Postal Service

National Labor Relations Board - Board Decisions

Jun 21, 1991

303 N.L.R.B. 463 (N.L.R.B. 1991)

463
303 NLRB No. 75
POSTAL SERVICE
1 The Board grants motions to intervene filed respectively by the American
Postal Workers Union, AFL–CIO, and the National Association of Letter Car-
riers, AFL–CIO.
2 The Respondent does not except to the judge’s finding that the notice post-
ed in an attempt to remedy the alleged violations did not obviate the need for
additional remedial action.
3 We correct certain inadvertent errors as follows: the spelling of the union
steward’s name is ‘‘Rodrigues’’; the volume of the Postal Reorganization Act
which grants the Board jurisdiction in this case is 3 U.S.C. § 1209.
4 In finding that the Respondent violated Sec. 8(a)(1) of the Act when it re-
fused to permit Union Steward Rodrigues to consult with employee Salvador
prior to the resumption of the interview, the judge relied, inter alia, on Climax
Molybdenum Co., 227 NLRB 1189 (1977), enf. denied 584 F.2d 360 (10th Cir.
1978). Chairman Stephens expresses no opinion on the Board’s interpretation
of NLRB v. Weingarten, 420 U.S. 251 (1975), in Climax Molybdenum; how-
ever, for institutional reasons he joins his colleagues in sustaining the judge’s
finding that a violation occurred here.
Member Raudabaugh agrees that the refusal to permit consultation prior to
the Weingarten interview was unlawful. With respect to the fact that the re-
quest for prior consultation was made by the union representative, rather than
by the employee, Member Raudabaugh notes that the employee sought union
representation and did not oppose the union representative’s request for prior
consultation. In these circumstances, there is a reasonable inference that the
employee agreed with the request for prior consultation.
Member Raudabaugh also notes the absence of evidence that the Union had
a policy or practice of routinely telling employees to refuse to cooperate with
an investigation. Compare Climax Molybdenum, supra. Further, there is an ab-
sence of evidence that the Union took that position in this case. In Member
Raudabaugh’s view, if a union had such a policy or practice, an employer
might well be privileged to forbid prior consultation.
5 We agree with the employerwide posting remedy recommended by the
judge, on the grounds that such posting conforms with the employerwide pol-
icy which resulted in the unfair labor practices found here and with the
employerwide bargaining unit to which the policy applies. In such cir-
cumstances, the need for remedial action that will reach all the employees in
the affected unit is not lessened by the fact that within that unit only the Fre-
mont, California facility was involved in the violation here found. As long as
the Respondent’s policy remains in effect nationwide, the potential for similar
violations to occur throughout the unit as a result of that policy still exists.
Thus, it is appropriate that the employees in the unit be made aware of their
Sec. 7 rights vis-a-vis that policy.
Because we thus are requiring the Respondent to post, at all its facilities
where the Union represents employees, notices stating that it will not refuse
to permit union representatives to consult with employees prior to investiga-
tory interviews conducted by postal inspectors which the employees reasonably
believe will result in disciplinary action and will not refuse to permit employ-
ees to speak with union representatives prior to such interviews, we deny as
unnecessary the expunction remedy requested by the Charging Party and Inter-
venors.
Member Cracraft disagrees and would not order employerwide posting of
the notice. Although this is the second occasion in which the Respondent has
committed this violation, she notes that these violations both occurred at the
Respondent’s Fremont, California facility 7 years apart. There is no evidence
that the unlawful conduct has been carried out or disseminated to employees
at any other facilities. Under these circumstances, Member Cracraft believes
that a remedy limited to the Fremont, California facility adequately remedies
the violation found herein.
1 In its answer Respondent admits, as alleged in the complaint, that the
Board has jurisdiction over Respondent by virtue of Sec. 1209 of the Postal
Reorganization Act. Respondent’s answer also admits, as alleged in the com-
plaint, that the American Postal Workers Union and its affiliate local, the
Continued
United States Postal Service and American Postal
Workers Union, East Bay Area Local. Case 32–
CA–10209(P)
June 21, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On November 22, 1989, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed limited cross-exceptions,
and a brief in answer and in support of the limited
cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board1 has considered the decision and the
record in light of the exceptions2 and briefs and has
decided to affirm the judge’s rulings, findings,3 and
conclusions4 and to adopt the recommended Order.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, the United States Postal
Service, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Ariel Sotolongo, Esq., for the General Counsel.
Beth McGarry and Howard Kaufman, for the Respondent.
Timothy M. Schooley (Mocine & Eggleston), for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which a hearing was held June 14, 1989, and
closed by my order issued September 15, 1989, is based on
an unfair labor practice charge filed March 13, 1989, by
American Postal Workers Union, East Bay Area Local
(Local Union), and on a complaint issued April 21, 1989, by
the Regional Director for Region 32 of the National Labor
Relations Board (the Board), on behalf of the Board’s Gen-
eral Counsel. The complaint alleges that on March 9, 1989,
the United States Postal Service (Respondent), violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act),
by refusing to allow a representative of the Union which rep-
resents employee Benjamin Salvador to consult with Sal-
vador prior to an investigatory interview which Salvador had
reasonable cause to believe would result in disciplinary ac-
tion, and by refusing to allow Salvador’s union representative
to speak during the interview. The complaint further alleges
that because of Respondent’s ‘‘prior related unfair labor
practices’’ and because the unfair labor practices alleged
herein were based upon Respondent’s ‘‘internal policies and
guidelines to deny generally the types of requests set forth
herein when made to the Postal Inspection Service,’’ that to
remedy the alleged unfair labor practices that an order issue
which requires Respondent, ‘‘on a nationwide basis, to cease
and desist from the type of unfair labor practices alleged
herein and to post appropriate notices.’’ Respondent filed a
timely answer to the complaint denying the commission of
the alleged unfair labor practices and, as an affirmative de-
fense, alleged that no remedial order is warranted because
Respondent has repudiated the alleged illegal conduct.1
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Union, are labor organizations within the meaning of Sec. 2(5) of the
Act.
2 Jt. Exh. 1, the parties’ stipulation, was admitted into evidence by my order
issued September 15, 1989.
3 I reject Respondent’s contention that there is no evidence that on March
9, 1989, Respondent maintained a written policy pursuant to which its postal
inspectors were required to deny all requests for consultations between em-
ployees and their collective-bargaining representatives prior to any interview
by a postal inspector. Rather, based on Postal Service, supra, and the parties’
above described stipulation, I find that this written policy has been maintained
by Respondent continually since at least April 5, 1982, and was still being
maintained in August 1989 when the parties entered into their stipulation in
this proceeding, and presumably is still being maintained.
4 All dates hereinafter refer to the year 1989, unless specified otherwise.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the parties’
briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent provides postal service for the United States
of America. It operates postal facilities in the several states
of the United States, including one in Fremont, California.
The American Postal Workers Union (the Union) represents
employees employed in Respondent’s customer service and
mail processing facilities throughout the United States, in a
nationwide bargaining unit, including the Fremont, California
facility. The terms and conditions of employment of these
employees are governed by a collective-bargaining agreement
between Respondent and the Union effective July 21, 1987,
through November 20, 1990, which at section 3 of article 17
provides: ‘‘If an employee requests a steward or union rep-
resentative to be present during the course of an interrogation
by the inspection service, such request will be granted.’’
The ‘‘inspection service’’ is the Postal Inspection Service.
It is one of Respondent’s subdivisions and its inspectors are
Respondent’s employees. The Postal Inspection Service is a
law enforcement agency of the Federal government. One of
its functions is to investigate alleged misconduct engaged in
by Respondent’s postal workers which involves possible vio-
lations of the law, i.e., theft, embezzlement. If, however, Re-
spondent’s management initially concludes that the alleged
employee misconduct does not involve a possible violation
of the law, management does not refer the matter to the Post-
al Inspection Service for investigation, instead the investiga-
tion is conducted by management.
When the Postal Inspection Service becomes involved in
the investigation of alleged employee misconduct and dis-
covers evidence which leads it to believe that the employee
under investigation has violated a Federal law, the postal in-
spectors, after getting the approval of their superiors, place
the employee under arrest. However, in those instances
where the investigation fails to uncover evidence that a crime
has been committed by the employee, the sole responsibility
of the postal inspectors is to turn over all of the evidence
to management, without recommendation or evaluation, and
management has the sole responsibility to evaluate the evi-
dence and decide whether or not to discipline the employee.
The Postal Inspection Service maintains an inspection
service manual which, among other things, instructs postal
inspectors what to do when a union representative requests
permission to consult with an employee prior to the start of
an inspector’s investigatory interview of the employee (Tr.
182–183, 217–218; Jt. Exh. 1). In this regard, the parties
stipulated (Jt. Exh. 1):2
The United States Postal Service maintains a written
nationwide policy in its inspection service manual re-
quiring United States postal inspectors, who are em-
ployees and agents of the United States Postal Service,
to deny all requests for consultations between employ-
ees and their collective-bargaining representatives prior
to any interview by a postal inspector.
On April 5, 1982, Respondent enforced the aforesaid pol-
icy at its post office located in Fremont, California. In Postal
Service, 288 NLRB 864 (1988), the Board affirmed its ad-
ministrative law judge’s findings and conclusions that on
April 5, 1982, Respondent violated Section (a)(1) of the Act
at its Fremont, California post office when its postal inspec-
tors refused to permit a union representative to confer with
an employee represented by the Union prior to an investiga-
tory interview and by refusing to permit the Union’s rep-
resentative to participate in the interview. In connection with
his conclusion that Respondent violated the Act when its
postal inspectors refused to permit a union representative to
confer with an employee prior to an investigatory interview,
the administrative law judge, whose findings were adopted
by the Board, noted that Respondent’s refusal was based on
a provision ‘‘of the postal inspection confidential field man-
ual which precludes such pre-interview meetings.’’ Postal
Service, supra at 866.3
Benjamin Salvador, who has been employed by Respond-
ent since 1977, on March 9, 1989,4 was employed at Re-
spondent’s Fremont, California main post office as a business
reply clerk. One of his duties was to maintain business reply
accounts, also known as postage due accounts, for approxi-
mately 200 customers who use business reply mail; each day
Salvador credited to the customers’ accounts the money re-
ceived from them and debited to their accounts the dollar
amount of their business reply mail received that day in the
post office.
In March Salvador’s supervisor, Albert Young, received a
complaint from Allstate Insurance Company about their busi-
ness reply mail account.
On March 8, Young told Salvador that Allstate complained
there were approximately five instances where improper dol-
lar amounts were applied to their account. Salvador replied
by stating he did not have sufficient time to process all of
his customers’ accounts, that he was only alloted 1 hour a
day to do that part of his job, that the Allstate account was
very time-consuming because it required extra paperwork,
and told Young it was for all of those reasons he had been
unable to finish balancing the Allstate account, and further
explained to Young that he had debited another customer’s
account, J. C. Penney, so as to keep the Allstate account in
balance. Salvador, who first began work as a business reply
clerk in February, told Young that the person who trained
him to do the job advised him it was appropriate to do this.
Young responded by stating he was not happy about the
manner in which Salvador was doing his job and instructed
465POSTAL SERVICE
5 The description of Young’s conversation with Salvador is based on Sal-
vador’s testimony. Young testified that on March 8 he asked Salvador why,
on certain dates, Salvador had not debited Allstate’s account, and Salvador an-
swered by conceding he had failed to debit the account on those dates, but
offered no explanation for his conduct. I credited Salvador’s account because
his testimonial demeanor, which was good, was better than Young’s.
6 Salvador testified that when he asked ‘‘why am I here for,’’ Cassidy an-
swered by saying, ‘‘Something like, dumbshit this is about your job.’’ Sal-
vador admitted he was not sure Cassidy, who was speaking rapidly, used the
expression ‘‘dumbshit,’’ but testified that whatever expression Cassidy used
sounded like that expression. Cassidy testified he did not use any ‘‘curse
words’’ when he spoke to Salvador. I have not decided whether Cassidy in
fact used the expression ‘‘dumbshit.’’ However, even if Salvador misunder-
stood what Cassidy said, I am of the view that Salvador, whose testimonial
demeanor was good and who impressed me as a sincere witness, sincerely be-
lieve that Cassidy called him a ‘‘dumbshit.’’
7 In its posthearing brief, Respondent states that when Salvador spoke to
Cassidy about having a union steward present, that ‘‘Salvador asked for a
Union steward as a witness’’ [emphasis by Respondent]. If, by this, Respond-
ent is inferring that this is what Salvador said to Cassidy, it misstates the
record. Salvador, whose testimony is corroborated by Cassidy’s, testified he
asked that a shop steward be ‘‘present’’; Salvador did not indicate to Cassidy
the role he expected the steward to play during the interview.
8 During the approximately 45 minutes to an hour between his request for
his union steward and Union Steward Rodriguez’ arrival, Salvador was kept
isolated in the main post office’s supply room. In this regard, Salvador
credibly testified that when Post Inspector Cassidy learned it would be awhile
before Salvador’s union steward was available, Cassidy instructed Supervisor
Young to keep Salvador off of the work floor and to keep him away from
the other workers, and that Young instructed Salvador to wait in the supply
room, which he did.
him to correct his errors.5 Young gave no indication to Sal-
vador that he was thinking of disciplining him nor did he in-
dicate to Salvador that he intended to refer the matter to the
Postal Inspection Service.
On March 8, after speaking to Salvador, Young contacted
Postal Inspector Michael Cassidy and arranged to meet with
him the next day to discuss Salvador’s misconduct.
On March 9, in the morning, Postal Inspectors Michael
Cassidy and Scott Barry met with Young at the Fremont fa-
cility’s main post office. Cassidy testified they were advised
by Young that on approximately five separate occasions All-
state had made postage due mailings, yet no money had been
debited to its postage due account, but instead the money had
been debited to the account of another customer, J. C.
Penney, and that Salvador, the business reply clerk respon-
sible for maintaining those accounts, offered no explanation.
Cassidy further testified that he decided to interview Sal-
vador because, based on what Young told him, ‘‘There was
a potential for [Salvador] to be working in collusion, to be
getting a kickback, a favor, monies, or whatever, from one
of the firms as a result of charging another company for a
different company’s mailings. . . . [so] I thought there was
a potential criminality.’’ Cassidy also testified that when su-
pervisor Young contacted Cassidy about Salvador’s mis-
conduct, Young must have also assumed there was a poten-
tial crime involved because, as Cassidy testified, postal in-
spectors ‘‘are just involved in situations where there is a pos-
sible criminal offense.’’ Salvador, who has been employed
by Respondent for approximately 13 years, testified that
whenever a postal worker is the subject of a Postal Inspec-
tion Service investigation it usually means that the employee
is going to be the subject of some kind of discipline, and tes-
tified there is a saying among the postal workers that, ‘‘your
ass is grass the minute you’re involved with an inspector.’’
On March 9, when he returned to work at 12 noon from
his lunchbreak, Salvador was called to the scheme training
room, a room 15 feet by 20 feet with a table and several
chairs, where he was met by Postal Inspectors Cassidy and
Barry who identified themselves and asked Salvador to be
seated. Barry sat on his left and Cassidy on his right. Barry
commenced to question Salvador about his personal history.
In the meantime, Cassidy had placed on the table the account
ledger used by Salvador to perform his job duties. Salvador,
at this point, asked ‘‘why am I here for?’’ Cassidy told him
that the purpose of the interview concerned his job.6 Sal-
vador asked that his union steward be present. Cassidy re-
sponded by stating that Salvador’s union steward would only
be present as a witness, and instructed Salvador not to look
at or speak to the steward, and stated that the steward would
be seated behind Salvador. Salvador did not respond and the
interview was adjourned for approximately 1 hour until Sal-
vador’s union steward, Anne Rodriguez, who was on her
lunchbreak at another location, was available.
The above description of what occurred during the March
9 interview before Union Steward Rodriguez entered the
room is based on Salvador’s testimony.7 Barry did not tes-
tify. Cassidy testified that after he and Barry identified them-
selves, they told Salvador that he was going to be questioned
about the postage due irregularities that Supervisor Young
had spoken about to Salvador earlier. Cassidy further testi-
fied that when he started to question Salvador about his per-
sonal history, Salvador asked for his union steward to be
present, and Cassidy stopped questioning him and adjourned
the interview until the steward was available. Cassidy did not
deny telling Salvador that the union steward would be
present only as a witness, nor did he deny telling him he
could not speak to nor look at the union steward, or that the
steward would be seated behind Salvador. I credited Sal-
vador’s description of this portion of the March 9 interview
because his testimonial demeanor, which was good, was bet-
ter than Cassidy’s. I considered that when Union Steward
Rodriguez arrived, as I have found, infra, she was not told
by Cassidy or Barry that she was there only as a witness and
that she did in fact participate in the interview, without ob-
jection. This is not, however, inconsistent with Salvador’s
testimony that Cassidy told him his union steward would
only be present in the capacity of a witness, and that Sal-
vador could not speak to or look at the steward during the
interview, for in my opinion when Cassidy stated this to Sal-
vador he was attempting to intimidate Salvador and to dis-
courage him from seeking the advice of his union steward
prior to and during the interview. This conduct is not incon-
sistent with Cassidy’s subsequent failure to object to
Rodriguez’ participation in the interview and is perfectly
consistent with, as I have found infra, Cassidy’s refusal to
allow Rodriguez to consult with Salvador prior to the start
of the interview.
On March 9 Salvador’s union steward, Rodriguez, was
working at a branch office located several miles from the
main post office. During her lunch period that day,
Rodriguez was notified by the Postmaster’s secretary to
come to the main post office after lunch because a union
steward had been requested by an ‘‘employee’’ who was
being questioned by postal inspectors.8 After receiving per-
mission to leave her work station and finishing her lunch,
Rodriguez left the branch station where she had been work-
ing and arrived at the main post office at approximately 1:15
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 During her 2 years as union steward, Rodriguez had been called by em-
ployees to be present at approximately 10 other investigative interviews, none
of which had involved postal inspectors, but had not previously asked for per-
mission to consult with the employee prior to the start of the interview.
Rodriguez testified the reason she previously had not made such a request was
that ‘‘I knew what was going on, what the situation was about, prior to going
into the meeting’’ on those occasions, whereas prior to the start of Salvador’s
March 9 interview, Rodriguez testified she felt she lacked sufficient knowledge
so as to intelligently represent him.
p.m. She was promptly taken to the scheme training room by
Salvador’s supervisor, Young, who told Rodriguez that the
employee being questioned by the postal inspectors was Sal-
vador and explained to Rodriguez that the inspectors were
questioning him about possible misappropriation or embez-
zlement of funds.
On entering the room, where Postal Inspectors Cassidy and
Barry and employee Salvador were waiting, Young intro-
duced Rodriguez to the postal inspectors, the inspectors in-
troduced themselves to Rodriguez, and Young left. After the
introductions, Cassidy informed Rodriguez that the reason
she was present was Salvador had requested her presence and
that the inspectors would now resume their interrogation of
Salvador about postage due irregularities. Rodriguez re-
sponded by stating she wanted to speak to Salvador before
the postal inspectors continued to question him.9 Cassidy an-
swered ‘‘no,’’ and when Rodriguez explained she was mak-
ing her request in her capacity as Salvador’s union steward
and that his steward had the right to speak to him prior to
‘‘an investigation,’’ Cassidy replied, ‘‘We are not inves-
tigating [Salvador], we are interviewing him.’’ Rodriguez re-
peated that she wanted to speak to Salvador prior to the start
of the interview and when Cassidy again refused, Rodriguez
asked if he was denying the right of a union steward to
speak to Salvador prior to his interrogation. Cassidy an-
swered, ‘‘Yes,’’ and then told Rodriguez, ‘‘you’re to be seat-
ed over there’’; he pointed to a chair located approximately
2 feet behind and to the left of the chair in which Salvador
was seated, so that to look at Rodriguez, Salvador would
have had to turn his head around.
During the interview which followed, Postal Inspector
Cassidy questioned Salvador about the manner in which he
kept his books of account for the customers’ postage due
mail, also known as business reply accounts, and asked why
he had improperly debited the J. C. Penney account rather
than the Allstate account. Salvador answered all of Cassidy’s
questions, and during the interview obeyed Cassidy’s earlier
instruction that he not look at or speak to his union steward;
Salvador neither looked at nor spoke to Rodriguez because
of Cassidy’s instruction. Rodriguez, however, fully partici-
pated in the interview. Neither Inspector Cassidy nor Inspec-
tor Barry told her she was forbidden from speaking or other-
wise participating in the interview, and on several occasions
Rodriguez spoke up on Salvador’s behalf. The postal inspec-
tors listened to what she stated and after they understood the
point she was making interrupted and indicated they felt it
was unnecessary for her to continue, and Cassidy resumed
questioning Salvador. Also, even though Cassidy at the be-
ginning of the interview instructed Rodriguez to be seated
behind Salvador in a chair away from the table, whenever it
became necessary for Rodriguez to inspect the ledger books
maintained by Salvador which were on the table, Rodriguez
stood up and walked to the table so she could better observe
the particular section of the ledger book that Cassidy was
talking about, and Cassidy did not object to her doing so.
The meeting ended with Cassidy indicating it appeared
Salvador had not followed correct procedures and had en-
gaged in certain conduct which made it appear as if he had
been embezzling money or doing something of that nature.
Cassidy stated he intended to submit a report to the Post-
master of the Fremont post office and suggested that Sal-
vador submit a statement to Cassidy who would give the
statement to the Postmaster. Salvador replied he would per-
sonally submit a statement to the Postmaster at a later date.
Cassidy asked if Salvador was stating he did not intend to
submit a statement, whereupon Rodriguez spoke up and in-
formed Cassidy that Salvador was saying he would submit
his statement to the Postmaster at a later date when he could
collect his thoughts. This ended the interview and Rodriguez
left the room. After she left, the postal inspectors spoke to
the Postmaster who then, the same day, spoke to Salvador
and told him he was being placed on administrative leave
pending further investigation.
Rodriguez, Salvador, and Cassidy testified about what oc-
curred on March 9 during Rodriguez’ presence at the inter-
view of Salvador by the postal inspectors. The aforesaid de-
scription of what occurred is based on a composite of their
testimony with two exceptions: (1) where Cassidy’s testi-
mony was not consistent with Salvador’s and Rodriguez’ I
rejected Cassidy’s testimony and credited Salvador’s and
Rodriguez’ because their testimonial demeanor was good,
whereas Cassidy’s was poor; and (2) I have not relied on any
of Salvador’s testimony concerning Rodriguez’ participation
in the interview because Salvador did not appear to be a reli-
able witness on that aspect of the meeting, inasmuch as he
testified he did not pay attention to what was being said by
Rodriguez because once the interview commenced he was so
nervous about the fact that he was being interrogated about
his job by postal inspectors that he devoted his entire atten-
tion to what they were asking him. Lastly, I note that
Rodriguez’ testimony that she was instructed by Cassidy to
sit in a specific chair which was located behind Salvador’s
chair was corroborated by Salvador’s testimony.
As described, supra, Inspector Cassidy on March 9 admit-
tedly refused to allow Union Steward Rodriguez to consult
with employee Salvador before Inspectors Cassidy and Barry
resumed interrogating Salvador. Cassidy testified his reason
for refusing Rodriguez’ request had nothing whatsoever to do
with any policy or instruction promulgated by Respondent,
and testified he had no idea whatsoever whether other postal
inspectors allowed union stewards to consult with employees
prior to investigative interviews inasmuch as he was not
aware of a company policy which prohibited them from al-
lowing such preinterview consultations, and testified that he
acted on March 9 pursuant to his own personal policy. Then
when specifically asked whether the basis for his refusal to
allow Rodriguez to consult with Salvador was based on in-
structions in the Inspection Service Manual, Cassidy testified,
‘‘no,’’ and explained that his refusal was based entirely on
his own ‘‘personal view-[his] own personal experience.’’
When he gave the above-described testimony, Cassidy’s tes-
timonial demeanor was poor. Following his testimony, the
hearing was adjourned to enable the General Counsel to
apply to the United States District Court for the Northern
District of California for the enforcement of a subpoena
467POSTAL SERVICE
seeking the production from Respondent of the section of
Respondent’s Inspection Service Manual which deals with
the right of union stewards to consult with employees prior
to investigative interviews. Respondent at the outset of the
hearing in the instant case took the position that any and all
provisions of the Inspection Service Manual were exempt
from and privileged from disclosure or discovery. Subse-
quently, the parties to this proceeding entered into a stipula-
tion shortly before the scheduled court subpoena enforcement
proceeding, which stipulation, as described, supra, reads as
follows:
The United States Postal Service maintains a written
nationwide policy in its Inspection Service Manual re-
quiring United States Postal Inspectors, who are em-
ployees and agents of the United States Postal Service,
to deny all requests for consultations between employ-
ees and their collective bargaining representatives prior
to any interview by a Postal Inspector.
In view of this policy I find inherently incredible Cassidy’s
testimony that when he refused to allow Union Steward
Rodriguez to consult with employee Salvador prior to the re-
sumption of the March 9 investigative interview, that he was
not acting pursuant to the instructions in the Inspection Serv-
ice Manual, but was acting pursuant to his own personal pol-
icy. In view of the aforesaid policy set forth in the Inspection
Service Manual and considering Cassidy’s poor testimonial
demeanor, I find the truth is exactly the opposite from
Cassidy’s testimony; I find that when Cassidy on March 9
refused to permit Rodriguez to consult with Salvador, prior
to the resumption of the investigative interview, that Cassidy
implemented and acted pursuant to the above-described in-
struction contained in Respondent’s Inspection Service Man-
ual.
The Union represents approximately 61 employees at 5
different locations at the Fremont post office: 40 at the main
post office; 15 at the Irvington station; one at the Niles sta-
tion; two at the Misson San Jose station; and three at the
Warm Springs station. On April 28 Respondent posted the
following unsigned ‘‘Notice to Employees’’ on the employee
bulletin board at the main post office:
NOTICE TO EMPLOYEES
A charge has been filed with the National Labor Re-
lations Board by the East Bay Local of the American
Postal Workers’ Union alleging that the Postal Service
has violated the National Labor Relations Act by failing
to grant employees the right to confer with their union
representative before an investigatory interview, and by
failing to permit the steward to participate in the inves-
tigatory interview.
Without admitting any violation of law, we wish all
employees in the Fremont, CA Post Office to be ap-
prised of the following legal rights, and to be assured
of the intention of the agents and officials of the Postal
Inspection Service and United States Postal Service to
comply with those rights.
The National Labor Relations Act gives employees
these rights:
To engage in self organization;
To form, join or assist unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or for
other mutual aid or protection;
To refrain from any or all such conduct.
We will not intentionally interfere with any of these
rights to the extent protected by the National Labor Re-
lations Act.
We will not prohibit employees from conferring with
their union representative, upon request, where the em-
ployee has invoked his or her right to have union rep-
resentation present at an investigatory interview con-
ducted by agents of the Inspection Service which the
employee reasonably believes could lead to discipline.
We also will not prohibit such union representative
from participating in any such interview to the extent
permitted by the Supreme Court’s Weingarten decision.
On June 8 the identical unsigned notice was posted on the
employee bulletin boards at the other four stations. Respond-
ent failed to present competent evidence to establish that the
notice was posted prior to June 8 at any one of these four
stations.
B. Discussion
1. The applicable law
In NLRB v. Weingarten, 420 U.S. 251, 260–261 (1975),
the Supreme Court sustained the Board’s position that Sec-
tion 7 of the Act vests an employee with the right of union
representation at an interview by his employer which the em-
ployee reasonably fears may result in the employee’s dis-
cipline. The Board has held that an employee’s Weingarten
right includes both the presence and the participation of the
union representative; if the employer permits a union rep-
resentative to attend an interview, but forbids the union rep-
resentative to be anything more than a silent observer, the
employer interferes with the employee’s Weingarten right in
violation of the Act. Southwestern Bell Telephone Co., 251
NLRB 612 (1980), enf. denied 667 F.2d 470 (5th Cir. 1982);
Texaco, Inc., 251 NLRB 633 (1980), enfd. 659 F.2d 124 (9th
Cir. 1981); Postal Service, supra. The Board has also held
that an employee has a right under Section 7 of the Act to
consult with his union representative before any interview to
which a Weingarten right has attached and it makes no dif-
ference whether the request for prior consultation comes
from the employee requesting union representation or from
the union representative furnishing the representation re-
quested. Climax Molybdenum Co., 227 NLRB 1189 (1977),
enf. denied 584 F.2d 360 (10th Cir. 1978); Pacific Telephone
& Telegraph Co., 262 NLRB 1034 (1982); and Pacific Tele-
phone & Telegraph Co., 262 NLRB 1048 (1982), enfd. 711
F.2d 134 (9th Cir. 1983); Postal Service, supra. The Board
has rejected the argument that it is inappropriate to apply an
employee’s Section 7 right of prior consultation to a criminal
investigation conducted by Respondent’s postal inspectors.
Postal Service, supra, citing, Postal Service, 241 NLRB 141
(1979); and Postal Service, 254 NLRB 703 (1981).
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Although R. Exh. 3, the printed material which Respondent’s counsel
showed Rodriguez, was included in what purports to be a union booklet enti-
tled ‘‘A Guide for the Craft Employee in Dealing with the United States Post-
al Inspection Service,’’ there is no evidence this booklet was ever received by
Rodriguez or otherwise distributed by the Union to either its stewards or mem-
bers. Nor is there evidence that this booklet is in fact a union publication.
Rodriguez did not testify she received this booklet or that the printed materials
she received were included in such a booklet; she testified that while she re-
ceived certain printed materials which contained some of the questions and an-
swers set forth in R. Exh. 3, that she did not recall the form in which it was
received. No other evidence was presented on this subject.
11 In response to my questions, over the objections of counsel for all of the
parties to this proceeding, Rodriguez testified that if postal inspector Cassidy
had permitted her to consult with Salvador prior to the resumption of the
March 9 investigatory interview, she would have gotten his understanding of
what was going on and would have advised him to tell the truth to the inspec-
tors. Then, in response to my further questions on the same subject, she testi-
fied she was unable to state what she would have done in that situation be-
cause it was her first experience with an investigative interview involving
postal inspectors. Subsequently, in response to my further questions on the
same subject, Rodriguez testified if Salvador had indicated to her he was inno-
cent of criminal wrongdoing she would have advised him to answer the in-
spectors’ questions, but if Salvador had indicated to her he was engaged in
criminal wrongdoing she would have advised him not to answer the inspec-
tors’ questions.
2. Respondent’s refusal to allow Union Steward
Rodriguez to consult with employee Salvador prior to
Salvador’s interrogation by postal inspectors
On March 8, employee Salvador’s supervisor criticized his
job performance. On March 9, in the middle of his work
shift and without advance warning, Salvador was summoned
to be interrogated by two postal inspectors. The postal in-
spectors are called upon by management to interrogate em-
ployees about their job performance only where there is a
possible criminal offense involved. In view of this, employ-
ees assume that whenever they are interrogated by postal in-
spectors concerning their job performance, it usually means
they will be disciplined. During Salvador’s March 9 interro-
gation, as soon as he was informed that his job performance
was the subject of the interrogation, he asked the inspectors
for the presence of his union steward.
The aforementioned circumstances establish that on March
9, when Salvador requested that his union steward be present
during his interrogation by the postal inspectors, Salvador
had reason to fear the interview would result in disciplinary
action. This is not in dispute inasmuch as Respondent’s
counsel during the hearing conceded that ‘‘Salvador based on
objective facts, could have believed that he would be subject
to discipline at the time he requested the shop steward.’’ (Tr.
193–194, 158–159). Accordingly, under Weingarten, Sal-
vador was at that time entitled under the Act to the presence
of his union steward. Therefore, one of the questions for de-
cision is whether, when Salvador’s union steward arrived on
the scene, Respondent was obligated under the Act to honor
the steward’s request that she be allowed to consult with Sal-
vador prior to the resumption of Salvador’s interrogation. As
discussed, supra, with court approval, the Board has held that
an employee has the right under Section 7 of the Act to con-
sult with the employee’s union representative before any in-
terrogation to which the employee’s Weingarten right has at-
tached, and it makes no difference that the request for prior
consultation comes from the union representative rather than
from the employee. In the instance case, Respondent’s postal
inspectors denied the request of Salvador’s union steward
that she be allowed to consult with Salvador prior to the re-
sumption of his interrogation. Respondent argues that by en-
gaging in this conduct it did not violate the Act because: (1)
Salvador’s union steward, Rodriguez, would have instructed
him not to answer any of the postal inspectors’ questions be-
cause the Union has a policy of advising employees to re-
main silent during criminal investigatory interviews con-
ducted by postal inspectors; (2) Salvador waived his right to
a preinterview consultation with his union steward because
Respondent previously had provided him with the oppor-
tunity to consult with his union steward, but Salvador chose
not to seek the union steward’s counsel; (3) Salvador limited
himself to having his union steward present at the investiga-
tory interview as only a witness; and (4) Salvador never re-
quested that he be allowed to consult with his union rep-
resentative. For the reasons below, each of these contentions
lack merit.
In support of its contention that if Union Steward
Rodriguez had been granted permission to consult with Sal-
vador, that Rodriguez would have advised him not to answer
the postal inspectors’ questions, Respondent relies on
Rodriguez’ testimony that she received printed material from
the Union which states that when an employee is the subject
of a criminal investigation and in connection with that inves-
tigation is questioned by postal inspectors, that ‘‘the best
possible advice to an employee during this type of situation
is to remain silent,’’ and that the employee should advise the
postal inspectors that he or she intends to seek legal counsel
and, after having engaged a lawyer, the employee would then
cooperate with the inspectors’ investigation.10 Rodriguez fur-
ther testified it was her ‘‘understanding’’ that the Union’s
policy concerning employee participation in investigatory
interviews conducted by postal inspectors was as set forth
above. No evidence was presented that the above-described
printed material received by Rodriguez has been distributed
generally to union members or to anyone other than
Rodriguez; no evidence was presented that union representa-
tives at Respondent’s Fremont facility or at any of Respond-
ent’s other facilities have ever advised employees not to an-
swer the questions of postal inspectors when questioned by
them during investigatory interviews; Rodriguez’ testimony
indicates it would be highly speculative to predict what she
would have done if the postal inspectors had allowed her to
confer with Salvador prior to the resumption of the March
9 investigatory interview;11 but, what in fact occurred during
the March 9 interview—Rodriguez did not advise Salvador
to refuse to cooperate with the postal inspectors, instead she
assisted the inspectors in eliciting the facts from Salvador—
warrants the inference that it is very probable that Rodriguez
would not have advised Salvador to refuse to cooperate with
the postal inspectors. In view of the foregoing circumstances,
Rodriguez’ ‘‘understanding’’ of the Union’s policy, is insuf-
ficient to establish that Rodriguez, if allowed to consult with
Salvador prior to his investigatory interview, would have in-
structed him not to answer the postal inspectors’ questions or
not to otherwise cooperate with the postal inspectors. In any
event, even if the evidence warrants the inference that
Rodriguez would have advised Salvador not to cooperate
with the postal inspectors, it did not privilege Respondent’s
refusal to allow Rodriguez to consult with Salvador. For, in
Climax Molybdenum, supra, the Board rejected such a de-
fense where the record revealed that union officials, pursuant
to a union policy, had on several occasions in fact urged
union members not to cooperate with management in any in-
469POSTAL SERVICE
vestigatory interviews. See Climax Molybdenum Co. v.
NLRB, 584 F.2d 360, 363–364 (10th Cir. 1978). See also Pa-
cific Telephone & Telegraph Co., supra, 262 NLRB at 1049
fn. 11, where the Board rejected the contention that it was
not appropriate to permit union representatives to consult
with employees prior to the start of an investigatory inter-
view because it would create the possibility that the union
representatives would obstruct the employer’s investigation
by advising employees to withhold the facts. In the instant
case the evidence presented by Respondent, when viewed in
the light most favorable for Respondent, establishes that if
Rodriguez had been allowed to consult with Salvador, that
there was only a possibility that she would have advised him
to remain silent or not to have otherwise cooperated with the
postal inspectors.
Respondent’s further contention that its postal inspectors
were not obligated under the Act to grant Rodriguez’ request
to consult with Salvador because Respondent previously pro-
vided him with an adequate opportunity to consult with a
union representative on his own time is based on the court’s
decision in Climax Molybdenum Co. v. NLRB, supra, where
the Tenth Circuit affirmed the Board’s holding that the
Weingarten right to union representation at an investigatory
interview includes the right to confer with a union represent-
ative before the interview. The court held, however, that an
employer is not required to permit such consultation on com-
pany time if the employer schedules the interview so as to
afford the employee sufficient opportunity, prior to the inter-
view, to confer with a union representative on the employ-
ee’s own time. The court disagreed with the Board’s finding
that the company violated the Act by denying the union vice
president’s request to confer with two employees on com-
pany time prior to an investigatory meeting which resulted
in discipline to the employees. The court noted that the em-
ployees involved had made no request for union representa-
tion and that neither of the employees ‘‘manifested an inter-
est in consulting with their union representative prior to the
investigatory interview, notwithstanding a time lapse of 17-
1/2 hours between the time they were advised of the pending
investigation and the time it took place,’’ during which time
‘‘the employees could have, but elected not to, consult with
their union representatives on their own time.’’ 584 F.2d at
363. The court concluded that to require union consultation
on company time in these circumstances would be ‘‘to place
a harsh and unfair burden upon the Employer.’’ 584 F.2d at
363. In the instant case, on the other hand, prior to Union
Steward Rodriguez’ request that she be allowed to consult
with Salvador prior to the resumption of Salvador’s inves-
tigatory interview, Salvador had requested the presence of
Rodriguez and Salvador had been afforded no advance warn-
ing by supervision that his work performance was the subject
of an investigation. As described, supra, no time at all was
allowed by Respondent for Salvador and Rodriguez to confer
after Salvador was first informed that his work performance
was the subject of an investigation. In view of these cir-
cumstances, Respondent’s reliance on the court’s decision in
Climax Molybdenum, supra, is misplaced.
Likewise without merit is Respondent’s contention that
Salvador limited himself to having his union steward present
at the March 9 investigatory interview solely as a witness.
This contention is based upon Salvador’s testimony that
when he asked the postal inspectors that his union steward
be allowed to be present, he was thinking to himself, ‘‘I’m
paying dues to the union. I’d better ask for a witness, that
way I don’t want to be alone with those people.’’ However,
as described, supra, when Salvador requested the presence of
his union steward he did not indicate to the postal inspectors
he wanted the steward to be present only as a witness. More-
over, the fact that Salvador was thinking in terms of having
the union steward present as a ‘‘witness’’ does not nec-
essarily mean that Salvador did not also want to confer with
the union representative, when she arrived on the scene, prior
to continuing with the interview. Moreover, Respondent is
precluded by its own conduct from urging that Salvador
would not have sought to confer with Rodriguez prior to the
resumption of the interview. For, if Postal Inspector Cassidy
had not instructed Salvador that his union steward could be
present only as a witness and that Salvador could not speak
to or look at the steward, it is more likely than not that when
Rodriguez arrived on the scene that Salvador would have ex-
pressed the desire to confer with her prior to the resumption
of the investigatory interview.
Respondent’s final contention, ‘‘if there is a right to a pre-
interview consultation that it is a qualified right and that only
the employee—not the union representative—can invoke the
right,’’ lacks merit because it has been rejected by the Board
in Climax Molybdenum, supra, Pacific Telephone & Tele-
graph Co., supra, and Postal Service, supra. Respondent’s
position that those decisions were wrongly decided should be
addressed to the Board in its exceptions to this decision.
Moreover, even if a majority of the current Board or a court
agrees with Respondent’s position regarding those decisions,
I am of the opinion that where, as here, Respondent has
made it plain to an employee that it would be futile for the
employee to attempt to confer with his union representative
prior to an investigatory interview, it would be inequitable to
hold that the employee’s union representative is precluded
from taking the initiative and asking for permission to confer
with the employee prior to the start of the interview. For, as
I have found, supra, when employee Salvador on March 9
asked for the presence of his union steward, Postal Inspector
Cassidy replied by stating that Salvador’s union steward
could be present only as a witness and instructed Salvador
that when his steward arrived Salvador was not to speak to
or look at the steward, and when steward Rodriguez arrived
Salvador obeyed Cassidy’s aforesaid instruction. In other
words, it is plain that Cassidy’s instruction was reasonably
calculated to lead Salvador to believe that he was not able
to confer with his union steward when she arrived on the
scene prior to the resumption of the investigatory interview.
Cassidy’s conduct in this respect constituted a further in-
fringement of Salvador’s right under Section 7 of the Act to
consult with his union representative prior to the resumption
of the March 9 investigatory interview. Plainly by instructing
Salvador he could not ‘‘speak’’ to Rodriguez when she ar-
rived, Cassidy was in effect informing Salvador he could not
‘‘consult’’ with Rodriguez prior to the resumption of the
interview.
It is for the foregoing reasons that I reject Respondent’s
contention that it was privileged to refuse to permit Union
Steward Rodriguez to consult with employee Salvador prior
to the resumption of the March 9 investigatory interview, and
further find Respondent violated Section 8(a)(1) of the Act
when on March 9 it refused to permit Rodriguez to consult
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The contents of the notice and the relevant facts concerning the posting
of the notice have been set forth in detail, supra.
with Salvador prior to the resumption of an investigatory
interview which Salvador reasonably believed would result in
disciplinary action, and also violated Section 8(a)(1) when it
informed Salvador that he could not speak with Rodriguez
prior to the resumption of said interview.
In its answer to the complaint, as an affirmative defense,
Respondent asserts that because it posted a notice addressed
to its Fremont post office employees, which repudiates its il-
legal conduct herein, this obviates the need for additional re-
medial action.12 I disagree because: the notice was not spe-
cific in nature to the illegal conduct; the notice states in ef-
fect Respondent did not violate the Act; the notice was not
posted until after the issuance of the complaint; the notice
was unsigned; the unfair labor practices found herein were
committed by Respondent despite the fact that less than one
year previous to the commission of the unfair labor practices
the Board issued a Decision and Order in Postal Service,
supra, proscribing the identical conduct at Respondent’s Fre-
mont post office; and, the section of Respondent’s Inspection
Service Manual, pursuant to which Respondent engaged in
the instant unfair labor practices, is still in effect thereby
making it highly probable that Respondent will continue to
engage in the unfair labor practices found herein. It is for all
of these reasons that I find that the notice to employees post-
ed by Respondent at the Fremont post office does not obviate
the need for additional remedial action. See generally
Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
and Broyhill Co., 260 NLRB 1366 (1982).
3. Respondent’s alleged refusal to allow Union Steward
Rodriguez to speak during Salvador’s March 9
interrogation by the postal inspectors
As I have found, supra, on March 9 when employee Sal-
vador requested that his union steward be present during his
interrogation by the postal inspectors, Salvador reasonably
believed that the interview would result in disciplinary ac-
tion, thus, as discussed supra, Salvador’s union steward was
entitled to not only be present during the interview but to
participate in the interview. The complaint alleges that Re-
spondent violated Section 8(a)(1) of the Act by refusing to
allow Salvador’s union steward, Anne Rodriguez, to speak
during the March 9 investigative interview. This allegation
lacks merit because, as set forth below, Rodriguez was per-
mitted to speak and to otherwise participate in the March 9
investigatory interview. It is for this reason that I shall rec-
ommend that this allegation be dismissed.
Rodriguez was not forbidden to speak or to otherwise par-
ticipate in the March 9 investigatory interview, and in fact
participated in the interview. She expressed herself on sev-
eral occasions during the interview on Salvador’s behalf, and
the postal inspectors listened to her, and interrupted her only
after they understood the point she was making. Also, even
though Rodriguez was instructed to be seated behind Sal-
vador in a chair away from the table, whenever it became
necessary for her to inspect Salvador’s ledger book which
was on the table, she stood up and walked to the table so
she could better observe the particular part of the ledger
book that the postal inspector was referring to, and the postal
inspectors did not object to her doing so. In view of the fore-
going, it is clear that Rodriguez was permitted by the postal
inspectors to speak and to otherwise participate in the inves-
tigatory interview and in fact participated in the interview. I
have considered that prior to Rodriguez’ arrival, in order to
intimidate Salvador, Postal Inspector Cassidy informed him
that Rodriguez would be present only as a witness and in-
structed Salvador not to speak to nor look at Rodriguez, and
Salvador complied with those instructions. I recognize that
under certain circumstances such conduct might very well
constitute a violation of Section 8(a)(1) of the Act, insofar
as it was reasonably calculated to interfere with Salvador’s
right to Rodriguez’ participation in the interview, but where,
as here, the record reveals that Rodriguez, without objection,
was permitted to participate in the interview on Salvador’s
behalf and in fact did participate on his behalf, this conduct
did not violate the Act in that respect.
CONCLUSIONS OF LAW
1. Respondent is subject to the Board’s jurisdiction by vir-
tue of Section 1209 of the Postal Reorganization Act, 59
U.S.C. § 1209.
2. The Union and the Local Union are labor organizations
within the meaning of Section 2(5) of the Act.
3. By refusing to permit Union Steward Rodriguez on
March 9, 1989, to consult with employee Salvador prior to
an investigatory interview which the employee reasonably
believed would result in disciplinary action, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By informing employee Salvador on March 9, 1989,
that he could not speak to his union steward prior to an in-
vestigatory interview which the employee reasonably be-
lieved would result in disciplinary action, Respondent vio-
lated Section 8(a)(1) of the Act.
5. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) of
the Act by refusing to allow Union Steward Rodriguez to
consult with employee Salvador and by informing Salvador
he could not speak to Rodriguez, prior to an investigatory
interview which Salvador reasonably believed would result in
disciplinary action, and having also found that Respondent
engaged in this conduct pursuant to a companywide policy
which requires that its postal inspectors ‘‘deny all requests
for consultations between employees and their collective bar-
gaining representative prior to any interview by a Postal In-
spector,’’ I am persuaded that to effectively remedy Re-
spondent’s unlawful conduct it is necessary to recommend
that Respondent be ordered to cease and desist on a com-
panywide basis from engaging in the unfair labor practices
found herein and to post at all of its facilities, where employ-
ees are represented by the Union, notices informing its em-
ployees that it will cease and desist from the unfair labor
practices found herein. My reasons for recommending a com-
panywide remedial order follow.
Respondent has a companywide policy, embodied in its In-
spection Service Manual, which requires its postal inspectors
to ‘‘deny all requests for consultations between employees
and their collective bargaining representative prior to any
interview by a Postal Inspector.’’ It was pursuant to the en-
forcement of this policy that Respondent in April 1982 vio-
471POSTAL SERVICE
13 The question of whether a companywide remedial order is appropriate in
this case was posed by the complaint, thus, Respondent was afforded an op-
portunity to litigate this issue.
lated Section 8(a)(1) of the Act when one of its postal in-
spectors refused to allow a union representative to confer
with an employee prior to an investigatory interview to
which the employee’s Weingarten right had attached. Postal
Service, supra. Despite the issuance of the Board’s Decision
and Order in Postal Service, supra, and less than 1 year after
its issuance, Respondent again enforced its aforesaid policy.
This is evidenced by the fact that, as found supra, on March
9 Respondent violated Section 8(a)(1) of the Act when Postal
Inspector Cassidy, pursuant to and because of Respondent’s
aforesaid policy, refused to permit Union Steward Rodriguez
to consult with employee Salvador and informed Salvador he
could not speak to Rodriguez, prior to an investigatory inter-
view which Salvador reasonably believed would result in dis-
ciplinary action. I recognize that the sole evidence of the en-
forcement of Respondent’s policy which prohibits consulta-
tion between employees and their collective-bargaining rep-
resentative, prior to investigatory interviews to which em-
ployees’ Weingarten rights have attached, involves just one
facility, Respondent’s Fremont, California post office. How-
ever, since the policy is a companywide policy which all of
the Respondent’s postal inspectors must obey, the postal in-
spectors presumably enforce this policy at all of Respond-
ent’s other facilities and, in view of Respondent’s disregard
of the Board’s Decision and Order in Postal Service, supra,
will presumably continue to enforce the policy at all of Re-
spondent’s other facilities. In this regard, I note that Re-
spondent presented no evidence that the postal inspectors
have been instructed not to enforce the policy at facilities
other than the Fremont facility, or that it was due to special
circumstances, applicable to only the Fremont facility or to
Postal Inspector Cassidy, which resulted in the policy being
enforced in this case at the Fremont facility.13 Therefore, in
view of the Respondent’s companywide policy, a remedial
order limited to Respondent’s Fremont, California post office
would not effectuate the policies of the Act because of the
likelihood that Respondent will continue to enforce this pol-
icy at its other facilities, thereby interfering with the Section
7 right of the employees employed at those facilities to con-
sult with their union representative prior to investigatory
interviews to which the employees’ Weingarten rights have
attached. It is for this reason that I shall recommend Re-
spondent be ordered to cease and desist on a companywide
basis from engaging in the unfair labor practices found here-
in.
I recognize there is an evident link between Respondent’s
above-described policy prohibiting preinterview consultations
and the unfair labor practices found herein. In view of this
direct causal relationship I have carefully considered whether
it would be appropriate to recommend, as requested by the
General Counsel and the Charging Party, that Respondent be
ordered to cease and desist from maintaining its aforesaid
policy insofar as that policy prohibits employees and union
representatives from consulting prior to investigatory inter-
views by postal inspectors to which the employees’
Weingarten rights have attached. In my opinion, however, I
am precluded from recommending this type of remedial
order because there is no evidence that the Respondent’s em-
ployees whose Section 7 rights would be affected are aware
of the above policy. Cf. Engineers & Scientists Guild (Lock-
heed-California), 268 NLRB 311, 311 (1983), and Brick-
layers Local 17 (California Tile), 271 NLRB 1571 fn. 1
(1984). Quite the opposite, the only persons who are aware
of Respondent’s policy are certain members of management
or supervision and the postal inspectors. Cf. Castaways Man-
agement, 285 NLRB 954 (1987), citing, Resistance Tech-
nology, 280 NLRB 1004 (1986), where a Board majority
held that ‘‘the mere issuance of instructions to supervisors to
perform unlawful actions is not a violation if those instruc-
tions are neither carried out nor disclosed to the employees.’’
Here, there is no evidence that any of Respondent’s employ-
ees whose rights would be affected by the Respondent’s pol-
icy are aware of that policy nor is there evidence Respondent
has in fact actually implemented the policy at any of its fa-
cilities other than the one in Fremont, California. Under the
circumstances and because of the Board’s above-described
decisions it would be inappropriate for me to recommend
that Respondent be ordered to expunge the offending policy
from its Inspection Service Manual, even though such a rem-
edy seems to me to be the most effective way to insure that
Respondent cease and desist from continuing to enforce its
above-described companywide policy insofar as it interferes
with employees’ Section 7 rights. Instead, considering the
circumstances, I have concluded it would be more appro-
priate to recommend Respondent post at all of its facilities,
where employees are represented by the Union, notices in-
forming its employees that it will cease and desist from the
unfair labor practices found herein.
In recommending companywide posting, I considered there
is no evidence that the unfair labor practices found herein oc-
curred at any of the Company’s facilities other than the Fre-
mont, California facility, nor is there evidence that the unfair
labor practices found herein had an impact on anyone em-
ployed in those other facilities. Nonetheless, because the
record reveals a conscious companywide policy calculated to
interfere with employees’ Section 7 rights at all of Respond-
ent’s union-represented facilities, I am convinced that com-
panywide posting is necessary to be sure that all of Respond-
ent’s employees employed in the bargaining unit represented
by the Union, a companywide bargaining unit, are made fully
aware of their Section 7 right to consult with their union rep-
resentatives prior to investigatory interviews conducted by
Postal Inspectors to which employees’ Weingarten rights
have attached, and by what process violated rights can be
vindicated. I also note that, as admitted in Respondent’s
posthearing brief, it appears that Respondent’s postal inspec-
tors will continue to maintain Respondent’s policy of not al-
lowing employees to consult with their union representatives
prior to investigatory interviews to which employees’
Weingarten rights have attached, unless the inspectors fortu-
itously happen to see the Board’s notice to employees posted
as the result of this proceeding. See, Respondent’s
posthearing brief at page 4 and footnote 1. Obviously the
chances of inspectors observing the notice will be greatly in-
creased if the location of the posted notices conforms to the
companywide policy which resulted in the unfair labor prac-
tices found herein, and conforms to the companywide bar-
gaining unit to which the policy applies. It is for all of these
reasons that I have concluded that companywide posting con-
stitutes an appropriate remedy.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, United States Postal Service, Fremont,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to permit union representatives to consult
with employees prior to investigatory interviews conducted
by postal inspectors which the employees reasonably believe
will result in disciplinary action and refusing to permit em-
ployees to speak with union representatives prior to such
interviews.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities where employees are represented
by the American Postal Workers Union, copies of the at-
tached notice marked ‘‘Appendix.’’15 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it is,
dismissed insofar as it alleges that the Respondent violated
the Act other than found herein.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to permit union representatives to
consult with employees prior to investigatory interviews con-
ducted by postal inspectors which the employees reasonably
believe will result in disciplinary action and WE WILL NOT
refuse to permit employees to speak with union representa-
tives prior to such interviews.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the Act.
UNITED STATES POSTAL SERVICE