedures and criteria" governing raises under a
tions set forth in the proposal, no role is provided for the merit pay Here, the General Counsel concedes
Union with regard to the procedures for determining em- that the Respondent never actually implemented or granted
ployee performance evaluations, or the merit pay consulta-
tion and appeal process. The General Counsel thus asserts " See, e.g., Television &Radio Arrists u. NLRB, 395 F2d 622, 624
that the Respondent's decision on merit pay increases (D.C. Cir. 1968), affg. TaJl Broadcarting Co., 163 NLRB 475, 478
would be based on direct consultation with employees, (1967); Atlos Tack Corp., 226 NLRB 222,227 (1976), enfd rnem. 559
F.2d 1201 (IstCir. 1977).
rather than with the Union as the employees' exclusive " See McClorchy Newspapers, supra. 321 NLRB 1391 ("[Ill is not
collective-bargaining representative. the Respandent's [merit pay] bargaining proposal that [is] inimical to
the palieies of the Act, but its exclusion of the [union] or thepoint of irs
'O Member Brame finds it unnecessary to pass on whether implenzrnrotion of the merit pay plan from any meaningful bargaining
McClotchy Newsplpers was correctly decided on its facls, as he agrees as to the procedures and criteria governing the merit pay plan[.]") (Em-
that it is distinguishable from the facts presented in this case. phasis added.)
 WOODLA,NDCLINIC 74 1
any merit pay Increases pursuant to its proposal. Absent The parties have expressly stipulated that "the General
evidence that the Respondent actually granted merit wage Counsel and the Charging Party contend that the impasse
increases to unit employees, there is no basis for finding a on the [four topics] was not a valid impasse because it was
violation of the Act under McClatchy " tainted by Respondent's conduct" vis-a-vis dues-checkoff
We further find without merit the General Counsel's and pay-for performance. We have found above, however,
additional contention that the Respondent was not privi- that the Respondent's hargaining conduct with respect to
leged upon impasse to implement the wage freeze pro- these two topics was not unlawful. We accordingly must
posal because it was "inextricably related" to the pay-for- tind that that conduct did not taint the parties' subsequent
performance proposal. We have explained above that an bargaining on the additional four topics. We further find
employer may not, even upon valid impasse, implement a that the General Counsel, by the plain meiming of the par-
merit pay proposal without definable objective procedures ties' stipulation, has asserted no other basis for finding the
and criteria, because to do so would leave the employer Respondent's conduct concerning the four topics to be
with unlimited managerial discretion in the formulation of unlawful. The Board has long held that a stipulation is
future pay increase about which the union would he unable conclusive on the party making it, and prohibits any fur-
to hargain knowledgeably in future negotiations. These ther dispute as to the stipulated matters. See, e.g., Kroger
vices are not implicated by the implementation of the Co., 211 NLRB 363, 364 (1974). We shall accordingly
wage freeze provision by the Respondent, however. There dismiss the complaint allegations that the Respondent vio-
are no discretionary elements to the wage freeze provi- lated Section 8(a)(5) and (I) ofthe Act by: (I) changing its
sions. Rather, the stipulated record shows that the health insurance carrier; (2) discontinuing suhsidies for
amounts of the Respondent's implemented wage schedule lazzercise classes; (3) discontinuing free coffee service;
under Appendix A are fixed for each job classification, and (4) reducing the cafeteria discount.
and explicitly set forth in the Respondent's pre-impasse CONCLUSIONS OF LAW
proposal. We shall accordingly dismiss the complaint
1. The Respondent, Woodland Clinic, a Medical Prac-
allegation that the Respondent unlawfully implemented its
tice Foundation, is an employer engaged in commerce
wage freeze proposal.
within the meaning of Section 2(2), (6), and (7) of the Act,
5. The hargaining over health insurance benefits, and a health care institution within the meaning of Section
suhsidies for Jazzercize classes, free coffee service, 2(14) of the Act.
and cafeteria discount 2. Engineers and Scientists of California, MEBA,
Subsequent to the parties having reached valid impasse A F X I O is a labor organization within the meaning of
as to collective-bargaining agreements as a whole for units Section 2(5) of the Act.
I and I1 on October 18, 1993, the Union and the Respon- 3. By the following conduct, the Respondent has en-
dent engaged in bargaining on certain additional topics. gaged in unfair labor practices affecting commerce within
This bargaining included the following four proposals by the meaning of Section 8(a)(5) and (1) and Section 2(6)
the Respondent to: (1) change its health insurance carrier and (7) of the Act: (1) failing to timely comply with the
thereby causing changes in health insurance benefits for Union's request for the home telephone numbers of unit
unit employees;" (2) discontinue suhsidies for J w r c i s e employees; and (2) failing to hargain with the Union re-
classes attended by unit employees; (3) discontinue free garding the effects of the transfer of the hargaining unit
coffee service for unit employees; and (4) reduce the cafe- work performed by the materials management department
teria discount for unit employees. The parties have stipu- to a nonunion facility.
lated that the Respondent provided the Union with ad- 4. The Respondent has not othenvise violated the Act
vance notice of each of these proposals, that they met and as alleged in the amended consolidated complaint.
bargained concerning each of the proposed changes as REMEDY
well as the effects of the changes, and that the parties had
Having found that the Respondent has engaged in cer-
not reached agreement on these topics. The parties have
tain unfair labor practices, we shall order it to cease and
further stipulated that they had exhausted the prospect of
desist and to take certain affirmative action designed to
reaching an agreement concerning each of these subjects,
effectuate the policies of the Act.
and the Respondent declared that the parties were at im-
As a result of the Respondent's unlawful failure to har-
passe. The Respondent thereafter implemented its propos-
gain in good faith with the Union about the effects of its
als on these four topics.
decision to close its materials management department and
" Id.
to transfer its work, the affected employees have been de-
" This proposal was prompted by notification from the Respon- nied an opportunity to hargain through their collective-
dent's health insurance carrier o f an increase in premium rates, which bargaining representative. Meaningful hargaining cannot
the parties have stipulated would have increased casts lo both employ- he assured until some measure of economic strength is
ees and the Respondent.
restored to the Union. A hargaining order alone, therefore,
 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cannot serve as an adequate remedy for the unfair labor November 5, 1993, in order to inform them of the outcome
practice committed. of this proceeding.16
Accordingly, we deem it necessary, in order to effectu- ORDER
ate the purposes of the Act, to require the Respondent to
hargain with the Union concerning the effects on unit em- The National Labor Relations Board orders that the Re-
ployees of closing the materials management department spondent, Woodland Clinic, a Medical Practice Founda-
and the transferring of its work, and shall accompany our tion, Woodland, California, its officers, agents, successors,
order with a limited backpay requirement designed both to and assigns, shall
make whole the employees for losses suffered as a result 1. Cease and desist from
of the violations and to recreate in some practicable man- (a) Failing to timely furnish the Union information that
ner a situation in which the parties' bargaining position is is relevant and necessary to its role as the exclusive bar-
not entirely devoid of economic consequences for the Re- gaining representative of unit employees.
spondent. We shall do so by ordering the Respondent to (b) Failing to bargain with the Union regarding the ef-
pay hackpay to the affected employees in a manner similar fects of the transfer of the bargaining unit work performed
to that required in Transmarine Navigation Carp., 170 by the materials management department to a nonunion
NLRB 389 (1968). facility.
Thus, the Respondent shall pay its employees employed (c) In any like or related manner interfering with, re-
in the materials management department at the time of its straining, or coercing employees in the exercise of the
closure, backpay at the rate of their normal wages when rights guaranteed them by Section 7 of the Act.
last in the Respondent's employ from 5 days after the date 2. Take the following affnnative action necessary to
of this Decision and Order until occurrence of the earliest effectuate the policies of the Act.
of the following conditions: (I) the date the Respondent (a) On request, bargain with the Union concerning the
bargains to agreement with the Union on those subjects effects on unit employees of its decision to close its mate-
pertaining to the effects on unit employees of the closing rials management department and, if an understanding is
of its materials management department and the transfer- reached, embody the understanding in a signed agreement.
ring of its work; (2) a bona fide impasse in bargaining; (3) (b) Pay its former employees employed in the materials
the Union's failure to request bargaining within 5 business management department at the time of its closure their
days after receipt of this Decision and Order, or to com- normal wages when last in the Respondent's employ from
mence negotiations within 5 business days after receipt of 5 days after the date of this Decision and Order until oc-
the Res ondent's notice of its desire to bargain with the currence of the earliest of the following conditions: (1) the
P
Union;' (4) the Union's subsequent failure to bargain in date the Respondent bargains to agreement with the Union
good faith, but in no event shall the sum paid to these em- on those subjects pertaining to the effects on unit employ-
ployees exceed the amount they would have earned as ees of the closing of its materials management department
wages from the date on which the Respondent closed its and the transferring of its work; (2) a bona fide impasse in
materials management department, to the time they se- bargaining; (3) the Union's failure to request bargaining
cured equivalent employment elsewhere, or the date on within 5 business days after receipt of this Decision and
which the Respondent shall have offered to bargain in Order, or to commence negotiations within 5 business
good faith, whichever occurs sooner; provided, however, days after receipt of the Respondent's notice of its desire
that in no event shall this sum be less than the employees to bargain with the Union; (4) the Union's subsequent
would have earned for a 2-week period at the rate of their failure to bargain in good faith, but in no event shall the
normal wages when last in the Respondent's employ. sum paid to these employees exceed the amount they
Backpay shall be based on earnings which the affected would have earned as wages from November 5, 1993, the
employees would normally have received during the ap- date on which the Respondent closed its materials man-
plicable period, less any net interim earnings, and shall be agement department, to the time they secured equivalent
computed in accordance with F. W Woolvorth Co.. 90 employment elsewhere, or the date on which the Respon-
NLRB 289 (1950), with interest as prescribed in New Ho- dent shall have offered to bargain in good faith, whichever
rizonsfor !he Retarded, 283 NLRB 1173 (1987). occurs sooner; provided, however, that in no event shall
In addition, in view of the fact that the Respondent has this sum be less than the employees would have earned for
closed its materials management department, we shall a 2-week period at the rate of their normal wages when
order the Respondent to mail a copy of the attached notice last in the Respondent's employ, with interest, as set forth
to the Union and to the last known addresses of its former in the remedy portion of this decision.
employees of the materials management department as of l6NOaffirmative remedy is necessary for the Respandent's unlawful
failure lo timely provide the Union with the requested information,
'*Me/& Toyoto,325 NLRB 846 (1998). because the stipulated record establishes that the Respondent ultimately
supplied the information.
 WOODLAlVD CLINIC 743
(c) Preserve and, within 14 days of a request, make ble official on a form provided by the Regiolr attesting to
available to the Board or its agents for examination and the steps that the Respondent has taken to comply.
copying, all payroll records, social security payment re- APPENDIX
cords, timecards, personnel records and reports, and all
other records necessq to analyze the amount of backpay NOTICE TO EMPLOYEES
due under the terms of this Order. POSTED BY ORDER OF THE
(d) Within 14 days after service by the Region, post at NATIONAL LABOR RELATIONS BOARD
its place of business in Woodland, California, copies of the An Agency of the United States Government
attached notice marked " ~ ~ ~ e n d i x . "Copies
" of the no- The National Labor Relations Board has found that we
tice, on forms provided by the Regional Director for Re- violated the National Labor Relations Act and has ordered
gion 20, after being signed by the Respondent's authorized us to post and abide by this notice.
representative, shall be posted by the Respondent and
WE WILL NOT fail to timely furnish the Union infor-
maintained for 60 consecutive days in conspicuous places
mation that is relevant and necessary to its role as the ex-
including all places where notices to employees are cus- clusive bargaining representative of unit employees.
tomarily posted. Reasonable steps shall be taken by the WE WILL NOT fail to bargain with the Union regard-
Respondent to insure that the notices are not altered, de- ing the effects of our hansfer of the bargaining unit work
faced, or covered by any other material. In the event that,
performed by the materials management department to a
during the pendency of these proceedings, the Respondent
nonunion facility.
has gone out of business or closed the facility involved in
WE WILL NOT in any like or related manner interfere
these proceedings, the Respondent shall duplicate and
with, restrain, or coerce you in the exercise of the rights
mail, at its own expense, a copy of the notice to all current guaranteed you by Section 7 of the Act.
employees and former employees employed by the Re- WE WILL bargain, on request, with the Union concem-
spondent at any time since August 16,1993. ing the effects on unit employees of our decision to close
(e) Within 14 days after sewice by the Region, duplicate our materials management department and to hansfer its
and mail, at its own expense and after being signed by the
work, and, if an understanding is reached, embody the
Respondent's authorized representative, signed and dated
understanding in a signed agreement.
copies of the attached notice marked "Appendix" to the WE WILL pay our former employees in the materials
Union and to all former unit employees of the materials management department who were employed at the time
management department as of November 5, 1993. we closed the department their normal wages for the pe-
(f) Within 21 days after service by the Region, file with
riod of time set forth in the decision underlying this notice
the Regional Director a sworn certification of a responsi-
to employees, with interest.
" If this Order is enforced by a judgment of a United States court of
WOODLAND CLINIC, A MEDICAL PRACTICE
appeals, the words in !he notice reading "Posted by Order of the Na-
tianal Labor Relations Board" shall read "Ported Pursuant to a Judg- FOUNDATION
ment of !he United States Coun of Appeals Enforcing an Order of !he
National Labor Relations Board."
 DETROIT NEWSPAPER AGENCY 1071

Detroit Newspaper Agency and The Detroit Free trial Co., 385 U.S. 432, 435436 (1967). The judge
Press, Inc. and Newspaper Guild of Detroit, found, and the Respondent does not dispute, that
Local 22, of the Newspaper Guild, AFLCIO- health and safety matters regarding the unit employees'
CLC. Case 7ZA-35452 workplaces are of vital interest to the employees and
June 30, 1995 are, thus, generally relevant and necessary for the
Union to carry out its bargaining obligations. We
DECISION AND ORDER agree. Indeed, "[flew matters can be of greater legiti-
mate concern." Minnesota Mining & Mfg. Co., 261
GOULDAND MEMBERSSTEPHENS
BY CHAIRMAN NLRB 27, 29 (1982), enfd. sub nom. Oil Workers
AND BROWNING Local 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).
On October 26, 1994, Administrative Law Judge Furthermore, the Respondent has contractually recog-
Martin 3. Linsky issued the attached decision. The Re- nized the relevancy of health and safety matters. In a
spondent filed exceptions and a supporting brief, and side letter, included in the printed version of the 1992-
the General Counsel filed an answering brief. 1995 bargaining agreement between the Detroit Free
The National Labor Relations Board has delegated Press and the Union, the parties agreed:
its authority in this proceeding to a three-member This letter will confirm the parties' intent to meet
panel. as often as possible to consider, discuss and at-
The Board has considered the decision and the tempt to resolve all issues relating to the em-
record in light of the exceptions and briefs and has de- ployer-employee relationship, including health
cided to affirm the judge's rulings, findings, and con- and safety issues, between the Publisher and em-
clusions for the following reasons, and to adopt the ployees represented for the purpose of bargaining
recommended Order. by the Union. [Emphasis added.]
We agree with the judge that the Respondent' vio-
lated Section 8(a)(5) and (1) of the Act by refusing to Accordingly, we conclude that the requested audit is
furnish the Union with a complete copy of Ernest relevant.
King's 1992 environmental audit. The material facts Once it is established that an employer has failed to
are undisputed. In 1992, Ernest King, manager of envi- timely furnish potentially relevant information re-
ronmental affairs for Knight-Ridder, Inc., and Lynn quested by a union, the employer will be found in vio-
Shaughn, environmental director for Gannett Co., Inc., lation of Section 8(a)(5) and (1) of the Act unless it
conducted an environmental audit of the Respondent's establishes a valid reason why it did not timely furnish
workplaces covering such matters as safety records, the information. In its exceptions, the Respondent at-
hearing conservation records, bloodborne pathogen tempts to supply several reasons: it contends that the
procedures, and emergency response records. The Union had the information available to it but in a dif-
Union (the Charging Party) requested in writing on ferent form, that the assessments, conclusions, and rec-
October 11, November 18, and December 30, 1993, ommendations redacted from the audit are confidential,
that the Respondent provide it with a copy of the and that its confidentiality interests outweigh the
audit. On January 13, 1994, the Respondent denied the Union's need for the information. For the following
request, stating, "Unfortunately, the Ernest King report reasons, we reject the Respondent's contentions and
is not available. According to the September 27, 1993 agree with the judge that the Respondent was and is
Business Monday article, Mr. King would not release obligated to furnish the Union with an unredacted copy
his report." The Respondent did not offer to accom- of the requested audit.
modate the Union's request through other means.
Shortly before the hearing, the Respondent did furnish 11. AVAILABILITY IN DIFFERENT FORM
the Union with a highly redacted copy of the audit. Shortly before the hearing began, the Respondent
did furnish the Union with a redacted copy of the King
I. RELEVANCY
audit. The redacted copy, however, omitted all assess-
An employer has a statutory obligation to supply in- ments, conclusions, and recommendations. Beyond
formation that is potentially relevant and will be of use identifying areas covered, the redacted audit contained
to the union in fulfilling its responsibilities as exclu- little information of value to the Union. It is apparent
sive bargaining representative. NLRB v. Acme Indus- that the assessments, conclusions, and recommenda-
tions are what gives the audit useful meaning. The re-
IThc Detroit Newspaper Agency is a parmership that handles sell- dacted audit did not contain raw data from which the
ing, adveriising, prinling, and distribution of two athewise indc- Union could reach its own conclusions. Rather, it is
pendent newspapers: The Detroit Free Press (a Knight-Ridder, Inc.
newspaper) and The Detroit News (a Garnett Co., lnc, newspaper).
what was blacked out, i.e., redacted, that contains the
Thc Dehoit Newspaper Agency and Thc Detroit Free Press, Inc. are essential information. As one of many possible exam-
collectively LCRespondent here. ples, at page 18 the audit states, "The environmental
317 NLRB No. 155
1072 -
DECISIONS OF THE NATlONAl LABOR RELATIONS BOARD

assessment indicated that The Detroit Newspaper 513 (1976) (a "union is under no obligation to utilize
Agency toxic chemicals emissions were [a blacked out a burdensome procedure of obtaining desired informa-
word] the reporting requirement of section 313." It is tion where the employer may have such information
obvious that essential information, whether the Re- available in a more convenient form"). See also
spondent was above or below toxic emission standards, ASARCO, Inc. v. NLRB, 805 F.2d 194, 198 (6th Cir.
was withheld from the Union.2 Furthermore, the Re- 1986) ("availability of the requested information from
spondent did not even furnish the Union with the re- another source does not alter the employer's duty to
dacted copy until some 7 months after its refusal. Once provide readily available relevant information to the
a union has made a good-faith request for information, bargaining representative").
an employer must provide relevant information reason-
ably promptly in useful form. General Electric Co., 111. CONFIDENTIALITY
290 NLRB 1138, 1147 (1988). We find that the re- A. Timeliness
dacted copy of the audit is both too little and too late
to meet the Respondent's statutory obligation. The Respondent asserts that the information re-
The Respondent also contends that the wide variety quested is confidential. We reject this contention. The
of information about environmental, health, and safety Board has found that substantial claims of confidential-
matters it has shared with the Union over the past few ity may justify refusals to furnish otherwise relevant
years satisfies its obligation to furnish the requested information. See, e.g., Postal Sewice, 306 NLRB 474
audit. The Respondent, however, has failed to show (1992) (names of witnesses to drug transactions); Gen-
that this other information duplicates the information eral Dynamics C o p , 268 NLRB 1432 (1984) (study
in the requested audit. From all we can tell, the audit made in preparing for pending litigation); Minnesota
may well have touched on new matters or may have Mining & Mfg. Co., supra at 27 (trade secrets); and
contradicted other reports. Even if the information Johns-Manvine Sales COT., 252 NLRB 368 (1980)
were cumulative, it would remain relevant. Cumulative (individual medical records and disorders).' Blanket
information on such vital matters as health and safety claims of confidentiality, however, will not be upheld.
would serve to identify the most pressing problems, to Pennsylvania Power Co., 301 NLRB 1104, 1105
demonstrate any continuing problems, and to aid the (1991). Also, confidentiality claims must he timely
Union in formulating a rational response. An employer raised. Gas Spring Co., 296 NLRB 84, 99 (1989)
is obligated to furnish a union with information that (claim belatedly raised and brought up as an after-
would help the union make an informed judgment thought not upheld). The reason a confidentiality claim
about the problem the information addresses. General must be timely raised is so that the parties can attempt
Motors Carp, v. NLRB, 700 F.2d 1083, 1088 (6th Cir. to seek an accommodation of the employer's asserted
1983), enfg. 257 NLRB 1068 (1981). Accordingly, confidentiality concerns. Tritac Carp., 286 NLRB 522
even assuming that the Respondent has previously pro- (1987) (employer "cannot simply raise its confidential-
vided the Union with similar information, we find that ity concerns, but must also come forward with some
the Respondent has failed to show that the other infor- offer to accommodate both its concerns and its bar-
mation satisfies its obligation to furnish the requested gaining obligation"); Pennsylvania Power Co., supra
audit. at 1105 ("party refusing to supply information on con-
The Respondent further contends that the Union is fidentiality grounds has a duty to seek an accommoda-
free to make its own safety inspection using the other tion"). Here, the Respondent did not raise its confiden-
information and the redacted audit as a basis for that tiality claim when it initially refused to furnish the re-
investigation. The Respondent, however, did not offer quested audit but apparently first made the claim dur-
this opportunity to the Union when it refused to fur- ing or shortly before the August 30, 1994 hearing. Fur-
nish the requested audit. Furthermore, this is not the thermore, the Respondent failed to timely seek an ac-
form in which the Union requested the information, commodation with the Union of its confidentiality
and the requested audit is readily available to the Re- claim. Accordingly, we find that the Respondent failed
spondent. An employer's obligation to furnish relevant to timely raise its claim that the requested information
information is not excused merely because a union was confidential.
may have alternative sources for the information. New B. Prepared for Litigation
York Times Co., 265 NLRB 353 (1982); Colgate-
Palmolive Co., 261 NLRB 90, 92 fn. 13 (1982), enfd. The Respondent contends that the audit is confiden-
sub nom. Oil Workers Local 5-114 v. NLRB, 711 F.2d tial because it was prepared in anticipation of litiga-
348 (D.C. Cir. 1983); and Kroger Co., 226 NLRB 512, tion. We disagree. The Board has found that infoma-
tion gathered in response to specific legal actions is
ZThis one word was impcrfcetly blacked out and on careful cxam-
ination reads "below." This was one of the fcw instances in which 'See also Derroir Edison Co v. NLRB. 440 U.S. 301 (1979) (indi-
thc blacking-out of the text was incffeetivc. vidual psychological aptihlde test scores).
 DETROIT NEWSPAPER AGENCY 1073

privileged from disclosure. General Dynamics, supra, ance companies and environmental consnltants.5 The
1432. The mere potential for litigation does not con- Respondent argues that findings of outsiders, in con-
stitute a legitimate claim of confidentiality. New Eng- trast to the findings of officials from parent companies,
land Telephone Co., 309 NLRB 196 (1992). Further- are not likely to be viewed as admissions of error. The
more, as the Board has held, "The Party asserting the Respondent contends that internal reports are confiden-
claim of confidentiality has the burden of proof." tial because they must be able "to recommend, criti-
Washington Gas Light Co., 273 NLRB 116 (1984). cize, warn, threaten or use any other means at their
The Respondent's sole wimess, Ernest King, testi- disposal to cause Respondent's managers to achieve
fied that the audit was part of the annual audit of safe- the highest possible levels of health and safety for Re-
ty matters undertaken in all Knight-Ridder facilities. spondent's employees."
Thus, the testimony shows that the audit was prepared The Respondent's argument is too sweeping. Much,
in the ordinary course of the Respondent's business, if not most, of the relevant information an employer is
rather than in anticipation of litigation. The Respond- required to furnish to a union is internally generated.
ent's suggestion that the Union might pursue matters Furthermore, the Respondent's argument is inconsistent
arising from the requested audit through litigation or with the whole theory of the Act. Because employee
complaints to Federal or state safety agencies has no health and safety are mandatory subjects of bargain-
solid foundation. There is evidence that the Union has Section 8(a)(5) requires the Respondent to confer
brought certain ergonomic matters relating to alleged and negotiate with the Union on these matters. Thus,
repetitive motion stress problems to the attention of the the Act contemplates that achieving the "highest pos-
Michigan health and safety agency. The audit, how- sible levels of health and safety" is to be accom-
ever, does not concern such matters. King testified plished jointly with the Union, not unilaterally by the
"no" when asked on direct examination whether the Respondent.
audit related to anything in the area of ergonomics. In addition, the Respondent's confidentiality conten-
Thus, we find that the Respondent has failed to estab- tions are not supported by the record. Ernest King,
lish its asserted claim of confidentiality of the re- who was involved in preparing the requested audit, did
quested audit. At best, the claim is based on mere not testify that the audit criticized, warned, or threat-
peculation.^ Accordingly, we reject the Respondent's ened anyone. Rather, King testified more generally that
claim that the requested audit should be considered as he would alter the way he put the reports together if
a confidential matter in preparation for litigation. he were aware they would he given to the Union:
C. Self-critical Report Because I write these reports in the manner that
The Respondent additionally contends that the audit I hy to get action. If I write them in a very strong
is confidential because it is an internal, self-critical re- manner there are a lot of opinions in these reports
port. We disagree. To establish a legitimate confiden- based on my opinion of things and I would have
tiality claim, the Board requires more than what the to drastically alter the way I put these reports to-
Respondent has shown. Confidential information is gether.
limited to a few general categories: that which would
reveal, contrary to promises or reasonable expectations, King did not, however, testify that he would alter the
highly personal information, such as individual medical substance, as opposed to the tone, of the audit. To this
records or psychological test results; that which would extent, we agree with the judge's finding, with which
reveal substantial proprietary information, such as trade the Respondent disagrees, that King "never explained
secrets; that which could reasonably he expected to how the report would he different if directed to man-
lead to harassment or retaliation, such as the identity agement alone or directed to management with disclo-
of wimesses; and that which is traditionally privileged, sure to the Union."
such as memoranda prepared for pending lawsuits. See The Respondent also relies on ASARCO, Inc. v.
cases cited in sections III,A and B, above. The re- NLRB, supra, denying enf. in pertinent part to 276
quested audit falls outside these general categories. NLRB 1367 (1985), and argues that the requested
The Respondent draws a distinction hehveen internal audit is confidential because its disclosure, if antici-
and external reports. It states that it did not claim con- pated, would result in the report's being watered down
fidentiality for reports from outsiders, such as insur- or not written. Although we continue to adhere to the
~~ - principles expressed in the Board's decision in
"The Union, as well as the Respandcnt, was contractually abli- ASARCO, we also find that the Respondent's reliance
gated to pursuc any safety and health matters through ncgotiatians on the court's decision in that case is misplaced. The
pursuant to the patties' side agreement on thc negotiability of health
and safety matters, and, even regarding maners that the Union even- court found (id. at 199) that ASARCO's self-critical
tually brought to the anention of the state health and safety agency,
thc Union first attempted to resolve the mancn through direct nogo- m e Union has received such reports
tiations with the Respondent. Oil Workers, supra at 360.
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

reports, which were prepared after a serious accident," sion in ASARCO, supra at 194. We find that ASARCO
"contain speculative material and opinions, criticisms is also distinguishable on this issue. The relevant issue
of persons, events, and equipment, and recommenda- in that case concerned the union's request for an exten-
tions for future practices." In this case, there is no sive self-critical report the employer made after a seri-
contention that the requested audit was prepared as the ous accident and for the purpose of improving safety
result of any particular incident. Rather, as previously and preventing future similar mishaps. The court, in its
found, the audit is part of Knight-Ridder's annual au- final analysis, held (id. at 200) that "access to
dits of all its facilities. Furthermore, although the audit ASARCO's internal report and self-critical thinking is
made recommendations, there is no evidence that it not relevant or reasonably necessaty to the Union's
contained speculative material or criticisms of persons representative duties." Thus, the ultimate holding of
or events. King did not so testify. the court goes to whether the information was relevant
Because the Respondent's contentions are unsup- and does not depend on making a balancing determina-
ported by the record, we find that the Respondent has tion.
merely made a speculative or blanket confidentiality
The court additionally found (id. at 199) that the re-
claim. Blanket claims of confidentiality will not be
port contains speculative material and opinions, criti-
upheld. Pennsylvania Power Co., supra at 1105; Wash-
cisms of persons, events, and equipment, and rec-
ington Gas Light Co., supra at 117. Accordingly, we
find that the Respondent has failed to meet its burden ommendations for future practices. The court referred
and conclude that the requested audit has not been (id, at 199) to testimony that "if ASARCO were re-
shown to contain confidential information.8 quired to divulge these reports to the Union, much of
their contents would have been omitted, adversely af-
D. Balancing Test fecting, if not nullifying, the report's value." The court
The Respondent contends that the judge erroneously further referred (id. at 199) to testimony that the report
failed to balance the Union's interest in disclosure of was made in anticipation of litigation that frequently
the requested audit with the Employer's interest in arises after serious accidents. The court found (id. at
confidentiality. We disagree. A union's interest in ar- 200), "The practice of uninhibited self-critical analy-
guably relevant information does not always predomi- sis, which benefits both the union's and employer's
nate over other legitimate interests. In determining substantial interest in increased worker safety and acci-
whether an employer must comply with a union's re- dent prevention, would undoubtedly he chilled by dis-
quest for relevant but assertedly confidential informa- closure." In addition, the court found (id, at 200) that
tion, the Board is required to balance a union's need the union had all the factual information regarding the
for the information against any legitimate and substan- accident available to it by the union's participation in
tial confidentiality interests. Detroit Edison Co, v. the investigation of the accident and the court's requir-
NLRB, supra at 301; Washington Gas Lighf Co., supra ing the employer to give the union access to the mine
at 116. To invoke a balancing test, however, an em- and the photographs relating to the accident.
ployer must first prove its confidentiality claim. Re- In contrast, this case involves an annual health and
sorts International Hotel, 307 NLRB 1437, 1438 safety audit routinely made by the parent corporation
(1992). Because the Respondent, as found above, has in all Knight-Ridder facilities, rather than a report in
failed to establish its confidentiality claim, a balancing response to a specific health and safety problem, let
test is neither necessaly nor proper. alone an accident causing an employee's death. Al-
Even assuming that the Respondent had raised a le- though the audit's recommendations were undoubtedly
gitimate confidentiality claim that would require a bal- made to improve safety, there is no evidence that the
ancing test, we would strike the balance in favor of the audit contained speculative materials or criticisms of
Union and order the Respondent to furnish the Union persons, events, and equipment. And there is no testi-
with an unredacted copy of the requested audit. In sup- mony, as in ASARCO, that the substance, as opposed
port of its contention that the balance should be struck to the tone, of the audit would be changed or that it
in its favor, the Respondent relies on the court's deci- was prepared in anticipation of litigation. In addition,
the record here fails to support a finding that the
'An employee died aocr apparently driving his tractor over a 30- Union had available to it all the factual information in
foot dropoff at a mine site.
aContrary to our eollcague's panial dissent, we would not give the the audit. The Union was not invited to, and did not,
Respondent yet another opportunity to bargain over ill asserted con- participate in the audit or accompany King and
fidentiality claims. We have found above that, unlike the situation Straughn when they made the audit, and the Respond-
in Minnesofo Mining, the ease relied on by thc dissent, the Respond- ent has not offered or made available to the Union the
ent's confidentiality claims are unsupponed by the record and are at
best spulativc. In these circumstances, we do not believe that it records that King and Straughn reviewed. These dif-
wauld be appropriate lo force the Union to go back to thc bargaining ferences from ASARCO are significant and call for a
table to obtain thc information to which it is cailled. result different from ASARCO.
 DETROIT NEWSPAPER AGENCY 1075

As previously stated, we find that the balance be- recommendations; and following the approach of the
tween the interests of the Respondent's confidentiality Board in Minnesota Mining & Mfg. Co.,261 NLRB
assertions and the Union's right to relevant information 27, 32 (1982), enfd. sub nom. Oil Workers Local 6-
should be struck in favor of disclosure to the Union. 418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983), 1 would
Although we recognize that a union's interest in infor- require the Respondent to bargain with the Union over
mation about an accident leading to the death of an a procedure for protecting the confidentiality of any
employee is powerful, we also recognize that the such matters in the disclosure of the report.
Union's interest here in the requested audit is substan-
tial.9 Furthermore, disclosure of the audit to the Union Cynthia L. Beauchamp, Esq.,for the General Counsel.
would not undermine the purpose of the audit. King John B. Jaske, Esq.,of Arlington, Virginia, and John Taylor.
testified that his purpose is to "get action"; local Esq.,of Detroit, Michigan, for the Respondent.
union access to the information would also serve to DECISION
"get action." Although King's "strong" words might,
if revealed to the Union, embarrass the Respondent's STATEMENT OF THE CASE
management, preventing such embarrassment has little MARTrrr 1. LINSKY,Administrative Law Judge. On January
claim to confidentiality. Clearly it is outweighed by the 20, 1994, the charge in Case 7-CA-35452 was filed by the
Union's substantial interest in health and safety mat- Newspaper Guild of Detroit, Local 22, of the Newspaper
ters. Accordingly, we find in all the circumstances that Guild, AFL-CIO-CLC (Union), against the Detroit News-
the balance between the Respondent's assertion of con- paper Agency (Respondent DNA), and the Detroit Free
fidentiality and the Union's right to potentially relevant Press, Ino. (Respondent Free Press).
information should be struck in favor of the Union. On March 25, 1994, the National Labor Relations Board,
by the Regional Director for Region 7, issued a complaint
Conclusion which alleges that Respondents violated Section 8(a)(l) and
(5) of the National Labor Relations Act (the Act) when they
For the foregoing reasons, we find that the Respond- failed and refused to comply with an information request
ent should be ordered to furnish the Union with a com- from the Union for a copy of a report of an environmental
plete and unredacted copy of the requested audit. Ac- audit conducted by Ernest King.
cordingly, we shall adopt the judge's recommended Respondents filed an answer in which they denied violat-
Order to this effect. ing the Act in any way.
A hearing was held before me in Detroit, Michigan, on
ORDER August 30, 1994.
On the entire record in this case, including posthearing
The National Labor Relations Board adopts the rec- briefs submitted by the General Counsel and Respondents,
ommended Order of the administrative law judge and and on my observation of the demeanor of the witnesses, I
orders that the Respondent, Dehoit Newspaper Agency make the following
and The Detroit Free Press, Inc., Detroit, Michigan,
their officers, agents, successors, and assigns, shall FrNDlNGs OF FACT
take the action set forth in the Order.
MEMBERSTEPHENS,dissenting in part. Reyondent DNA is organized as a general partnership
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by withholding
- law. Resoondent Free Press and The Detroit
under Michi~an
News, Inc. are, and have been at all times material, copart-
the King report in its entirety until after complaint ners doing business under the trade name and style of Detroit
issued in this case, more than 7 months after the Union Newspaper Agency.
requested it. I further agree, for the reasons stated by At all material times, Respondent DNA has maintained an
the majority, that the withholding of factual material office and place of business at 615 West Lafayette, Detroit,
concerning workplace conditions is not immunized by Michigan, and has been engaged in the publishing operations
of all nonnews and noneditorial departments of Respondent
a showing that facts it contains can also be gleaned
from various other sources.l I would not, however, Free Press and The Detroit News as a unified inteerated -
business, as agent for, and for the benefit of both newspapers
order the Respondent to turn over the complete and is responsible for selling, advertising, printing, and dis-
unredacted report. Rather, I would order the Respond- tribution of the two newspapers.
~ ~

ent to turn over to the Union all portions of the report At all material times Respondent Free Press, a Michigan
relating to the conditions of the workplace except for corporation with an office and place of business at 321 West
judgments on the performance of the Respondent's Lafayette, Detroit, Michigan, has been engaged in the oper-
managers or other purely judgmental statements and ation of the news and editorial deparhnents of a daily news-
paper.
9Mitmesoto Mining & M/g. Co.. supra at 29. During 1993, Respondent DNA, in the course and conduct
'Service Enployees Loco1 144 (Jamaico Hospitul), 297 NLRB of its business operations described above, had gross reve-
1001 fn. 2 (1990). nues in excess of $500,000, and purchased and received
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

newspaper print valued in excess of $50,000, which was At all times since 1930, based on Section 9(a) of the Act,
shipped to its Michigan facilities directly from points located the Union has been the exclusive collective-bargaining rep-
outside the State of Michigan. resentative of the Free Press unit.
During 1993, Respondent Free Press, in the course and It is undisputed that on October I I and December 30,
conduct of its business operations described above, derived 1993, the Union requested in writing that the Respondents
gross revenues in excess of $200,000 and held membership provide to it a copy of a report prepared by Ernest King fol-
inlor subscribed to various interstate news services and pub- lowing an environmental audit he conducted in the fall of
lished various nationally syndicated features and advertised 1992 at the Detroit Newspaper Agency and the Detroit Free
various nationally sold products. Press.
Respondents admit, and I find, that each of the Respond- Respondents failed and refused to turn over the report in
its entirety, claiming that it is the kind of internal self-critical
ents has been engaged in commerce within the meaning of
report that they should be permitted to keep confidential, cit-
Section 2(2), (6),and (7) of the Act.
ing the case of ASARCO, Inc. v. NLRB, 805 F.2d 194 (6th
11. THE LABOR ORGANIZATION MVOLVED
Cir. 1986). At the hearing before me, Respondents intro-
duced info evidence as Respondent's Exhibit 1 a redacted
Respondents admit, and I find, that the Union is a labor version of the King report. The report consists of 26 pages
organization within the meaning of Section 2(5) of the Act. and a cover sheet. All or part of 19 pages are blacked out
and unreadable. According to Respondents, the blacked out
111. THE ALLEGED UNFAIR LABOR PRACTICE areas of the report cover the conclusions and recommenda-
tions of Emest King.
A. Overview All parties concede that the Union has an interest in health
The Detroit News Agency (DNA) was formed under the and safety, but the Union insists, contrary to Respondents,
Newspaper Preservation Act and handles all noneditorial that it needs to be able to review the King report in its en-
tirety because the contents of the report are necessary and
functions for two Detroit newspapers, i.e., the Detroit Free
relevant to the performance of its functions as a collective-
Press and the Detroit News, e.g., business advertising, c t - bargaining representative, especially considering that bargain-
culation, etc. ing for new contracts for the employees it represents at both
The Union represents certain employees of both the De- the Detroit Newspaper Agency (DNA) and the Detroit Free
troit Newspaper Agency (DNA) and the Detroit Free Press. Press will begin in late 1994 or early 1995 as both contracts
More specifically the Union represents: expire on April 30, 1995. A purpose of King's report was
"to reduce liability overall for accident and injury."
- .
1. All full-time and reeular oart-time ianitors em-
ployed by Respondent DNA, including working super-
The sole issue in the case is whether Respondents violated
Section 8(a)(l) and (5) of the Act when it refused to tum
visors and Respondent DNA employees formerly classi- over King's report.
fied as machinist helpers, heavy clianers, and cleaners;
but excluding managerial employees, confidential em- B . Discussion ond Analysis
ployees, guards and supervisors as defined in the Act,
and Luther Jackson Jr., an official of the Union, testified for
the General Counsel. He was a very impressive wihless and
2. All full-time and regular part-time employees in I credit his testimony in its entirety.
the editorial and business office departments of Re- His testimony reflects that since at least 1985 the Union
spondent Detroit Free Press; but excluding the classi- has been very concerned about health and safety issues for
fications listed in a document entitled "Exemptions," the employees it represents at the DNA and the Detroit Free
as updated February 7, 1994; but excluding guards and Press. Jackson testified, for example, that in 1990 the Union
supervisors as defined in the Act. conducted a survey among the employees it represents and
ascertained that many were suffering from repetitive strain
Since about 1990, and at all material times, the Union has injuries apparently caused by working in front of video dis-
been the designated exclusive collective-bargaining represent- play terminals (VDTs). The Union also received complaints
ative of the DNA unit and has been recognized as such rep- about the configuration of the VDTs and the furniture used
resentative by Respondent DNA. This recognition has been by the employees working at the VDTs. The Union was also
embodied in successive collective-bargaining agreements, the concerned about ventilation. and asbestos detection. removal.
most recent of which is effective from date of ratification and encapsulation, VDT screen radiation, repetitive strain in-
through April 30, 1995. jury hazards for maintenance employees, photographic chem-
Since about 1930, and at all material times, the Union ical hazards, and the Union also wanted a nurse assigned -
(Charging Party) has been the designated exclusive collec- back into the Detroit Free Press building.
tive-bargaining representative of the Detroit Free Press unit The Union also expressed its concern to management
and has been recognized as such representative by Respond- about new furniture and work stations at the Detroit Free
ent Free Press. This recognition has been embodied in suc- Press, which had undergone some renovation in 1992. A
cessive collective-bargaining agreements, the most recent of number of employees complained to the Union about the
which is effective from May 1, 1992, to April 30, 1995. lack of easily adjustable furniture at their work stations. The
At all times since 1990, based on Section 9(a) of the Act, Union was interested in the field of ergonomics, i.e., the
the Union has been the exclusive collective-bargaining rep- science of adapting furniture, equipment, and machinery to
resentative of the DNA unit. people, and the Union let management know this. In an
 DETROIT NEWS1'APER AGENCY 1077

ergonomic survey conducted by the Union some em- superiors would be different if disclosable to the Union. He
ployees complained about back problems, wrist prob- stmck me as the kind of professional who would tell it like
lems, etc., caused by the furniture provided to them at -
it is reeardless of who the reader of the reoort mieht be. In-
terestingly enough he never explained how the report would
their work stations.
In September 1993, celiain maintenance employees com- be different if directed to management alone or directed to
plained to the Union about asbestos exposure on the job. An- management with disclosure to'the Union on its request.
other incident which concerned the Union involved a graph- King stated, by the way, that he did not cover the area of
ics intern cuning himself on the job with a knife and the repetitive strain injuries associated with VDT use in his re-
issue and concerns that incident caused. port.
The Union learned that Liberty Mutual, the workers' com- It is well sealed that "[tlhe duty to bargain collectively,
pensation carrier for the Free Press, had visited work stations imposed upon an employer by Section 8(a)(5) of the Na-
and done work station analyses. The Union requested and re- tional Labor Relations Act, includes a duty to provide rel-
ceived a copy of the report prepared by Liberty Mutual. On evant information needed by a labor union for the proper
another occasion the Union requested and received permis- performance of its duties as the employees' bargaining rep-
sion from Respondents to inspect OSHA forms the Respond- resentative." Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
ents maintained pursuant to Federal law. With respect to the (1979). 111 evaluating an employer's obligation to fulfill the
Liberty Mutual report and the OSHA records Respondents union's information requests, the Board and courts apply a
fully cooperated with the Union.
In the fall of 1993, the Union became aware from a news- "discovery type standard," under which the requested infor-
mation need only be relevant and useful to the union in ful-
paper article in the Detroit Free Press on September 27,
1993, that two environmental audits had been conducted at filling its statutory obligations in order to be subject to dis-
the Detroit Newspaper Agency and or Detroit Free Press. closure. NLRB v. Acme Industrial c o . , 385 U.S. 432 (1967).
One had been conducted by Donald A. Hensel of the News- Some information in the hands of management is presump-
paper Association of America (NAA), a trade organization, tively relevant, e.g., health and safety information. As the
and the other had been canducted by Ernest King. Board stated "Few maners can be of greater legitimate con-
Ernest King is an employee of Knight-Ridder, Inc., the cem to individuals in the workplace, and thus to the bargain-
parent company of the Detroit Free Press, and apparently its ing agent representing them, than exposure to conditions po-
top health and safety person. Knight-Ridder, Inc, owns ap- tentially threatening their health, well-being, or their very
proximately 29 newspapers, one of which is the Detroit Free lives." Minnesota Mining & Mfg. Co., 261 NLRB 27, 29
Press. (1982).
The Union requested a copy of Donald Hensel's 67-page Respondents, as noted above, rely on the Sixth Circuit de-
report prepared for the NAA, management's response to cision in ASARCO, Inc. v. NLRB, supra, in claiming that its
Hensel's report, and a copy of Ernest King's environmental internal self-critical report should not be required to be
audit. The Union received a copy of Hensel's report and turned over as the Sixth Circuit found that the report in the
management's response to it, but Respondents would not re- ASARCO case need not be turned over. The critical dif-
lease a copy of King's report to the Union. ference, however, is that in the ASARCO case the court
As noted above, a redacted copy of King's report was re- found that the Union had available to it all relevant factual
ceived in evidence as Respondent's Exhibit 1. The table of information and did not need to see ASARCO's internal self-
contents of King's 26-page report reflects that the following critical investigative report. In the instant case there is no
subject areas, inter alia, were covered: hearing conservation evidence that the Union has available to it all relevant factual
program records, safety program and records, waste manage- information contained in the King report. Because this is so
ment program and records, bloodborne pathogens, and emer- and because health and safety are so critical, I find that dis-
-eencv.resoonse oroeram and records. closure of the King report to the Union was necessary to and
~ c c o r d i nto'luiher
~ Jackson, the Union wanted a copy of relevant for the Union to perform its duty as collective-bar-
Ernest King's report because it was very interested in getting gaining representative.
as much information as possible regarding the health and
The Sixth Circuit in ASARCO reversed the Board which
safety of its members, because of the prominence of Ernest
King, and to prepare for negotiations for a new collective- had found the employer violated the Act in not turning over
bargaining agreement. All are exh.emely valid reasons. the internal self-critical report in question. What could be
Respondents would not voluntarily turn over all of King's more important to the Union than the health and safety of
report. The Respondents claim that because it is a intemal its members. Turning the King report over to the Union is
self-critical report it would have a chilling effect on Re- not the functional equivalent of the United States turning
spondents' inclination to do similar internal self-critical re- over to the German high command the details of Operation
ports in the future if forced to disclose the contents of this Overlord prior to June 6, 1944. The fact is that when it
report to the Union. Because the Hensel audit done for the comes to the health and safety of the employees the Re-
NAA and the report of Liberty Mutual were not internal self- spondents and the Union are on the same side.
critical reports, Respondents readily disclosed those reports Accordingly, Respondents violated Section 8(a)(l) and (5)
to the Union on its request. of the Act when it failed and refused to hlrn over to the
Ernest King was, like Jackson, a very impressive witness. Union in its entiretv the Emest Kine reoort on the environ-
He testified for the Respondents. The only problem I had mental audit he conducted at the ~ e t r o i News
i Agency and
with King's testimony was his assertion that his report to his the Detroit Free Press in the fall of 1992.
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

CONCLU~IONS
OF LAW (b) Post at its facilities in Detroit, Michigan, copies of the
attached notice marked "Appendix."' copies of ihe notice,
I. Respondents Detroit Newspaper Agency and the Detroit
on forms provided by the Regional Director for Region 7,
Free Press are employers engaged in commerce within the after being signed by the Respondent's authorized representa-
meaning of Section 2(2), (6), and (7) of the Act. tive, shall be posted by the Respondent immediately upon re-
2. The Union is a labor organization within the meaning ceipt and maintained for 60 consecutive days in conspicuous
of Section 2(5) of the Act. places including all places where notices to employees are
3. By failing and refusing to provide to the Union an customarily posted. Reasonable steps shall be taken by the
unredacted copy of the report prepared by Ernest King fol- Respondent to ensure that the notices are not altered, de-
lowing the environmental audit he conducted in the fall of faced, or covered by any other material.
1992 Respondents unlawfully refused, and are refusing, to (c) Notify the Regional Director in writing within 20 days
bargain in violation of Section 8(a)(5) and (1) of the Act. from the date of this Order what steps the Respondent has
4. The above-unfair labor practices affect commerce within taken to comply.
the meaning of the Act.
zlf this Order is enforced by a judgment of a United States eoun
of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Punuant to a
Havina- found Resvondents ennaned- - in an unfair labor
practice, I find it necessary to order them to cease and desist
Judgment of the United States Coun of Appeals Enforcing an Ordcr
of the National Labor Relations Board."
and to take certain affirmative action designed to effectuate
the policies of the Act. APPENDIX
The order will require Respondents to furnish the Union
with an unredacted copy of the King report. NOTICETo EMPLOYEES
POSTED BY ORDER OF THE
N A I I O N AI.AllOK
I KT1 AllONS HOAKU
On these findings of fact and conclusions of law and on
An Agency of the iln~tedState, Government
the entire record, I issue the following recommended'

ORDER The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
The Respondents, Detroit Newspaper Agency and the De- to post and abide by this notice.
troit Free Press, Inc., their officers, agents, successors, and
assigns, shall Section 7 of the Act gives employees these rights.
1. Cease and desist from To organize
(a) Refusing to bargain collectively and in good faith with To form, join, or assist any union
the Union by refusing to provide the Union a complete and To bargain collectively through representatives of
unredacted copy of a report prepared by Ernest King follow- their own choice
ing an environmental audit he conducted in the fall of 1992. To act together for other mutual aid or protection
(b) In any like or related manner interfering with, restrain- To choose not to engage in any of these protected
ing, or coercing employees in the exercise of the rights guar- concerted activities.
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef- WE WILL NOT refuse to bargain collectively with the
fectuate the policies of the Act. Union by refusing to supply it with a complete and
(a) On request of the Union, furnish to it within a reason- unredacted copy of a report prepared by Ernest King follow-
able time the report referred to in paragraph l(a), above. ing an environmental audit he conducted in the fall of 1992.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
1 If no exceptions are filed as provided by Sec. 102.46 of the teed you by Section 7 of the Act.
Board's Rules and Regulations, tho findings, conclusions, and rec- WE WILL,on request of the Union, furnish to it the afore-
ommended Order shall, as provided in See. 102.48 of the Rulcs, be mentioned report by Ernest King
adapted by the Board and all objections to them shall be deemed
waived for all purposes.
DETROITNEWSPAPER AGENCYAND THE DE-
TROIT FREEPRESS, INC.
 REVISED (Changes in Bold in Memo and in Attachments 1 and 3)

OFFICE OF THE GENERAL COUNSEL

Division of Operations Management

MEMORANDUM OM-03-18 January 13,2003

TO: All Regional Directors, Officers-in-Charge,

And Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Procedures for Handling Postal Service Cases Involving Refusal to

Supply Information and Procedures for Addressing Conduct Covered by
Outstanding Court Judgments

This memorandum advises the Regions of (A) certain initiatives being

implemented by the United States Postal Service concerning union information
requests and new procedures and revised guidelines for Regions to deal with refusal-
to-provide-information charges.' It also reminds Regions of (B) the procedures for
addressing conduct covered by outstanding court judgments.

A. Initiatives im~lementedbv the USPS and New Procedures and Guidelines for
the Reaions

The formulation of the initiatives, procedures and guidelines concerning USPS

refusal-to-provide-information cases follows a review and analysis by Region 6 and the
Division of Operations-Management of such pending cases and discussions with both
the USPS and the American Postal Workers Union. We found that the volume of
these refusal-to-provide-information charges differs from Region to Region. Some
Regions have an inordinate, recurring intake of these charges, despite efforts under
the now-terminated 1997 Memorandum of Understanding between the parties. In
virtually all these recurring cases, while the information sought is ultimately supplied,
the delays in providing it have been substantial. These delays diminish the utility of
the information provided, given the short grievance handling times in the collective
bargaining agreement. On the other hand, some Regions report few cases, prompt
resolutions of these cases, and very little indication of recidivism at the individual
facilities or districts.

We have met with the USPS General Counsel, her chief counsel for labor law,
and the USPS outside counsel on these cases, regarding recurring charges alleging
the USPS' refusal to provide information. They correctly noted that the USPS with

'This memorandum does not address the refusal-to-provide-information cases covered by the
outstanding com plaint in United States Postal Service, Case 5-CA-27954(P), et al.
900,000 employees is the largest employer under our jurisdiction and it annually
responds to tens of thousands of information requests. However, they share our
concerns that, in the future, all information requests should receive prompt and
responsive replies, without the necessity of unfair labor practice charges being filed,
and that any charges filed should be promptly and satisfactorily resolved. In this
regard, the USPS has committed to undertake a number of initiatives to improve its
response to information requests and to unfair labor practice charges. In turn, we
have agreed to modify certain Regional Office procedures to facilitate the processing
of such charges.

The USPS has made a commitment to enhance its training program for
managers and supervisors with respect to the duty to expeditiously supply information
that isrelevant and necessary for collective bargaining, and to underscore that
unprivileged refusals to supply information will not be tolerated. The USPS has
committed that once its labor law offices receive a faxed unfair labor practice charge,
they will accord the matter much higher priority than in the past. If the charge appears
to have merit, the USPS will endeavor to resolve it within 14 calendar days or less,
without any further communication from a Board agent. The USPS has also agreed
that even after an unfair labor practice charge is filed, representatives of the Local
USPS office will continue to consider the request for information, particularly where
they recognize that the information should have previously been provided.
Accordingly, under these procedures, obvious violations should be promptly resolved
and no longer result in substantial delay before the information sought is actually
provided.

R e ~ i o n aOffice
l Procedures and Guidelines

In an effort to facilitate compliance with the Act, new pre-filing assistance and
new procedures and guidelines for processing USPS refusal-to-provide-information
cases should immediately be implemented in all Regional Offices. These new
procedures and guidelines are set forth below.

Procedures

When a Region provides pre-filing assistance, it should insure that the unfair
labor practice charge contains specific information concerning: 1) the identity of the
requester; 2) the person to whom the request was directed; 3) whether the request
was oral or in writing; 4) a description of the requested information sought that has not
been provided; and 5) the general proffered reason for the request (e.g., contract
administration, grievance processing or collective bargaining). If the request is in
writing and available to the Region, it should also be faxed to the USPS along with the
charge. If unfair labor practice charges are filed without the Region's pre-filing
assistance, it will promptly seek an amendment of the charges to add the information
listed above, unless the charge is already reasonably clear or the additional
information can easily be provided by telephone. The Region will also fax the unfair
labor practice charges to the appropriate USPS labor law office. A list of the fax
numbers and areas served by each USPS labor law office is attached to this
memorandum as Attachment 1.

Guidelines

We are hopeful that the USPS' renewed promise to both comply with its
statutory obligation in this area and to promptly resolve those charges that are filed will
succeed where previous efforts have failed.' ln the meantime, we must handle, in a
consistent and effective manner, the cases that are currently on file and those that are
yet to come.

In light of our past experience with the USPS, we have determined to modify
the procedures outlined in OM 01-91, issued September 25, 2001, for handling these
cases filed by APWU. Further, we have concluded that charges alleging refusal-to-
provide-information filed by other postal unions should be treated the same since they
involve the same employer. Accordingly, the Regions are to process all pending and
future refusal-to-provide-information cases filed against the USPS as follows:

(1) Regional Offices should follow the usual policy of increasing the formality
required for the resolution of cases with successive unfair labor practice
charges involving the same issue with the same employer, even if different
facilities are involved.* This policy does not apply where the Region in its
discretion concludes that the USPS has satisfactorily complied with the 14-
calendar day commitment to resolve the information dispute and has extended
any time limits on the filing or processing of grievances as appropriate. In
such cases, the Regions should accept adjusted withdrawals unless the Region
sees a pattern of postponing compliance with the Act until unfair labor practice
charges are filed.

. , As to charges that are not voluntarily resolved by the USPS within 14 days after
(2)
filing, it is inappropriate, absent special circums<ances, to continue to accept
adiusted withdrawals in recurring meritorious cases involving refusal-to-provide-
information conduct. Several ~ e ~ i o have n s already crossed this threshold with
the USPS and the remaining Regions when faced with such recurring

' In making this determination, Regions should note whether the recurring violations are in the
same USPS administrative district. A list of USPS administrative districts is attached as
Attachment 2. If the violations recur in the same district, a smaller number of violations may
trigger the next step of formality than if they recurred in different districts.

Regions should not accept adjusted withdrawals in cases involving conduct potentially
violating provisions of outstanding court judgments against the USPS, see Attachment 3,
without first contacting Acting Assistant General Counsel Stanley Zirkin or Deputy Assistant
General Counsel Ken Shapiro of the Contempt Litigation and Compliance Branch. That
Branch may want to consider pursuing contempt action on the conduct.
 meritorious charges should now decline to accept any further withdrawals or
informal adjustments.

(3) Where the USPS has resolved by adjusted withdrawals recurring meritorious
refusal-to-provide-information charges filed with the same Region, particularlv
involving the same USPS administrative district, Regions shoild re'solve
subsequent cases only by informal settlements, first with, and then without,
non-admission clauses. Continued violations should be resolved by formal
settlements, even if litigation is the only other alternative.

(4) In all settlement agreements, whether informal or formal, Regions should

include language stating, "the Respondent agrees that this settlement
stipulation may be used in any proceeding before the Board or an appropriate
court to show proclivity to violate the Act for purposes of determining an
appropriate remedy."

If a Region concludes that departure from the above guidelines is warranted

because of special circumstances, it should first consult with Director Gerald Kobell of
Region 6, prior to taking any actiom4

Region 6 will continue to coordinate and monitor processing of USPS refusal-to-

provide-information cases. Region 6 will also consider whether consolidation or
clustering of cases for trial or seeking remedial relief on a wider basis is appropriate.
In order to maintain oversight of these cases, each Region should send Region 6
copies of dispositions (withdrawal approval letters, settlement agreements, drafl
complaints, and ALJDs) in all refusal-to-provide-information cases filed against the
USPS.

In addition, please be careful to input all data regarding these cases, timely and
accurately, into the CATS system. Such data will help us monitor the volume of
activity as to these refusal-to-provide-information charges. The naming convention for
all cases involving the USPS should be United States Postal Service. Be sure to
specify that the case includes a refusal-to-provide-information allegation.

As with all charges that are transferred pursuant to the Interregional Assistance
Program (IRAP), refusal-to-provide-information cases filed against the USPS should
not be transferred if it appears that the charge is meritorious. We understand that it is
difficult to determine simply from the face of a charge whether a charge will have merit,
but past case activity may be helpful in making a preliminary determination. In any
event, if a refusal-to-provide-information case is transferred pursuant to IRAP and is
found to have merit, the case should be returned to the sending Region for further
processing, including approval of an adjusted withdrawal or settlement.

4
Special circumstances could be, for example, that the recurring charges arose in facilities a
great distance from each other, although still in the same NLRB Region.
(B) Procedures for Addressina Conduct Covered bv Outstandina Court
Judaments

Standard procedure in all cases involving conduct violating negative or

affirmative provisions of outstanding court judgments requires that the investigating
Region refer such cases to the Contempt Litigation and Compliance Branch, prior to
~ Casehandling Manual - Compliance, Section 10592. We
taking any final a ~ t i o n .See
have learned that some Regions have taken action in cases against the USPS, without
following these procedures.

In order to assist Regions in complying with these requirements, attached to

this memorandum are lists of outstanding court judgments against the USPS
(Attachments 3 and 4). Attachment 3 lists court judgments involving refusal-to-
provide-information violations. Prior t o takina anv final action o n cases involvina
the violation o f any provision(s) of these court;udgments involving refusal-tor
-
provide-information violations.. Regions should contact the C o n t e m d Litiaation
and Compliance ranch.^
-
Attachment 4 lists court judgments against the USPS involving violations of
Sections 8(a)(l), (3) and (4) other than refusal-to-provide-inf~rmation.~ For any cases
involving conduct, which may be violative of court judgments against the USPS
i n other than refusal-to-provide-information cases,kegions should investigate
such cases and i f a Region determines that the charge has merit, the Region
should submit the caseto the Contempt Litigation and Compliance ranch t o
determine whether contempt proceedings are appropriate. When submitting the
o n c o m p l i k c e ranch, the Region should incrude
case t o Contempt ~ i t i ~ a t i and
a memorandum summarizing the results of the investigation and the Region's
analysis o f the merits and including a recommendation as t o whether the
initiation of contempt proceedings would be appropriate.

If you have any questions concerning this memorandum, please contact

Regional Director Gerald Kobell or Deputy Assistant General Counsel Jane Schnabel.
Questions concerning possible contempt action should be directed to Acting Assistant

"Final action" includes dismissal, issuance of complaint, solicitation or approval of any type
of settlement including "non-Board adjustments," or or any other type of deferral.

Regions are reminded that a m refusal to furnish information would potentially violate the
judgments listed in Attachment 3; that is, the information requested need not be identical or
even similar to that which underlay the judgment.

' Except for court judgment (4) on Attachment 4, each of the court judgments listed on both
attachments relates onlv to the s~ecificUSPS location noted under the res~ectivecourt
judgment. However, as indicated, court judgment (4) on Attachment 4 coniains nationwide
cease and desist orders and notice provisions relating to Weinaarten violations.
General Counsel Stanley Zirkin or Deputy Assistant General Counsel Ken Shapiro of
the Contempt Litigation and Compliance Branch.

cc: NLRBU
Attachment

Release to Public

MEMORANDUM OM 03-18