National Labor Relations Board
OFFICE OF THE GENERAL COUNSEL
DATE: March 13,
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
States Postal Service and NALC Local 27, Cases 26-CA-20975 and
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. 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.
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
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.
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
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. 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
In Illinois Bell Telephone Co., 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. 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
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
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." 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.
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
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,
 NLRB v. J. Weingarten, Inc., 420 U.S. 251
 There is no evidence that Jackson denied
Bullock the use of Latting for discriminatory reasons.
 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
 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).
 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).
 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
 Air Line Pilots Assn. v. O'Neill, 499 U.S.
65, 78 (1991).
 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
 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.