Postal Service

National Labor Relations Board - Board Decisions

Aug 9, 2010

355 N.L.R.B. 368 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 72
368
United States Postal Service and National Postal Pro-
fessional Nurses. Case 10–CA–36056(P) (for-
merly 16–CA–23973(P))
August 9, 2010
DECISION AND ORDER1
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On October 20, 2006, Administrative Law Judge John
H. West issued the attached decision. The General Coun-
sel and the Respondent each filed exceptions and a sup-
porting brief. The General Counsel and the Respondent
each filed an answering brief, and the General Counsel
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s ruling, findings,2 and conclusions as
modified.3
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act by denying employee
Annu Rajan’s request for union representation during an
October 15, 2004 interview that Rajan reasonably be-
lieved might result in disciplinary action. We also agree
with the judge that the Respondent violated Section
8(a)(3) and (1) of the Act by ordering Rajan “off the
clock” and then suspending her for 7 days, both discipli-
nary actions in response to her refusal to attend the Octo-
ber 15, 2004 interview without union representation.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s conclusions of
law.
1. The Board has jurisdiction over the Respondent
pursuant to Section 1209 of the Postal Reform Act.

1 This case was originally consolidated with Cases 10–CA–
34974(P), 10–CA–35144(P), 10–CA–35273(P), and 10–CA–36057(P)
(formerly 16–CA–24128(P)). In an unpublished Order dated Septem-
ber 25, 2008, the Board approved a joint settlement stipulation in those
cases and severed the allegations in Case 10–CA–36056(P), involving
employee Annu Rajan, for continued consideration before the Board.
Having carefully considered the matter, we reaffirm that Order. Ac-
cordingly, the instant case involves only sec. II,B,1 of the judge’s deci-
sion.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In light of the severance of this case as discussed above, we have
provided new conclusions of law and an amended remedy. We shall
also substitute a new Order and notice for those of the judge.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By denying employee Annu Rajan’s request for un-
ion representation, at its DFW Turnpike facility, during
an October 15, 2004 interview that Rajan reasonably
believed might result in disciplinary action, the Respon-
dent violated Section 8(a)(1) of the Act.
4. By, on October 15, 2004, ordering Rajan “off the
clock,” thereby suspending her, because of her refusal to
attend the October 15, 2004 interview without union rep-
resentation, the Respondent violated Section 8(a)(3) and
(1) of the Act.
5. By, on October 20, 2004, issuing a 7-day suspen-
sion to Rajan because of her refusal to attend the October
15, 2004 interview without union representation, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
6. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
To remedy its discriminatory treatment of Annu Rajan,
the Respondent shall be ordered to make Annu Rajan
whole for any loss of earnings and other benefits she may
have suffered due to her suspensions on October 15 and
20, 2004, in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, the Respondent shall be required to re-
move from its files any references to the unlawful sus-
pensions, and to notify Rajan in writing that this has been
done and that the suspensions will not be used against
her in any way.
To further remedy its unlawful actions, the Respondent
shall be ordered to provide all supervisors at its DFW
Turnpike facility with a copy of any court order that en-
forces any Board order in this proceeding and direct the
supervisors to sign acknowledgments that they received
the copy of the court order. The Respondent shall place
and maintain the signed acknowledgments in the super-
visors’ personnel files.4
ORDER
The National Labor Relations Board orders that the
Respondent, United States Postal Service, Dallas, Texas,
its officers, agents, successors, and assigns, shall

4 The parties agreed to this same special remedy in the Board-
approved settlement of the cases previously consolidated with this one.
POSTAL SERVICE 369
1. Cease and desist from
(a) Denying the requests of employees at its facility lo-
cated at 401 DFW Turnpike, Dallas, Texas, to be repre-
sented at interviews when they reasonably believe that
the interviews might result in disciplinary action against
them.
(b) Disciplining or otherwise discriminating against
employees for refusing to take part without union repre-
sentation in interviews when they reasonably believe that
the interviews might result in disciplinary action against
them.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Permit employees to be represented by a union rep-
resentative at interviews that they reasonably believe
might result in disciplinary action against them.
(b) Make Annu Rajan whole for any loss of earnings
and other benefits she may have suffered as a result of
her unlawful suspensions, with interest, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Annu Rajan’s unlawful
suspensions, and within 3 days thereafter notify her in
writing that this has been done and that the unlawful sus-
pensions will not be used against her in any way.
(d) Provide all supervisors at its facility located at 401
DFW Turnpike, Dallas, Texas, with a copy of any court
order that enforces any Board Order in this proceeding
and direct the supervisors to sign an acknowledgment
that they received the copy of the court order. The
signed acknowledgments shall be placed and maintained
in the supervisors’ personnel files.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility located at 401 DFW Turnpike, Dallas, Texas,
copies of the attached notice marked “Appendix.”5 Cop-

5 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ies of the notice, on forms provided by the Regional Di-
rector for Region 10, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 15, 2004.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT deny your request to be represented at an
interview when you reasonably believe that the interview
might result in disciplinary action against you.
WE WILL NOT discipline or otherwise discriminate
against you for refusing to take part without union repre-
sentation in an interview when you reasonably believe
that the interview might result in disciplinary action
against you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL permit you to be represented by a union rep-
resentative at an interview which you reasonably believe
might result in disciplinary action taken against you.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
WE WILL make Annu Rajan whole for any loss of earn-
ings or other benefits suffered as a result of her unlawful
suspensions on October 15 and 20, 2004.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Annu Ra-
jan’s unlawful suspensions, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that these unlawful actions will not be used against
her in any way.
UNITED STATES POSTAL SERVICE

John D. Doyle Jr., Esq., for the General Counsel.
Isabelle G. Dorlan, Esq. and John C. Oldenburg, Esq., for the
Respondent.
Mr. Byron Wesley, of Birmingham, Alabama, for Charging
Party National Postal Mailhandlers Union Local 317.
Mr. Edward Steele, of Birmingham, Alabama, pro se.
Ms. Ajo James, of Rowlett, Texas, for Charging Party National
Postal Professional Nurses.
Mr. Frederick Owen Jr., of Waco, Texas, for Charging Party
National Association of Letter Carriers, Branch 404.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. These consoli-
dated cases were tried in Birmingham, Alabama, on March 22
and 23, 2006, and in Fort Worth, Texas, on March 28 and 29
and July 24, 2006.1 Charges and amended charges were filed
collectively beginning April 23, 2004, and ending on February
15, 2005. As here pertinent, on February 21, 2006, two consoli-
dated complaints (one involving two of Respondent’s Birming-
ham facilities and the other involving two of Respondent’s
Texas facilities) were issued, and on the same date an order was
issued consolidating all of the above-entitled cases. The con-
solidated complaints will hereinafter be referred to collectively
as the complaint. To the extent that it refers to conduct which
allegedly occurred in Birmingham, the complaint alleges that
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) (a) by denying the requests of named em-
ployees2 to meet and confer with a union representative prior to
the commencement of an interview, and to be represented by
the Union during the interview, which the employee had rea-
sonable cause to believe would result in disciplinary action, and
(b) by conducting the interviews even though it had denied the
employee’s request for union representation.3 To the extent that
it refers to conduct which allegedly occurred in Texas, the
complaint alleges that Respondent violated Section 8(a)(1) of

1 The proceeding was continued from March 29 to July 24, 2006, to
allow the Respondent to have an expert examine an audio tape re-
cording and the equipment used to make the recording.
2 David Callens, William Amerson, Tommy Jones, Tyrone Hendrix,
and Edward Steele.
3 All but one of the Birmingham interviews was allegedly conducted
at the Birmingham Annex facility which is located at 4500 1st Avenue
South. Jones was interviewed at the Birmingham Plant facility which is
located 351 24th Street North.
the Act (a) by denying the requests of named employees4 for
union representation during interviews which the employees
had reasonable cause to believe would result in disciplinary
action, and (b) by conducting an interview even though it had
denied the employee’s request for union representation. Also,
with respect to conduct which allegedly occurred in Texas, the
complaint alleges that Respondent violated Section 8(a)(1) and
(3) of the Act by suspending Rajan twice for refusing to attend
an interview without union representation.5
Respondent denies violating the Act as alleged.6

4 Annu Rajan and Deloris Snyder. Rajan was interviewed at Respon-
dent’s DFW Turnpike facility which is located at 401 DFW Turnpike,
Dallas, Texas. Snyder was interviewed at Respondent’s Groesbeck
facility, which is located at 112 South Dr. J.B. Riggs Drive, Groesbeck,
Texas.
5 The General Counsel requests as a part of the remedy that Respon-
dent be required, on request of the involved Union, to repeat the inter-
views of each of the above-named employees except Rajan, afford the
employees their full rights of union representation, reconsider any
disciplinary action taken, and if it is determined that the action was
unwarranted or that a mitigation of the penalty is warranted, rescind,
modify and remove the discipline, and make the employee whole for
any losses suffered. Additionally, the General Counsel requests that
Respondent notify the involved employee of the results of the reconsid-
eration and, if relevant, afford them any appeal or grievance rights that
may exist under the collective-bargaining agreement, law, or regula-
tion. And finally, the General Counsel requests that Respondent be
required to provide each and every supervisor at the facilities involved
in these proceedings a copy of any court order that enforces any Board
Order in these matters; that each and every respondent supervisor at the
facilities involved herein sign a written acknowledgment of receipt of
the court order, that they understand the court order, and that they un-
derstand that any future violations of an employees’ Weingarten [NLRB
v. J. Weingarten, 420 U.S. 251 (1975)] rights might result in contempt
proceedings against them personally.
6 Additionally, Respondent argues that alleged denials of Weingarten
rights are matters that may and should be deferred to an arbitrator under
the involved collective-bargaining agreements; that here, the alleged
unfair labor practices are not so numerous, pervasive, and outrages that
special remedies are necessary to dissipate fully the coercive effects of
the unfair labor practices found; that the National Association of Letter
Carriers has specifically waived employees’ Weingarten rights for
“official discussions”; that run of the mill conversations, such as the
one had with Snyder, do not require the presence of a union representa-
tive; that a new investigatory interview resulting in the reconsideration
and possible modification of discipline with the attendant recession of
the original discipline and the potential issuance of new discipline with
appeal rights is in direct conflict with Taracorp Inc., 273 NLRB 221
(1984); that the requested special remedy would deprive the Respon-
dent of the right to discontinue the interview or offer the employee the
choice of continuing the interview unaccompanied by a union represen-
tative, or of having no interview at all; that the General Counsel’s sug-
gestion that supervisors be in jeopardy of findings of contempt against
them personally is overbroad and would reach a large number of indi-
vidual supervisors and managers not shown to have now or previously
engage in such violations of the Act; and that the General Counsel’s
special remedy would create the false impression in the minds of su-
pervisors that any nature of Weingarten violation by them could put
them in contempt of the rather limited court order in Postal Service v.
NLRB, 969 F.2d 1064 (D.C. Cir. 1992). Actually, the special remedies
sought by the General Counsel refer to “a copy of any Court Order that
enforces any Board Order in these matters.” The General Counsel does
not refer to the court order cited by Respondent.
POSTAL SERVICE 371
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on October 3,
2006,7 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that Respondent provides
postal services for the United States and operates various facili-
ties throughout the United States in the performance of that
function, including the four facilities described above, which
are the only facilities involved in this proceeding. The Respon-
dent admits and I find that the Board has jurisdiction over the
Respondent by virtue of Section 1209 of the Postal Reorganiza-
tion Act (PRA). The complaint alleges, the Respondent admits,
and I find that National Postal Mailhandlers Union Local 317,
National Postal Professional Nurses, and National Association
of Letter Carriers Branch 404 are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Alabama
Byron Wesley has worked for Respondent since July 1997;
has been a mailhandler since April 1999; has worked at the
Birmingham Annex since 2000; is a member of Mailhandlers
Local 317; and is a steward with the Union. He testified that he
has attended between 100 and 150 predisciplinary meetings as a
union steward; that a predisciplinary interview is management’s
factfinding expedition to determine whether discipline is war-
ranted; that it has been his experience that 99 percent of the
time discipline has been issued based on the event that was
discussed during the predisciplinary interview; and that there
have been instances where no disciplinary action was taken
following a predisciplinary meeting.
General Counsel’s Exhibit 2 is a notice to employee, dated
“2/18/04,” posted pursuant to an Order of a United States court
of appeals. The notice reads as follows:

PLEASE TAKE NOTICE that on December 18, 2003, the
United States Court of Appeals for the District of Colum-
bia Circuit issued a Consent Order against the United
States Postal Service approving a settlement between the
Postal Service and the National Labor Relations Board.
Under that Consent Order the Postal Service is required to
institute a nationwide educational program directed at all
supervisors, acting supervisors, postal inspectors and man-
agers with direct responsibility for bargaining unit em-
ployees concerning employee rights in investigatory inter-
views, otherwise known as Weingarten rights. As part of
that education program, we list below a summary of such
employee rights:
1. An employee has the right to be represented by a
union steward when the employer meeting is an investiga-
tory interview—when management is searching for facts

7 The due date for filing briefs was extended since the transcript for
the July 24, 2006 session was not made available by the court reporter
until September 19, 2006.
and trying to determine the employee’s guilt or innocence,
or where facts elicited at the meeting might ultimately re-
sult in discipline or a change in previously imposed disci-
pline. The employee being interviewed has the right to
such representation by a steward where he or she reasona-
bly believes that discipline or changes in previously im-
posed discipline could result from the investigatory inter-
view.
2. It is the employee’s obligation to request representa-
tion of a union steward at the investigatory interview.
3. An employee facing an investigatory interview has
the right to meet with his or her union steward in advance
of the interview to prepare for the interview.
4. At the investigatory interview, the employee is enti-
tled to a union steward’s assistance. The Postal Service
violates the employee’s rights if it refuses to allow the
steward to speak or tries to restrict the steward to the role
of a passive observer.
5. Employees may exercise any or all of the rights
listed . . . without reprisals of any kind from the Postal
Service. Improperly denying any of these rights may have
legal consequences for the Postal Service.[8] [Emphasis in
original.]

Wesley testified that he first saw this notice in February
2004 when he went to Respondent’s Birmingham plant on 24th
Street and saw it posted on the bulletin board; that he read the
entire notice; that this notice was not posted at that time at the
Birmingham Annex (the Annex); that mailhandlers are em-
ployed at the Annex and at the plant; that such a notice was
posted at the Annex around February 2004; and that this notice
was discussed with about 20 union members who were told that
if they felt that a meeting would result in discipline they had a
right to speak with a steward before the meeting took place.
Wesley further testified that the president of the Union,
Mitchell, went over General Counsel’s Exhibit 2 at a steward
meeting, and Amerson, who is a steward, was present.
Steele, who has worked for the Respondent for 12 years,
with the last 7.5 years spent at Respondent’s Birmingham An-
nex, testified that he is a member of the Mailhandlers Union;
that he had been chief shop steward on tour I for 4 or 5 months
at the time he testified at the trial herein; that in April 2004 he
was a shop steward at the Annex; that he first saw General
Counsel’s Exhibit 2, the above-described notice which informs

8 Counsel for the General Counsel introduced two charges, one in
Case 10–CA–34186 and one in Case 10–CA–34456 which he stated are
the two charges that are referenced in the above-referenced D.C. Circuit
Court of Appeals consent order of 2003. He indicated that the charges
were introduced to give some frame of reference for the earlier Bir-
mingham based charges. Opposing counsel pointed out that one of the
charges involves Ensley, Alabama, and not Birmingham; that these
matters were the subject of a negotiated settlement with a nonadmission
clause; that there was resolution without adjudication; and that the
charges should not stand as evidence against the Respondent of any
nature of a violation. Counsel for the General Counsel then indicated
that they were offered as background to aid in understanding the con-
text. The exhibit, GC Exh. 6, was received. Since it involves two
charges, obviously the exhibit, in and of itself, is not evidence of a
violation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
employees of their Weingarten rights, a couple of years ago (in
2004) posted in the foyer of the Annex; that in the months fol-
lowing February 8, 2004, he attended union meetings; and that
in the March 2004 union meeting he commented on the fact
that management was not following what was posted.
Supervisor Leon Nash testified that he has attended ap-
proximately 100 investigatory interviews; that he did not recall
seeing General Counsel’s Exhibit 2, the notice regarding em-
ployees’ Weingarten rights, posted at the Annex facility in
2004; that he saw the notice about 2 weeks before he testified at
the trial herein on March 23, 2006; that he has received instruc-
tions or directives on more than one occasion regarding what
procedure to follow if during an investigatory interview or at
the commencement of the investigatory interview there is a
request for the steward and the employee to meet before going
any further; that he was first given such instructions in January
2005; that it has been his experience that seldom does a steward
or an employee ask to meet before going further with the inves-
tigatory interview; that over the past year or two such a request
has been more frequently; and that he noticed it started to occur
more and more often as of January 2005.
On cross-examination, Nash testified that the only ones he
remembers who asked for a meeting between steward and em-
ployee before proceeding with the investigatory interview were
Amerson and Steele; that Amerson made such a request as a
steward but not as an employee; that Steele made such requests
as a steward but not as an employee; that he gave a deposition
to the National Labor Relations Board (the Board) in January
2005 when he was asked about some of the events he described
below; that from this point on he understood there was a special
significance to circumstances where there was an investigatory
interview and there was a request from someone that the stew-
ard and the employee be permitted to meet before the interview
continued; and that before that time he did not necessarily per-
ceive there would be some special significance to whether the
meeting with the steward occurred after the interview was over
or before it continued or at any particular point in time. Subse-
quently, Nash testified that the incidents where an employee
requested a preinterrogation consultation increased after Janu-
ary 2005 because he actually paid more attention to it, that is
“when I found—learned more about the Weingarten Act [sic]
and that is when I started—that is definitely when I started
paying more attention . . . to the request” (Tr. 399 and 400);
that employees did request preinterrogation consultation before
January 2005 and he did not deny these requests; and that such
requests increased after January 2005 and he was not sure why.
One of Respondent’s attorneys, John Oldenburg, indicated at
the outset of the Fort Worth session that there was a posting of
the above-described notice as required in the Birmingham An-
nex; that there may have been some evidence that people saw it
posted at the main post office (the Plant); and that it was posted
in early 2004.
1. David Callens
The complaint alleges that on or about April 14, 2004, Re-
spondent, by Nash, at Respondent’s Birmingham Annex facil-
ity, by denying the request of employee David Callens and
Mailhandlers Local 317 Steward Edward Steele to meet and
confer prior to the commencement of the interview, denied the
request of its employee David Callens to be represented by
Mailhandlers Local 317 during an interview; that Callens had
reasonable cause to believe that the April 14, 2004 interview
would result in disciplinary action against him; and that Nash
conducted the interview with Callens even though the Respon-
dent had denied the employee’s request for union representa-
tion.
Steele testified that in April 2004 he attended an investiga-
tory interview with Callens in the supervisors’ breakroom,
which they sometimes use as an office; that Nash came to him
and told him that he needed him to go to the supervisors’ break
area; that Nash was in the breakroom when he arrived and
Callens arrived later; that Callens and Nash got into a heated
discussion about Nash doing an investigatory interview regard-
ing Callens not being at the limited-duty table where he was
assigned; that Callens told Nash that he was on break; that
when the heated discussion started he told Callens to calm
down; that Callens said that he needed to speak to the union
representative; that Nash “told him that it wasn’t going to be
long, and I might let you meet with him afterwards” (Tr. 192);
that “after Leon [Nash] tried to continue on, Mr. Callens inter-
rupted again, and they got into this loud shouting match, and
Mr. Callens rushed out of the room,” id.; that he then told Nash
that he was wrong because Callens is allowed to converse with
his union steward and his union steward is allowed to converse
with him and “I tried to explain to him [Nash] that when I say I
need to speak with him, then the meeting stops right then
whether you like it or not. And he said, no, it’s not going to go
that way” (id. at 192 and 193); that Nash told him that he had to
go get Callens because Nash was about to put him off the clock,
and his patience was wearing thin with Callens; that he got
Callens to come back to the meeting, telling him just to sit
down and not say a word because if he was put off the clock it
would mean more work “instead of just this little penny ante
stuff that he’s trying to do now” (id.); that Callens came in and
sat down while Nash went on with the meeting, and then Nash
told them to go back to work; that during the reconvened meet-
ing Nash told Callens that he did not want to cause conflict but
he wanted to know where Callens was and what he was doing;
that Callens told Nash that he was on break and there was no
standard time for breaks; that Nash told Callens that he would
tell him when he could take a break; and that about 35 minutes
passed from the start of the first meeting to the end of the re-
convened meeting.
On cross-examination, Steele testified that the investigatory
interview involving Amerson probably occurred the day before
the investigatory interview involving Callens but he was not
sure; that there is no reference to his participation as a steward
in the Callens investigatory interview in either of the affidavits
he gave to the Board on October 26, 2004; that when Nash told
Callens that this was an investigatory interview, Callens said
that he needed to speak with Steele; that other than saying that
it was an investigatory interview, Nash had not indicated what
he was investigating when Callens asked to speak with his un-
ion steward; that he thought that Callens knew what was going
on and he wanted to enlighten him; that when Nash said that he
would let us speak later, Nash said this investigatory interview
POSTAL SERVICE 373
is about you not being where you were supposed to be; that
then Nash and Callens got into a heated dispute when Callens
then asked Nash, “[W]ell, where was I supposed to be” (Tr.
213); that Nash said that Callens was on his break too long; that
“Nash and . . . Callens have a history of hatred for one another”
(id. at 214); that Callens told Nash that he was being treated
unfairly and Nash denied this; that the discussion was loud and
angry; that Callens said that he was where he was supposed to
be, namely on break; that Nash said that he wanted to finish
reading what Callens was here about and he would let them
meet afterwards; that Callens left the room after Nash said that
he was on break too long; and that when he brought Callens
back to the room Callens did not remain silent.
Callens testified that he has been an employee of the Re-
spondent for over 12 years; that in April 2004 he worked in
Respondent’s Birmingham Annex as a mail handler on limited
duty; that he was represented by Mailhandlers Local 317; that
he was assigned to work on the night of April 15, 2004; that at
about 2:30 a.m. on that night Nash approached his work area
where he was sitting at a conveyor belt; that Nash asked him
about his break, namely where he had been and why he was
gone so long; that he asked for a shop steward because he
thought he might be written up; that Nash said that a steward
was not necessary and he continued to question him; that be-
tween 6:45 and 7 a.m. of that same shift Nash called him into
the office where Steele was already present; that Nash started to
read a statement he had prepared telling me that he was going
to be giving me disciplinary action; that at that point in time he
asked for the opportunity to confer with a union steward; that
Nash told him that he did not need to talk with a steward at that
time and he could talk with the steward after the meeting; that
Nash described the meeting as a predisciplinary meeting when
he began reading the statement; that Nash said that this was to
inform him that this is a predisciplinary meeting; that Steele
was present at the time; that he asked Nash for an opportunity
to confer with a steward beforehand and Nash said that that was
not necessary and that we could talk afterwards; that after Nash
read his statement, Nash asked him if he had anything to say;
that he did not say anything so the meeting ended; that the
meeting took about 5 minutes; that the meeting became heated
because he was angry with Nash questioning him on the work
floor in front of all the other employees; that he and Nash
raised their voice during the meeting; that he did not recall
Steele speaking during the meeting; that he thought that the
events he described above occurred on the shift which began on
April 14 and carried into April 15, 2004; that during the predis-
ciplinary meeting there was no discussion about break and
breaktimes; and that during the previous meeting there was a
discussion about break and breaktimes.
On cross-examination, Callens testified that Steele was al-
ready in the room at the direction of Nash; that when Nash said
that he was going to be giving him a disciplinary action he
asked for an opportunity to confer with his steward; that he did
not talk about whether he was taking breaks at this meeting;
and that he did not recall Nash asking him questions during this
meeting. On redirect, Callens testified that page one of Respon-
dent’s Exhibit 17 is a copy of the April 30, 2004 warning letter
he received. And on re-cross, Callens testified that a grievance
was filed with respect to this warning letter; that Amerson was
the steward handling the grievance9; and that he was not sure if
the grievance was still in his record.
Nash testified that he was involved in an investigatory inter-
view of Callens in April 2004; that on the night in question
Callens was on limited duty and he was assigned to work on a
belt; that one of Callens’s duties was to check the priority mail
for errors prior to dispatch; that the mail came over at about
1:55 a.m. and Callens was not at his assigned work station; that
he had to make other arrangements to get the work done and
Callens came back about 25 minutes later; that when he asked
Callens where he had been Callens said that he had been on
break; that a few months earlier he had given Callens written
instructions to report for work at 11 p.m., go on break at 1 a.m.,
break again at 3 a.m., and go to lunch at 5 a.m.; that when he
asked Callens why he took his break at that time Callens said
he had no designated time, Nash was no longer his supervisor,
and Jackie Hill told him to disregard the written instructions
Nash had given him regarding when he was supposed to take
breaks; that he talked with Jackie Hill and she said that was not
true; that since Amerson, who was the primary union steward,
was not there that morning he got Steele, who was the alternate
union steward, to come and sit in on the investigatory inter-
view; that it is his practice to get a union steward before the
employee asks for a union steward so that he does not have to
waste time looking for a union steward if the employee decides
that he or she wants a union steward; that when he met with
Callens, Steele was present; that he did not remember if either
Callens or Steele asked him that they be allowed to meet before
he began his interview; that he is not sure that if the request
was made that it would be something he would remember; that
he has had such a request and “[u]sually I would grant the time
. . . [for] no particular reason” (Tr. 367); that he said usually
because he could only remember one occasion when he did not
and Steele was not involved in that situation; that Callens did

9 While it was not a subject covered on direct, on cross-examination
Amerson testified that he attended, as steward, a predisciplinary hear-
ing with employee David Callens in April 2004 and a meeting later in
April 2004 where discipline was issued to Callens; that both were con-
ducted by supervisor Nash; that at the second meeting Nash also
wanted to do another predisciplinary on Callens; that in one of the
affidavits he gave to the Board he describes the predisciplinary inter-
view he attended with Callens and Nash; that as indicated in his affida-
vit to the Board, Callens asked Nash for the opportunity to confer with
his union representative before the meeting went forward; that the
predisciplinary interview in the Annex tour office involving the ques-
tion of Callens being away from his work area and possibly on break at
a different time than was scheduled occurred on or about April 15,
2004; that according to his time and attendance report, R. Exh. 16, he
was not at work at 6 a.m. on April 15, 2004; that he did come to work
at 11 p.m. on April 15, 2004; that R. Exh. 17, dated April 30, 2004, is
the letter of warning Callens received from Nash at a meeting he, Am-
erson, attended; that the letter indicates that the incident in question
occurred at 1:55 a.m. on April 15, 2004; and that his own prediscipli-
nary hearing with Nash in April occurred within a day or two of
Callens’ investigatory interview. It appears that Amerson was confused
and his role in this matter was limited to handling the grievance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
not request a steward10; and that Respondent’s Exhibit 17 is the
documentation of the discipline he gave to Callens over this
incident.
On cross-examination, Nash testified that Union Steward
Steele did not make a request to meet with Callens before the
investigatory interview went forward.
Analysis
In my opinion, the Respondent violated the Act on or about
April 14, 2004, as alleged in the complaint. On the one hand,
we have the employee and the union steward who was present
testifying unequivocally that Nash denied Callens’s request to
meet with his union steward in advance of the interview. On the
other hand, we have Nash initially testifying equivocally that he
did not remember if Callens or Steele asked him that they be
allowed to meet before the investigatory interview. Then, after
looking at a document, Nash testified that Callens did not re-
quest a steward. The issue here is not whether Callens re-
quested a steward but rather whether Nash unlawfully denied
Callens’s request to meet with his steward before the investiga-
tory interview went further. Subsequently, Nash testified that
Steele did not make a request to meet with Callens before the
investigatory interview went forward. Nash is not a credible
witness. At one point he testified that when he has such a re-
quest he would usually grant it for no particular reason. At
another point, treated below, Nash testified that in 2004 he
denied an employee’s request to meet with his union steward
before the investigatory because he, Nash, was pressed for
time. When asked if that meant that his schedule trumped the
employee’s right to meet with his union steward, Nash an-
swered that he was unaware of the right in June 2004 and if he
had known of the right, he would have granted the employee’s
request to meet with his union steward before the investigatory
interview.
As noted above, a notice dated “2/18/04” was posted pursu-
ant to an Order of the United States court of appeals.

PLEASE TAKE NOTICE that on December 18, 2003, the
United States Court of Appeals for the District of Colum-
bia Circuit issued a Consent Order against the United
States Postal Service approving a settlement between the
Postal Service and the National Labor Relations Board.
Under that Consent Order the Postal Service is required to
institute a nationwide educational program directed at all
supervisors, acting supervisors, postal inspectors and man-
agers with direct responsibility for bargaining unit em-
ployees concerning employee rights in investigatory inter-
views, otherwise known as Weingarten rights. As part of
that education program, we list below a summary of such
employee rights:

. . . .

3. An employee facing an investigatory interview has
the right to meet with his or her union steward in advance
of the interview to prepare for the interview. [Emphasis in
original.]

10 This testimony was given after Nash refreshed his recollection by
looking at a deposition he gave to an attorney with the Board.
One of Respondent’s attorney’s, Oldenburg, indicated that this
notice was posted, as required, in the Birmingham Annex in
early 2004.
Also, Sharon Davis, who is a supervisor at the Birmingham
Annex, testified that a couple of years before she testified at the
trial herein on March 23, 2006, she received notice of the em-
ployee’s right to have a preinvestigatory consultation with his
or her union steward in the mail and in an e-mail; and that the
information she received advised her that employees are enti-
tled to confer with their union representative before the investi-
gatory interview. Respondent’s attorney Oldenburg made the
following statement at the end of Sharon Davis’s testimony:

. . . we talked about the consent decree previously. A mass
mailing of Weingarten instructions approved by the NLRB
was part of that to be sent to every supervisor in the Postal
Service. And I can state that I know that is what she was refer-
ring to. It sounds like one of the usual suspects. [Tr. 477; em-
phasis added.]

Nash testified that he first received instructions in January 2005
regarding what procedure to follow if during an investigatory
interview or at the commencement of the investigatory inter-
view there is a request for the steward and the employee to
meet before going any further; that after he was deposed by the
Board in January 2005 he understood that there was a special
significance to circumstances where there was an investigatory
interview and there was a request that the employee and the
steward be permitted to meet before the interview continued;
and that he did not necessarily perceive that there would be
some special significance to whether the meeting with the
steward occurred after the interview was over or before it con-
tinued or at any particular point in time. With his testimony,
Nash contradicts the testimony of another supervisor at the
Birmingham Annex and one of the Respondent’s attorneys.
Nash was placed on notice in early 2004 that employees are
entitled to confer with their union representative before the
investigatory interview. Notwithstanding the instructions, Nash
decided that his schedule took precedence over this right and he
told employees that they could meet with the steward after the
investigatory interview. Nash lied under oath about not realiz-
ing the significance or his actions until January 2005. He had
instructions in early 2004. He refused to follow those instruc-
tions until he was deposed by the Board in January 2005. Con-
sequently, it must be concluded that Nash had notice of the
employee’s right to preinterrogation consultation with his stew-
ard in early 2004, he refused to follow the instructions, and he
lied about his refusal while under oath at the trial herein. Nash
told Callens that it was a predisciplinary interview and Nash
conducted the predisciplinary meeting after he denied the re-
quest for a preinterrogation consultation. Again, Respondent
violated the Act on or about April 14, 2004, as alleged in the
complaint.
2. William Amerson
The complaint alleges that on or about April 16, 2004, Re-
spondent, by Leon Nash, at Respondent’s Birmingham Annex
facility, by denying the request of employee William Amerson
and Mailhandlers Local 317 Steward Edward Steele to meet
POSTAL SERVICE 375
and confer prior to the commencement of the interview, denied
the request of its employee William Amerson to be represented
by Mailhandlers Local 317 during an interview; that William
Amerson had reasonable cause to believe that the April 16,
2004 interview would result in disciplinary action against him;
and that Nash conducted the interview with Amerson even
though the Respondent had denied the employee’s request for
union representation.
Amerson, who has worked for the Respondent for over 12
years and who was working at the Birmingham Annex in 2004,
testified that he was the Mailhandlers’ chief shop steward at the
Annex in 2004; that as a steward he has attended approximately
100 predisciplinary hearings; that he has attended a prediscipli-
nary hearing where he was the subject of the hearing; that he
attended two predisciplinary hearings in April 2004 at which
Edward Steele was present as his steward; that Supervisor Leon
Nash held a disciplinary hearing with him in April 2004 at the
Annex in the tour office at about 6 a.m.; that he was told by a
supervisor to report to the tour office; that Steele and Nash
were in the tour office when he arrived; that Nash said that it
was a predisciplinary hearing; that he asked Nash if he could
see his shop steward and confer with him prior to the meeting
going forward; that Nash said that he did not see any need for
that and he was going to go ahead with the meeting; that Nash
started to ask him questions with respect to his whereabouts
throughout the night; that he responded to Nash’s questions;
and that the meeting lasted about 15 minutes.
On cross-examination, Amerson testified that when Nash
told him to go to the your office Nash did not tell him why he
wanted to see him in the tour office; that he did not ask for
Steele to be present; that when he walked into the office Nash,
with Steele present, told him that he was going to give him a
predisciplinary interview; that he wanted to meet with Steele
before Nash told him what the meeting was about because
sometimes supervisors will discuss with a steward what is in-
volved prior to the predisciplinary meeting; that Nash did not
permit the preconsultation that he requested; that he did not
recall Steele saying anything when he made his request; that he
answered Nash’s questions; that no discipline issued from this
interview; that during the meeting Steel, on occasion, said that
he, Amerson, was right with respect to his answers to Nash’s
questions; and that he did not file a grievance regarding the
denial of a request to speak with a steward before the investiga-
tory interview because he was denied union time to gather in-
formation for the grievances and to prepare the grievances.
Steele testified that in April 2004 he attended an investiga-
tory interview as a steward for Amerson; that the meeting was
held upstairs in the conference room at the Annex; that he,
Nash and Amerson were present; that while he was working,
Nash came and told him that he needed to see him in the con-
ference room in 10 minutes; that Nash was in the conference
room and Amerson arrived later; that Nash told Amerson that it
was an investigatory interview and Amerson said that he
wanted to speak with his shop steward; that Nash said that he
“might let you all meet after we’re finished, but I’m going to
finish reading the charges” (Tr. 190); that Nash and Amerson
started conversing and he indicated to Amerson that he should
calm down; that he told Nash that Amerson was entitled to
meet with his steward and he was entitled to meet with Amer-
son; that Nash said, “[W]e’re going to do this my way today”
(id.); that then Amerson answered Nash’s questions about
whether Amerson was where he was supposed to be at work
when Nash was looking for him; and that the meeting lasted
about 15 or 20 minutes.
On cross-examination, Steele testified that he asked Nash to
speak with Amerson after Nash said that this is an investigatory
interview because you were missing; that Nash said that he
wanted to go ahead and finish reading the charges and he would
let them meet afterwards; that in one of his affidavits to the
Board he indicated that when Amerson came into the confer-
ence room Amerson was the one who asked Nash if he could
have a few minutes to talk to a steward; and that it could have
been Amerson who asked but he remembered asking Nash to
speak with Amerson.
Nash testified that the only investigatory interview he had
with Amerson as an employee occurred in June 2004. On cross-
examination, Nash testified that in less than five instances when
he has conducted investigatory interviews, he was satisfied with
the employee’s explanation and he did not take it further; that
he typically takes notes during an investigatory interview; that
if he requests discipline after the investigatory interview, he
uses his notes to draft the document which will be sent up and
then throws his notes away; that if he decides not to proceed
after an investigatory interview, he disposes of his notes; that
less than five times he has conducted an investigatory interview
and not referred the matter any further; that he would remember
if he conducted a predisciplinary interview in about April 2004
and decided not to refer it any further; that he recalled an occa-
sion in April 2004 noticing Amerson somewhere that did not
appear to be his workstation; that he recalled asking Amerson
about his whereabouts on that occasion; that on this occasion he
spoke with Amerson on the south dock; that he did not recall
Amerson asking to have a steward present; that Steele was not
present when he, Nash, asked Amerson questions; that from
January 2005 to the time he testified herein he attended six or
seven investigatory interviews where Amerson was the stew-
ard; that at most of those interviews Amerson asked that he and
the employee be given a chance to meet before the interview
proceeded; that he did not remember any particular instance
where Amerson did not make such a request; that from January
2005 to the time he testified herein he, Nash, attended six in-
vestigatory interviews where Steele was the steward; that on all
of those interviews Steele asked that he and the employee be
given a chance to meet before the interview proceeded; and that
he did not remember any particular instance where Steele did
not make such a request.
Analysis
In my opinion, the Respondent on or about April 16, 2004,
violated the Act as alleged in the complaint. Once again it is the
word of an employee, Amerson, and a union steward, Steele,
against the word of Nash. The problem with Nash is, as indi-
cated above, he is not a credible witness. As described above,
he lied under oath at the trial herein. The above-described tes-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
timony of Amerson and Steele is credited.11 Amerson had rea-
sonable cause to believe that the April 16, 2004 interview could
result in disciplinary action against him, and Nash conducted
the interview with Amerson even though he denied Amerson’s
request to meet with his steward before the investigatory inter-
view proceeded. Since this matter did not go beyond the inves-
tigatory interview, it is understandable that there would not be
any documentation. Also Amerson explained why no grievance
was filed. All things considered, the General Counsel has
shown by a preponderance of the evidence that Respondent
violated the Act on or about April 16, 2004, as alleged in the
complaint.
3. Tommy Jones
The complaint alleges that on or about April 21, 2004, Re-
spondent, by Diane Crenshaw, at Respondent’s Birmingham
Plant facility, by denying the request of employee Tommy
Jones and Mailhandlers Local 317 Steward Douglas Cash to
meet and confer prior to the commencement of the interview,
denied the request of its employee Tommy Jones to be repre-
sented by Mailhandlers Local 317 during an interview; that
Tommy Jones had reasonable cause to believe that the April 21,
2004 interview would result in disciplinary action against him;
and that Diane Crenshaw conducted the interview with Tommy
Jones even though the Respondent had denied the employee’s
request for union representation.
In April 2004, Douglas Randall Cash, who at the time was
chief shop steward for Mailhandlers Local 317 on tour II at
Respondent’s Birmingham Plant, attended a predisciplinary
meeting with employee Tommy Jones. Cash, who no longer
worked for the Respondent when he testified at the trial herein,
testified that as steward he attended approximately 50 discipli-
nary meetings; that the April 2004 meeting involving employee
Tommy Jones was held in the supervisors’ breakroom at the
Birmingham Plant; that he, Tommy Jones, and Supervisor
Diane Crenshaw were present at the meeting which was held
about 1 to 1:45 p.m.; that Crenshaw came to his work area and
told him that she needed him to come to the supervisors’ break-
room because she was going to issue Tommy Jones a “Pre-D”
(Tr. 32) that day; that he went to the supervisors’ breakroom;
that when he, Crenshaw, and Jones arrived at the door to the
breakroom Jones asked him what was going on; that when he
told Jones that Crenshaw had told him that she was going to
issue a Pre-D, Jones again asked him what was going on; that
he told Jones that he needed to request of Crenshaw that he and
Jones be able to have some time before they went into the Pre-
D; that Crenshaw, who was standing there, said no she would
give Jones time to see him after they got through the Pre-D;
that the three of them entered the room and sat down at a table;
that no one else was in the room; that Crenshaw started to read

11 With respect to the fact that Amerson testified that the meeting
was held in the tour office and Steele testified that the meeting was held
in the upstairs conference room, it is noted that the employee and the
union steward in the admitted Supervisor Diane Crenshaw investigatory
interview described the room in the Birmingham Plant where the meet-
ing was held in different terms (supervisor’s breakroom in the plant vis-
à-vis a computer room in the plant). It appears that different employees
can describe the same room in different terms.
off a paper that Jones was being charged with an unsafe act;
that he then told Crenshaw that Jones asked if he could meet
with him prior to us going into this Pre-D, and he asked
Crenshaw twice if she was saying that they could not meet prior
to the Pre-D; that Crenshaw replied, “No. I’m saying that you
can meet, but I’ll let you meet after the Pre-D” (Tr. 34); that he
then told Jones to ask Crenshaw if he could meet with Cash
before they went any further with the meeting; that Jones asked
Crenshaw if he could meet with Cash before they went any
further with the Pre-D; that Crenshaw said, “No. I told you that
I’m going to let you have some time with the shop steward after
the Pre-D” (id. at 35); that Crenshaw then proceeded to read the
charges alleging the unsafe operation of a tow motor; that when
she concluded reading the document she asked Jones if he
would like to give an explanation of what had happened; that he
then told Crenshaw twice that he “would like to close this meet-
ing because you have violated Mr. Jones’ Weingarten rights”
(id. at 35 and 36); that Crenshaw told him, “No, I haven’t vio-
lated his rights because you are sitting here with him” (id.); that
Crenshaw told him that he could not stop the meeting; that he
told Crenshaw that as a shop steward he could stop a meeting if
he believed that an employee’s rights were being violated; that
Crenshaw said the she started the meeting so he could not stop
it; that Crenshaw told him to get off union time and go back to
work; that he asked Crenshaw about Jones; that Crenshaw gave
Jones a direct order to stay in the breakroom with her; that he
told Crenshaw that she would be violating Jones’ rights again if
she was going to continue to talk to him about the unsafe act;
that Crenshaw told him, “Well, I’m his supervisor. I have the
right to hold him in here” (id. at 37); that he left the room and
went back to work; and that the meeting lasted about 7 minutes
at most.
On cross-examination, Cash testified that Crenshaw was
reading a precharge to Tommy Jones; that Crenshaw told Jones
that he was being charged with committing an unsafe act; that
“yes” (id. at 44) after reading “the charge” (id.) Crenshaw
asked Jones if he would like to explain; that Jones did not an-
swer this question while he, Cash, was in the room; that
Crenshaw never said, “[Y]ou’ve won, I’m stopping, I’m not
doing anything more” (id. at 46); that it was not a win or lose
situation and Crenshaw knew the rights because 2 or 3 days
prior he had a discussion with Crenshaw in front of her office
about the posting of the Weingarten rights that had been sent
down and posted in front of the office; and that that discussion
occurred prior to another predisciplinary interview with some-
one else.
Tommy Jones, who has worked for the Respondent at its
Birmingham Plant since 1982, testified that he was on tour II in
April 2004, Crenshaw was his immediate supervisor, and he
was not a member of the Mailhandlers Union; that at the time
he testified at the trial herein he was a member of the Mailhan-
dlers Union; that he attended a predisciplinary meeting in April
2004 with Crenshaw and a union representative in a computer
room in the Plant; that Crenshaw told him that she wanted to
see him to give him a predisciplinary and he asked her for a
shop steward; that Crenshaw told him that she had already ar-
ranged for Cash to meet with them; that when Cash arrived to
go into the meeting Crenshaw told him what the meeting was
POSTAL SERVICE 377
about and Cash told Crenshaw that he needed to meet with
Jones prior to the predisciplinary meeting; that Crenshaw told
Cash that the way she does it is to have the predisciplinary
meeting first and then she would allow him and Jones to meet
afterwards; that he, Crenshaw, and Cash went into the office;
that when Crenshaw started giving him the charges Cash inter-
rupted her and told her that she was violating the employee’s
right to have a shop steward meeting prior to the prediscipli-
nary meeting; that Crenshaw continued to read the charges; that
Cash again told Crenshaw that she was violating the em-
ployee’s right and he wanted to have a consultation with Jones;
that Crenshaw told Cash that he was being rude and she wanted
him to let her continue; that Cash again told Crenshaw that she
was violating Jones’s right and he wanted to have a consulta-
tion with Jones prior to the predisciplinary meeting; that
Crenshaw was reading the charges relating to running a tow
motor between machines from a paper; that Cash told
Crenshaw that she was violating Jones’s rights and the meeting
was over; that Crenshaw said that the meeting was not over
because she was the supervisor; that Cash left the room and
Crenshaw told him to be seated and not to get up and leave;
and that when Crenshaw was reading the charges and Cash was
telling her that she was violating the employee’s right, Cash
also told him not to answer any questions and so he did not.
On cross-examination, Tommy Jones testified that he was
not disciplined regarding the subject matter of this prediscipli-
nary interview; that he did not tell Crenshaw that he wanted to
meet with the steward before the predisciplinary meeting; and
that Crenshaw did not ask him any questions after Cash said the
meeting was over. Subsequently, Jones testified that after he
said that he was calling the meeting to an end, Cash got up and
left; that Crenshaw did not say anything about Cash being on
union time or going back to work; that Crenshaw then said she
would “get with” (Tr. 165) him the next day and she would
allow the shop steward to meet with them; and that the next day
he again was not allowed to meet with the shop steward prior to
the predisciplinary meeting.
Crenshaw, who is a supervisor of distribution operations at
Respondent’s Birmingham Plant, testified that on April 21,
2004, she attempted to have an investigatory interview with
Tommy Jones and the following day she did have the inter-
view; that she held the interview because she had been given
some paperwork, as Jones’s administrative supervisor, from the
maintenance department referencing Jones operating equipment
in an inappropriate manner; that she got a shop steward, Cash,
and told him that she needed him to meet her in the computer
room and he had to go on union time (designated operation
612); that she then told Jones that she needed him in the com-
puter room; that Cash asked her what it was about when he
arrived at the computer room; that she told Cash that she had
called him as a union steward for Jones; that when Jones later
arrived in the computer room Cash told Jones to ask for a shop
steward and Jones said that he wanted a shop steward; that she
told Jones that she had a shop steward there, Cash; that neither
Cash nor Jones said anything else at that time; that she at-
tempted to give Jones a predisciplinary interview; that she told
Jones that it was a predisciplinary interview and she had infor-
mation from maintenance charging him with speeding; that
Cash then said, “[Y]ou have already charged him, this meeting
is over” (Tr. 330); that she told Cash that she called the meet-
ing, it wasn’t over, Jones had a steward present, and she could
give Jones an investigatory interview; that Cash, in a loud tone,
told her that she could not ask Jones anything else; that the only
thing that Jones said during the whole interview was that he
wanted a shop steward when Cash told him to ask for a shop
steward; that Cash told Jones not to answer any questions; that
Cash told her that she could not ask any more questions since
Jones had already been charged and that the meeting was over;
that she told Cash to get off union time and go back to work
right away; that she instructed Jones to stay; that Jones was
there less than a minute after Cash left, she did not ask him any
questions, and he did not say anything to her; and that she did
not tell Jones at the end of the meeting on April 21, 2004, that
the investigatory interview would be held the following day.
On cross-examination, Crenshaw testified that she has at-
tended between 30 and 50 predisciplinary interviews as a su-
pervisor; that Cash has been the steward at some of the other
ones she has conducted; that there could have been up to four
stewards on the involved tour II on April 21, 2004; that she
would say that all Mailhandlers knew that Cash was a steward;
that she believed that Jones knew that Cash was a steward; that
Cash told Jones to ask for shop steward; that she understood
that Jones and Cash wanted to meet outside her presence; that
she did not tell Jones and Cash that she would leave the room
so that the two of them could meet or that they could leave the
room or any words to that effect; that she did see General
Counsel’s Exhibit 2, the notice about Weingarten rights posted
in the Birmingham Plant but she could not recall if she saw it
around February 18, 2004, the date on the notice; that prior to
seeing the notice she did not know that it was a part of the law
that an employee had the right to meet with his steward in ad-
vance of the investigatory interview; that it could have been
March or April 2004 when she read the notice about Weingar-
ten rights posted in the Birmingham Plant; that she was aware
that the notice changed the employee’s rights in that the em-
ployee now had the right to meet with his or her steward in
advance of the interview; that on April 21, 2004, she told Jones
that it was a predisciplinary interview; and that while she did
not have a chance on April 21, 2004, to tell Jones that he would
have an opportunity to give an explanation regarding his con-
duct, she had had predisciplinary interviews with Jones in the
past and there was no doubt that Jones understood that he
would have an opportunity to explain.
On redirect, Crenshaw testified that when Jones was told by
Cash to ask for a steward and Jones said he wanted a steward,
she did not understand that to be a request for a private meeting
between Cash and Jones.
On re-cross, Crenshaw testified that she told Jones on April
21, 2004, “[A] a later time” (Tr. 349) “[Y]ou have the opportu-
nity to speak with him [Cash]” (id.); that she told Jones that
“you and Mr. Cash can meet later” (id. at 350).
Subsequently, Crenshaw testified that the only thing she said
to Jones on April 21, 2004, after Cash left was to apologize for
what had occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
Analysis
In my opinion, the Respondent on or about April 21, 2004,
violated the Act as alleged in the complaint. Crenshaw admitted
that she told Jones that he could meet with steward Cash later,
at a later time. In other words, Crenshaw told Jones that he
could not meet with Cash in advance of the investigatory inter-
view. But, as indicated in General Counsel’s Exhibit 2 set forth
above, the law specifies, “3. An employee facing an investiga-
tory interview has the right to meet with his or her union stew-
ard in advance of the interview to prepare for the interview.”
Crenshaw did not specifically deny Cash’s testimony that
Crenshaw knew the rights because 2 or 3 days prior to the
Jones’s investigatory interview he had a discussion with
Crenshaw in front of her office about the posting of the Wein-
garten rights that had been sent down and posted in front of the
office. Crenshaw admitted that she read the notice (GC Exh. 2)
regarding an employee’s Weingarten rights, which was posted
in the Birmingham Plant, and she did not specifically deny that
she saw this notice before the Jones’s investigatory interview.
Indeed Crenshaw testified that it could have been March or
April 2004 when she saw the notice. Crenshaw was not telling
the truth when she testified that at the outset of the meeting
steward Cash told employee Jones to ask for a shop steward
and Jones said that he wanted a shop steward. What Cash said
was that he, as Jones’s union representative, wanted to have a
pre-interrogation consultation with Jones. While the above-
described notice specifies, “2. It is the employee’s obligation to
request representation of a union steward at the investigatory
interview,” it is obvious that this means that the employer is not
required to supply the steward without the employee’s request.
Here, for the sake of expediency, the Postal Service makes
arrangements in advance of the investigatory interview to have
a steward present without the employee first asking to have a
steward present. There was no need for Jones to ask for a stew-
ard. The steward was already there. As noted above, the above-
described notice also specifies, “3. An employee facing an in-
vestigatory interview has the right to meet with his or her union
steward in advance of the interview to prepare for the inter-
view.” Here, the union representative, in the presence of Jones,
asked a number of times to have a preinterrogation consultation
and Crenshaw denied the request each time. It would have been
an exercise in futility for Jones to also then ask for a preinterro-
gation consultation. Crenshaw is not testifying that she did not
grant the request because the union representative instead of the
employee made the request. Crenshaw denies that the request
was even made. An employee’s union representative, the stew-
ard, can be the one who demands preinterrogation consultation
on behalf of the employee. Climax Molybdenum Co., 227
NLRB 1189 (1977), enf. denied 584 F.2d 360 (10th Cir.
1978).12 In Climax Molybdenum Co. supra at 1190, the majority
of the Board indicated that

12 The court indicated that Weingarten requires that the employer set
investigatory interviews at such a future time and place that the em-
ployee will be provided the opportunity to consult with his representa-
tive on his own time in advance of the investigatory interview. More
specifically the court at 365 held as follows:
The employer is under no obligation to accord the employee subject to

the Union must have the right to a preinterview consultation
with the employee in order to advise him of his rights to rep-
resentation if the right is in reality to have any substance, for it
is the knowledgeable representative who as a practical matter
would be informed on such matters. Thus, since, in our view,
the right to representation includes the right to prior consulta-
tion, the denial of this right upon the Union’s request is a de-
nial of representation.

Here, Cash demanded that right and Crenshaw unlawfully de-
nied that right.13 Crenshaw told Tommy Jones that it was a
predisciplinary interview and after denying the request for a
preinterrogation consultation she attempted to continue with the
interview. Respondent violated the Act on or about April 21,
2004, as alleged in the complaint.
4. William Amerson
The complaint alleges that in or about July 2004, Respon-
dent, by Leon Nash, at Respondent’s Birmingham Annex facil-
ity, by denying the request of employee William Amerson and
Mailhandlers Local 317 Steward Byron Wesley to meet and
confer prior to the commencement of the interview, denied the
request of its employee William Amerson to be represented by
Mailhandlers Local 317 during an interview; that William Am-
erson had reasonable cause to believe that the July 2004 inter-
view would result in disciplinary action against him; and that
Nash conducted the interview with Amerson even though the

an investigatory interview with consultation with his union representa-
tives on company time if the interview date otherwise provides the
employee adequate opportunity to consult with union representatives
on his own time prior to the interview. Thus, we do believe that
Weingarten requires that the employer set investigatory interviews at
such a future time and place that the employee will be provided the
opportunity to consult with his representative in advance thereof on
his own time.
Here, Respondent did not meet that requirement. On this basis alone
the cases can be distinguished. Moreover, it is the duty of an adminis-
trative law judge to apply established Board precedent which the
United States Supreme Court has not reversed. Los Angeles New Hospi-
tal, 244 NLRB 960, 962 at fn. 4 (1979).
13 Both Cash and Jones agree that Cash told Crenshaw that he
needed to meet with Jones before they proceeded with the prediscipli-
nary meeting. As noted above, since Crenshaw said that she would not
allow them to meet before going forward with the predisciplinary meet-
ing, it would have been futile for Jones to repeat the request. Cash
believed that Jones did repeat the request. Jones testified that he did not
tell Crenshaw that he wanted to meet with the steward before the pre-
disciplinary meeting. The fact that Jones himself did not reiterate the
request is not crucial. Obviously, the gesture would have been an exer-
cise in futility. And since Crenshaw was already placed on notice by
Cash that the demand was being made and he was not going to let her
proceed while she was violating Jones’s right to a preinterrogation
consultation with his steward, whether Jones himself made the request
is, in these circumstances, meaningless. Weingarten requires that the
employee, and not the union, request that the employee be represented
at a predisciplinary meeting. Once the employee is represented, be it at
the request of the employee or at the behest of the employer with the
employee accepting the representation, Weingarten does not indicate in
circumstances such as exist here that only the employee, and not the
union representative, can request preinterrogation consultation.
POSTAL SERVICE 379
Respondent had denied the employee’s request for union repre-
sentation.
In June 2004, according to the testimony of Wesley, he at-
tended a predisciplinary meeting as a steward where Amerson
was the employee. Wesley testified that the meeting occurred in
the Birmingham Annex, in the north break area adjacent to the
maintenance cage between 7 and 7:30 a.m.; that Supervisor
Leon Nash approached him when he was clocking in about 7
a.m. and told him that Amerson would need a steward, and he
was to report to the north breakroom adjacent to the breakroom
cage for the meeting; that when he arrived at the north break-
room Nash and Amerson were already present; that he asked
Nash what the meeting was about and Nash told him that it was
attendance related; that he then asked to speak with Amerson
before they proceeded; that Nash denied his request, telling him
that it would only take a minute and he, Wesley, could talk to
Amerson afterwards; that Nash then proceeded with the inter-
view; that during this part of the conversation Amerson did not
say anything; that Nash proceeded to question Amerson about
attendance related issues and Amerson was not very forthcom-
ing; and that the meeting lasted 10 to 15 minutes.
On cross-examination, Wesley testified that it is the practice
at the Annex and the Plant that management gets the steward
before the predisciplinary meeting and then the manager gets
the employee; that Nash did not tell him that Amerson re-
quested a steward; that Amerson did not request to speak with
him in advance of the meeting; that when Nash denied his re-
quest to meet with Amerson in advance of the meeting Amer-
son did not protest; and that Amerson did not answer Nash’s
questions during the interview.
Amerson testified that he attended a predisciplinary hearing
at which Wesley attended as his steward at the end of June
2004; that Nash conducted the hearing; that the hearing, which
related to his presence at the facility, was held a little after 6
a.m. in the Annex downstairs breakroom next to the mainte-
nance cage; that Nash had told him to go to the breakroom and
wait for him; that Nash and Wesley came to the breakroom
about 5 minutes later; that Nash said that it was a prediscipli-
nary hearing; that he asked if he could talk with his shop stew-
ard, Wesley, prior to the meeting; that Nash said that “I was a
shop steward and he was tired of me and that he was going to
get me. And he didn’t see any reason for me to do that and that
he just wanted to proceed with the meeting. He didn’t have all
day” (Tr. 57); that Nash then started to ask him questions about
something that had happened 2 weeks earlier when he, Amer-
son, was a representative for somebody that had an EEO hear-
ing; that he told Nash that he had followed instructions while he
was at the EEO meeting and he answered Nash’s questions
about what he did after the EEO meeting; and that this predis-
ciplinary meeting lasted for approximately 15 minutes.
On cross-examination, Amerson testified that this meeting
involved the question of where he was in the plant after he
attended an EEO mediation session for part of a day; that
Wesley, who was his steward during this meeting, was not the
one who asked to have a consultation before the predisciplinary
meeting; that he and not Wesley made this request; that at least
to some degree he answered the questions put to him by Nash,
and Wesley would be wrong if he said that he did not answer
any questions; that one of the documents in Respondent’s Ex-
hibit 15, which are Respondent’s documents covering this inci-
dent, indicates that he refused to give a statement to Nash at the
investigatory interview on June 29, 2004, but this document is
wrong; that since on the day involved he was not scheduled to
work, he did telephone the office, and when he could not get
anyone he brought it to the attention of his manager of distribu-
tion operations (MDO) who told him to report for the EEO
mediation on June 9, 2004, as the letter he received indicated;
that he remained at work, and he did work for the remainder of
the day after the EEO mediation; that Nash was not there that
day so he worked for acting Supervisor Arthur Gunn; that dur-
ing the investigatory interview Nash read the charges and then
asked him questions; and that no grievance was filed over the
discipline he received.
Nash testified that he has never told Amerson that this is just
an investigatory interview, you don’t need to consult with any-
body because it is just an interview; that he never told Amerson
that he did not need a steward, he was a steward himself, and he
did not need representation; that this investigatory interview
was occasioned by the fact that Amerson came to the facility on
his day off for a mediation, and when the mediation ended Am-
erson stayed in the facility; that he asked Amerson where he
worked after the mediation ended and Amerson told him that he
worked with Larry Jones; that he checked with Larry Jones
who said that he did not work with Amerson but maybe Amer-
son worked with Jackie Hill; that he checked with Hill who told
him that Amerson did not work with her; that he spoke with the
MDO who told him to do an investigatory interview; that he
did not believe that Edward Steele was there that morning as a
tour I union steward so he had Byron Wesley, a tour II steward
attend the investigatory interview as Amerson’s steward; that
the investigatory interview occurred on June 18 or 19, 2004;
that Respondent’s Exhibit 15 contains the no-time-off suspen-
sion (no loss of pay) in lieu of 7-day suspension, the adminis-
trative request form dated “6/29/04,” the investigatory inter-
view form dated “6/29/04” concurred in by MDO Rowland
Simmons, time and attendance information, excerpts from the
involved collective-bargaining agreement and the interpretation
manual, typed statements from Larry Jones and Jaclynn Hill,
and other documents he included; that he gave the documents
to the MDO; that he got Wesley before he got Amerson since it
is his practice to get the steward before he gets the employee;
that neither Amerson not Wesley asked him for the two of them
to be allowed to talk before the investigatory interview was
conducted; that if such a request had been made he would have
granted it; that during the investigatory interview he asked Am-
erson questions regarding the information he had gathered; that
he asked Amerson if he had a statement and Amerson did not
give one; and that he then told Amerson to go back to work.
On cross-examination, Nash testified that from time to time
when he is preparing to conduct an investigatory interview
either the employee or the steward asks to meet before the in-
terview goes forward; that usually when such a request is made
he permits the steward and the employee to meet before pro-
ceeding with the interview; that there was an instance in 2004
when there was a request for the steward and the employee to
meet before the investigatory interview proceeded and he did
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
not permit it; and that Amerson was the union steward in that
situation but he could not remember who the employee was.
Subsequently, Nash testified that he denied steward Amer-
son’s request to meet with an employee before proceeding with
the investigatory interview because

I was pressed for time that morning and that is all I can re-
member. I was pressed for time.
I needed—I had a short period of time in which to do it
and that is the reason I gave him . . . that I cannot let you
do that right now, I am pressed for time and so I went on
and moved on with the investigative interview. [Tr. 401.]

Nash then gave the following testimony:

JUDGE WEST: Okay. So in other words, your schedule
would trump that right?
THE WITNESS: At the time, I was unaware of the rights,
sir.
JUDGE WEST: Oh, you were unaware of the right at the
time?
THE WITNESS: Yes sir. If I had of known, than I never
would have done it. I would have allowed them to have
that time. [Id. at 401 and 402.]

On redirect, Nash testified that in the situation where he de-
nied steward Amerson’s request to meet with an employee
before proceeding with the investigatory interview, he, Nash,
subsequently stopped the investigatory interview and left the
room when Amerson asked to discuss with the employee

either something personal or something that involved medical
leave. But anyway it was something that they wanted to—the
Union steward wanted to find out without me being present.
Perhaps it was something I should not know about at
the time. I can’t remember. But they asked me if I would
excuse myself and I said yes. And I stepped outside.
. . . .
. . . and once again it was something either about annual or
end-of-the month leave that they wanted to discuss, so they
asked me if they could discuss it in private, so I left the room.
[Tr. 402–404.]

On recross, Nash testified that he believed there were other
instances, or at least another instance, during 2004 where there
was a request that the employee and the steward meet before
the investigative interview proceeded and he granted that re-
quest.
Analysis
In my opinion, it has been shown that the Respondent in or
about July 2004 violated the Act as alleged in the complaint.
Nash does not deny that this investigatory interview occurred.
There is documentation which refers to this investigatory inter-
view. Nash does deny that either Amerson or Wesley asked him
for the two of them to be allowed to talk before the investiga-
tory interview was conducted. And Nash goes on to assert that
if such a request had been made he would have granted it.
Why? At one point Nash incredibly claims that before January
2005 he did not understand or he did not necessarily perceive
that there was some special significance regarding the right of
employees to meet with their steward in advance of the investi-
gatory interview to prepare for the interview. At another point
Nash in effect testified that in 2004 his scheduled trumped an
employee’s Weingarten right when he denied steward Amer-
son’s request for a preinterrogation consultation because at the
time he was unaware of the right. Nash is not a credible wit-
ness. As indicated in the notice dated “2/18/04” (GC Exh. 2),
“[i]t is the employee’s obligation to request representation of a
union steward at the investigatory interview.” Here, Nash sup-
plied the union representative without the employee asking for
a union representative. But this does not relieve Respondent of
its obligation to allow a preinterrogation consultation between
the employee and the union representative. As indicated in the
notice dated “2/19/04,”[a]n employee facing an investigatory
interview has the right to meet with his or her union steward in
advance of the interview to prepare for the interview.” (Empha-
sis in original.) Here, Nash should have accorded employee
Amerson the opportunity to meet with union representative
Wesley before proceeding with the investigatory interview.
While the notice indicates that it is the employee’s obligation to
ask for a union representative at the investigatory interview, the
notice does not indicate that it is the employee’s obligation to
ask for a preinterrogation consultation with his or her steward.
Rather once the union representative is there, according to the
plain meaning of the notice, the employee “has the right to
meet with his or her union steward in advance of the interview
to prepare for the interview.” As noted above, the Board in
Climax Molybdenum Co., 227 NLRB 1189 (1977), upheld the
right of preinterrogation consultation even when asked for by
the union representative and not the employee. Also, as noted
above, in reviewing that decision the United States Court of
Appeals for the Tenth Circuit, while it did not agree with the
Board in that instance because the employees involved had 17.5
hours to consult with their union representative before the in-
vestigatory interview and they chose not to, held at 584 F.2d
360, 365 (10th Cir. 1978), that

The employer is under no obligation to accord the em-
ployee subject to an investigatory interview with consulta-
tion with his union representatives on companytime if the
interview date otherwise provides the employee adequate
opportunity to consult with union representatives on his
own time prior to the interview. Thus, we do believe that
Weingarten requires that the employer set investigatory in-
terviews at such a future time and place that the employee
will be provided the opportunity to consult with his repre-
sentative in advance thereof on his own time.

In 1988, the Board in Postal Service, 288 NLRB 864 (1988),
held that if the employer insists that the interview take place
immediately it must permit the employee and his or her union
representative to confer in private in advance. This has been the
law for many years and it was specifically addressed in a
United States Postal Service case. Nash did not accord Amer-
son this right. It is highly unlikely that Amerson, a steward who
is experienced with respect to Weingarten rights, a steward who
participated in the discussions which stewards held regarding
General Counsel’s Exhibit 2 when it was posted, and a steward
who Nash testified asked in 2004 for preinterrogation consulta-
tion which Nash denied, would not have asked for preinterroga-
POSTAL SERVICE 381
tion consultation when he was the employee involved. I credit
his testimony that he did ask for the preinterrogation consulta-
tion. But even if one credits Wesley, who was Amerson’s union
representative at more than one investigatory interview and
therefore (notwithstanding being shown company documents
regarding this investigatory interview) might be mistaken with
respect to whether Amerson asked for the preinterrogation con-
sultation in this instance, under Board law the union representa-
tive can be the one who asks for the preinterrogation consulta-
tion. This would apply especially when the Respondent does
not give the employee any of his own time before the investiga-
tory interview to consult with his union representative. It is
obvious that Respondent’s involved Alabama supervisors
viewed employees’ Weingarten rights as a nuisance; something
that was taking up the supervisors time when they could be
doing something more important. That is why those supervisors
themselves made arrangements for a union representative to be
present before the involved employee even asked for the union
representative. In taking the approach they did, these supervi-
sors were not going to delay the investigatory interview to al-
low the employee to consult with his union representative.
Nash told Amerson that it was a predisciplinary interview, and
Nash conducted the interview after he denied the request for a
preinterrogation consultation. Respondent violated the Act as
alleged in the complaint.
5. Tyrone Hendrix
The complaint alleges that on or about August 11, 2004, Re-
spondent, by Sharon Davis, at Respondent’s Birmingham An-
nex facility, by denying the request of employee Tyrone
Hendrix and Mailhandlers Local 317 Steward William Amer-
son to meet and confer prior to the commencement of the inter-
view, denied the request of its employee Tyrone Hendrix to be
represented by Mailhandlers Local 317 during an interview;
that Tyrone Hendrix had reasonable cause to believe that the
August 11, 2004 interview would result in disciplinary action
against him; and that Sharon Davis conducted the interview
with Tyrone Hendrix even though the Respondent had denied
the employee’s request for union representation.
Amerson testified that in August 2004 he attended, as a
steward, a predisciplinary meeting involving employee
Hendrix; that the supervisor involved was Sharon Davis and the
meeting was held in the Birmingham Annex tour office at about
6 a.m.; that Davis requested that he go to the tour office; that
he, Davis, and Hendrix were present; that Davis said that it was
a predisciplinary meeting; that Hendrix then asked to speak
with the shop steward, Amerson, before the meeting occurred;
that Davis said that “she didn’t have all day, and she was going
to go ahead with the meeting anyway” (Tr. 60); that he told
Davis that they should do it right, he should be able to meet
with Hendrix, and he had not clocked out for union time; that
Davis proceeded with the meeting asking Hendrix questions,
and Hendrix replied to the questions; and that the meeting
lasted 15 to 20 minutes.
On cross-examination, Amerson testified that Hendrix was at
the door to the tour office when he arrived; that page 3 of Re-
spondent’s Exhibit 13 is correct where it indicates that “I
[Davis] asked the employee if he had anything to say. He said
he had nothing to say, that he would wait until it came back
from Labor”; that he remembers this being said “[t]o a degree”
(Tr. 116) or “something similar to that” (Id. at 122); that he had
no basis to dispute the assertion that no grievance was filed
over this discipline; and that at this point in time labor charges
were filed because he could not interview, he could not investi-
gate to work up the grievance because he was not given union
time.
On redirect, Amerson testified that during 2004 the Union
was experiencing frustration with the grievance procedure both
at the Annex and at the Plant in that supervisors would not
allow union time, they would not meet with stewards, and they
would not give requested information14; that Art Hill, who is a
manager of distribution operations (MDO) on tour III, told him
in 2004 at the Annex that if the Union “wanted to file griev-
ances, I’ll show [you] how to fight. He is sick of us filing
grievances or wanting union time” (Tr. 147); and that the Union
has filed an unfair labor practice charge regarding Hill’s state-
ments. On recross, Amerson testified that his time and atten-
dance reports for week 1 through week 25 of 2004 reflect union
time.
Hendrix, who has worked for the Respondent for about 12
years and who is a member of the Mailhandlers Union, testified
that in 2004 he worked at Respondent’s Birmingham Annex;
that he attended a predisciplinary interview in the tour office
with his supervisor, Sharon Davis, in August 2004 where sleep-
ing at the facility was discussed; that Amerson attended the
meeting; that Amerson got him from his work area and told him
that Davis wanted to see them in the office; that when Davis
arrived she told them that it was an investigatory interview and
Davis started reading the charge which dealt with sleeping in
the breakroom beyond his lunchbreak; that when he heard the
charge he told Davis that he needed to see Amerson to talk
about this, and he did not even know that this was what he
came to the office for; that Davis denied his request and told
him that they were going to go on and he could talk with Amer-
son afterwards; that Davis indicated that Simmons woke him up
in the breakroom and she asked him if he had anything to say;
that he did not say anything; that the meeting lasted about 30
minutes; and that another issue was coming in early but they
did not get into that because he filed a labor charge against
Davis about that.

14 GC Exh. 4 is a Board complaint in Case 10–CA–34454, dated
September 29, 2003, which alleges, among other things, that since
February 2003, the United States Postal Service has denied union time
to Amerson. Counsel for the General Counsel stated that this exhibit
and another exhibit, GC Exh. 5, corroborate certain testimony by wit-
nesses concerning their motivation for filing Board charges and not
filing grievances regarding some of the actions that are the subject of
the hearing; and that the complaints are pending, they have not gone to
hearing, and they have not yet been litigated. GC Exh. 5 is a complaint
in Case 10–CA–34620(P), dated November 25, 2003, which alleges,
among other things, that on or about September 13, 2003, the United
States Postal Service assigned more onerous working conditions to its
employee Steele because he engaged in union activities and concerted
activities for mutual aid and protection. As noted herein, Steele is a
union steward.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
On cross-examination, Hendrix testified that when Amerson
got him he asked Amerson what Davis wanted to see him for;
that he did not believe that this meeting occurred on the same
day that he overslept; that when Davis told him what they were
back there for he asked her to speak with Amerson before pro-
ceeding; that if he is not allowed to meet with the steward be-
fore the investigatory interview, he does not normally respond
to questions; that as soon as he found out what the meeting was
about he asked to speak to the steward; that he did oversleep
and, therefore, came back late from his lunchbreak; that to him
it was not a big deal because people came back from lunch late
all the time; and that he could not recall if the investigatory
interview, as indicated in Respondent’s Exhibit 13, was held on
July 24, 2004.
Supervisor Sharon Davis testified that in 2004 she gave
Hendrix an investigatory interview at the Birmingham Annex;
that a manager asked her where Hendrix was when he did not
return from lunch; that the investigatory interview was occa-
sioned by (a) what a boss had written out regarding what he had
observed when Hendrix was not in his work location, and (b)
what she found out upon her investigation of that, namely that
Hendrix had come in early without authorization; that Respon-
dent’s Exhibit 13 contains documents she typically fills out for
investigatory interviews; that she first told steward Amerson
that he should go to a specified area in the office; that she then
went to Hendrix and told him that she needed him to go to the
same area; that she arrived at the room shortly after Hendrix
and Amerson arrived; that she told them that it was an investi-
gatory interview and corrective actions could follow the meet-
ing; that she then began to read what she was investigating
from the form in Respondent’s Exhibit 13; that at no time did
Hendrix ask to have a steward; that Amerson asked what was
she requesting and she told him that it would be sent to labor
and she was requesting a seven day; that she asked Hendrix if
he had anything to say about the charges and he replied that he
would wait until it came back from labor; that Hendrix did not
reply when she asked him about whether anyone had authorized
him to come in early; that she finished conducting her inter-
view, Hendrix and Amerson were getting ready to leave, and
Hendrix asked who was requesting the discipline; that she told
him that she was requesting the discipline; that Hendrix said
that he just wanted to know who he would be filing his EEO
on; that Hendrix motioned, she thought, to tell Amerson that he
wanted to talk to him; that she was going to leave the office and
let them confer but Amerson motioned Hendrix to go on and
Amerson stayed in the office with her; that Amerson then asked
her when he could have his day of mourning for the passing of
former President Reagan; that she left the office and Amerson
let Hendrix know that he would talk to him then; that before
she started her investigatory interview Hendrix did not ask to
talk with Amerson; that before she started her investigatory
interview Amerson did not ask to talk with Hendrix; that during
the interview neither one requested to be able to speak in pri-
vate; that she signed page “6 of 7” of the administrative action
request form in Respondent’s Exhibit 13; and that all but the
last page of Respondent’s Exhibit 13 are documents she sent up
with the administrative action request, and the last page is the
suspension letter which was issued to Hendrix.15
On cross-examination, Davis testified that during the inves-
tigatory interview Hendrix did not ask her for the opportunity
to meet with Amerson but at the end of the interview Hendrix
motioned to Amerson that he would like to speak with him; that
she gave a deposition to the Board in February 2005; that she
did not recall Hendrix actually saying that he wanted to speak
with Amerson; that at lines 18 through 22 on page 23 of the
transcript of her deposition (GC Exh. 8), it is indicated that she
testified, “And he asked to speak to Mr. Amerson and I was
getting ready to leave out of the room and Mr. Amerson said
that was okay. He stayed in and talked for an additional period
of time” (Tr. 461); that the “he asked” in the above-described
portion of the deposition refers to Hendrix; that she read the
description of the incident on page 1 of Respondent’s Exhibit
13 to Hendrix at the investigatory interview; that she then asked
Hendrix if he had any explanation; that Hendrix did not at that
point in time ask to speak with Amerson; that Hendrix asked to
speak with Amerson at “the end of the meeting” (Id. at 462);
that she did not recall if Amerson asked what disciplinary level
she was requesting before or after she received any response
from Hendrix about the events; that she did not recall seeing
General Counsel’s Exhibit 2, the notice, posted at the Birming-
ham Annex in the time period of February to March 2004; that
she had seen General Counsel’s Exhibit 2 a little more than a
year before she testified at the trial herein on March 23, 2006;
that she did look at the notice received herein as General Coun-
sel’s Exhibit 2 in connection with her deposition in about Feb-
ruary 2005; that she could not recall when she saw the notice
before that but she had heard of it; that she has conducted be-
tween 15 and 25 predisciplinary interviews in the 3 years she
has been a supervisor for the Respondent; that during almost all
of the investigatory interviews she has attended she has re-
ceived a request that the employee and the steward be permitted
to meet before the investigatory interview continued; that there
was no request for an opportunity to meet with the steward
before the interview continued in the interview of Hendrix with
steward Amerson present; that such request occurred at the end
of the interview; that usually the request to talk is made before
the interview begins; that she could not recall if Amerson was
the steward at any of the other investigatory interviews she
conducted; that Steele has been the steward at three to five
investigatory interviews that she has conducted in 2004 to early
2005 where there was a request that the employee and the stew-
ard be permitted to meet before the interview continued; that
she has a steward at the investigatory interview and she gives
them a few minutes before she goes in; and that she tells them
what it is about and then they talk, and then she goes in and
does her investigatory interview; and that she does it for her
protection, she has a shop steward available when she talks to
someone.

15 P. 2 of R. Exh. 13 indicates that investigatory interview occurred
on “07–24–04.” The last page of R. Exh. 13 indicates that Hendrix
received a no-time-off suspension, which for purposes of progressive
discipline, is treated the same as a time-off suspension.
POSTAL SERVICE 383
Subsequently, Davis testified that when the employee and
the steward are in the room together she asks them “if they
would like to talk first before I begin” (Tr. 472 and 473); that
she started doing this since she has been at the Annex; and that
she has been at the Annex for 3 years. Davis then gave the fol-
lowing testimony:

JUDGE WEST: Okay. In allowing the employee and the
shop steward to have this pre-investigative consultation,
were you relying on any documents which indicated that
that was a right that they had or were you just doing this
because you felt this was the right approach?
THE WITNESS: Both. That it was a right of theirs and I
knew that if they needed to talk first, they had . . . [that]
right.
JUDGE WEST: So it was a right of theirs? You were put
on notice at some point in time that they had this right?
THE WITNESS: Yes, sir.
JUDGE WEST: Do you remember when you were put on
notice that they had this right?
THE WITNESS: I am not quite sure.
JUDGE WEST: In terms of the year?
THE WITNESS: It was over a year or a couple of years
or so.
JUDGE WEST: A couple of years?
THE WITNESS: Yes, sir.
JUDGE WEST: Do you remember how you were put on
notice?
. . . .
THE WITNESS: Well, we received information via email
and we also received information in the mail.
JUDGE WEST: And who did you receive [this] informa-
tion from?
THE WITNESS: From Washington or wherever they sent
out the brochure. I am not sure where but I received some-
thing in the mail and email.
JUDGE WEST: And what did the information tell you?
. . . .
THE WITNESS: It talked about the Weingarten rights,
that employees are—what their rights are and what my re-
sponsibilities were in regards to it.
JUDGE WEST: With respect to employees’ rights, what
did it—what did they indicate?
THE WITNESS: It indicated that the employee has a
right for representation if there is a chance—if I am going
to talk to them and there is a chance that discipline could
occur from talking to me, from the talk, and they are re-
quired—well, they should have representation. They are
entitled to that. And they should have time to confer if
they need to.
Judge West: Before—
The Witness: Before.
JUDGE WEST: —the investigative interview?
THE WITNESS: Yes, sir. [Tr. 473–475.]

On recross, Davis testified that she knew that it is best to of-
fer a preconsultation, the opportunity for an employee and a
steward to consult before the investigatory interview continues,
before her deposition was taken.
One of the attorneys representing Respondent, Oldenburg,
made the following statement at the end of Davis’s testimony:

. . . we talked about the consent decree previously. A mass
mailing of Weingarten instructions approved by the NLRB
was part of that to be sent to every supervisor in the Postal
Service. And I can state that I know that is what she was refer-
ring to. It sounds like one of the usual suspects. [Tr. 477.]
Analysis
In my opinion, the General Counsel has demonstrated that
the Respondent on or about August 11, 2004, violated the Act
as alleged in the complaint. Steward Amerson and employee
Hendrix agree that after Supervisor Davis said that it was a
predisciplinary meeting, Hendrix asked to speak with Amerson
before going forward with the meeting, and Davis denied the
request. Davis testified that Hendrix said only that he had noth-
ing to say and he would wait until the matter came back from
Labor. Hendrix, in effect, agreed with this in that he testified he
did not say anything and if he is not allowed to meet with the
steward before the investigatory interview, he does not nor-
mally respond to questions. When she testified at the trial
herein on March 23, 2006, Davis testified that she had been at
the Birmingham Annex for 3 years and for these 3 years she
has asked the employee and the steward if they would like to
talk first before she began the interview. Davis never specifi-
cally testified that she did this in the matter at hand; Davis
never testified that she asked employee Hendrix and steward
Amerson if they would like to talk first before she begin the
interview. The reason she did not follow her alleged normal
routine is that before she could ask the question Hendrix asked
to speak with Amerson. But Davis denied Hendrix’s request
notwithstanding the fact that she testified that since about
March 2004 she was aware of the employee’s right to a prein-
terrogation consultation with his steward. The record does not
provide the answer to why Davis denied the request for a prein-
terrogation consultation between the employee and his steward.
Perhaps like Nash, Davis was pressed for time on this occasion
and she decided that her schedule trumped the employee’s in-
volved right. Perhaps it had something to do with the personali-
ties involved. It does not really matter. What matters is that
Davis violated the Act in denying Hendrix the right to a prein-
terrogation consultation with his steward after she declared that
it was an investigatory interview and then proceeded with the
investigatory interview. Respondent violated the Act as alleged
in the complaint.
6. Edward Steele
The complaint alleges that on or about October 26, 2004,
Respondent, by Paula Brown, at Respondent’s Birmingham
Annex facility, by denying the request of employee Edward
Steele and Mailhandlers Local 317 Steward William Amerson
to meet and confer prior to the commencement of the interview,
denied the request of its employee Edward Steele to be repre-
sented by Mailhandlers Local 317 during an interview; that
Edward Steele had reasonable cause to believe that the October
26, 2004 interview would result in disciplinary action against
him; and that Paula Brown conducted the interview with Ed-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
ward Steele even though the Respondent had denied the em-
ployee’s request for union representation.
In October 2004, Amerson attended a predisciplinary hearing
as steward where Steele was the involved employee. Amerson
testified that the involved supervisor was Paula Brown; that the
meeting was held in MDO Hill’s office in the Annex; that he,
Brown, Steele, and Lois Embry, who was an acting supervisor,
were present; that Brown said that she was going to give Steele
a predisciplinary hearing; that at that point Steele asked to talk
with the shop steward before the meeting happened; that Brown
said that “this was just basically a predisciplinary hearing and
she needed to [go] ahead with the interview” (Tr. 63); that
Brown then started to read the charges against Steele and he
was contradicting what she was saying; that they discussed
Steele being in a particular work area and talking with the em-
ployees in that area at that time; that Steele said that he was in
the area in question because he was doing his required nightly
safety inspection, when he noticed a violation he questioned the
people in the area, Embry approached him, they had an ex-
change, and then Brown got involved; and that the meeting
lasted about 15 minutes.
On cross-examination, Amerson testified that when Brown
first approached him she did not tell him that Steele asked for a
union steward; that Brown asked him if he was the chief shop
steward, and when he responded yes she told him to park his
forklift and meet her in Hill’s office; that he asked her what it
was about and Brown told him that she needed to see him about
Steele; that when he again asked what it was about Brown told
him to go to MDO Hill’s office; that since Brown is not his
supervisor and is on another tour, he went to see his MDO,
Rawland Simmons, about taking union time; that this occurred
shortly after 11 p.m. during the overlap of tours; that he had
clocked in at 11 p.m.; that he found Simmons with Hill, and
Hill gave him a direct order to go upstairs. (According to p. 3 of
R. Exh. 14, Hill ordered him “to take his ass upstairs right now
and to shut his mouth.”)16; that it was his understanding that
Hill told him to be silent and do nothing; that he did not indi-
cate in the grievance that Steele asked for a preinterview or that
he asked to speak with Steele first; that Steele was the one who
requested that he be able to discuss the matter with his steward
before the predisciplinary meeting; that in his affidavit to the
Board he indicates that he was the one who requested the con-
sultation with Steele before the predisciplinary interview; that
when he first went into the room Steele requested the consulta-
tion with his steward before the predisciplinary meeting; that
this is not indicated in his affidavit; that he himself later re-
quested to speak with Steele before the predisciplinary meeting

16 According to the grievance, “Amerson thus was not allowed offi-
cial Union Time nor was he allowed to a pre-conference, or to assist
and represent Mr. Steele [but rather] . . . Amerson . . . was merely an
observer.” The grievance does not indicate that Amerson asked Brown
to consult with Steele before the investigatory interview proceeded. The
grievance does not indicate that Steele asked Brown to be allowed to
meet with Amerson before the investigatory interview proceeded. In-
deed what the grievance indicates is that “Mr. Steele’s WEINGARTEN
RIGHTS were violated. SHOP STEWARD WILLIAM AMERSON
WAS GIVEN A DIRECT ORDER BY TOUR III MDO ART HILL to
take his ass up stairs right now and to shut his mouth.”
began; and that at the time the request for preconsultation was
made, Brown had not yet explained what she wanted to talk
about.
Steele testified that in October 2004 he was shop steward
and safety captain of tour I at the Birmingham Annex; that
MDO Rawland Simmons, who was the MDO of the tour held a
meeting at 11 p.m. every night, and pursuant to Simmons’s
instructions he conducted a safety inspection of the building
every night since September 2004; that the inspection, which
was the first thing he did when he “hit the floor” (Tr. 195) took
about 15 to 20 minutes; that one night in October 2004 when he
started his inspection tour with his inspection sheet he noticed
clerk Ray Seay strapping mail, which is a Mailhandler’s job;
that Seay asked him if he was going to file and get paid and he
told Seay that he was; that he and Seay were laughing and an-
other clerk, Joe Williams, said that Mailhandlers were just lazy,
they do not want to work, but they always file and get paid for
the Mailhandler jobs done by clerks; that he told Williams that
Mailhandlers did not want clerks to do the Mailhandlers job,
and clerks have to do what management tells them to do; that
Acting Supervisor Embry came over and asked him what was
he supposed to be doing; that he informed Embry that he was
doing his safety inspection, and he, Seay, and Williams were
just having a conversation; that Williams was still kind of get-
ting loud, he told Seay that he would talk with him later, and he
went back to doing his safety inspection; that he was on the
small parcel bar code sorter machine side of the building mov-
ing stuff which blocked access to a fire extinguisher when
Paula Brown, who is the supervisor of distribution operations
(SDO), approached him and told him that she needed to see
him upstairs in MDO Hill’s office; that Embry was in the office
when he arrived with Brown; that when Brown said that she
was doing an investigatory interview he told her that he wanted
to see a shop steward; that Brown said that she would get one
and she left the room; that subsequently Amerson came into the
room with Brown, and Amerson was telling Brown that she had
not even given him time to clock in on union time; that Brown
told Amerson that they would handle that later; that when
Brown then said that she wanted to read the charges, he told
Brown that he needed to speak with Amerson; that Brown said,
“[N]o, I’m going to go ahead and read these charges. And you
all can meet afterwards” (Tr. 200); that Brown told him that he
was being charged with conduct unbecoming a postal em-
ployee; that he “asked her how was a postal employee supposed
to act? I said because if I act like a postal employee, then I
might need to pull out a gun and start shooting” (id.), and he
started laughing; that Brown said that was what she was talking
about “[y]ou’re not acting as a becoming postal employee”
(id.); that Brown then read the charges and then she asked for
his response; that he told Brown that he did not “see how she
could come up with those charges, but it’s the Post Office, and
you all are going to do what you want to do anyway” (id. at
201); that when he asked to speak with Amerson Brown said
after she finished reading the charges, Amerson said, “[N]o, I
need to speak with him” (id. at 202); that Brown then said,
“[A]fter I finish reading the charges, you all can meet” (id.);
that at the conclusion of the meeting Brown said, “[Y]ou all can
go back to work” (id.); and that this led him to conclude that he
POSTAL SERVICE 385
and Amerson were not allowed to meet after she read the
charges and he believed that Brown said, “[Y]ou all can do this
some other time” (id.) when Amerson asked to speak with him.
On cross-examination, Steele testified that when Amerson
arrived Brown again said that this is an investigatory interview;
that he then said that he wanted to meet with Amerson; that
Brown said that they could do it later; that he was not sure if
Brown said again that this is an investigatory interview when
he asked to speak to Amerson; that he made the first request to
speak with Amerson and Amerson then requested to speak with
him; that Amerson made his request when Brown started to
read the charges, telling her that when a shop steward is present
and the steward says he needs to meet with the employee, the
supervisor is supposed to leave the room; that Brown said that
she wanted to finish with it and he and Amerson could meet
later; that after Brown finished, she told them to go back to
work; and that after she finished reading the charges she asked
him if he had anything to say and he gave his explanation.
Embry, who is a mail processor and a member of the Ameri-
can Postal Workers Union, testified that she served as an acting
supervisor in October 2004; that she attended an investigatory
interview of Steele in October 2004 in MDO Hill’s office in the
Annex; that earlier she had been supervising the 1000 area; that
she had two tour I clerks come in and work on priority class
mail that day; that the two clerks had to get the mail on the
truck so that it could be dispatched by midnight; that the two
clerks were strapping the lids on, which is supposed to be
Mailhandlers’ work but she was short of Mailhandlers so she
had to use what she had to get the mail out; that Steele had
some words with Williams who was doing the strapping and it
became loud; that she walked upon the scene and asked Steele
why he was in her work area disrupting her employees; that
Steele told her that he was watching them cross craft so that the
Mailhandlers can get paid for clerks doing a Mailhandler’s job;
that she asked Steele to leave and let them finish their work so
that they would not miss dispatch; that after Steele left she ra-
dioed Hill and asked him to come to her operation; that she told
Hill about Steele talking about filing a grievance, disrupting
William’s work, keeping Williams from doing his job, and
possibly causing them to miss the dispatch; that Hill radioed
Brown and told her to come and give Steele a predisciplinary;
that she and Brown met with Hill, who told Brown to take
Steele to his office with her and Amerson, tell Steele the
charges, and see what Steele had to say; that she and Steele
stood at the base of the stairs to Hill’s office about 10 minutes
and Steele said nothing; that when Brown and Amerson arrived
at the bottom of the stairs all four of them walked up the stairs
to Hill’s office; that when they were in Hill’s office Brown
began to outline to Steele why she had him up there; that
Brown asked Steele why he was there and Steele “just went to
screaming over her and saying that he didn’t have no business
there and it was just a loud commotion and she kept trying to
talk and he was talking” (Tr. 306); that when Brown asked
Steele to let her speak he told her, “[Y]ou called this meeting
but I’m running it” (id.); that before Brown explained why
Steele was there, she, Embry, did not hear Steele request to
meet with Amerson first; that when Brown began trying to
explain, Steele did not request to meet privately with Amerson;
and that Steele said that he was a shop steward and knew what
his rights were and that he was the safety captain and he was
instructed by his MDO to come in and survey the floor when he
walked into the building; that Brown then

told him [Steele] that that is not so, when you come in, you
are on Tour III, you do what Tour III tells you to do and you
do your survey on Tour I time when Mr. Barrow takes over,
not on our time. You come in and do what we tell you to do.
[Tr. 308.]

Embry further testified that Steele then said that he was tired of
this and he asked Brown if she was finished; that when Brown
said yes, Steele went out the door first; that at no time did
Steele make any request to meet privately with Amerson; that
the entire time Amerson was in her presence he did not say a
word; that she and Amerson were silent; that at the conclusion
of the meeting she heard a click and Amerson had something in
his left pocket and she thought it was tape recorder because he
picked it up, clicked it, and dropped it back in his pocket.
On cross-examination, Embry testified that Seay was work-
ing in the same location as Williams on the night in question in
October 2004; that Steele and Williams were having a raucous
discussion and Williams had stopped doing his work because
they were having this confrontation about strapping; that Seay
continued to do his job; that Williams told Steele, “[L]ook,
man, I am trying to do my job, we were told to do this, we got
to get this dispatch out, will you get out of the way” (Tr. 311);
that Steele was standing in front of Williams hindering produc-
tion; that it was difficult for her to follow what was being said
by Brown and Steele; that she gathered from what Steele was
saying that he was trying to bring the meeting to a stop; that
when they got together Steele did not request of either Brown
or her that he be allowed to see Amerson; that she did see Gen-
eral Counsel’s Exhibit 2 on the bulletin board at the Birming-
ham Annex and she read it in its entirety; that she had seen it
around or before the timeframe of the meeting with Steele in
Hill’s office; that she “stepped down” (id. at 316) from being
an acting supervisor in June 2005; and that in Hill’s office
Brown told Steele that he was charged with17

[d]isrupting a work area, being out of his work area when he
hit the clock, actually loitering. When you come in and hit the
clock, you are supposed to start doing whatever your assign-
ment is, not just walk around the building until our Tour is
over and then start your work. [Id.]

Embry further testified that the meeting with Steele in Hill’s
office lasted 15 to 20 minutes; that Steele was talking the whole

17 Brown’s notice of the 7-day suspension to Steele, p. 2 of R. Exh.
14, indicates that he was charged with the following:
Your actions are contrary to the Employee and Labor Rela-
tions Manual, which states in part as follows:
ELM 666.1—Employees are expected to discharge their as-
signed duties conscientiously and effectively.
ELM 666.5—Employees must obey the instructions of their
supervisors.
ELM 666.2—Employees are expected to maintain satisfac-
tory personal habits so as not to be obnoxious or offensive to
other persons or to create unpleasant working conditions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
time because he was screaming over Brown and wasn’t listen-
ing to Brown; that it was her understanding that Steele was
trying to get the meeting to come to a halt at that point; that
Steele talked in her presence for approximately 15 minutes; that
everything she remembered Steele saying during his meeting
with Brown is as follows:

The first thing that came out of his [Steele’s] mouth
was, you called this meeting, but I am in control of this
meeting. And he went from there to, I haven’t done any-
thing wrong; I am doing what my MDO told me to do;
they were crossing crafts and I am—was standing there to
represent my Union because I am a shop steward, and I
want to get Mailhandlers’ pay for them crossing crafts,
and I have no reason to be up here; I don’t know why you
brought me up here.
And he was just loud, I mean, very loud.

. . . .

He—really wasn’t saying anything but repeating the
same thing over and over again, like I said, to try to in-
timidate Ms. Brown.
. . . .
He never made any statement that was forthcoming for
his rights particularly. He never did. He was really flexing
his power as a shop steward himself. He was acting on his
own behalf is what he really was doing.
. . . .
I recall basically everything that he said. I never have a
problem remembering what I hear. I might not remember
what I read all the time but anything I heard I never forget.
. . . .
I was more listening to him instead of Ms. Brown be-
cause, like I said, you couldn’t help but hear him because
he was standing right there screaming in my ear. [Tr. 317–
319.]

Embry further testified that when Williams and Steele were
talking loudly with each other on the floor they would not listen
to her and she finally had to get between them, tell Williams to
go back to work and tell Steele to leave the area; that Williams
went back to work but she had to tell Steele that she was no
longer asking him, she was directing him to leave the work
area; that she radioed Hill in Steele’s presence so that he knew
that she was not playing; that then Steele walked away; and that
in Hill’s office Steele said:

that his MDO, Mr. Barrow, had told him upon hitting the
clock at 11:00 o’clock to do his safety walk through and that
we should check with Mr. Barrow because that is what he told
him to do, which we did check with Mr. Barrow.
And Mr. Barrow said, no, I told him to do it but not on
Tour III’s time. [Id. at 321.]

Additionally, Embry testified that she checked with Barrow that
same night while they were standing at the base of the stairs
because Barrow’s office is upstairs with Hill’s office;18 that this

18 According to Brown’s memorandum, R. Exh. 14, Steele said that
MDO Rawland Simmons told him to perform the safety check, and that
was the first investigatory interview she attended; that it is not
possible that Steele requested during the meeting to meet with
Amerson, and Brown denied the request; and that Steele did not
ask before the meeting and he did not ask during the meeting to
first speak with Amerson.
Supervisor Paula Denise Brown testified that in October
2004 she conducted an investigatory interview with employee
Steele; that Manager Hill asked her to help Embry since Embry
had not conducted an investigatory interview before; that she
was told that Steele was interrupting Embry’s operation and she
asked him to leave; that it was her understanding that Steele did
not leave the area when Embry first told him to leave; that she
told Embry to get the employee for the investigatory interview
and she would get the steward; that at this point in time Steele
had not indicated that he wanted a union representative at the
interview; that she got steward Amerson, who was operating a
forklift, and she told him that she had to do an investigatory
interview with him; that Amerson told her that he had to get his
notebook and clock in on union time; that she told Amerson to
meet her upstairs for the interview; that as she went upstairs to
Hill’s office she saw Embry and Steele heading up the stair-
well, and she joined them; that the three of them went to the
office and waited for Amerson; that she did not start the inter-
view while Amerson was not there; that during the wait Steele
did not ask for a steward; that they waited for Amerson for
about 5 to 10 minutes; that she then told Embry and Steele that
she was going to see if she could find Amerson; that she found
Amerson and he told her that he wanted to talk to the MDO on
his shift, Simmons; that she told Amerson no, she needed him
to come upstairs so she could do the investigatory interview;
that when Amerson again said that he needed to speak with
Simmons she told Amerson that he could talk to Simmons later
and right now she needed him to go upstairs; that Amerson told
her she could not make him go upstairs, she could not make
him go on union time, and he needed to talk with an MDO first;
that both tour II MDO Hill and tour III MDO Simmons were
walking toward them, and Amerson, who was tour I walked
over to the two MDOs; that she could not hear what was said
between the two MDOs and Amerson; that Amerson came back
over to her by the bottom of the stairwell; that she told him that
they were going upstairs; that Embry and Steele were standing
on the platform at the top of the stairwell; that she went up the
stairs with Amerson, meeting Embry and Steele at the top; that
neither Steele nor Amerson requested that they be allowed to
meet before she conducted her business; that all four of them
went into Hill’s office; that she and Embry sat down in the
office and Steele and Amerson stood notwithstanding her re-
quest for them to sit; that she told them that it was an investiga-
tory interview and it would probably lead to some type of dis-
ciplinary action; that Steele asked why he was there and she
told him that in was an investigatory interview; that Steele said
that he was just doing his job; that she started to say what she
wanted to talk about but Steele kept cutting her off saying that

“Investigation revealed however, that Mr. Simmons instructed you to
perform a safety walk through only after Tour I had charge of the work-
room floor and having received permission from your supervisor on
Tour I to leave your assignment to do so.”
POSTAL SERVICE 387
he was just doing his job; that Steele was loud, irate, rude, and
he would not stop talking; that Steele said that she called the
meeting but he was going to run it, he was the man, and he was
the shop steward; that during the meeting Steele did not request
a break to talk with Amerson privately; that Steele did not re-
quest to meet with Amerson before she began her business; that
Amerson did not make any requests for the two of them to meet
before she began her business; that during the meeting Amer-
son did not request for the two of them to be able to meet pri-
vately; and that Amerson did not say anything during the meet-
ing while the four were together.
On cross-examination, Paula Brown testified that after she
told Amerson at his forklift that she needed him in Hill’s office,
she could not remember if she saw Steele and Embry at the
bottom of the stairwell but she remembers going upstairs be-
hind Embry and Steele; that she could not recall whether
Embry or Steele was in front; that she tried to ask Steele ques-
tions during the investigatory interview; that Steele explained
what he has been doing in that he told her that he was conduct-
ing a safety inspection; that Steele said that Rawland Simmons
told him to conduct the safety inspections; that she was positive
that Steele did not say that Barrow told him to perform the
safety inspections; that she did not know why Embry would say
that Steele said that Barrow told him to perform the safety in-
spections; that with respect to General Counsel’s Exhibit 2, the
above-described Weingarten notice, she has seen a document
but she was not sure if General Counsel’s Exhibit 2 was the
one; that she saw the document in an e-mail and on the bulletin
board at the Birmingham Annex; that the document she saw
maybe sometime in 2004 was probably similar to General
Counsel’s Exhibit 2; that the notice which she read in 2004 on
the bulletin board at the Birmingham Annex pertained to the
rights and rule related to Weingarten and investigatory inter-
views; that she has attended 10 to 12 investigatory interviews
as a supervisor; that in maybe 2 or 3 of her 10 to 12 investiga-
tory interviews was there a request that the employee and stew-
ard be permitted to meet before the interview continued; and
that she could not recall when these two or three requests oc-
curred.
Analysis
Amerson and Steele testify that they both, with Steele asking
first, asked Paula Brown that they be allowed to have a prein-
terrogation consultation. Embry and Brown both testify that
neither Amerson nor Steele asked for a preinterrogation consul-
tation. But Embry is not a reliable witness in that she changed
her testimony about when she radioed Hill without explaining
why she changed the testimony. Initially, Embry testified that
she radioed Hill after Steele left the scene. Subsequently,
Embry testified that she radioed Hill in Steele’s presence so
that he would know that she was not playing. Also, Embry
testified that she checked with Barrow that same night as to
whether he told Steele to do his safety inspection, and that basi-
cally she recalled everything that Steele said during the inter-
view—“I never have a problem remembering what I hear.” (Tr.
319.) It is not clear why Embry would have checked with Bar-
row in that Brown testified that during the predisciplinary in-
terview Steele said that MDO Simmons told him to conduct the
inspections. Additionally, Embry testified that she walked up
the stairs with Brown, Amerson, and Steele to Hill’s office.
Brown, on the other hand, testified that she walked up the stairs
with Embry and Steele, she had to get Amerson later, and when
she accompanied Amerson up the stairs Embry, along with
Steele, was waiting at the top of the stairwell. As noted above,
Brown saw the notice regarding Weingarten rights and investi-
gatory interviews posted in the Birmingham Annex in 2004.
Brown testified that the notice she saw was probably similar to
General Counsel’s Exhibit 2, which as here pertinent, specifies
that

2. It is the employee’s obligation to request represen-
tation of a union steward at the investigatory interview.
3. An employee facing an investigatory interview has
the right to meet with his or her union steward in advance
of the interview to prepare for the interview.
4. At the investigatory interview, the employee is enti-
tled to a union steward’s assistance. The Postal Service
violates the employee’s rights if it refuses to allow the
steward to speak or tries to restrict the steward to the role
of a passive observer. [Emphasis in original.]

A United States court of appeals, in Postal Service v. NLR, 969
F.2d 1064, 1073 (D.C. Cir. 1992), concluded that

In Weingarten, the Supreme Court approved as consis-
tent with the NLRA [National Labor Relations Act] sec-
tion 7 the Board’s recognition of a right to a union repre-
sentative’s attendance at investigatory interviews. The
NLRB has since determined that the right recognized in
Weingarten and the statutory purposes underlying that de-
cision are best effectuated by allowing employees to con-
sult with their union representatives prior to the occur-
rence of an interview; and the Board has extended 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 entertain
NLRB enforcement petitions and our obligation to review
the reasoning actually relied upon by the agency, we find
the Board’s decision a “permissible” and “reasonable”
construction of section 7, one in no way foreclosed by the
Weingarten decision.

There is no legally meaningful difference between an investiga-
tion by the Postal Inspection Service and a Postal Service su-
pervisor. Indeed, the notice which we are focusing on herein
(GC Exh. 2), which was posted pursuant to a Consent Order
which was entered approving a settlement between the Postal
Service and the Board, does not limit the requirement that “[a]n
employee facing an investigatory interview has the right to
meet with his or her union steward in advance of the interview
to prepare for the interview” to an investigation by the Postal
Inspection Service. The notice, which is dated “2/18/04,” speci-
fies:

Under that Consent order, the Postal Service is required to in-
stitute a nationwide educational program directed at all super-
visors, acting supervisors, postal inspectors and managers
with direct responsibility for bargaining unit employees, con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
cerning employee rights in investigatory interviews, otherwise
known as Weingarten rights. [Emphasis in original.]

The fact that Respondent’s supervisors supply a union stew-
ard without the employee who is the subject to the prediscipli-
nary first asking for this, does not relieve the Respondent of the
obligation to accord the employee the right to have the oppor-
tunity for a preinterrogation consultation. In effect, by denying
the employee a preinterrogation consultation, the Respondent is
limiting the role of the steward. The Weingarten notice which
was posted in the Birmingham Annex, as noted above, is dated
“2/18/04.” Brown knew exactly what she was doing. Telling
the employee and the steward that they could meet after the
predisciplinary meeting, even if the Respondent supplies the
steward without being asked to, does not comply with the re-
quirements of Weingarten, supra. The testimony of Amerson
and Steele is credited, notwithstanding the fact that Amerson
did not indicate in his affidavit or the grievance that Steele
asked for a preinterrogation consultation. Respondent violated
the Act on or about October 26, 2004, as alleged in the com-
plaint.
With respect to the involved Alabama interviews, Respon-
dent on brief takes the position that there were no violations in
that no true interviews occurred since, collectively, no substan-
tive information was secured, no information was sought and
provided, some of the employees refused to answer questions,
the interview did not come to fruition, the investigative inter-
view did not materialize, and no substantive information was
actually elicited. As pointed out by the Board in Postal Service,
241 NLRB 141 (1979):

Under Weingarten, once an employee makes . . . a
valid request for union representation, the employer is
permitted one of 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 have no interview at all. Un-
der no circumstances may the employer continue the in-
terview without granting the employee union representa-
tion, unless the employee voluntarily agrees to remain un-
represented after having been presented by the employer
with the choice mentioned in option (3) above or if the
employee is otherwise aware of those choices. [Footnotes
omitted.] [Emphasis in original.]

The Alabama incidents involve denials of requests for preinter-
rogation consultation with a union representative. A denial of
such request is similar to a denial of a request for a representa-
tion in that the employer would be limiting the representative’s
role. If the employer chooses to deny the employee’s request
for preinterrogation consultation with a union representative,
then the employer is faced with the three above-described op-
tions since the employer is denying the employee full represen-
tation. Respondent’s argument has no merit.
Respondent’s Exhibit 6, according to one of Respondent’s
counsel, provides:

those figures which reflect the number of steward hours
which are used by the facilities which are we understand to be
under scrutiny in this Complaint which is to say the Alabama
Plant and Annex, the Rio Grande District and the Dallas Dis-
trict.
So it is a—it is more of a micro examination of the use
of steward hours within those area within which these
complaints that you are adjudicating arise.[19] [Tr. 255–
256.]

Respondent’s Exhibit 9 is excerpts of portions of the Na-
tional Agreement between the Postal Service and the Mailhan-
dlers’ Union which was effective from 2000 to November 20,
2004. One of Respondent’s counsel stated that it demonstrates
that the National Agreement is capable of addressing the nature
of the alleged violation which is raised here.
Respondent’s Exhibit 10 is excerpts from the contract inter-
pretation manual of the Postal Service and National Mailhan-
dlers’ Union. One of the Respondent’s counsel stated that the
primary purpose of offering this document is in support of Re-
spondent’s argument for deferral and that the obligation of the
Postal management to obey the law of the Board and particu-
larly the law of Weingarten has been contractually adopted by
the parties joint agreement, and that accordingly this contract
does contemplate that this is the nature of matter which may be
grieved within the parties grievance arbitration procedure; and
that the parties agree that this is the controlling understanding
of the National Agreement.
The Postal Service introduced Respondent’s Exhibit 24
which is memoranda and attachments from William Brown,
vice president, area operations in the southeast area, and related
memoranda from district managers in the southeast area, con-
cerning the applicable protocol for fulfilling union information
requests. All but 2 of the 12 documents are dated in early 2006.
One of the two exceptions is dated December 16, 2005, and the
other is dated April 15, 2005.
Respondent’s Exhibit 18 is a January 11, 2005 memorandum
from the Manager, Human Resource, Alabama District, Eliza-
beth White, to staff, managers and postmasters in Birmingham
and Mobile, Alabama. It reads as follows:

SUBJECT: Providing Weingarten Rights for Investigatory
Interviews

To ensure compliance with the Weingarten decision, the pro-
cedure for Investigatory Interviews is as follows:
1. Have the appropriate Union Representative avail-
able at the investigation location.
2. Bring the employee to the investigation location.

19 The cover page of R. Exh. 6, which is signed by Respondent’s
deputy general counsel, reads, as here pertinent, as follows:
I hereby attest that the attached documents, National Payroll
Summary Reports . . . for the Southeast CS Area/Dist. 350 (Ala-
bama Customer Service (“CS”) District), Southeast PD Area/Dist.
351 (Birmingham Processing and Distribution Center (“P&DC”),
Southwest CS Area/Dist. 752 (Dallas CS), Southwest CS
Area/Dist. 780 (Rio Grande CS District), and Southwest PD Area,
Dist. 753 (Dallas P&DC), are official documents of the United
States Postal Service. I also attest I have examined the documents,
the documents are true and accurate, and line 5 reflects the paid
duty hours for the periods indicated of all stewards for all postal
unions in the indicated district. . . .
POSTAL SERVICE 389
3. Advise the employee that you intend to conduct an
investigative interview and that Weingarten allows a Un-
ion Steward to be present. If the employee does not want
the Union Representative present, send the Steward back
to work. If the employee does want the representative pre-
sent, advise the nature of the investigation and ask them if
they wish to have a brief time to consult privately. Leave
the room if they chose [sic] to exercise that right.
4. Hold the Investigative interview.

It is critical that we are all clear about what the Weingarten
rights allow. If you need further advice, please do not hesitate
to contact any of the Labor Relations staff members.

It is noted that one of the “cc” recipients is John Oldenburg,
who is one of Respondent’s counsel in this proceeding. Donald
Shields, who was acting manager of labor relations in the Bir-
mingham district for about a 1-year period ending September
2005, testified that he prepared Respondent’s Exhibit 18 for
White’s signature; that he became aware in early January 2005
or late December 2004 of a complaint that Respondent had
violated Weingarten rights; that he prepared Respondent’s Ex-
hibit 18 to insure that they were never violated again; that Re-
spondent’s Exhibit 19 is a followup memorandum dated June 3,
2005, which speaks to situations where a steward is not avail-
able in house; that where there is no in house steward, a stew-
ard is provided only after the employee is told that there is go-
ing to be an investigatory interview, the employee is asked if he
or she wants a steward present, and the employee is told that if
they do, the investigatory interview will be delayed until the
steward is available; and that before a supervisor can even de-
cide if they are going to discipline, they have to have an inves-
tigatory interview.
On cross-examination, Shields testified that he drafted Re-
spondent’s Exhibit 18 because Oldenburg, who was in Bir-
mingham conducting depositions, told him what it was about;
that he did not talk with any of the supervisors in question
about the events which led up to the Weingarten allegations;
that he did not speak with Nash about what had happened; that
before discipline is issued in the Alabama District, a request for
appropriate action form must be filled out, and one of the lines
on the form calls for the date of the investigatory interview; that
the request for appropriate action form has to be signed by the
supervisor and concurred in by that supervisor’s immediate
boss, supervisor, manager, and normally the plant manager or
the postmaster of the office will concur in the action; that then
it is forwarded to labor relations to prepare the actual discipli-
nary notice; that the request for appropriate action form has to
be completed in its entirety before a notice is prepared; and that
the Postal Service does not have a list of offenses like, among
others, conduct unbecoming a postal employee.
According to the testimony of Shields, Respondent’s Exhibit
20 is a printout of the joint training that was conducted in early
2005 with the American Postal Workers Union and it covered
the Joint Contract Interpretation Manual (JCIM). Shields also
sponsored Respondent’s Exhibit 3 which is a grievance and
arbitration tracking system report showing the number of step 2
discipline grievances appealed in fiscal year 2004 in the Postal
Service.
Respondent’s Exhibit 4 is a grievance and arbitration track-
ing system report showing the number of Postal Service bar-
gaining unit employees nationwide by performance cluster for
the four main Postal Service Unions. The printout indicates
“Last Refreshed: 10/13/2005.”
Respondent’s Exhibit 21, which is dated March 6, 2006, is
an e-mail and attached letter reminder of Weingarten rights
which was sent to all Alabama management employees by Al-
bert Ward, a labor relations manager with the Respondent in
Birmingham.
Respondent’s Exhibit 22 is a 71-page compilation of re-
quested discipline for the Birmingham Plant and Annex from
January 1, 2000, through September 30, 2005. All but one page
of the printout is dated “3/20/2006.” Ward, the sponsoring wit-
ness, testified that each one of these applications did not end up
in the issuance of discipline; that not all of the discipline issued
would have made it to the second step of the grievance proce-
dure; that not all of these requests would be included in the
grievance and arbitration tracking system; and that it is rare that
applications come to the Labor Department without an investi-
gatory interview being done. The parties stipulated “that this
exhibit gives no indication as to whether or not . . . there were
any violations on predisciplinary meetings that occurred that
have not been the subject of the labor charges where the issue
has joined and litigated.” (Tr. 484.)
Respondent’s Exhibit 23 is a list, dated “03/21/2006,” of the
Birmingham supervisors who potentially could be subject to the
special remedy that General Counsel is seeking.
B. Texas
Respondent’s Exhibit 26 is excerpts of the National Agree-
ment between the Postal Service and the National Postal Pro-
fessional Nurses (NPPN) which was to expire in 2004 but was
extended to August 18, 2006.
Respondent’s Exhibit 27 is excerpts from the 2005 joint con-
tract administration manual of the Postal Service and the Na-
tional Association of Letter Carriers, AFL–CIO, dated Novem-
ber 2005.
Respondent’s Exhibit 29 is excerpts of the National Agree-
ment between the Postal Service and the National Association
of Letter Carriers, effective from 2001 to 2006.
1. Annu Rajan
The complaint alleges that on or about October 15, 2004,
Respondent, by Patricia Auerbach, at Respondent’s DFW Turn-
pike facility, denied the request of employee Annu Rajan to be
represented by the Postal Nurses Union during an interview;
that Rajan had reasonable cause to believe that the October 15,
2004 interview would result in disciplinary action against her;
that Rajan refused to attend the interview; and that about Octo-
ber 15, 2004, Respondent, by Patricia Auerbach, ordered Rajan
“off the clock,” thereby suspending its employee Rajan because
of her refusal to attend this interview without union representa-
tion.
Rajan, who has worked for the Respondent as an occupa-
tional health nurse for about 19 years, testified that she takes
care of employees if they are sick and she does prehires; that
she has worked at Respondent’s Dallas, Texas facility at 401
DFW Turnpike for 17 years; that the occupational health nurses
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
at her facility are represented by the NPPN Union, and the un-
ion steward, who has been at the involved Dallas facility for
about 7 years, is Ajo James; and that Idell Mitchell, who works
in Washington, D.C., is the president of NPPN.
Ajo James, who has worked for the Postal Service for more
than 10 years as an occupational health nurse, testified that she
works at Respondent’s DFW Turnpike facility; that she is a
union steward of the NPPN and she is Rajan’s steward; that
Doctor Patricia Auerbach is a contract medical officer; that she
met with Auerbach and Kay Vinson, who is the training super-
visor, in Auerbach’s office in May 2004; that when she was in
Auerbach’s office she was asked to explain her on-the-job in-
jury case; and that the injury happened in January 2004 and she
filed the claim in February 2004.20
Rajan testified that in the fall of 2004 (on September 7,
2004) her husband flew to India from DFW (Dallas–Fort Worth
Airport); that she submitted a leave slip (form 3971) to U.S.P.S.
to take a vacation day so that she could drive her husband to the
airport; that at the time she had over 200 hours of accrued an-
nual leave; that the leave slip was submitted to Doctor Auer-
bach, who was the physician for the medical unit and who be-
came the supervisor for the medical unit because it did not
have a supervisor at the time; that she explained to Auerbach
that it was very important that she have the day off to take her
husband to the airport; that when Auerbach denied the leave,
she asked Auerbach to take 4 hours off in the afternoon; that
Auerbach did not want to give her the 4 hours; that Auerbach
called her into her office and Supervisor Vinson was in Auer-
bach’s office; that Auerbach asked her why she needed the 4
hours and she explained why in front of Vinson; that Vinson
did not make any comments; that about 11 a.m. on the day her
husband went to the airport she left the facility after placing a
leave slip (form 3971) in Auerbach’s box since she was not
available; that she drove her husband to the airport; that while
she was at the airport the nurse at her child’s school telephoned
her to tell her that her daughter was having an allergic reaction;
that she told the nurse that she would come and pick her up;
that she telephoned Auerbach and told her that she could not be
back at work because she had to go pick up her child because
she was sick; that Auerbach told her that she would have a
predisciplinary when she returned to work; that she did not
return to work that day because it was 3:30 or 4 p.m. when she
picked her daughter up at school; and that the day she returned
to work after taking her husband to the airport, she had a pre-
disciplinary meeting with Debbie Edmonds, who is a labor
relations person, present.
Rajan testified that in September 2004 Ajo James showed
her General Counsel’s Exhibit 12 which James told her that she
found near the computer in the medical unit; and that she rec-
ognized the handwriting to be that of Linda Shockley, who was

20 GC Exh. 15 is the suspension letter Ajo James received on May 6,
2004, for, among other things, participating “in the charting of docu-
mentation of the medical status of your own reported ‘on the job in-
jury’ in a shadow file on seven different dates from February 4th
through February 18th without ever notifying your supervisor.” Ajo
James wrote on the second page of the suspension letter “The above
allegation is not true.”
a contract nurse in the medical unit. General Counsel’s Exhibit
12 reads as follows:

9–28–04
1) Employee here to RTW—upset Med. Unit was
closed early last Fri. 9/24/04 @ 1530. Ann Rajan RN en-
couraged to file grievance against Med. Re: early closing.
[Emphasis added.]

Rajan testified that she

had talked to a patient that was very upset when he came in
that the night shift was closed, and he could not return back to
work that day, so he lost his work day that day. He was very
angry. He expressed his anger to me. That’s when I told him
that he could either got [sic] his union . . . representative . . .
and complain to them about the closure of the unit. [Tr. 559.]

Counsel for the General Counsel indicated that General Coun-
sel’s Exhibit 12 was not being offered for the truth of the matter
asserted but rather that this is a document which had been re-
viewed by Rajan before her meeting with Auerbach on October
15, 2004, described below, and to show Rajan’s state of mind
and the reasonableness of it regarding the purposes of the meet-
ing.
With respect to General Counsel’s Exhibit 12, Ajo James
testified that she found this document in the back computer in
the medical unit on September 29, 2004, when she opened the
unit; and that she gave the document to Rajan the same day in
the medical unit, and Rajan told her that an employee came to
the medical unit, he lost a workday because the unit was closed
early that day, he was going to file a grievance, Rajan told him
“Yeah, you have a right to go and file a grievance,” and
Shockley overheard this conversation.
Ajo James testified that she attended a predisciplinary inter-
view with Rajan regarding her leaving work to take her hus-
band to the airport; that she believed that this interview oc-
curred on October 1, 2004; that about 30 minutes before the
interview she saw Vinson leaving Auerbach’s office after meet-
ing with Debbie Edmonds; that she then told Rajan what she
observed indicating that when Vincent was present with Auer-
bach in the latter’s office in May 2004 questioning her about
her on-the-job injury, she later had a discipline issued to her;
and that she and Rajan discussed Auerbach using Vinson as a
factfinder to support the discipline.
General Counsel’s Exhibit 13 is a letter of warning to Rajan
dated October 5, 2004. The letter refers to the fact that on Sep-
tember 7, 2004, Rajan left work at about 11 a.m. without per-
mission since Auerbach again denied her request for leave for
September 7. The next-to-last paragraph of the letter reads:

Continued Unacceptable Work Performance, in this instance,
unauthorized absence from work assignment, is a serious de-
ficiency and will not be tolerated by the Postal Service. You
must take immediate and positive steps to correct your per-
formance in this area. Your failure to correct this deficiency
may result in further disciplinary action being taken against
you, up to and including your removal from the Postal Ser-
vice. [Emphasis added.]

POSTAL SERVICE 391
On Friday October 15, 2004, Rajan worked in the medical
unit with Shockley. Rajan testified that employee John Kurlish
came into the unit and told her that he had filed a grievance;
that she told Kurlish that was the right thing to do; that
Shockley gave Kurlish a return slip so he could return to work;
that after Kurlish left the unit Shockley also left the unit with-
out telling her; that she looked out the door of the unit to see
where Shockley was going; that she saw Shockley go straight to
Auerbach’s office; that this occurred about 3:15 p.m. and Stew-
ard Ajo James leaves the facility about 3:30 p.m.; that about
3:20 p.m. she clocked out for lunch and while Ajo James was
leaving she stepped out in the corridor to speak with James; that
they walked out together and Ajo James stopped at Auerbach’s
office to pick up a slip; that she waited outside Auerbach’s
office for Ajo James; that she walked Ajo James to the exit and
they saw Auerbach in the hallway looking at them; that Ajo
James left and she started walking back; that when she passed
Auerbach in the hall Auerbach said, “Ann, can I see you in my
office” (Tr. 546); that she told Auerbach that she was on her
lunchbreak; that Auerbach told her that she would see her after
lunch; that about 4 p.m. Auerbach telephoned her in the unit
and told her to come to the office; that she told Shockley that
she was going to Auerbach’s office; that Auerbach and Michael
James, who is a timekeeper, were in the office; that as she
walked into Auerbach’s office she was holding the door open;
that Auerbach told her to sit down; that she asked Auerbach
what this was all about; that Auerbach said, “I want to speak
with you. Just have a seat, Ann.” (Id. at 547); that she asked
Auerbach, “Is this something to do with my time” (Id.); that
Auerbach said, “No, it has nothing to do with your time.” (Id.);
that she said, “Well, then why is Michael James here” (Id. at
548); that Auerbach said, “He’s my witness” (Id.); that she said,
“Well, I think I’m going to need a witness, too” (Id.); that Au-
erbach said, “No, you don’t” (Id.); that she said, “Dr. Auerbach,
I need a witness. You have a witness. I need a witness” (Id.);
that Auerbach said, “No, you don’t. Please sit down, Ann”
(Id.); that she asked Auerbach, “Where in the AG does it say
that you can have a witness and I cannot have representation”
(Id.); that Auerbach said, “Ann, sit down” (Id.); that she said,
“Dr. Auerbach, I need a witness. I need representation” (Id.);
that Auerbach said, “I’m the supervisor. If you disobey, if you
don’t sit down, this is a failure to obey orders” (Id.); that she
said, “Dr. Auerbach, I need to call Idell Mitchell [who, as indi-
cated above, is the President of the NPPN Union in Washing-
ton, D.C.]” (Id.); that she went toward the telephone but Auer-
bach would not let her use the telephone; that Auerbach waited
until Ajo James left the facility so she would not be available to
be the representative; that Auerbach said, “Ann, this is not a
predisciplinary talk” (Id. at 550); that she said, “Whatever it is,
Dr. Auerbach, I need representation”; that Auerbach said, “You
know I’m your supervisor. And this is failure to follow instruc-
tions” (Id.); that she said, “Dr. Auerbach, I can speak with you
one-on-one without the presence of Mr. James here. I’m willing
to speak with you one-on-one. If you can have [Michael] James
out of the room” (Id.); that Auerbach said, “No. Go. Leave the
room.” (Id.); that she said, “Dr. Auerbach, can you give me that
in writing” (Id.); that Auerbach said, “No. I said go. Clock out
and you will be paid for the rest of the day.” (Id.); that she was
supposed to work from 9 a.m. to 5:30 p.m. that day; that her
meeting with Auerbach and Michael James occurred some-
where between 4 and 4:30 p.m.; that she and Michael James left
Auerbach’s office; that she returned to the unit and e-mailed
Mitchell that she had been taken off the clock and needed rep-
resentation; that Auerbach came into the unit and said, “Ann, I
told you to leave right now.” (Id. at 551); that she took her bag,
clocked out, and left; that Auerbach told her that she would
have a predisciplinary meeting with Ajo James the next work
day; that when she went to Auerbach’s office on October 15,
2004 she took into consideration the fact that she saw Shockley
go to the Auerbach’s office after she, Rajan, told the employee
that he had done the right thing by filing a grievance; that
while she and Michael James were in Auerbach’s office, Auer-
bach did not tell her the purpose of the meeting, Auerbach just
told her that she wanted to talk with her, and Auerbach did not
tell her the purpose of the meeting; that Auerbach did tell her
that it was not a predisciplinary talk; and that she still insisted
that she needed representation.
On cross-examination, Rajan testified that the medical unit
has put a wellness program together; that this is an active part
of her program, and she is involved at times in setting up those
programs; that she has set up breast cancer, prostate cancer, and
other little talks with the employees during their health talk;
that in October 2004 she set up a big wellness program on pros-
tate cancer which involved people from other agencies coming
to the Postal Service and talking with the employees; that she
set up where the employees could get free testing for prostate
cancer; that on October 15, 2004, she suspected that when she
went to Auerbach’s office it was not good because Shockley
had gone to Auerbach’s office earlier; that Auerbach did tell
her that the meeting was of a nondisciplinary nature; that while
she left the medical unit when she was told to by Auerbach, she
was paid for the day; and that if she had spoken with Auerbach
one-on-one she would not have had a steward present.
Ajo James testified that on October 15, 2004, she saw
Shockley leaving Auerbach’s office and go to the medical unit;
that when she went into the medical unit Rajan told her that an
employee, who was in the medical unit for a return to work,
told Rajan that he filed a grievance for early closing of the
medical unit, and Shockley overheard the conversation; that
about 3:20 p.m. while in the medical unit she received a tele-
phone call from Auerbach who said that her leave slip was
ready and she could pick it up; that while she was on the tele-
phone with Auerbach she heard Auerbach tell someone, “You
stay here as a witness” (Tr. 579); that at 3:30 p.m. she was leav-
ing to go home and she stopped in Auerbach’s office to pick up
her leave slip; that Rajan was on her lunchbreak and Rajan
walked with her as she was leaving work; that she told Rajan to
wait outside of Auerbach’s office while she went in to get her
leave slip; that she saw Michael James in Auerbach’s office and
she asked him if he was there as a witness; that Michael James
answered, “Yes” to her question; that when she went to Rajan
outside Auerbach’s office she told Rajan that Michael James
was in Auerbach’s office as a witness; that as she and Rajan
walked down the hallway she noticed Auerbach standing alone
in the hallway looking at them; that she told Rajan and Rajan
saw Auerbach standing there; that she told Rajan, “Ann, if you
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
need anything, just call me. You be careful.” (Id. at 580); that
about 5 p.m. “Ann contacted me over her cell phone and said
events happened after I left the main post office. She wanted
me to be her union rep. because there was a pre-d scheduled on
Monday at 9 o’clock.” (Id. at 581); and that Rajan told her what
happened in Auerbach’s office that day.
On cross-examination, Ajo James testified that Rajan told
her that on October 15, 2004 (a) she was told it was not going
to be a disciplinary meeting; (b) she told Auerbach if Michael
James stayed she also wanted a witness; and (c) she offered to
meet with Auerbach one-on-one.
Auerbach testified that she graduated medical school in
1992; that her contract with the Postal Service began in October
2002; that she resigned in January 2005; that she had a vague
recollection of seeking in October 2004 to hold a meeting in
her office with Rajan; that a training supervisor was in the of-
fice with her but she could not recall his name21; that to the best
of her recollection, the purpose of the meeting was a wellness
program discussion; that she could not recollect (a) why she
was having a meeting about a wellness program; (b) why Mi-
chael James was present; or (c) the time of day of the meeting;
that she did recall Rajan arriving at her office for this meeting;
that Rajan “arrived at the door, and she would not enter the
door” (Tr. 627), and Rajan “would not enter the door. She
wanted a Union steward” (Id.); that she did not recall Rajan
making any specific reference to James being in the office; that
when Rajan asked for union representation she told Rajan that
it was not a disciplinary meeting, “please come into the office”
(Id.); that Rajan did not come into the office after that; that she
thought that Rajan was asked again to come into the office,
again she told Rajan that it was not a disciplinary meeting, and
Rajan did not come into the office; that she could not remember
if there was any exchange between Rajan and Michael James at
that time; that she thought that she said something about if she
did not come in, it would be a failure to follow instructions; that
Rajan continued not to enter the office; that she then told Rajan
to go home; and that to the best of her recollection Rajan was
told to clock out and she thought that Rajan would be on ad-
ministrative leave, which meant that she was still paid even
though she was not working.
On cross-examination, Auerbach testified that Michael
James is a training supervisor and she did not know if he had
any medical training; that she did not recall what part, if any,
Michael James was playing in the wellness program that the
Postal Service was putting on; that the name Idell Mitchell is
familiar to her, and she remembered her from the nurses union;
that she vaguely remembered what a predisciplinary interview
was; that she did not recall whether quite a bit of paperwork
would ordinarily have to be filled out when she had a formal
predisciplinary meeting; that to the best of her recollection she
wanted to discuss a wellness program with Rajan on October
15, 2004; that she had no recollection regarding what specifi-
cally she wanted to talk with Rajan about in connection with
the wellness program in Michael James’ presence; that she
could not remember any reason why a discussion with Rajan

21 One of Respondent’s counsels supplied the name to her and she
agreed that it was Michael James.
about the wellness program would in any way be enhanced or
helped by the presence of Michael James; that she remembered
that Rajan did not want to come into the office, she wanted a
union representative, and Michael James’ presence was part of
the reason; and that she did not remember if Rajan asked Mi-
chael if he was there as a witness, and she did not remember
Michael James answering that question.
Michael James testified that as a HR specialist in Respon-
dent’s Dallas facility he supervises the district’s driver training
program, teaches a number of classes, oversees the sign lan-
guage interpretive program, and he handles the time and atten-
dance for his unit; that in 2004 he was the time and attendance
“go-to” person for the medical unit as well as his unit, namely
the training unit; that he discussed time and attendance issues
with the medical unit; that he remembered being in the medical
unit for that purpose in October 2004; that he was in the medi-
cal unit on October 15, 2004, before noon for some time and
attendance issues; that he was about to leave and Auerbach
asked him to stay, she wanted him to witness a conversation
that she was having with one of her employees; that he stayed;
and that

A. When she [Auerbach] asked me to stay, she
looked outside the door. She called for Ms. Ra-
jan to come into—to step into her office. And at
that point, Ms. Rajan did step into her office.
And at that point, Ms. Rajan did step into the
office.

. . . .

A. She advised Ms. Rajan that there were some medi-
cal unit issues of procedures that she wanted to—I forget
the exact phrase, issues or procedures, but she told her
there [were] some medical unit issues that she wanted to
discuss with her. At that point, Ms. Rajan looked at me
and—Ms. Rajan looked over at me and then she looked at
Dr. Auerbach and asked “Is Michael here as a witness?”
And Dr. Auerbach said yes. And Ms. Rajan said, “Well,
I’d like to have a witness also.”

. . . .

A. And at that point, Dr. Auerbach told her that this
[is] not a disciplinary—this is not for disciplinary reasons.
Then . . . [Rajan] said, “I still want a witness. If you have
one, I want one as well.” Dr. Auerbach went on to say,
“No, you cannot have a witness.” [Rajan] . . . said, “Well,
show me in ELM [(Employee Labor Relations Manual)]
where this [is] written.”

. . . .

A. And at that point, she asked to—it went back again,
she said no. And she asked her to sit down and take a seat,
and she said no. And then . . . [Rajan] asked her if she
would call Idell.

. . . .

A. And then at that point, again, Dr. Auerbach said,
no, she would not call Idell. She said, “No, just have a
seat.” And then she went further to say, “If you’re not go-
POSTAL SERVICE 393
ing to have a seat, I’m going to have to ask you to leave
for the rest of the day, and we will pay you for the rest of
the day, and then be prepared to hold a pre-d on Monday.”
[Tr. 711 and 712.]

Michael James further testified that Respondent’s Exhibits 30
and 31 demonstrate that while Rajan left work a little over 1
hour before the end of her normal tour, she was paid for the
entire tour; and that he left Auerbach’s office at the same time
as Rajan. Michael James then gave the following testimony:

Q. Mr. James, on that day, October 15, 2004, did Dr.
Auerbach attempt to meet with Ms. Rajan earlier that day?
A. Yes. Actually, I was in the office—I initially came
into the office around 3:15 initially. And that’s when I was
in there for my time and attendance issues for the medical
unit. At that time—that was actually the time that she
looked outside the door and asked Ms. Rajan to step in,
Ms. Rajan indicated to the doctor that she was on lunch.
So the doctor looked back at me and said, “Well, Mike,
just come back about 4 o’clock.” She anticipated that Ms.
Rajan was going to be off work by then. So that’s when I
came back into her office at 4 o’clock and I was just sit-
ting in the office at that point, and that’s when Ms. Rajan
came in. That’s when the conversation about . . . we here
for medical issues or procedures. That’s when they had the
banter back and forth about—
Q. How do you remember so clearly it was 4 o’clock,
Mr. James?
A. Because I remember when she asked me to come
back at 4:00, I kind of cringed because I knew—I was get-
ting off that day at 4:15, and I had something to do, and I
just remember distinctly that I didn’t want to be—I didn’t
really want to go past 4:15 that particular day, and I just
remember so distinctly that that was the time that she told
me to come in. [Tr. 715 and 716.]

On cross-examination, Michael James testified that he did
not recall Ajo James coming into Auerbach’s office the first
time he was in the office on October 15, 2004; that he did not
recall anyone asking him if he was there as a witness on Octo-
ber 15, 2004, while he was in Auerbach’s office other that Ra-
jan asking the question when she came into the office; that he
does not have any responsibilities with respect to medical care
furnished by the medical unit of the Postal Service; that he does
not have any medical training; that he does not participate in
any way in the Postal Service’s administration of a wellness
program through its medical unit; that he has not received any
special training or information about the wellness program that
is not made available on a general basis; that Auerbach told him
the first time he was in her office on October 15, 2004, about
3:15 p.m. that she was going to speak with Rajan about some
medical unit issues or procedures and Auerbach asked him if he
would stay to witness the conversation; that if he had medical
unit issues with their time and attendance Auerbach was the
“go-to” person for him; that Auerbach requested him to stay, it
was not a direct order, and Auerbach asked him and he cooper-
ated; that there had been no other occasions where Auerbach
asked him to be present in a witness capacity during a conver-
sation to occur between Auerbach and some employee; that he
did not recall any other occasion where a supervisor or manager
with the Postal Service asked him to witness a conversation
between the supervisor and an employee in a witness capacity;
that Auerbach did not indicate to him what procedures, if any,
she intended to discuss with Rajan; that the meeting between
Auerbach and Rajan lasted about 5 minutes; that there is a tele-
phone in Auerbach’s office; that he did not recall Rajan walk-
ing toward the telephone to place a call during her meeting with
Auerbach; that Rajan was inside Auerbach’s office when she
mentioned telephoning Idell; that the door to Auerbach’s office
was closed when Rajan was in the office; that Auerbach told
Rajan that she wanted to discuss medical unit issues and proce-
dures; that then Rajan asked Auerbach, “Is Michael here as a
witness” and Auerbach answered, “Yes, he’s here as a witness
for me” (Tr. 725); that when Rajan came in she “looked over at
me and said, ‘What is Michael doing here?’ And she [Auer-
bach] said, ‘He’s here as a witness’” (Id.); that Rajan then said,
“If he’s your witness, I need a witness as well. I need a witness
also” (Id. at 726); that Auerbach then told Rajan, “This is not
for discipline. This is not a discipline issue, so no, you cannot
have a witness” (Id. at 727); that he recalled Auerbach saying,
“I’m not issuing discipline” (Id.); that he was confident that is
exactly how Auerbach said it; that regarding statements or
comments about discipline, he recalled only Auerbach saying
I’m not issuing discipline and Auerbach at the end of the meet-
ing telling Rajan she would have a predisciplinary meeting on
Monday; that he did not recall the first time he was in Auer-
bach’s office on October 15, 2004, that she telephoned some-
one and told them to come to her office and pick up a leave
request form; and that he was fairly confident that did not hap-
pen.
On redirect, Michael James gave the following testimony:

Q. BY MS. DORLAN: Mr. James, while you were in Dr.
Auerbach’s office and Dr. Auerbach and Nurse Rajan
were having an exchange, did Dr. Auerbach specifically
tell Nurse Rajan that this meeting was not of a disciplinary
nature?
A. Yes. [Tr. 730.]

On recross, Michael James testified that Auerbach told Ra-
jan, “I am not issuing discipline” or “I am not here to issue
discipline” (Tr. 730); and that he recalled that Auerbach actu-
ally said, “I’m not issuing discipline” (Id. at 731.)
Subsequently, Michael James testified that Auerbach did not
say that this meeting is not of a disciplinary nature.
And on further redirect Michael James testified, after review-
ing a statement he wrote, namely Respondent’s Exhibit 25
which was subsequently placed in the rejected exhibit file, that
Auerbach said that “she wasn’t issuing discipline. They were
there for a discussion” (Tr. 735); and that he remembered Au-
erbach mentioning that this meeting was not for discipline more
than once. Michael James then gave the following testimony:

Q. Mr. James, do you remember Dr. Auerbach saying
that, “Ann, this is not for discipline, only discussion”?
MR. DOYLE: Object. The question is leading.
JUDGE WEST: Overruled.
A. BY THE WITNESS: Yes. [Tr. 735 and 736.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
Analysis
In my opinion, Rajan is a credible witness. Her testimony
with respect to what was said and what happened on October
15, 2004, is very detailed. The testimony of Auerbach is just
the opposite. Auerbach testified that (a) she had a vague recol-
lection of seeking the meeting; (b) to the best of her recollec-
tion the purpose of the meeting was a wellness program; (c) she
could not recollect (1) why she was having a meeting about a
wellness program, (2) why Michael James had to be there, and
(3) the time of the day. Auerbach impressed me as being a very
calculating person. Her equivocation served a purpose, namely
with it she tried to obfuscate what really happened. Taking the
last first, Auerbach waited until steward Ajo James left the
facility before asking Rajan to come into her office. Auerbach
wanted to talk with Rajan when Rajan would not have access to
Union Steward Ajo James. Michael James was there because
Auerbach wanted him present as her witness. Michael James
had come to Auerbach’s office regarding a time and attendance
matter earlier on October 15, 2004. But Michael James made a
special trip to Auerbach’s office to be a witness for Auerbach
later in the day when she met with Rajan. Auerbach had never
asked Michael James before October 15, 2004, to be a witness
for her when she met with an employee. Indeed Michael James
could not recall ever having been asked by any other supervisor
or manager of the Respondent to be a witness for them when
they met with an employee. It is not obvious why Auerbach
would go to such lengths to have Michael James be her witness
to the conversation if it related to a wellness program. It was
not shown that Michael James had any education, training,
experience, or interest regarding an unspecified wellness pro-
gram. Auerbach was not going to discuss a wellness program
with Rajan. The wellness program rationale is nothing more
than a post hoc rationalization.
As noted above, on or about October 5, 2004, Rajan received
a warning letter advising her that she could be subject to further
disciplinary action up to and including her removal from the
Postal Service.22 In view of this, and in view of (a) General
Counsel’s Exhibit 12 (Shockley’s above-described September
28, 2004 note); (b) Shockley’s immediate departure from the
medical unit after Rajan spoke with the employee who filed the
grievance; (c) Shockley’s failure to tell Rajan where she was
going; (d) Rajan observing Shockley’s going into Auerbach’s
office; (e) Ajo James’s warning about Auerbach’s use of wit-
nesses; (f) the fact that Auerbach tried to have the meeting im-
mediately after she saw Steward Ajo James leave the building;
(g) Auerbach’s insistence on having Michael James remain as
her witness without explaining to Rajan why this was neces-
sary, and after responding to Rajan’s inquiry that the meeting
had nothing to do with time and attendance—which was Mi-
chael James’s only connection to the medical unit, and (h) the
fact that Auerbach would not explain the purpose of the meet-
ing even though it was more than obvious that Rajan was trying
to ascertain its purpose and, under the circumstances, she was
entitled to know the purpose of the meeting, it is understand-
able how Rajan would be concerned about the possibility of

22 Auerbach herself refers to this discipline in her discipline regard-
ing the October 15, 2004 meeting.
being disciplined as a result of her meeting with Auerbach. Add
to this mix the fact that Auerbach insisted on having Michael
James there as her witness and Auerbach refused to speak with
Rajan alone. Notwithstanding the fact that Rajan understood
Auerbach to say that this was not a predisciplinary talk, this
statement was not made until after (1) Rajan asked Auerbach
what it was all about and Auerbach did not tell her the purpose
of the meeting, (2) Rajan asked Auerbach if it had something to
do with her time and Auerbach said that it did not have any-
thing to do with her time, (3) Rajan asked Auerbach why Mi-
chael James was there if it had nothing to do with her time, and
Auerbach said that Michael James was her witness; (4) Rajan
told Auerbach that she would need a witness also; (5) Auerbach
refused Rajan’s request to have representation; (6) Rajan asked
Auerbach where in the employee manual it indicates that a
supervisor can have a witness and the employee cannot have
representation; (7) Auerbach ordered Rajan to sit down; (8)
Rajan did not sit down; and (9) Auerbach refused to let Rajan
telephone Union President Mitchell. In other words, Auerbach
did not make this statement until it was more than obvious that
Rajan was not going be coerced of intimidated into participat-
ing in the meeting without representation when Auerbach was
refusing to tell her the purpose of the meeting. Only then did
Auerbach in effect say well it didn’t involve discipline. As
indicated above, Auerbach impressed me as being a very calcu-
lating individual. Auerbach realized she was not going to be
able to coerce Rajan into participating without representation.
Only then did Auerbach take the position that the meeting did
not involve discipline. If it did not involve discipline, what
exactly did it involve? Auerbach did not say on October 15,
2004. When she testified at the trial herein Auerbach equivo-
cated about the real purpose of the meeting. Why did Auerbach
need Michael James to be present as her witness if she did not
believe that there was a possibility that the meeting might lead
to discipline? Why did Auerbach take the position that Rajan
did not come into Auerbach’s office when the two other people
present testified that Rajan did come into Auerbach’s office?
Michael James testified that Auerbach told him and later Rajan
that she was going to discuss with Rajan medical unit issues
and/or procedures. Auerbach does not corroborate Michael
James. And Rajan credibly testified that while she and Michael
James were in the room, Auerbach did not tell the purpose of
the meeting and Auerbach only said that she wanted to talk
with her. Respondent fails to offer up a reason why if Auerbach
was going to discuss medical unit issues and/or procedures, and
such discussion would not involve the possibility of discipline,
Auerbach needed to have Michael James there as her witness.
Additionally, “medical unit issues and/or procedures” could
involve many things including asking Rajan if she encouraged
an employee to file a grievance against the medical unit and on
what basis she did so.23 Rajan’s testimony that Auerbach never
told her the purpose of the meeting on October 15, 2004, is
credited. Michael James’s testimony that Auerbach told Rajan

23 As noted below, Mitch Barron, who when he testified herein had
been in charge of the medical unit as a labor representative for about 1
year, testified that there had been issues in the medical unit in that there
was a lot of grievance activity.
POSTAL SERVICE 395
that the meeting was about medical unit issues and procedures
is not credited. Rajan reasonably believed that discipline could
result from her meeting with Auerbach on October 15, 2004.
There is no question but that Rajan was entitled to representa-
tion in view of what occurred before the meeting and as long as
Auerbach did not explain the purpose of the meeting and in-
sisted on having Michael James there as her witness. Also,
Rajan would have been entitled to representation if Auerbach
agreed to meet with Rajan without Michael James present and
then started to discuss something which Rajan would have rea-
sonable cause to believe could result in discipline.24 Respon-
dent violated the Act on October 15, 2004, as alleged in the
complaint.
2. Ajo James
The complaint alleges that on or about October 18, 2004,
Respondent, by Mitchell Barron, at Respondent’s DFW Turn-
pike facility, by directing Postal Nurses Union Representative
Ajo James to remain quiet throughout the meeting, denied the
request of its employee Annu Rajan to be represented by the
Nurses Union during an interview; that Annu Rajan had rea-
sonable cause to believe that the October 18, 2004 interview
would result in disciplinary action against her; that Barron con-
ducted the interview with Rajan even though the Respondent
had denied the employee’s request for union representation;
and that about October 18, 2004, Respondent issued a 7-day
suspension to Rajan because she refused to attend the October
15, 2004 interview without union representation.
On Monday October 18, 2004, Rajan and Ajo James were
told to report to Auerbach’s office at 9 a.m. Rajan testified that
she and Ajo James went to Auerbach’s office at 9 a.m., waited
for her for 15 minutes, and then returned to the unit; that be-
tween 12 noon and 1 p.m. Auerbach came to the unit with a
new acting occupational health nurse administrator and intro-
duced her; that at that time Auerbach told her and Ajo James to
be at her office at 1 p.m.; that she and James reported to Auer-
bach’s office at the designated time; that Mitch Barron, a postal
labor relations person, was with Auerbach in her office; that
Auerbach said, “Okay, Ann, explain what happened on Friday”
(Tr. 556); that Ajo James then said, “Dr. Auerbach, why is she
having this pre-d today” (Id.); that Auerbach said, “I called her
in for a meeting for a discussion, and she refused to come”
(Id.); that she said, “Dr. Auerbach, I was standing right here”
(Id.); that Ajo James said, “She was standing right here” (Id.);
that Barron said, “Shoosh, be quiet, Ajo. Don’t speak.” (Id.);
that Auerbach said, “Okay. Then what happened” (Id.); that she
described what occurred on October 15, 2004; that Ajo James
said according to rule 16 when there is a discussion it should be
between the employer and the employee, and there should not
be a witness present; that Barron said, “Ajo, be quiet. Shoosh,
be quiet. Don’t say anything. Just let Ann speak” (Id. at 557);
and that Barron interrupted Ajo James two or three times, he
would not let her talk.

24 On brief, counsel for the General Counsel contends that since
there is no dispute about motivation, the shifting burden analysis of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert denied 455 U.S.989 (1982), does not apply. I agree.
Ajo James testified that on Monday October 18, 2004, a pre-
disciplinary interview was scheduled for 9 a.m. with Rajan and
Auerbach; that she and Rajan went to Auerbach’s office at 9
a.m. and waited for 15 to 20 minutes for Auerbach, who never
showed up; that she and Rajan went back to the medical unit;
that about 11:30 a.m. Auerbach came to the medical unit and
told her that the predisciplinary meeting was rescheduled for 12
o’clock; that Rajan was at lunch so the meeting was resched-
uled for 1 p.m.; and that she, Rajan, Auerbach, and Barron were
present for the predisciplinary meeting in Auerbach’s office at
1 p.m. Ajo James gave the following testimony regarding what
happened at the meeting:

So . . . they told us to have a seat. Then Dr. Auerbach
asked Ann to explain what happened on Friday. I asked
Dr. Auerbach why are we here for. Dr. Auerbach replied,
“I called Ann for a discussion, and she refused to come.”
Then Ann said, “I did not refuse to come.” And Dr. Auer-
bach argued that with Ann, that she refused to come.
So interfered [sic] and I said, “Dr. Auerbach, she
came.” Then Mitch Barron was sitting there. He said,
“Ajo, be quiet. Let Ann continue. It’s between Dr. Auer-
bach and Annu Rajan.”
Then Dr. Auerbach continued her—sorry. Annu Rajan
continued to explain what happened on Friday. Then in
between, I wanted to say something, and then Mitch Bar-
ron put his index finger on his mouth and said, “Shoosh.”
So I waited for Ann to finish explaining. Afterwards, I
asked Dr. Auerbach what Article . . . or what rules did she
violate. And I also mentioned—then Mitch Barron said,
“Ajo, be quiet.” And I said, “According to Article 16.02,
the meeting should be discontinued—this discussion
should be held in private.” And Mitch Barron said, “I am
here as a witness, now you listen.” So they did not—he did
not allow me to talk at all.
Then Ann and Dr. Auerbach continued and then we
finished. [Tr. 583 and 584.]

On cross-examination, Ajo James testified that she did not
file a grievance with respect to the Weingarten violation that
she thought occurred when Barron interfered with performance
as a steward; and that Mitchell told her that a charge would be
filed with the Board regarding the Weingarten rights.
On redirect, Ajo James testified that Rajan told her the fol-
lowing:

She told me the event happened just around 3:15 that
afternoon, that employee when he came and told Ann
about filing a grievance—that he filed a grievance. And so
Linda Shockley went to her office, Dr. Auerbach’s office,
and informed her of that, and her concern was that this
discussion may be related to this Union grievance proce-
dure that she encouraged this employee. [Tr. 602.]

Ajo James further testified that article 16.02 of the collective-
bargaining agreement between National Postal Professional
Nurses (NPPN) and the Postal Service (R. Exh. 26), specifies
that a discussion should be conducted between the supervisor
and the employee and must be private; and that at the October
18, 2004 predisciplinary meeting she said that according to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
article 16.02 the October 15, 2004 meeting should have been
conducted in private, the discussion should have been con-
ducted in private; and that Barron then told her that it was be-
tween Auerbach and Rajan and to be quiet.
Auerbach testified that she did not have any recollection of
there being an investigatory meeting held with Rajan concern-
ing her refusal to enter Auerbach’s office when Michael James
was there; and that her recollection was not refreshed by read-
ing a document with an employee’s explanation on it.25
Barron, who works at Respondent’s Cappell, Texas facil-
ity—which is about 30 miles from Respondent’s DFW Turn-
pike facility, testified that as a supervisor he received labor
relations training and part of that training was that “if we were
going to discipline an employee, we would have to have a
steward present during the interview, prior to” (Tr. 691); that he
has had predisciplinary meetings with employees; that presently
he is a labor relations specialist; that he has both received and
given Weingarten training; that the medical unit is his responsi-
bility; that in October 2004 he was told by his manager, Eric
Fryda, that Dr. Auerbach, who was the supervisor in the medi-
cal unit, wanted to hold a predisciplinary meeting with a nurse;
that he attended a meeting in Auerbach’s office with Auerbach,
Rajan, and her representative, Ajo James; that Auerbach
opened the meeting telling everyone what the meeting was
about, it was a predisciplinary meeting and she wanted to get
the facts of the case; that Auerbach started to ask Rajan why
she didn’t follow her instructions; that Ajo James, who had a
contract, a notebook, and a pen, said, “We shouldn’t be in here.
This is a violation of the contract” (Tr. 694); that Ajo James
went on and on and she was getting louder and louder; that
Auerbach tried three or four times to ask Rajan a question; that
he told Ajo, “Why don’t you let her [Auerbach] ask her ques-
tion. She wants to give her side of the story” (Id. at 695); that
Ajo James stopped and said, “[O]kay” (Id.); that Auerbach
asked her question and Rajan replied with a fairly long explana-
tion, saying that she was being harassed and she did not like a
witness at the prior meeting; that they discussed rules and regu-
lations and stuff about the nursing unit; that while Rajan was
talking to Auerbach, Ajo James was taking notes; that then Ajo
James asked a couple of questions, he did not remember what
they were, and Auerbach said, “I’ll get back with you” (Id.) and
Rajan and Ajo James left; that at the time he had been in charge
of the medical unit as a labor representative for about 1 year;
and that there had been issues in the medical unit in that there
was a lot of grievance activity.
On cross-examination, Barron testified that he arrived at Au-
erbach’s office early and she told him that the meeting was
about failure to follow instructions; that he thought that Auer-
bach wanted to discuss some procedures in the medical unit,

25 Auerbach testified that with respect to the information which one
of Respondent’s counsel wanted to have read into the record as a past
recollection recorded, she did not remember if she typed the statement
or if she provided the information to someone else who typed it but it
was her unequivocal testimony that she adopted the statement when she
signed that document; and that she did not have any recollection of
drafting or adopting R. Exh. 25, which is dated October 20, 2004, has
her signature on the second page, and was identified but not offered
into evidence.
and she wanted to talk to Rajan or meet with her, and that was
all he remembered; that he did not recall that Auerbach pro-
vided any information to him regarding what it had been that
Auerbach was saying she wanted to discuss with Rajan on the
earlier occasion; that Ajo James was loud and agitated when
she was speaking at this meeting; that, as he recalled, he spoke
to Ajo James one time before she stopped speaking; that when
he spoke to Ajo James it was not a directive; that it is not true
that every discipline that issues at the Dallas/Fort Worth facility
is cleared before its issuance by a labor relations specialist
there; that quite a bit of discipline is issued without a labor
relations specialist looking at it; that a supervisor has the au-
thority to issue discipline, namely letters of warning, and 7- and
14-day suspensions without a labor specialist ever seeing it;
that for removal or proposed removal there has to be labor rela-
tions clearance for that; that a labor relations specialist will
become involved in a disciplinary process only if it is some-
thing beyond suspension that is being contemplated; that he had
his Weingarten training as a supervisor some years ago and as a
labor relations specialist in 2005; that while Ajo James had a
copy of the collective-bargaining agreement with her during
this meeting, she did not cite a particular provision of the con-
tract in the context of her statements during this meeting; that
Ajo James did not cite section 16.02 relating to official discus-
sions; that during the meeting Ajo James said, “[W]e shouldn’t
be in here and this was a violation of the contract, and basically
that on and on and on” (Tr. 704); that he did not remember Ajo
James citing some provision of the contract; that it was not his
understanding that Ajo James was claiming that there was some
type of problem which should be addressed before the meeting
continued; that the role of the labor relations representative
customarily during a predisciplinary interview is as a witness;
that a supervisor requests if they want a labor relations special-
ist present at a meeting and the request would have to be ap-
proved by the manager, Eric Fryda; that Auerbach did not give
any indication during her meeting with Rajan that he attended
as to what procedures she had wanted to discuss with Rajan on
the prior occasion; that Auerbach just asked Rajan why she did
not follow her instructions; and that when Auerbach said that
the meeting pertained to failing to follow instructions he did not
recall Ajo James ask if she could have more details about what
the purpose of the predisciplinary meeting was.
General Counsel’s Exhibit 14, which is dated October 20,
2004, is a 7-day suspension given to Rajan for “Unsatisfactory
Work Performance—Failure to Follow Instructions.” As here
pertinent, the document reads as follows:

On October 15, 2004, I instructed you to report to my
office for a meeting. Instead of reporting to my office, you
stated “I will need a witness also.” I informed you at this
time that it was not proper for a union representative to be
present at this meeting, and I repeated the instructions to
you. I explained that the meeting was not for any discipli-
nary issues. You repeated to me that you still would not
report to the meeting and said that if Michael James,
Training Supervisor, was going to be present, then you
wanted someone to be present for you as well. You failed
to report to the meeting after being repeatedly instructed to
POSTAL SERVICE 397
do so. You were given an opportunity to explain your rea-
son for failing to follow my repeated instructions, in a pre-
disciplinary interview. In the predisciplinary interview you
failed to provide an acceptable reason for not following
my instructions.

. . . .

In addition, the following element of your past record
was considered in arriving at this Seven (7) day suspen-
sion.
You were issued a Letter of Warning on October 5,
2004 for Unacceptable Work Performance Resulting in
Absence Without Official Leave, AWOL.

On cross-examination, Rajan testified that she filed a griev-
ance over this discipline; that the discipline was removed; and
that she was fully compensated for any lost wages due to the
suspension.
On cross-examination, Ajo James testified that two griev-
ances were filed with respect to what happened on October 15,
2004, namely one alleging a Weingarten violation and the other
one spoke to the suspension Rajan received for failing to follow
instructions when she would not engage in the meeting with
Auerbach; and that Rajan told her that she received her backpay
for the 7-day suspension.
Analysis
Rajan and Ajo James impressed me as being credible wit-
nesses, and I credit their testimony with respect to what was
said and what occurred at their meeting with Auerbach and
Barron on October 18, 2004. As indicated above, I find Auer-
bach to be a very calculating witness. I do not credit her testi-
mony that she did not have any recollection of the involved
meeting. Barron also is not a credible witness. I do not credit
his testimony that he recalled speaking to Ajo James only one
time before she stopped speaking and what he said to Ajo
James was not a directive. Ajo James impressed me as being
the type of person who would stand up for her rights and the
rights of a person she represented. As Barron concedes, Ajo
came to the meeting with a copy of the involved collective-
bargaining agreement, a notebook and a pen, and Ajo James
took notes of what was being said between Rajan and Auer-
bach. In other words, Ajo James was taking a conscientious
approach to her job as a representative of Rajan at this meeting.
As noted above, Barron testified that that while Ajo James had
a copy of the collective-bargaining agreement with her during
this meeting, she did not cite a particular provision of the con-
tract in the context of her statements during this meeting; that
Ajo James did not cite section 16.02 relating to official discus-
sions; that during the meeting Ajo James said, “[W]e shouldn’t
be in here and this was a violation of the contract, and basically
that on and on and on” (Tr. 704); that he did not remember Ajo
James citing some provision of the contract; and that it was not
his understanding that Ajo James was claiming that there was
some type of problem which should be addressed before the
meeting continued. Contrary to the testimony of Barron, Ajo
James, as testified to by her and Rajan, cited section 16 of the
collective-bargaining contract that she had with her.26 Also
contrary to the testimony of Barron, Ajo James would not stop
speaking on Rajan’s behalf—would not stop representing Ra-
jan, unless and until she was directed to by a supervisor. Con-
trary to the testimony of Barron, that is exactly what occurred.
Barron directed Ajo James to stop talking at this meeting. In
taking this action, Barron denied the request of Rajan to be
represented by the Nurses Union during this interview. Rajan
had reasonable cause to believe that the October 18, 2004 inter-
view would result in disciplinary action since she was told be-
forehand by Auerbach that the meeting was a predisciplinary
meeting. And, as indicated above, the October 18, 2004 inter-
view was conducted even after Ajo James was told by Barron
not to speak. As pointed out by counsel for the General Counsel
on brief, when an employer permits a union representative to
attend an interview but forbids the representative to be anything
more than a silent observer, the employer interferes with the
employee’s rights in violation of the Act, Postal Service, 347
NLRB 885 (2006), citing Barnard College, 340 NLRB 934,
935 (2003). The Respondent violated the Act on October 18,
2004, as alleged in the complaint.
3. Deloris Snyder
The complaint alleges that on or about January 19, 2005, Re-
spondent, by Gary Guderian, at Respondent’s Groesbeck facil-
ity, denied the request of employee Deloris Snyder to be repre-
sented by Letter Carriers Branch 404 during an interview; that
Deloris Snyder had reasonable cause to believe that the January
19, 2005 interview would result in disciplinary action against
her; and that Guderian conducted the interview with Snyder
even though the Respondent had denied the employee’s request
for union representation.
Deloris Snyder, who has worked for the Respondent since
1996 and is a city letter carrier, testified that she works at Re-
spondent’s Groesbeck facility; that the city letter carriers at
Groesbeck are represented by the National Association of Let-
ter Carriers; that she has been a member of that Union since
1998, the secretary of Branch 404 since 2004, and a shop stew-
ard at Groesbeck since 2002; and that shortly after December
17, 2004, she mailed the following, General Counsel’s Exhibit
9, to all the postmasters, station managers, and officers in
charge:

W. Charles Johnson, President
National Association of Letter Carriers
Branch 404
P.O. Box 8623
Waco, TX 76714-8623

December 17, 2005 [sic]

26 Rule 16.02 of the involved collective-bargaining agreement, R.
Exh. 26, reads “For minor offenses by an employee, management has a
responsibility to discuss such matters with the employee. Discussions
of this type shall be held in private between the employee and the su-
pervisor. Such discussions are not considered discipline and are not
grievable.” In view of this, it is understandable why Rajan would have
reasonable cause to believe that Auerbach’s need to have a witness
present on October 15, 2004, meant that the meeting involved some-
thing more serious than a discussion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
Postmasters, Station Managers, Supervisors, Officers-in-
Charge:

This is to inform you that the position of Vice-President, in
NALC Branch 404 has the responsibility of the Associate Of-
fices. In addition to that, any Steward or Member of Branch
404 who contacts that office for representation, at any time, is
entitled to be represented by the Vice-President.

Sincerely,

W. Charles Johnson
dcs
cc: Officers, Trustees, Stewards

Snyder further testified that she typed the above-described let-
ter, and had Johnson sign it; that the year 2005 on the letter is a
typographical mistake and it was a stressful time; and that
Johnson was not president of Branch 404 on December 17,
2005, in that his term expired the first Tuesday of December
2005 (December 5, 2005).
Additionally, Snyder testified that on January 19, 2005,
when she arrived at work at 7:30 a.m. Postmaster Gary Gud-
erian called her into his office; that Guderian told her that Mark
Smith was there on a higher level; that Smith is a rural carrier
who, on occasion, serves as post office administrator on a
higher level; that no one other than her, Guderian, and Smith
were present; that she asked Guderian if this was leading to
discipline and Guderian responded that it was; that she then
asked for representation under Weingarten, and she asked for
Chuck Owen, who is the union branch president; that Guderian
asked her if she was a steward and she told him that she was
but she still gets to have representation; that she and Guderian
“kind of argued back and forth as to whether I would receive
representation” (Tr. 504 and 505); that Guderian asked her if
she was refusing to cooperate and she told him that no, she
would cooperate once Guderian got Owen at the Groesbeck
facility; that Guderian said, “[O]kay, I understand. Now let me
ask you a question” (Id. at 505); that Guderian then asked her if
he had instructed her to follow the M-41 and she told him that
he did but his instructions were not clear; that they argued back
and forth about that because Guderian would not explain to her
exactly what he wanted her to do; that she repeatedly asked for
representation during this interview; that finally she and Gud-
erian argued about whether she was working efficiently, and he
told her to go back to work; that she told Guderian that she
would go back to work but she was stopping to telephone
Owen; that the meeting lasted about 5 to 10 minutes; that she
made an audio recording of her meeting with Guderian (GC
Exh. 10)27; that she has listened to the audio recording and it
accurately depicts the events of the January 19, 2005 meeting
with Guderian; and that within 2 weeks of the meeting she
made a transcription (GC Exh. 11), from the tape. The tape
recording was played more than once on the record at the trial

27 According to Snyder’s testimony, the Olympus recorder she used
to record her conversation with Guderian downloads to a computer and
Owen took it to his house, downloaded it onto his computer, and he
made a tape. Snyder testified that she was present when Owen
downloaded it but she was not present when he made the tape.
herein. The following is the court reporter’s transcription of the
tape recording:

GARY GUDERIAN: Mark is in here on a higher level
right now.
DELORIS SNYDER: Is this leading to discipline?
GARY GUDERIAN: Yes, it is.
DELORIS SNYDER: Then I request representation from
Chuck Owen under the Weingarten Act.
GARY GUDERIAN: Deloris, you are the steward. I need
to ask you a few questions.
DELORIS SNYDER: I respectfully refuse to answer any-
thing on the grounds that I have requested representation.
You have a letter stating that I can request representation
at any time.
GARY GUDERIAN: You don’t get representation. You
are the steward.
DELORIS SNYDER: I am a steward, yes.
GARY GUDERIAN: I need to ask you a few questions.
DELORIS SNYDER: Well, as soon as you contact Chuck
Owen and he comes over, I’ll be happy to help you.
GARY GUDERIAN: Are you refusing to speak with me?
DELORIS SNYDER: I am refusing to speak with you on
any disciplinary action without representation.
GARY GUDERIAN: Are you refusing to speak to answer
me?
DELORIS SNYDER: I am refusing to answer you without
representation.
GARY GUDERIAN: I am going to ask you a question.
You can [At transcript pages 755 and 756 Counsel for
General Counsel and the Respondent stipulated that the
correct transcription for the words “You can” is “unintelli-
gible word and audible interruption.”28] either respond to it
or not. I already got your response yesterday. Did I in-
struct you, okay, to complete your office duties in accor-
dance with the M-41?
DELORIS SNYDER: Yes you did. And have you read the
M-41? Because you have not instructed me properly.
GARY GUDERIAN: That is your responsibility.
DELORIS SNYDER: I have read the M-41, and you are in
violation of Article 3, Article 19, M-41, M-39, and the
Groesbeck Local.
GARY GUDERIAN: I am going to ask you a question,
okay? Now did I tell you to perform your office duties ac-
cording to the M-41?
DELORIS SNYDER: Yes, you did, and I have read the M-
41.
GARY GUDERIAN: Okay. You are using improper work
techniques.
DELORIS SNYDER: Explain to me what you feel are im-
proper work techniques.
GARY GUDERIAN: You were given a list.
DELORIS SNYDER: And I am following the list.
GARY GUDERIAN: You are not.
DELORIS SNYDER: Yes, sir, I am.

28 Although not covered by the parties, this would mean that the last
two words on p. 525 L. 3 and on p. 680 L. 4 of the transcript, namely
“You can” should also be modified.
POSTAL SERVICE 399
GARY GUDERIAN: No ma’am, you are not.
DELORIS SNYDER: You may contact Chuck Owen on
this.
GARY GUDERIAN: I am—
DELORIS SNYDER: No, no. Contact Chuck Owen on
this because he is representing me on this.
GARY GUDERIAN: You are wrong, okay?
DELORIS SNYDER: Tell me what I did wrong.
GARY GUDERIAN: You aren’t casing the letter right.
DELORIS SNYDER: Yes?
GARY GUDERIAN: You weren’t pushing up the letter
with your thumb. I watched you. You were casing flats.
You picked up six flats out of that phone booth. That’s
improper.
DELORIS SNYDER: In what manner?
GARY GUDERIAN: That is improper. It’s six to eight
inches. I gave you a list. I spoke with you yesterday, and
your response was that you didn’t have to do the proper
work methods unless you were being counted.
DELORIS SNYDER: What I told you was that that was in
M-41. I followed the M-41.
GARY GUDERIAN: No ma’am.
DELORIS SNYDER: Yes, sir.
GARY GUDERIAN: You were using improper work tech-
niques. I am assuming that since this is the third time, I
will take further action. Then if you want representation,
that’s fine. If the Union is going to pay for him to come
out, that’s fine.
DELORIS SNYDER: No, you will pay for the Union to
come out here.
GARY GUDERIAN: No, I will not.
DELORIS SNYDER: Yes, you will, and I will file on this,
too, because you refused me representation.
GARY GUDERIAN: Now, are you going to follow my in-
structions or not?
DELORIS SNYDER: Yes, I will follow your instructions.
GARY GUDERIAN: Will you use the proper work tech-
niques?
DELORIS SNYDER: Yes. I am following the M-41 be-
cause I read it last night.
GARY GUDERIAN: No, you are not.
DELORIS SNYDER: Yes, I am.
GARY GUDERIAN: No, you are not.
DELORIS SNYDER: I am. Read the M-41. I read it. I read
all of it, all of the office procedures.
GARY GUDERIAN: I’m not arguing with you anymore. I
have statements right here from people who were on the
floor yesterday that heard you say that you didn’t have to
do proper work techniques unless you were counted. Now
those were your exact words.
DELORIS SNYDER: And I actually said that—
GARY GUDERIAN: Now, you did.
DELORIS SNYDER: What I told you was that you could
not tell if I am casing efficiently or not.
GARY GUDERIAN: No, I didn’t say—
DELORIS SNYDER: You said I was not—yes, you did.
GARY GUDERIAN: I said properly.
DELORIS SNYDER: You said efficiently. You said effi-
ciently, and I—
GARY GUDERIAN: Go back to your case.
DELORIS SNYDER: I will. I will. And on my way, I’m
stopping, I’m calling Chuck Owen, and I am filing on this
as well.
GARY GUDERIAN: You have five minutes.
DELORIS SNYDER: It won’t take me that long. [Tr. 514–
518 and 524–528.]

On cross-examination, Snyder testified that she recorded her
January 19, 2005 conversation with Guderian on an Olympus
digital tape recorder and Chuck Owen used his computer to
make a copy of the digital recording29; that she has worked in
Respondent’s Groesbeck office for about 6 years; that she filed
a grievance on this discipline; and that the outcome of the
grievance was that the postmaster could not deny her her Wein-
garten rights and the discipline was reduced to an official dis-
cussion which (a) is not discipline in itself; (b) cannot be used
for purposes of discipline in the future; and (c) which has no
consequences on her discipline record.
Mark Smith testified that he works for the Respondent as a
rural carrier out of the Groesbeck Post Office; that when the
postmaster is off for the day he used to cover the office for him;
that the postmaster is Guderian; that on January 19, 2005, Gud-
erian asked him to be postmaster relief in that he asked him to
be a witness; that Guderian asked him to come into his office;
that Guderian then brought Snyder into the office; and that

When they both walked back in, Deloris [Snyder]
asked if this was a disciplinary hearing. Gary told her no,
that it was a discussion. She asked for union representa-
tion. He told her that that was fine, she could have union
representation, but that he did want to discuss this with
her.

. . . . .

He [Guderian] told her that he had a question to ask
her and she could either answer it now or wait for union
representation.

. . . .

Then he asked the question next. He asked her if she
understood the instructions he had given her the day be-
fore. She said yes, she did, but she was not on her route in-
spection or route count, so she didn’t have to follow it.
[Tr. 617 and 618.]

On cross-examination, Mark Smith testified that he did not
speak during the meeting; that he heard Snyder request a union
representative; that he did not remember hearing Snyder re-
spectfully refusing to answer until she had union representa-
tion; that Guderian told Snyder that she could either answer the
question or she could wait until the union representative was
there; that he did not recall anything being said with respect to

29 Respondent characterized this portion of cross-examination as voir
dire but since the recording and transcript were already admitted into
evidence and voir dire goes to admissibility, it was really cross-
examination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
paying for the union representative; and that, after listening to
the recording made of the meeting [seconds 43 through 96 of
GC Exh. 10(b)] and looking at the transcript of the recording,
he had no doubt that the audio recording accurately reflects
what Snyder said during that meeting.
On redirect, Mark Smith gave the following testimony:

Q. BY MS. DORLAN: Were you able to hear the tape,
Mr. Smith?
A. I just heard without representation is all I can make
out of that. [Tr. 623.]

Smith gave this testimony after listening to that portion of the
tape after second 96, including a second or two transition.
Guderian testified that he has been the postmaster of Groes-
beck since December 2000; that Respondent’s Exhibit 28 is the
instruction and office observation of improper work methods of
Snyder on January 13, 2005; that Snyder was going to come to
work late the day he was going to give her the documents and
he had an appointment so he wrote her the letter, addressed it,
put it in a penalty envelope, and put it in her case; that on Janu-
ary 18 or 19, 2005, he observed Snyder using improper work
methods again; that Snyder told him that she did not have to
use the proper work methods unless she is being examined30;
that he asked rural carrier Mark Smith, who had served as his
relief, “[w]ould you please come in with me with Deloris [Sny-
der]. I need to bring her in and talk to her about the work meth-
ods and the instructions I gave her” (Tr. 653); that Smith had
served as his relief perhaps 1 day every 2 weeks but Smith has
since asked him to find someone else; that he thought that he
got both Smith and Snyder at the same time; that Snyder came
to his office and she asked for union representation; that he told
Snyder that she was a designated steward at the office and she
was also an officer of the branch; that Snyder continued to ask
for representation; and that

She had asked for a steward. I was trying to alleviate any type
of disciplinary action. I was trying to work it out with a dis-
cussion. She did, and I asked her a question when she was
adamant about having a steward. I believe that I said, “I have
a question to ask you. You can answer it or not.” [Tr. 655 and
656.]

Guderian further testified that he did ask his question and Sny-
der did answer it; and that the meeting ended with him giving
Snyder 5 minutes to contact another officer of the branch,
namely Vice President Frederick (Chuck) Owen; and that
Owen came to the office, there was a discussion regarding
whether Snyder was required to follow his instructions, and the
meeting with Snyder and the union representative “was another
opportunity . . . to see if we could work it out without any type
of corrective action” (Id. at 657).
On cross-examination, Guderian testified that he has con-
ducted about four predisciplinary meetings; that most of the
time the paperwork is filled out at the meeting; that there is a

30 A carrier’s proficiency can be checked by a formal inspection for a
period of 4 or 5 days where the carrier counts their mail, and 1 day they
have a certified route examiner count the mail for the carrier, observe
the office practices, and then go out and observe the street practices and
evaluate how the route is delivered.
guideline with respect to the paperwork that must be filled out
during the predisciplinary meeting; that each district, each facil-
ity, sometimes make their own form; that most of the time the
form is generated by Labor, which is the form he has used; that
carriers typically spend up to 2 hours casing their mail at the
Groesbeck facility before they deliver the mail to the postal
customers; that Respondent’s Bellmead, Texas station, which is
where Owen works, is about 45 miles or 45 to 60 minuets from
Groesbeck; that most of the time when he requests Owen he has
to go through Owen’s supervisor and manager to see if he is
available; that during his meeting with Snyder, with Mark
Smith present, Snyder did ask for a steward; that he could not
remember verbatim what Snyder said regarding that she did not
want to go forward with the meeting unless there was a steward
there; that Snyder was adamant about having a steward; that
since he could not remember exactly what Snyder said, he
could not refute an assertion that Snyder respectfully refused to
answer until there was a steward; that he did not recall Snyder
asking him at the beginning of the meeting “is this leading to
discipline” but she may have; and that he could not deny that
she asked this question because he did not remember what
Snyder said verbatim. Guderian then gave the following testi-
mony:

Q. And do you recall telling her [Snyder] that it was
possibly leading to discipline?
A. To be honest, I don’t remember if she asked me that
question. I may have said it could. I really don’t remem-
ber. [Tr. 671.]

Guderian further testified on cross that he could not deny the
accuracy of testimony that Snyder asked him if this is leading
to discipline and he answered yes; that normally it is his prac-
tice to have someone else present when he has to shut the office
door with a female employee in his office; that he recalled tell-
ing Snyder that Mark Smith was there on a higher level, mean-
ing that there was a certain confidentiality on a higher level;
that this was the only occasion when he had Mark Smith pre-
sent on a higher level when he spoke with an employee; and
that on one other occasion when he spoke with a female em-
ployee he had someone else present.
Subsequently, Guderian testified that he saw General Coun-
sel’s Exhibit 9 before; that he had no idea if the date on the
letter, namely December 17, 2005, should be December 17,
2004; that he did not recall specifically discussing who would
pay for the union steward to come out in that he did not recall
verbatim what was said in that room; and that getting Owen to
come to Groesbeck:

It’s more of a matter of expediency and seeing if he’s
available. Now he has come out on his days off before,
and he has told me that, and I’ve paid him for it, if I’m not
mistaken. To my recollection, I have, or he has done it on
his own time. [Tr. 683.]

Portions of the audio recording Snyder made of her meeting
with Guderian and Mark Smith were played for Guderian, and
he was shown Snyder’s transcript of the recording. Guderian
did not take the opportunity to deny the accuracy of the re-
cording. (Tr. 677–683.)
POSTAL SERVICE 401
Jeffrey Dean Dalton, who is an area labor specialist who
represents the Postal Service with respect to its collective-
bargaining agreement with the National Association of Letter
Carriers (NALC), testified that, as indicated in Respondent’s
Exhibit 27, page 17-5, which is the NALC-USPS Joint Contract
Administration Manual (JCAM), pursuant to an 1980 step 4
agreement the Postal Service is not responsible for the payment
of outside stewards for their travel time while serving a differ-
ent installation; that by application the Postal Service has ap-
plied those same provisions for Weingarten rights or rights
were stewards have to travel between installations in order to
represent an employee; that with respect to the Snyder situation
described above, the travel time between the installation that
the steward leaves and the installation to which he has traveled
is not compensable by the Postal Service; and that pursuant to
the understandings that follow from the JCAM, only the time
the steward is on the clock representing the employee is com-
pensable by the Postal Service, and Owen would not have been
compensated by the Postal Service for the time he spent travel-
ing to and from Groesbeck.
Pages two and three of Respondent’s Exhibit 32 is a warning
letter, dated January 27, 2005, from Guderian to Snyder. As
here pertinent, it reads, in part, as follows:

Charge: Unacceptable Performance—Failure to Follow In-
structions

On January 13, 2005 I instructed you on the proper
work methods for a carrier as outlined in the M41. I out-
lined specific deficiencies I observed you doing which in-
cluded working efficiently at your case. On January 18,
2005 I instructed you to return to your case, and case your
mail. You disregarded my clear instruction and stated you
only had to follow the M41 during route count and inspec-
tion. When asked about this incident you stated you were
not required to use proper work methods unless you were
being counted. Your response is unacceptable.
Therefore, for your actions described above you are
charged with “unacceptable conduct—failure to follow in-
structions.”

. . . .

I must warn you that future deficiencies will result in more
severe disciplinary actions, including suspensions or removal
from the Postal Service.
You have the right to file a grievance under the griev-
ance-arbitration procedure set forth in Article 15, Section
2 of the National Agreement within 14 days of your re-
ceipt of this notice.

Page one of Respondent’s Exhibit 32 is a “USPS-NALC Joint
Step A Grievance Form.” It indicates that (a) Snyder is the
grievant, (b) the “01/27/2005” letter of warning was reduced to
“Official Discussion,” (c) Owen was the steward, and (d) Gud-
erian signed the form. Guderian testified that an official discus-
sion is not citable as a discipline and it does not go into the
employee’s personnel folder.
Owen testified that he works at Respondent’s Bellmead sta-
tion; that he is president of NALC, Branch 404; that Snyder
brought a small digital recorder to him because she was having
problems with her computer; that he installed the software that
came with the recorder on his computer and he unsuccessfully
burned a CD; that he then purchased a patch cable and ran it
from the “audio out” on the digital recorder to the “microphone
in” of a standard table top cassette recorder, hit the record but-
ton, and made the audio cassette that way; that the hard drive
on the computer that he used has since crashed and he lost the
involved program; that he made the tape and gave it to Snyder;
that Snyder was not present when he made the magnetic tape
but she was there when he installed the software and tried to
make the CD; that she left the digital recorder with him and he
then purchased the cable he needed; that he then gave Snyder
the digital recorder back, along with the tape he made; and that
his computer is a Compaq Presario, model 5834, which was
purchased in 1999.
As noted above, the proceeding was continued from March
29 to July 24, 2006, to accord the Respondent the opportunity
to have its expert review the Snyder tapes and the equipment
utilized to make them. Respondent’s expert, James Foye, testi-
fied that he examined two audio tapes to see if they were al-
tered; and that one of the tapes [which was the tape which
Owen made, namely GC Exh. 10(a)] was electronically edited
or there were electronic events in that the continuation of con-
versation, as demonstrated by Respondent’s Exhibit 36, is inter-
rupted,31 and there was also a mechanical event on this tape;
that the other tape [which is the tape Snyder made, namely GC
Exh. 10(b)], which in terms of the involved conversation is
shorter (12 seconds) than the first tape, has also been electroni-
cally edited; and that tape 10(b) it is not a faithful reproduction
of tape 10(a) since it does not start and finish the involved con-
versation in the same timeframe.32
On cross-examination, Foye testified that tape B has auto-
matic gain control starts and since “it was not a continuous
recording, I could not waste any more time [resolving the effect
of this]. I had other cases to do.” (Tr. 797); and that he could
not come up with a reasonable explanation for the electronic
events on the tapes other than to conclude that they were caused
by manipulation.
On redirect, Foye testified that it is possible that any one of
the involved electronic events could have been caused uninten-
tionally if a person “is not familiar with the software, they
could have slipped or break or make [sic] a mistake” (Tr. 842).
Subsequently, Foye testified that the following portion of the
transcript of the trial herein, which is a transcript of what is on
tape 10(a), is reliable and pretty consistent:

GARY GUDERIAN: Mark is in here on a higher level
right now.
DELORIS SNYDER: Is this leading to discipline?
GARY GUDERIAN: Yes, . . . [ma’am].

31 With respect to one of the edits or events, subsequently, Foye an-
swered, “correct” when asked if “this is an editing that occurred before
we are actually in any of the recorded conversation” on the first tape.
Tr. 763.
32 Foye’s report was received at the trial herein as R. Exh. 38. R.
Exhs. 34, 35, 36, and 37 are printouts of audio or frequency tests con-
ducted by Foye.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
DELORIS SNYDER: Then I request representation from
Chuck Owen under the Weingarten Act.
GARY GUDERIAN: Deloris, you are the steward. I need
to ask you a few questions.
DELORIS SNYDER: I respectfully refuse to answer any-
thing on the grounds that I have requested representation.
You have a letter stating that I can request representation
at any time.
GARY GUDERIAN: You don’t get representation. You
are the steward.
DELORIS SNYDER: I am a steward, yes.
GARY GUDERIAN: I need to ask you a few questions.
DELORIS SNYDER: Well, as soon as you contact Chuck
Owen and he comes over, [then] I’ll be happy to help you.
GARY GUDERIAN: Are you refusing to speak with me?
DELORIS SNYDER: I am refusing to speak with you on
any disciplinary action without representation.
GARY GUDERIAN: Are you refusing to speak to answer
me?
DELORIS SNYDER: I am refusing to answer you without
representation.
GARY GUDERIAN: I am going to ask you a question.
[Tr. 514 and 515.]

Respondent does not deny that Guderian then proceeded with
the interview.
On rebuttal, Owen testified that prior to his computer crash-
ing in March or April 2005, he had been downloading music
and he was having problems burning CDs; that when he tried to
create a CD of the involved Olympus digital recording with his
computer using Snyder’s Olympus program, no files showed on
the CD; that he then purchased some blank cassettes and he ran
a patch cable from the ear piece of the Olympus recorder to the
microphone in on his cassette tape recorder and made a cassette
tape of the recording; that he did not open editing on the Olym-
pus program; and that he made no effort to alter, change, or
modify the content of any of the involved recordings. On cross-
examination, Owen testified that before he attempted to make a
CD from the involved Olympus recorder he had been experi-
encing problems with writing CDs; that when he was down-
loading music he was letting his computer run all night and he
experienced problems burning CDs; that he did not engage in
editing when the Olympus file was on the hard drive of his
computer; and that he did not have any explanation for any
electronic or mechanical events or electronic editing on the tape
which is General Counsel’s Exhibit 10(a). On redirect, Owen
testified that he did not edit any audio files and he did not edit
anything with the Olympus recorder. On recross, Owen testi-
fied that he was not aware of an editing function on the Olym-
pus software. Owen testified that he was mistaken when he
earlier testified that he purchased a cable to make the tape since
he already had the cable he used. As noted above, Owen did not
have cassette tapes and he had to purchase them to make a tape
of the involved Olympus recording.
On rebuttal, Snyder testified that she is technologically chal-
lenged; that she did not read the operation manual which came
with the Olympus digital recorder; that she unsuccessfully tried
to load the recording onto her computer when she got every-
thing back from Owen; that she did not know that the Olympus
software provided for editing; that she did not try to alter the
content of the involved recording; that she was with Owen
when he unsuccessfully tried to transfer the recording to a CD;
that she left the recorder and software with Owen to make a
tape; that she made a copy of the cassette tape that Owen gave
her; that she had to listen to the tape when she made the tran-
script and she would stop and rewind the tape as she typed the
transcript; and that she mailed the second tape to the Fort
Worth office of the Board.33 On cross-examination, Snyder
testified that she began using a recorder (in December 2004)
because, regarding a previous grievance, Guderian told the
president of her Union, Johnson, that Snyder was throwing fits
on the floor; that such conduct would be considered violence in
the workplace by the Postal Service, and since a postal em-
ployee could lose their job if they engage in violence in the
workplace, she decided that she had to start recording while she
was in the Groesbeck facility; that she had the recorder on from
just before getting to work up to the time she left to do her
route; that she stopped recording in April 200634; that after the
involved tape was made, the Olympus recorder got wet from
the rain and she did not have it repaired because she felt that it
would be cheaper to buy another recorder; that the day she gave
the Olympus recorder to counsel for the General Counsel to
turn over to the Respondent for analysis, she realized that the
Olympus recorder was working and she erased what she re-
corded that day and saw that nothing else was on the recorder;
that she used tape 1 [GC Exh. 10(a)] to transcribe, which was
the tape Owen gave her with his handwriting on it; that on
March 17, 2006, she mailed tape 2 [GC Exh. 10(b)] which she
made and which has her handwriting on it, to Linda Reeder at
the Board’s Fort Worth office; that she did not wrap the tape in
aluminum foil or take any special measures to protect the tape
which she mailed to a Federal building; that she was not sure if
she tried to load the recording on her computer before or after
she went to Owen; and that she did not know how any of the
events on the two tapes occurred.
Analysis
In my opinion, while the tapes may not be perfect quality
and they have events, it has not been shown that any defects or
electronic or mechanical events were intentional or are so sub-
stantial that they render the entire recording untrustworthy.
Defects and events such as the ones cited by Respondent’s
expert go to the weight to be accorded the recording rather that
its admissibility. Additionally, Respondent’s expert testified,
after listening to the recording while on the witness stand at the

33 This Board office is located in a Federal Building.
34 The transcript originally read, as here pertinent, “I stopped re-
cording when Derrick Gregorian had me in the office on April 1st.” Tr.
916, LL. 9 and 10. Actually, Snyder testified that she stopped recording
when Gary Guderian was removed from office on April 3. On March
28, 2006, Guderian testified at the trial herein that he was postmaster of
Respondent’s Groesbeck facility. Consequently, his removal would
have occurred subsequently, namely on April 3, 2006, the first Monday
following his testimony at the trial herein. LL. 9 and 10 of Tr. 916 have
been amended to read “I stopped recording when Gary Guderian was
removed from office on April 3rd.”
POSTAL SERVICE 403
trial herein, that the portion of the recording (p. 514, L. 6 to p.
515, L. 4, excluding the words “You can” at the end of the line,
as set forth above) which focuses on the issue at hand herein,
namely that portion which indicates that (a) Guderian said yes
when Snyder asked him if the interview could lead to disci-
pline; (b) Snyder asked for union representation; and (c) Gud-
erian, after denying Snyder’s request, continued to conduct the
interview, is reliable and consistent. The credible testimony of
Snyder, even without the recording, demonstrates that (1) Sny-
der had reasonable cause to believe that the January 19, 2005
interview would result in disciplinary action against her; (2)
Snyder asked for union representation; and (3) Guderian con-
ducted the interview with Snyder even though he denied Sny-
der’s request for union representation. The recording is icing on
the cake. It is not necessary to rely on it. Snyder’s credible
testimony alone is sufficient. Guderian did not refute Snyder’s
testimony but rather took the “I do not remember” or “I do not
recall” approach. Guderian did, however, admit that Snyder
was adamant about having union representation, and that he
gave her time at the end of the meeting to contact her union
representative. Obviously, Guderian conducted the interview
after refusing to grant Snyder’s request to have a union repre-
sentative. And since Guderian does not dispute that he, himself,
told Snyder that the meeting could lead to discipline, all of the
necessary elements are present. Guderian is not a credible wit-
ness.
Mark Smith is not a credible witness. According to his testi-
mony, while Guderian told Snyder that the meeting was not
disciplinary in that it was a discussion, Guderian told Snyder
that she could have union representation and he would wait for
union representation. Article 16.2 of the involved collective-
bargaining agreement, Respondent’s Exhibit 29, specifies

For minor offenses by an employee, management has a re-
sponsibility to discuss such matters with the employee. Dis-
cussions of this type shall be held in private between the em-
ployee and the supervisor. Such discussions are not consid-
ered discipline and are not grievable. [Emphasis added.]

If the meeting could not result in discipline, why would Gud-
erian agree to allow Snyder to have a union representative pre-
sent? As Guderian advised Snyder at the outset, the meeting
was leading to discipline, and Guderian proceeded with the
interview after refusing Snyder’s adamant demands to have a
union representative present.35 I find that th eGeneral Counsel

35 On brief, Respondent contends that Snyder chose to answer Gud-
erian’s questions and, therefore, Guderian did not violate Snyder’s
Weingarten rights by continuing with additional questions. A waiver of
the right to representation must be clear and unmistakable; it will not be
lightly inferred. There was no waiver here. Moreover, as indicated
above, the Board in Postal Service, 241 NLRB 141 (1979), concluded
as follows:
Under Weingarten, once an employee makes . . . a valid re-
quest for union representation, the employer is permitted one of
three options: (1) grant the request, (2) discontinue the interview,
or (3) offer the employee the choice between continuing the inter-
view unaccompanied by a union representative or have no inter-
view at all. Under no circumstances may the employer continue
the interview without granting the employee union representation,
unless the employee voluntarily agrees to remain unrepresented
has shown that Respondent violated the Act on January 19,
2005, as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent pursuant
to Section 1209 of the Postal Reform Act.
2. The involved Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) of the Act:
(a) On or about April 14, 2004, Respondent, by Leon Nash,
at Respondent’s Birmingham Annex facility, by denying the
request of employee David Callens and Mailhandlers Local 317
Steward Edward Steele to meet and confer prior to the com-
mencement of the interview, denied the request of its employee
David Callens to be represented by Mailhandlers Local 317
during an interview; that Callens had reasonable cause to be-
lieve that the April 14, 2004 interview would result in discipli-
nary action against him; and that Nash conducted the interview
with Callens even though the Respondent had denied the em-
ployee’s request for union representation.
(b) On or about April 16, 2004, Respondent, by Leon Nash,
at Respondent’s Birmingham Annex facility, by denying the
request of employee William Amerson and Mailhandlers Local
317 Steward Edward Steele to meet and confer prior to the
commencement of the interview, denied the request of its em-
ployee William Amerson to be represented by Mailhandlers
Local 317 during an interview; that William Amerson had rea-
sonable cause to believe that the April 16, 2004 interview
would result in disciplinary action against him; and that Nash
conducted the interview with Amerson even though the Re-
spondent had denied the employee’s request for union represen-
tation.
(c) On or about April 21, 2004, Respondent, by Diane
Crenshaw, at Respondent’s Birmingham Plant facility, by deny-
ing the request of employee Tommy Jones and Mailhandlers
Local 317 Steward Douglas Cash to meet and confer prior to
the commencement of the interview, denied the request of its
employee Tommy Jones to be represented by Mailhandlers
Local 317 during an interview; that Tommy Jones had reason-
able cause to believe that the April 21, 2004 interview would
result in disciplinary action against him; and that Diane
Crenshaw conducted the interview with Tommy Jones even
though the Respondent had denied the employee’s request for
union representation.
(d) In or about July 2004, Respondent, by Leon Nash, at Re-
spondent’s Birmingham Annex facility, by denying the request
of employee William Amerson and Mailhandlers Local 317
Steward Byron Wesley to meet and confer prior to the com-
mencement of the interview, denied the request of its employee
William Amerson to be represented by Mailhandlers Local 317
during an interview; that William Amerson had reasonable
cause to believe that the July 2004 interview would result in

after having been presented by the employer with the choice men-
tioned in option (3) above or if the employee is otherwise aware
of those choices. [Footnotes omitted] [Emphasis in original.]
Guderian did not comply with the above-described requirements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
disciplinary action against him; and that Nash conducted the
interview with Amerson even though the Respondent had de-
nied the employee’s request for union representation.
(e) On or about August 11, 2004, Respondent, by Sharon
Davis, at Respondent’s Birmingham Annex facility, by denying
the request of employee Tyrone Hendrix and Mailhandlers
Local 317 Steward William Amerson to meet and confer prior
to the commencement of the interview, denied the request of its
employee Tyrone Hendrix to be represented by Mailhandlers
Local 317 during an interview; that Tyrone Hendrix had rea-
sonable cause to believe that the August 11, 2004 interview
would result in disciplinary action against him; and that Sharon
Davis conducted the interview with Tyrone Hendrix even
though the Respondent had denied the employee’s request for
union representation.
(f) On or about October 26, 2004, Respondent, by Paula
Brown, at Respondent’s Birmingham Annex facility, by deny-
ing the request of employee Edward Steele and Mailhandlers
Local 317 Steward William Amerson to meet and confer prior
to the commencement of the interview, denied the request of its
employee Edward Steele to be represented by Mailhandlers
Local 317 during an interview; that Edward Steele had reason-
able cause to believe that the October 26, 2004 interview would
result in disciplinary action against him; and that Paula Brown
conducted the interview with Edward Steele even though the
Respondent had denied the employee’s request for union repre-
sentation.
(g) On or about October 15, 2004, Respondent, by Patricia
Auerbach, at Respondent’s DFW Turnpike facility, denied the
request of employee Annu Rajan to be represented by the
Postal Nurses Union during an interview; that Rajan had rea-
sonable cause to believe that the October 15, 2004 interview
would result in disciplinary action against her; that Rajan re-
fused to attend the interview; and that about October 15, 2004,
Respondent, by Patricia Auerbach, ordered Rajan “off the
clock,” thereby suspending its employee Rajan because of her
refusal to attend this interview without union representation.
(h) On or about October 18, 2004, Respondent, by Mitchell
Barron, at Respondent’s DFW Turnpike facility, by directing
Postal Nurses Union Representative Ajo James to remain quiet
throughout the meeting, denied the request of its employee
Annu Rajan to be represented by the Nurses Union during an
interview; that Annu Rajan had reasonable cause to believe that
the October 18, 2004 interview would result in disciplinary
action against her; that Barron conducted the interview with
Rajan even though the Respondent had denied the employee’s
request for union representation; and that about October 18,
2004, Respondent issued a 7-day suspension to Rajan because
she refused to attend the October 15, 2004 interview without
union representation.
(i) On or about January 19, 2005, Respondent, by Gary Gud-
erian, at Respondent’s Groesbeck facility, denied the request of
employee Deloris Snyder to be represented by Letter Carriers
Branch 404 during an interview; that Deloris Snyder had rea-
sonable cause to believe that the January 19, 2005 interview
would result in disciplinary action against her; and that Gud-
erian conducted the interview with Snyder even though the
Respondent had denied the employee’s request for union repre-
sentation.
4. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) and (3) of the Act:
(a) About October 15, 2004, Respondent, by Patricia Auer-
bach, ordered Rajan “off the clock,” thereby suspending its
employee Rajan because of her refusal to attend the October 15,
2004 interview without union representation.
(b) About October 18, 2004, Respondent issued a 7-day sus-
pension to Rajan because she refused to attend the October 15,
2004 interview without union representation.
5. The above-described labor practices affect commerce
within the contemplation of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily suspended Annu
Rajan, it must make her whole for any loss of earnings and
other benefits, computed on a quarterly basis for the periods of
suspension, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).36
The General Counsel requests as a part of the remedy that
Respondent be required, on request of the involved Union, to
repeat the interviews of each of the above-named employees,
except Rajan, afford the employees their full rights of union
representation, reconsider any disciplinary action taken, and if
it is determined that the action was unwarranted or that a miti-
gation of the penalty is warranted, rescind, modify, and remove
the discipline and make the employee whole for any losses
suffered. Additionally, the General Counsel requests that Re-
spondent notify the involved employee of the results of the
reconsideration and, if relevant, afford them any appeal or
grievance rights that may exist under the collective-bargaining
agreement, law or regulation. And finally, the General Counsel
requests that Respondent be required to provide each and every
supervisor at the facilities involved in these proceedings a copy
of any court order that enforces any Board order in these mat-
ters; that each and every Respondent supervisor at the facilities
involved herein sign a written acknowledgment of receipt of
said court order, that they understand the court order and that
they understand that any future violations of an employee’s
Weingarten rights might result in contempt proceedings against
them personally.
First, there was no discipline with respect to certain of the
incidents described above. It is not clear, therefore, what the
General Counsel seeks to achieve by repeating those inter-
views. Second, taking into consideration that Rajan is not in-

36 As pointed out by the Board in Taracorp, Inc., 273 NLRB 221,
223 fn. 12 (1984), a make-whole remedy is appropriate if the employee
is disciplined for asserting the right to representation. It is noted that
there is testimony of record that Rajan was already compensated for
any lost wages due to her suspension. Nonetheless, this remedy remains
appropriate.
POSTAL SERVICE 405
cluded in the General Counsel’s requests, it is not alleged that
any of the involved employees was disciplined for requesting
union representation or to be allowed to consult with a union
representative before the investigatory interview began. Third,
an employee is not entitled to have a written warning removed
absent a demonstration of the nexus between the wrongful de-
nial of full representation (including preinvestigatory consulta-
tion with the union representative) and discipline, Postal Ser-
vice, 314 NLRB 227 (1994). Fourth, a make-whole remedy is
not appropriate where the employee is disciplined for miscon-
duct unrelated to assertion of Weingarten rights. A make-
whole remedy is appropriate only if the employee is, as here
pertinent, disciplined for asserting a Weingarten right. Fifth, it
does not appear that any of the involved employees was disci-
plined based on information obtained at the unlawful inter-
views. Indeed, at least two of the involved employees basically
refused to answer the supervisor’s questions at the investigatory
interview. In light of this, the General Counsel’s requests that
Respondent be required, on request of the involved Union, to
(1) repeat the interviews, (2) afford the employees their full
rights of union representation, (3) reconsider any disciplinary
action taken, and if appropriate, rescind, modify, and remove
the discipline and make the employee whole for any losses
suffered, and (4) notify the involved employee of the results of
the reconsideration, are denied.
The General Counsel additionally requests that Respondent
be required to (1) provide all supervisor at the involved facili-
ties with a copy of any court order that enforces any Board
order in these matters, and (2) have them sign a written ac-
knowledgment (a) of receipt of the court order, (b) that they
understand the court order, and (c) that they understand that any
future violations of an employees’ Weingarten rights might
result in contempt proceedings against them personally. Only
three of the supervisors at the Birmingham Annex, Nash,
Davis, and Brown, one at the Birmingham plant, Crenshaw,
two at the DFW Turnpike facility, Auerbach and Barron, and
one at the Groesbeck facility, Guderian, are involved in this
proceeding. Auerbach no longer works for the United States
Postal Service. While Barron was at the DFW Turnpike facility
for Rajan’s predisciplinary meeting, he works in Cappell,
which is about 30 miles from Respondent’s DFW Turnpike
facility. And Guderian has been removed as postmaster at Re-
spondent’s Groesbeck facility. Nonetheless, in view of the fact
that these types of violations continue and some of the involved
supervisors pleaded ignorance of the law at the time of the oc-
currence, it is more than apparent that Respondent is not getting
the message out to supervisors and managers (at least not the
message that directs them to obey the law) notwithstanding that
Respondent advised a United States court of appeals that it
would institute a nationwide educational program directed at, as
here pertinent, supervisors, acting supervisors, and managers.
In these circumstances, I believe that the General Counsel is
justified in requesting that the Respondent be required to pro-
vide all supervisors at the involved facilities with a copy of any
court order that enforces any Board order in these matters and
have the supervisors sign an acknowledgment that they re-
ceived the copy of the court order. The acknowledgment should
be placed and maintained in the personnel file of the supervisor
just like an employee’s acknowledgment of receipt of an em-
ployee handbook is kept in the employee’s personnel file. This
should pretty much preclude a supervisor from pleading igno-
rance of the law in the future. However, I have a problem with
the remainder of the request, namely that supervisors acknowl-
edge that they understand the court order, and they understand
that any future violations of an employee’s Weingarten rights
might result in contempt proceedings against them personally.
Acknowledging notice is sufficient. It is neither necessary nor
desirable that a supervisor acknowledge that he or she under-
stands the court order. Similarly it is neither necessary nor ap-
propriate for the Board to advise supervisors that a violation of
an employee’s Weingarten rights might result in contempt pro-
ceedings against them personally.37
[Recommended Order omitted from publication.]

37 Interestingly, as noted above, Respondent originally argued that
the alleged denials of Weingarten rights are matters that may and
should be deferred to an arbitrator under the involved collective-
bargaining agreements. It is noted that MDO Hill did not testify at the
trial herein to deny Amerson’s testimony that Hill told him that if the
Union “wanted to file grievances, I’ll show [you] how to fight. He is
sick of us filing grievances or wanting union time,” Tr. 147; and that
the Union has filed an unfair labor practice charge regarding Hill’s
statements. Amerson also testified that during 2004 the Union was
experiencing frustration with the grievance procedure both at the Bir-
mingham Annex and at the plant since supervisors would not allow
union time, they would not meet with the stewards, and they would not
give the requested information. It appears from this case and from other
Board decisions that Respondent is doing all that it can get away with
to undermine arbitration. See fn. 19 in the Board’s decision in Postal
Service, 345 NLRB 409 (2005). It appears that Respondent has been
hoisted by its own petard in that any thought of deferral to arbitration
would have to take into consideration the fact that the Postal Service
itself has been attempting to undermine arbitration. It is indeed ironic
that the Postal Service here sought deferral to a process which has been
compromised due to the Postal Service’s own actions. Neither Board
nor United States court of appeals decisions have convinced the Postal
Service that it should take the employees’ Weingarten rights seriously.
While paying lip service to these rights, apparently the Postal Service
continues to view them as nothing more than a nuisance. Normally,
supervisors take their cue or direction from management. The following
footnote appears on p. 60 in Respondent’s brief: “Respondent has de-
termined not to continue to urge the deferral argument raised as a de-
fense in the Answer and presented to the full Board by summary judg-
ment motion.”