The Rules at a Glance

Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, the following rules apply:

RULE 1:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

RULE 2:
After the employee makes the request, the employer must choose from among three options. The Employer must either:

• Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
• Deny the request and end the interview immediately; or
• Give the employee a choice of (1) having the interview without representation or (2) ending the interview.

RULE 3:
If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

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We have all watched police dramas on TV and we have heard that phrase over and over; "You have the right to remain silent and anything you say can be used against you" How does that apply to our administrative process when a non-criminal investigation is ongoing in the Postal Service?

There are a couple scenarios that we should examine. The first would be a situation where the Inspection Service is investigating a problem on the workroom floor. You are called in as a potential witness to an incident. When asked questions do you have the right to refuse to answer? The simple response is no. Section 666.6 of the ELM requires employees cooperate in any investigation so refusing to respond to questions can lead to discipline. You do however have the right to have a Union representative with you during the interview particularly if you are the target of that investigation. It is perfectly OK to say you did not see or hear anything but you simply cannot refuse to answer questions.

The next scenario is the most common. An individual is facing a non criminal pre-disciplinary interview with his/her supervisor. Let's say it involved some type of misconduct. The employee requests to have a steward present.. In this circumstance is it advisable for the employee to refuse to respond to questions? My advice is to take that opportunity to tell your side of the story but before you say anything meet alone with your steward. Explain your side of the story to the steward first. The steward should not advise you to lie but explaining it first to the steward might reduce the chance of making matters worse than they have to be. When you and the steward return to the interview the union's first goal will be to have management explain the scope of the investigation. Keep your cool and let the steward do his/her job. Then only respond to the questions you are being asked. Do not volunteer anything not asked. The steward should keep careful notes.

This article did not address pre-disciplinary meetings when related potential criminal charges are pending. In that situation remaining silent is the right thing to do until you consult with an attorney. In that kind of a pre-disciplinary meeting the grievant is entitled to have both an attorney and a steward present.

I recently did an arbitration case where the grievant refused to tell management anything during the pre-disciplinary process. His steward advised him that it was better to wait for the discipline and then respond. That was not good advice. Management refused to rescind the discipline after the fact and argued that the grievant had his chance to explain before discipline was issued and refused. The arbitrator agreed and gave little weight to explanations given after the discipline was imposed. Fortunately the arbitrator did agree to modify the discipline after hearing the explanation but criticized the grievant for not explaining his actions during the pre-disciplinary process.

Advice Memorandum from NLRB: Does an employee have the right to select a particular Union steward as his representative at a Weingarten interview. NLRB's advice to Local USPS and NALC. (note: this memorandum is for informational purposes)

National Labor Relations Board
OFFICE OF THE GENERAL COUNSEL
Advice Memorandum

DATE: March 13, 2003

TO: Ronald K. Hooks, Regional Director; Ruth Small, Regional Attorney; Thomas H. Smith, Jr., Assistant to Regional Director, Region 26

FROM: Barry J. Kearney, Associate General Counsel, Division of Advice

SUBJECT: United States Postal Service and NALC Local 27, Cases 26-CA-20975 and 26-CB-4252

506-4033-3000, 536-2581-0100, 536-2581-3388

These cases were submitted for advice on whether the Union and Employer, in applying certain contractual provisions, lawfully denied an employee his right to select a particular Union steward as his representative at a Weingarten interview.[1] We conclude that a contractual analysis does not apply here because the employee did not have the unfettered right to select a particular Weingarten representative present at the facility, and that the Union did not breach its duty of fair representation in denying the employee his choice in the circumstances of this case.

FACTS

The Union represents employees at the Employer's Crosstown Station where employees service two postal zones, 38104 and 38105. Each of these carrier zones constitutes a separate work group and each has a separate elected steward. Pertinent provisions of the collective-bargaining agreement provide:

Stewards may be designated for the purpose of investigating, presenting, and adjusting grievances....

The selection of and appointment of stewards is the sole and exclusive function of the Union.... Stewards will be certified to represent employees in specific work location(s) on their tour...

If an employee requests a steward or Union representative to be present during an interrogation by the Inspection Service, such request will be granted.

Charging Party Employee Bullock works in carrier zone 38105 where the elected steward was on long term sick leave, and the Union had designated no assistant steward. Instead, Union president Jackson appointed Fisher, the steward in carrier zone 38104, also to be the acting steward in zone 38105. The Union informed the Employer and the unit employees of Fisher's appointment. The Union had appointed employee Latting as the assistant steward in carrier zone 38104. Latting had no steward authority in zone 38105.

On October 31, 2002, a supervisor summoned employee Bullock to an investigatory interview. When Bullock arrived at the meeting, acting steward Fisher was already present. Bullock stated that he would prefer Latting to Fisher as his Weingarten representative. Latting was present at the facility at the time. The Employer delayed the interview and telephoned Union president Jackson. Jackson said that Bullock could be represented by Fisher or himself, but not by Latting.[2] Bullock declined to have either represent him, and underwent the investigatory interview alone. Bullock alleges that the Union unlawfully refused to provide him with Latting as his choice of Weingarten representative.

ACTION

We conclude that the Region should dismiss these charges, absent withdrawal, because Board precedent in the other factual contexts indicates that a 9(a) representative, rather than the employee subjected to an investigatory interview, can designate that employee's specific Weingarten representative and the Employer must acquiesce in that designation or terminate the interview. Since the Union here did not breach its duty of fair representation by making its selection here, the denial of the Charging Party's request for a specific individual as his representative was not unlawful.

A Union clearly may waive the right of unit employees to Weingarten representation altogether.[3] Research disclosed no Board decisions addressing the respective rights of an employee and a union abiding by its duty of fair representation where the employee requests a particular union official as his or her Weingarten representative. However, Board decisions hold generally that, if the employee requests a Weingarten representative, the choice of the representative belongs to the union. An employer acts unlawfully if it conducts an investigatory meeting without the union-selected representative present.

In Illinois Bell Telephone Co.,[4] the union had told employee Hatfield not to go to an investigatory interview alone, and that she could bring any union member she chose. Hatfield therefore asked the employer to allow a particular employee (and former steward) represent her. The employer refused because that employee was not a steward. The ALJ found that the employer unlawfully denied Hatfield her choice of an employee as her Weingarten representative. The ALJ reasoned that, since an employee at an unrepresented plant could select any representative she wished, so too could an employee at a represented plant. 251 NLRB at 938.

The Board found a violation, but on a different basis than had the ALJ. The Board held that Hatfield had the right to select an employee as her Weingarten representative solely because the collective-bargaining agreement and the parties' oral understandings did not require otherwise, and because there was no actual union representative present at the facility.[5] In disagreeing with the ALJ's rationale, 251 NLRB at 933, the Board stated:

[T]here is a difference between the rights of represented and nonrepresented employees to interact with the employer as individuals. Certainly an employee cannot act in derogation of the union majority representative.

In contrast, in Pacific Gas & Electric Company, 253 NLRB 1143 (1981), the employer brought the union's on-site steward to a Weingarten interview involving employee Green. However, Green wanted another steward located at another site, 40 minutes away. The employer refused to delay its interview to bring over the other steward. The Board found no violation:

The Supreme Court in Weingarten neither stated nor suggested that an employee's interests can only be safeguarded by the presence of a specific representative sought by the employee. To the contrary, the focus of the decision is on the employee's right to the presence of a union representative designated by the union to represent all employees.[6]

In view of the above decisions, finding limited employee Weingarten rights vis-a-vis the union, we conclude that the Union here, as the 9(a) representative, could not have unlawfully designated Fisher unless it breached its duty of fair representation in doing so. We further conclude that the Union did not breach its duty of fair representation by refusing to accede to Bullock's choice of Latting as his Union representative. A union breaches its duty of fair representation when its conduct toward an employee is arbitrary, discriminatory, or in bad faith. A union must be allowed a wide range of reasonableness in serving unit employees, and any subsequent examination of a union's performance must be "highly deferential."[7] Thus a union's conduct is arbitrary only if, in the light of the circumstances at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational.[8]

Here, there is no evidence that the Union's conduct was discriminatory, or in bad faith, and we find that the Union's conduct was not arbitrary. In requiring Bullock to use Fisher, the Union was only insisting upon the use of the steward it had appointed for that carrier zone. The Union denied Bullock the use of Latting because the Union had never given Latting, the alternate steward in zone 38014, authority to act in Bullock's zone. Since the Union's conduct was in accord with its own steward appointment policy, we find that it was not arbitrary.[9]

Finally, we find it unnecessary to decide whether the parties' agreement waived Bullock's asserted right to select a particular Weingarten representative. Rather, we find that Bullock did not possess an unfettered right of selection and that the Union did not breach its duty of fair representation by refusing Bullock's particular selection in the circumstances of this case. Accordingly, the Region should dismiss the Section 8(b)(1)(A) and Section 8(a)(1) charges, absent withdrawal.

B.J.K.

[1] NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

[2] There is no evidence that Jackson denied Bullock the use of Latting for discriminatory reasons.

[3] Prudential Insurance Co., 275 NLRB 208, 209 (1985), citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 706-07 fn. 11 (1983) (union may waive individual rights "so long as the union does not breach its duty of good-faith representation").

[4] 251 NLRB 932, 933 (1980), enforcement granted in relevant part, 674 F.2d 618 (7th Cir. 1982), on remand 275 NLRB 148 (1985), enforced in relevant part sub nom. CWA Local 5008 v. NLRB, 784 F.2d 847 (7th Cir. 1986).

[5] Id. at 933. See also L.A. Water Treatment, 263 NLRB 244 (1982) (employer unlawfully denied employee Hernandez his choice of an employee as his Weingarten representative because there was no evidence that either the contract or an oral understanding required the presence of a union representative at Weingarten interviews, and in any event no union representative was available).

[6] 253 NLRB at 1143 (emphasis in original). The Board explicitly stated that it would not find "that an employee may request this union representative instead of that one, perhaps from a far corner of the plant, and perhaps, in certain circumstances, contrary to the union's wishes." Id. at 1144.

[7] Air Line Pilots Assn. v. O'Neill, 499 U.S. 65, 78 (1991).

[8] Air Line Pilots Assn. v. O'Neill, supra; Steelworkers v. Rawson, 495 U.S. 362, 376 (1990); Vaca v. Sipes, 386 U.S. 171, 177, 190 (1967); Miranda Fuel Co., 140 NLRB 181 (1962).

[9] This case therefore does not present the more difficult question of whether a union would breach its duty of fair representation if it refused to allow an employee his or her selection of a particular Weingarten representative among several equally available, equally authorized, Union agents.