United States Postal Service

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 61 (N.L.R.B. 1980)

UNITED STATES POSTAL SERVICE
United States Postal Service and American Postal
Workers Union, AFL-CIO. Cases I-CA-
15630(P), I-CA-15894(P), and 1-CA-16286(P)
September 9, 1980
DECISION AND ORDER
On May 28, 1980, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge
that, on the record in this case, the "fitness for
duty" examinations in question were not part of a
disciplinary procedure and do not fall within the
purview of Weingarten. Thus, while the examina-
tions were prompted by personnel problems such
as excessive absenteeism because of alleged illness
or injury, and the examinations might lead to rec-
ommendations respecting the employees' future
work assignments, there is insufficient evidence es-
tablishing that these examinations were calculated
to form the basis for taking disciplinary or other
job-affecting actions against such employees be-
cause of past misconduct. Noteworthy also is the
absence of evidence that questions of an investiga-
tory nature were in fact asked at these examina-
tions. In addition these particular medical examina-
tions do not meet with the tests set forth in the
Weingarten line of cases, or the rationale underly-
ing these tests which envision a "confrontation" be-
tween the employee and his employer. 2 According-
ly, we need not decide in the instant case what
weight, if any, should be given to the Administra-
tive Law Judge's findings that the physicians per-
forming the examinations had no authority to
impose or recommend discipline, and that the re-
quested union representatives had insufficient medi-
cal qualifications to enable them to be of assistance
to the physicians. We also need not determine, in
this case, as urged by the General Counsel, wheth-
er, in an appropriate case, it might be appropriate
and feasible to provide union representation during
the interview portion of an examination while ex-
'N. LR.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975).
Id. at 260. We note also that since the examinations here were limited
to the establishment of personal medical information concerning the em-
ployee, the Respondent did not have the option of proceeding on its
own, without the examination, to obtain this information. Cf. id. at 258-
259.
cluding the representative from the "hands on"
physical examination.
We also agree with the Administrative Law
Judge that the remarks concerning the Union made
by Dr. Doyle during his examination of employee
Norman Fugere, Jr., and his questioning of Fugere
as to why he wanted the union representative with
him at a physical examination, did not violate Sec-
tion 8(a)(1) of the Act. Although a supervisor by
reason of his supervision of nurses and administra-
tive personnel employed in Respondent's medical
unit, Dr. Doyle was not acting in a supervisory ca-
pacity with respect to Fugere. In addition, his
question and his remarks were manifestly the out-
come of a personal irritation at what he regarded
as the union representative's intrusion into the ex-
amination, an incident which had resulted in a
heated altercation between the doctor and the rep-
resentative immediately prior to the doctor's re-
marks to Fugere. Although Fugere was ordered to
report for the examination, nothing Dr. Doyle said,
in these circumstances, carried the imprimatur of
Respondent's management or could reasonably be
construed as a threat of retaliation by Respondent
for the exercise of a Section 7 right. Therefore, we
find it unnecessary to pass on the Administrative
Law Judge's conclusion with respect to the neces-
sity for a remedial order if an 8(a)(1) violation
were found, and we adopt his recommendation that
this allegation, and the complaint in its entirety, be
dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This con-
solidated proceeding was heard before me at Boston,
Massachusetts, on November 15, and December 12-14,
1979,1 pursuant to due notice. The principal issue to be
resolved is whether the United States Postal Service
(herein the Respondent) violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein the
Act), when it refused to allow a representative of the
Charging Party (American Postal Workers Union AFL-
All dates hereinafter refer to the calendar year 1979, unless otherwise
indicated.
252 NLRB No. 14
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO-herein the Union) to accompany employees during
their fitness for duty examination interviews. 2
Subsequent to the hearing, counsel for the General
Counsel and counsel for the Respondent filed helpful,
post-hearing briefs, which have been duly considered. 3
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses, 4 I make the
following:
FINDINGS AND CONCLUSIONS 5
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Setting of the Issues
As previously stated, the principal issue in this case is
whether the Respondent violated Section 8(a)(1) of the
Act by refusing to allow, upon an employee's request,
his union representative to accompany him (or her)
during a "fitness for duty examination." 6
The facility of the Respondent involved in the instant
proceeding is located in Boston, Massachusetts, where it
is known as the South Postal Annex. This facility serves
the Respondent's employees in Massachusetts, Maine,
New Hampshire, Vermont, and Rhode Island. In the
South Postal Annex, the Respondent maintains a medical
unit, staffed by two full-time physicians, Dr. Edward
Handy, the area medical officer, and Dr. Joseph Doyle.
The examinations at issue herein are conducted by either
of the above-named physicians, both of whom are ac-
knowledged to be supervisors within the meaning of the
Act, inasmuch as they, in fact, supervise the registered
2 The original charge in Case I CA-15630 was filed February 14; the
original charge in Case 1-CA-15894 was filed April 5; the charge in Case
I-CA-16286 was filed June 29. On August 8, the Regional Director for
Region I of the National Labor Relations Board issued his order consoli-
dating the cases, issuing a second amended complaint and notice of hear-
ing At the hearing and in its brief, the Respondent protested that the
complaint was not valid to the extent that it alleged violations of the Act
respecting one of the alleged discriminatees since "the amended charge
or the original complaint issued on employee Walter J. Urban made no
mention of any violation of Section 8(aXl) and (3) of the National Labor
Relations Act by disciplining Mr. Urban." The Respondent also moved
that those portions of the second amended complaint be dismissed re-
specting Urban since he appealed his suspension through the grievance
procedure and, therefore, this proceeding should be deferred to the pro-
cedure under the contract.
I do not deem it necessary to discuss and resolve these procedural mat-
ters since I have found no violation of the Act on the merits of Urban's
case.
' Also, on March 11, 1980, counsel for the Respondent filed a motion
to correct the hearing transcript in certain respects. No objections having
been filed, the motion is hereby granted.
I Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161
(1966).
There is no issue as to the jurisdiction of the National Labor Rela-
tions Board in this matter, the Board having such jurisdiction by virtue of
the Postal Reorganization Act.
The complaint alleges, the answer admits, and I find that at all times
material, the Union is a labor organization within the meaning of Sec.
2(5) of the Act, and within the meaning of the Postal Reorganization
Act.
A "Fitness for duty examination," may be described, essentially, as a
physical examination conducted by one of the Respondent's staff physi-
cians, and comprising, in addition to a "hands on" physical examination
of the employee's anatomy, questions and discussion by the physician of
the employee's medical and work history. It is normally requested by the
Respondent in order to ascertain whether an employee is fully fit for
duty, fit for only light duty, or not fit for any duty.
nurses and administrative personnel who are employed in
the medical unit. The record reflects that, in addition to
conducting the examinations at issue herein, the medical
unit also provides first aid treatment and medical care for
injured or ill employees at the facility, conducts physical
examinations for prospective employees, and clearance
examinations following an illness or injury. 7
The fitness for duty examination on which the instant
proceeding is focused is normally initiated by an adminis-
trative officer of the Respondent (such as a postmaster)
when a personnel problem arises in his jurisdiction which
involves or requires a medical opinion. For example,
some of the alleged discriminatees in the instant matter
were scheduled for such examinations because of assert-
ed excessive absenteeism due to alleged illness or injury;
i.e., to determine the nature and scope of any such illness
or injury. It should be noted that prior to the scheduling
of such an examination the file of the affected employee
is forwarded to the administrative assistant in the medical
unit who makes the determination that a medical prob-
lem is involved and can only be resolved through a fit-
ness for duty examination. Once this determination is es-
tablished, a date and time for the examination is mutually
agreed upon, and the employee is then scheduled for
such examination at the medical unit in Boston.
The affected employee may have a friend, relative, or
representative accompany him to the examination, and
there may be, if desired, a discussion prior to the exami-
nation among the doctor, patient, and his representative.
However, it is the policy of the Respondent not to allow
a third party (except an attending nurse, when needed)
to be present during the actual examination itself. This
policy is based primarily on the need for complete
candor, confidentiality, and lack of intrusion between the
doctor and the patient. However, after the examination is
completed it is the Respondent's policy to allow a dis-
cussion among the doctor, patient, and his representative
at that time.
Following the examination, the physician will, in due
course, write a report making his findings and recom-
mendations to the requesting official. Such report may,
for example, find no injury or illness and recommend full
duty; find that any such illness or injury would necessi-
tate only light duty; or perhaps recommend further spe-
cialized physical examination. s
The record is clear that the examining physician at the
medical unit has no authority to mete out any form of
discipline or punishment to the employee-patient, nor
does the record reflect that he ever recommends such a
course of action to the administrative officer. The most
that the record shows of a circumstance which comes
closest to such a recommendation is, for example, should
an employee have a record of excessive absenteeism
based on asserted illness, the examining physician may
? The record shows that during an annual period, the medical unit han-
dles approximately 23,000 individual medical complaints.
s The collective-bargaining agreement between the Respondent and
the Charging Party provides a procedure for the appointment of a third
physician where there is a disagreement between the employee's physi-
cian and the physician designated by the Respondent concerning the
medical condition of an employee who is on a light duty assignment. See
Jt. Exh. , pp. 32-33.
62
UNITED STATES POSTAL SERVICE
find insubstantial medical evidence to sustain such a posi-
tion; however. there is no evidence that the examining
physician has ever recommended any form of discipline
to be imposed as a consequence of such a circumstance.
B. Facts and Concluding Findings as to Weingarten
Allegations
The amended complaint herein alleges that on various
dates between January 8 and June 25, the Respondent
denied requests of six named employees, "to be repre-
sented by the Union during interviews which said em-
ployees had reasonable cause to believe would result in
disciplinary action or otherwise have an adverse impact
on their employment." It is further alleged that notwith-
standing the fact that the Respondent had denied the said
employees' request for representation, the above-named
doctors proceeded to conduct such interviews on or
about the said dates. It is further alleged in paragraph 7
of the complaint that some of the named employees suf-
fered adverse consequences such as discharge or disci-
pline as a consequence of the interviews conducted by
the physician.9
The Respondent acknowledged its policy, set forth
above, which denies permission for union representation
during the fitness for duty examinations, for the reasons
stated. The General Counsel relies on the doctrine enun-
ciated by the Board and the United States Supreme
Court in N.LR.B. v. J. Weingarten, Inc., 420 U.S. 251,
(1975), in support of his position on this aspect of the
case. The Respondent argues that Weingarten, which
arose in a commercial or industrial context, is not ap-
plicable, and should not be invoked in a physician-patient
interview such as is involved in the instant case. I agree
with the Respondent for the reasons discussed infra.
Briefly summarized, the facts in Weingarten are that an
employee at one of its stores was accused of a small theft
of money from a cash register, and company officials in-
vestigated. When they called the employee in for an in-
terview concerning alleged violations of company policy,
the employee asked that a shop steward accompany her,
but the store manager denied her request. This refusal,
where the employee has a reasonable fear that discipline
will result, was what the Board and the Court found to
constitute an invasion of employees' Section 7 rights, in
violation of Section 8(a)(l) of the Act. l l The Supreme
Court, in Weingarten, approved the Board's shaping of
the "contours and limits of the statutory right" as fol-
lows:
t At the hearing, counsel for the General Counsel acknowledged that
if it were found that the interviews were not conducted unlawfully, the
various consequences alleged in par. 7 of the complaint would not consti-
tute violations of the Act.
10 See companion case of International Ladies' Garmer Workers' Union
v. Quality Manufacturing Company, 420 U.S. 276 (1975).
' In Quality, where the employer was a manufacturer of women's
clothing, the controversy involved a wage dispute between the employee
and management. The employee's request to have her union steward
present at a meeting with the president. where she feared that discipline
would ensue, was denied.
First, the right inheres in 7's guarantee of the
right of employees to act in concert for mutual aid
and protection.
* * * a *
Second, the right arises only in situations where
the employee requests representation. In other
words, the employee may forego his guaranteed
right and, if he prefers, participate in an interview
unaccompanied by his union representative.
Third, the employee's right to request representa-
tion as a condition of participation in an interview is
limited to situations where the employee reasonably be-
lieves the investigation will result in disciplinary action
.... [Emphasis supplied.]
Fourth, exercise of the right may not interfere
with legitimate employer prerogatives. The employ-
er has no obligation to justify his refusal to allow
union representation, and despite refusal, the em-
ployer is free to carry on his inquiry without inter-
viewing the employee and thus leave to the employ-
ee the choice between having an interview unac-
companied by his representative, or having no inter-
view and foregoing any benefits that might be de-
rived from one....
Fifth, the employer has no duty to bargain with
any union representative who may be permitted to
attend the investigatory interview.... "The repre-
sentative is present to assist the employee, and may at-
tempt to clarify the facts or suggest other employees
who may have knowledge of them. The employer, how-
ever, is free to insist that he is only interested, at that
time, in hearing the employee's own account of the
matter under investigation. "[Emphasis supplied.]
Considering the facts of the instant case in the light of
the contours set forth above, it would appear that such
contours or limits simply did not contemplate covering
the kind of medical interview involved herein. Thus, the
third test requires that the employee reasonably believes
that the investigation will result in disciplinary action.
We may assume, for purposes of discussion, that the em-
ployees involved herein reasonably believed that there
was a possibility that the fitness for duty examination
might have an adverse impact on their employment.t 2
However, it would seem to unduly expand the ordinary
meaning of the word "discipline"-at least as it is under-
stood in labor relations parlance-to make it fit into the
instant situation. That is to say, the use of the term "dis-
cipline" in the industrial context normally means a pun-
ishment or penalty which is imposed on an employee for
12 Several of the employees testified that they had heard from other
employees that the latter had been suspended or not allowed to perform
certain tasks, or consequences of that nature, as a consequence of the fit-
ness for duty examination
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of an employer's policy, practice, or plant
rules.13 There is no evidence in the instant record that
any one of the six employees involved herein, or any
other employee, was required to undergo the fitness for
duty examination as a part of any "disciplinary program"
as that term is usually defined. They were simply called
for the examination in order to determine whether or not
they were physically and/or mentally capable of carry-
ing on the duties to which they were assigned. The doc-
tors, unlike the supervisory or managerial personnel in-
volved in Weingarten and its progeny (see fn. 19, infra)
had no authority to either impose discipline or even to
recommend it and did not do so. To be sure, in the case
of any individual employee, the results of the examina-
tion could have an adverse impact on their employment;
i.e., their hours could be shortened, they might not be
able to perform the work which they believed them-
selves capable, or, in the extreme case, it could be rec-
ommended that he (or she) be suspended for lack of abil-
ity or capacity to perform the job. However, this is not
"discipline" in the sense of punishment for the breach of
a rule or practice but, rather, a resolution of a medical
problem for the health and safety of the employee, his
fellow workers, and possibly the public with which the
employee may come in contact.
It is recognized, of course, as the General Counsel
points out, that the procedure might be utilized by an un-
scrupulous employer to rid itself of an unwanted employ-
ee by having the employer's physician make medical
findings which would necessarily result in the dismissal
of the employee. However, there is no evidence of such
a Machiavellian intent here. The fact that an employee
might be discharged or suspended as a result of not com-
plying with the physician's recommendation, with which
the administrative officer agrees, does not make the fit-
ness for duty examination into an interview which the
employee fears might result in disciplinary action within
the meaning of the Weingarten doctrine.
Nor does the fitness for duty examination fit comfort-
ably within the above-quoted fourth contour enumerated
by the Supreme Court in Weingarten. This test empha-
sizes the freedom of the employee to refrain from partici-
pating in an interview while at the same time relinquish-
ing any benefit which might be derived therefrom; by
the same token, the employer would then be free to act
on the basis of information obtained from other
sources.' 4 Like the situation emanating from an alleged
breach of a rule or practice of the employer, the employ-
er may decide to proceed with discipline based on the in-
formation he has absent the investigatory interview
which the employee has declined. However, unlike that
situation, the Respondent here has evidenced no desire to
discipline or penalize the employee called for a medical
examination, but rather to simply ascertain the physical
1' See the definition in Webster's Third New International Dictionary:
"4: punishment: as a: chastisement self-inflicted as mortification or im-
posed as a penance or as a penalty"; Black's Law Dictionary, 5th Edition,
defines the term as: "Instruction, comprehending the communication of
knowledge and training to observe and act in accordance with rules and
orders, Correction, chastisement, punishment, penalty." (Emphasis sup-
plied.)
14 Mobil Oil Corporation, 196 NLRB 1052 (1972) (quoted with approv-
al by the Supreme Court in Weingarten).
and/or mental ability or capacity of the employee to per-
form tasks to which he may be assigned. Certainly, it
may not be reasonably assumed that an employer, with-
out ulterior motives,1 5 normally wishes to rid itself of
otherwise competent employees who have not conducted
themselves in such a manner as to warrant dismissal or
other consequences of a disciplinary nature.
Finally, it seems clear that the instant situation does
not fit the fifth test of the Supreme Court, above-quoted.
Thus, it is apparent that the Court thought that the sanc-
tioning of a union representative at the type of interview
there under consideration would be of assistance not
only to the employee (since the union representative may
attempt to clarify the facts or suggest other employees
who may have knowledge of them), but also "to make
certain that the employer does not initiate or continue a
practice of imposing punishment unjustly." The Court
goes on to point out that "A single employee confronted
by an employer investigating whether certain conduct
deserves discipline may be too fearful or inarticulate to
relate accurately the incident being investigated, or too
ignorant to raise extenuating factors." (Emphasis sup-
plied.) 7 Again, it is apparent that the Court was point-
ing out the desirability of collective action in a situation
premised upon the employee's fear of discipline due to
an alleged breach of a rule or practice in the plant. Here,
it would seem highly questionable, to say the least, that a
lay union representative would be of much assistance to
a physician conducting a physical examination. s
But the General Counsel and the Charging Party
argue that the union representative in the instant case
may be of assistance to the employee with respect to the
questions posed by the physician relating to work histo-
ry, family history or, for example, questions relating to
how an injury occurred, etc. However, the record herein
is clear that the fitness for duty examination does not
lend itself to such a truncated procedure. Thus, while it
is apparently the customary procedure for the examining
physician to initiate the fitness for duty examination by
asking certain questions relating to the above-mentioned
subjects, and then proceeding to the "hands on" physical
examination, it is usual and customary for the physician
to pursue such questions and discussion during the
"hands on" physical after the doctor has learned more
respecting the employee-patient's anatomy and his physi-
cal abilities. It would, therefore, not be feasible to at-
tempt to divide the fitness for duty examination into two
parts in order that a union representative might be pres-
ent for the part relating to work history and the like.
Based on all of the foregoing, I am convinced and,
therefore, find that the fitness for duty examination at
issue here was not within the contemplation of the deci-
'1 There is no evidence or contention here that the Respondent, which
is in a collective-bargaining relationship with the Charging Union, har-
bors a general antiunion bias.
16 420 U.S. 251.
1 Id.
i' There is no contention in the instant case that the union representa-
tives requested by the alleged discriminatees had any medical qualifica-
tions.
64
UNITED STATES POSTAL SERVICE
sion in Weingarten and its progeny.' 9 I shall therefore
recommend that the complaint, insofar as it is based
upon the asserted right of the alleged discriminatees to
have a union representative present during their fitness
for duty examinations, be dismissed.
C. Alleged Independent 8(a)(1) and (3) Violations
The amended complaint (paragraph 8) alleges that
during the fitness for duty examination conducted by Dr.
Joseph B. Doyle of employee patient Norman R. Fugere,
Jr., on or about June 25, the doctor made certain coer-
cive remarks and engaged in interrogation concerning
union activities in violation of Section 8(a)(1) of the Act.
It is also alleged in paragraph 9 that through the conduct
of the fitness for duty examination on said date, the Re-
spondent "subjected its employee Norman R. Fugere,
Jr., to an accusatory, coercive and intimidating inter-
view." It is further alleged in paragraph 10 that the Re-
spondent engaged in such conduct described in para-
graph 9 because Fugere "joined, supported, or assisted
the Union, and engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, and in order to discourage employees from
engaging in such activities or other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection." By its duly filed answer, the Re-
spondent denies having engaged in any unlawful con-
duct.
For several years prior to the events giving rise to the
instant controversy, Fugere had been employed by the
Respondent at its Woonsocket, Rhode Island, postal fa-
cility as a distribution clerk (mail sorter). In October
1978, he received an injury to his knee. Later, in Janu-
ary, there was an operation performed on the knee, and
Fugere did not work from that time until approximately
7 months later. On or about June 6, he wrote a letter to
his postmaster in Woonsocket informing him that he
would be available to return to work on June 20, but his
work schedule would be limited to 2 hours per day due
to the order of his doctor. The postmaster, upon check-
ing with Fugere's physician, assertedly received conflict-
ing reports respecting the limitation on Fugere's ability
to work full time. On that basis, as well as the postmas-
ter's expressed doubt as to whether a knee injury should
cause an absence for as long a term as existed, requested
a fitness for duty examination for Fugere. 20
The fitness for duty examination was scheduled for-
and took place-on June 25. A few days prior thereto,
Fugere contacted Union Representative Smyrnios and
requested that the latter accompany him to the examina-
I' See, e.g., Amoco Chemical Corporation, 237 NLRB 394 (1978);
Southwestern Bell Telephone Company, 227 NLRB 1223 (1977); Climax
Molybdenum Company, 227 NLRB 1189 (1977); Alfred M. Lewis Inc., 229
NLRB 757 (1977); General Electric Company, 240 NLRB 497 (1979);
Good Hope Refineries. Inc., 245 NLRB No. 39 (1979); Roadway Express.
Inc., 246 NLRB No. 180 (1979); Baton Rouge Water Works Company, 246
NLRB No. 161 (1979).
20 The notice to Fugere stated the reason: "to determine your fitness
for duty in view of continuous absence since December 1978, attributed
to an alleged injury on duty."
tion. Smyrnios agreed and, in fact, accompanied Fugere
to the medical unit on that day.2'
When Fugere was called for examination by Dr.
Doyle, Smyrnios accompanied Fugere into the doctor's
office, and Fugere requested that Smyrnios be allowed to
represent him during the examination. Doyle refused,
citing the Respondent's policy. After some rather acri-
monious discussion, Smyrnios did leave, but under pro-
test. Fugere also indicated that he was submitting to the
examination under protest since he felt that failure to
submit to the examination might result in some form of
discipline to him.
Following Smyrnios' departure, according to Fugere's
testimony, Doyle turned to him and stated as follows: "I
don't know why you brought him with you. You came
here to jump down our throats and I'm not going to
allow it." Fugere further testified that Doyle asked him
why he thought the Union was needed, and that Doyle
opined that "the Union should not bother with people
like me. The Union should stick with the drunks and
dope addicts where they belong." Later in the interview,
according to Fugere. Doyle stated that while Doyle did
not give out disciplinary action, Fugere deserved it, and
then "We'll see what the Union will do for you." 2 2
Doyle denied making the above-quoted statements
except that, on cross-examination, he did indicate that it
was probable that he asked Fugere why he had Smyrnios
at the examination.
The credibility issue here has been a difficult one.
Fugere impressed me as being one who approached the
fitness for duty examination with great apprehension and
concern based upon his apparent belief that the Respond-
ent had ordered the same in an attempt to justify subse-
quent disciplinary action, if not worse-as a basis for es-
tablishing an intent on the part of Fugere to defraud the
Respondent-that is, by making claims based on asserted
injury which were not true. Dr. Doyle impressed me as
being an outspoken individual who, while not harboring
an antiunion intent in general, was positive in his opinion
that union representation had no place in a medical inter-
view. In addition, it is clear that Doyle did not appreci-
ate Smyrnios' militant and intrusive attitude on this
point. Accordingly, I believe, and therefore find, that
following Smyrnios' departure from the room, Doyle
asked Fugere why he wanted Smyrnios with him, and
probably opined in strong language that Doyle was of
the view that it was not in the best interest of either the
Respondent or Fugere that a union representative be
present during the interview. Doyle might very well
have, in his agitated state, gone on to suggest other areas
where unions should interest themselves such as with
11 The record reflects that, at prior union meetings, Smyrnios had ex-
pressed the viewpoint that the Weingarten doctrine encompassed the fit-
ness for duty examination and encouraged employees who were called
for such examinations to request union representation. As a consequence,
he had been to the medical unit in a representative capacity on prior oc-
casions, and knew some of the personnel, including the doctors, em-
ployed there However, he had never been allowed to accompany an em-
ployee-patient during a itness for duty examination
22 It should be noted that the doctor did not in his report to the post-
master recommend any discipline for Fugere, but did recommend full
duty
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drunks and dope addicts. However, I do not believe that
Doyle directed Fugere not to talk to the Union or said
that employees do not need a union. However, given the
antagonistic circumstances extant in the interview, I be-
lieve it likely that Doyle made the statement attributed
to him by Fugere that while Doyle did not give out dis-
ciplinary action that Fugere deserved it, and then "We'll
see what the Union will do for you."
While I have found that Doyle made some of the
statements attributed to him by Fugere which were de-
rogatory toward union representation and Fugere, I am
not convinced that such constituted a violation of the
Act in the circumstances of this case. That is to say, as
previously noted, each participant came into the inter-
view with an emotional chip on his shoulder, filled with
suspicion and antagonism toward each other. The state-
ments of the doctor made under such circumstances
were either emotional exclamations as a consequence of
intrusive conduct of the union representative 23 or were
basically his own opinion and were therefore protected
by Section 8(c) of the statute.24 Moreover, even if it be
found that some of the statements made by the doctor to
Fugere in the particular circumstances of this case con-
stituted interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act, I do not believe it
would serve a useful purpose to issue a remedial order.
This for the reason that, since I have found that the
Weingarten doctrine does not apply to the fitness for
duty examinations, there will be no repetition of events
which would lead to the kind of utterances made by the
doctor on this occasion; i.e., there would be no attempt
by an employee-patient to have a union representative
present at the examination. Accordingly, there is no need
for an order to cease and desist from such conduct in the
future.
Finally, I find a lack of substantial evidence to support
the allegation in paragraph 9 that the Respondent sub-
jected Fugere to "an accusatory, coercive and intimidat-
ing interview" because he engaged in union or other
23 See, e.g., Wilmington Heating Service, Inc., 173 NLRB 68 (1968).
24 See, e.g., Hospital Service Corporation d/b/a Blue Cross, 219 NLRB 1
(1975).
concerted activities, and in order to discourage other em-
ployees from engaging in such activities. Although there
were certain coercive and intimidatory statements made
by the doctor in the interview, as above-described, I find
that they were as a result of: (I) Fugere's desire to have
a union representative present during the examination,
which is not a right protected by Section 7; (2) that the
doctor believed that Fugere was in fact malingering with
respect to the seriousness of the injury he sustained and
his ability to perform essentially sedentary duties; and (3)
because of the intrusion and militancy of the union repre-
sentative on the occasion, which clearly upset the
doctor. None of the above fall within the tests of viola-
tion of Section 8(a)(1) and/or (3) of the Act.
In the light of all of the foregoing factors, I am unable
to conclude that there is substantial evidence to sustain
the allegations of paragraphs 9 and 10 of the complaint,
and will therefore recommend that they be dismissed.
CONCLUSIONS OF LAW
1. The National Labor Relations Board has jurisdiction
over the Respondent by virtue of the Postal Reorganiza-
tion Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act and within the meaning of
the Postal Reorganization Act.
3. The Respondent did not, as alleged in the amended
complaint, engage in conduct violative of Section 8(a)(1)
and (3) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER2 5
The complaint is hereby dismissed in its entirety.
25 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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