From Gary Kloepfer,  National APWU Assistant Maintenance Director

This is a summary of a National Labor Relations Board decision in case 9-CA-42466 in which the Board ruled the Postal Service violated Section 8(a)(1) of the Act when it prohibited a Union representative from speaking at a predisciplinary interview. Briefly, a supervisor told an employee that a pre-disciplinary meeting was scheduled; the employee requested his Union representative be present at this meeting.  During the meeting the supervisor told the employee, in the presence of the Union representative, that the Union representative was not permitted to speak on his behalf.  At the conclusion of the meeting the grievant filed a grievance and the Union filed an Unfair Labor Practice (ULP) regarding the Postal Service’s decision banning the Union Representative from speaking during the pre-disciplinary interview.

During the hearing the Postal Service argued in part, that it lacked sufficient information to form a belief as to the state of the grievant’s mind leading up to and during the predisciplinary interview. It prayed that this defense would demonstrate that the grievant could reasonable cause to believe the interview would result in discipline. The Board quickly and accurately dismissed the Postal Service’s defense; it stated:
 
“That answer is not responsive to the allegation, which does not concern the employee’s state of mind. Rather, the Complaint alleges, in essence, that employee had reasonable cause to believe that the interview would result in disciplinary action. In other words, the government does not have to offer testimony or other evidence to prove what a given employee actually thought would be the result of a meeting with a supervisor. In theory, an employee might be under the mistaken impression that his supervisor was going to surprise him with a birthday cake. The Board does not concern itself with what the actual em­ployee might have been thinking. Rather, the Board determines, from the evidence, whether it would have been reasonable for someone to believe that disciplinary action would result from the interview. In a sense, we are talking about that hypothetical “reasonable man” who pops up in so many areas of the law that he will never have to worry about being out of work.”

The Union also complained that the Union representative was prohibited from speaking at the meeting. The Board found this action to also violate the law; in this regard it stated:
 
“In NLRB v. Weingarten. Inc., 420 U.S. 251 (1975), the Su­preme Court upheld the Board’s determination that an employer violated Section 8(a)(1) by denying an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believed might result in disciplinary action.  In Barnard College, 340 NLRB No. 106 (October 21, 2003, the Board found that an employer violated Section 8(a)(1) when it allowed a union representative to attend a disciplinary interview as a witness, but prohibited him from speaking. Respondent’s su­pervisor did precisely that in the present case.”
 
Finally the Postal Service argued that it did not violate the Act because it never told the Union Representative that he could not speak, rather it told the grievant in the presence of the Union Steward. Again the Board quickly and accurately dismissed this position. The Board stated:
 
What possible difference could that make? Whether a state­ment violates Section 8(a)(1) depends on whether the statement reasonably would interfere with the exercise of Section 7 rights. The same harm occurs regardless of whether the supervisor tells the union steward that he may not speak, or tells the employee sitting next to the steward that the representative may not speak. The same message is communicated in either case and it has the same harmful effect. . . . Moreover, Supervisor Johnson’s statement cannot be consid­ered an effort to explain the ground rules to the grievant because those weren’t the ground rules. In fact, what Supervisor Johnson said - namely, that-.the Union representative would not be allowed to speak – directly contradicted the-ground-rules negotiated by the Union and the Respondent and published in a booklet entitled “JCIM 2004 - Joint Contract Interpretation Manual. “  Article 17 of this manual states, in part, as follows: “The em­ployee has the right to a steward’s assistance, not just a silent presence, during an interview covered by the Weingarten rule. An employee’s Weingarten rights are violated when the union repre­sentative is not allowed to speak or is restricted to the role of a passive observer.”

See case in  [PDF] [HTML]

Related link:

Know Your Weingarten Rights