United States Postal Service

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1382 (N.L.R.B. 1985)

1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Postal Service and Cleo Thomas. Case
9-CA-21975(P)
Upon the entire record and from my observation of
the witnesses, I make the following
31 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 8 October 1985 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Charging Party filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the` recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect StandardDry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
We correct the judge's inadvertent reference in sec III, 2, par 2 of his
decision to Harvill, rather than Carter, as participating in the preconfer-
ence conversation
Anthony L. Sheehan, Esq., for the General Counsel.
Maria T Robinson , Esq., of Chicago, Illinois, for the Re-
spondent.
Cleo Thomas, of Cincinnati, Ohio, the Charging Party in
Person.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIcCI, Administrative Law Judge. A hear-
ing in this proceeding was held on 1 August 1985 at Cin-
cinnati, Ohio, on complaint of the General Counsel
against United States Postal Service (the Respondent).
The complaint issued on 6 June 1985, on a charge filed
on 24 April 1985, by Cleo Thomas (the Charging Party).
The sole issue to be decided is whether, in the course of
an investigation and disciplinary interview with a rank-
and-file employee, management representatives denied
that employee's request to have present, and be assisted
by, a representative of the contractual bargaining union
which at the time was the exclusive representative for all
the employees in this place. Briefs were filed after the
close of the hearing by the General Counsel and the Re-
spondent.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent provides postal services for the
United States of America and operates various facilities
throughout the United States in the performance of that
function, including its facility in Cincinnati, Ohio, the
only facility involved in this proceeding. I find that the
Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that American Postal Workers Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
On 20 December 1984 there occurred an altercation
between two employees in the cafeteria of this post
office, with some admitted physical violence between
them, each employee later accusing the other of wrong-
doing . It was the kind of disturbance in the workplace
that if considered sufficiently serious by management
could lead to disciplinary action. When the supervisors
heard of it they questioned each of the two employees,
alone and together, to decide what to do. One of the em-
ployees, Carol Jones, told her supervisor she wished to
have a "representative" present during the interviews.
They denied her request. The interviews took place and
the incident was first deemed too trivial to warrant any
action by management, but, on reconsideration, a disci-
plinary notice was served on both women. At that point
the Union stepped in, a grievance was filed and proc-
essed in regular fashion according to the collective-bar-
gaining agreement in effect, and the final result was a 5-
day suspension, which took effect.
The question is: When Jones asked to have a "repre-
sentative" present during her interviews (first with
Ronald Carter, her personal supervisor, and later with
both Carter and Harry Harvill, the higher management
agent), did she ask for a representative of the Union,
meaning United States Postal Service, or was she talking
about Cleo Thomas, a fellow employee very active in
another employee organization but in no way related to
the Postal Union? The so-called Weingarten rule (420
U.S. 251 (1975)), on which the General Counsel relies,
gives employees the right to have a representative
present in a disciplinary interview, but that representa-
tive must be an agent of the labor organization which at
the moment is the exclusive representative of the em-
ployees. The employer is not obligated to honor a re-
quest for representation by an agent or spokesman of any
other labor organization. Were it to do that, it would be
bypassing the established union and violating the statute
outright. There is hardly need to cite precedent for that
statement at this late date. In this post office, the sole
labor organization recognized and acting as representa-
277 NLRB No. 156
POSTAL SERVICE 1383
tive of the employees is the American Postal Workers
Union, as the parties stipulated.
When, after the two interviews in question , manage-
ment decided to issue a disciplinary notice to Jones, she
turned to the Union for the first time, a grievance was
filed under the union procedures , it was processed regu-
larly, and the matter was reduced with a penalty to all
parties. The charge in this case was filed by Cleo
Thomas; he and Jones were the only witnesses who ap-
peared at the hearing in support of the complaint. The
Union-the organization which was prejudiced accord-
ing to the General Counsel-did not appear at the hear-
ing and showed no interest in the proceeding at all.
There is a conflict in testimony about just what repre-
sentation Jones asked for in her two talks with the super-
visors-she saying she asked only for "representation,"
and the supervisors recalling she asked for Cleo Thomas
as her representative . In the light of all the testimony,
and considering the demeanor of the witnesses and the
logical inference fully warranted by the relevant facts, I
credit the supervisors.
1. When Jones first realized she would in all likelihood
be in trouble because of her spat with the other woman,
she went to her friend, Thomas, a coworker , because, as
she testified, he "is pretty knowledgeable about the legal
goings on down at the Postal Service ." Her testimony
continued . "He told me to make sure I go in there with
some representation, that I wouldn't want to be alone in
there. I asked him if I could ask for him. He said I could
ask for him, but, they probably won't honor my request,
because the APWU is the collective bargaining unit. He
told me to ask for a union steward."
It is this final phrase in Jones' beginning testimony-
"he told me to ask for a union steward" (emphasis
added)-that contributed largely towards discrediting
her. After her repeatedly saying, at the hearing , that she
never once used the word "union" in requesting repre-
sentation , at the end of her direct testimony came the
following leading questions by the General Counsel:
Q. During the conversations that you had with
Harvill and Carter, were you ever allowed to have
a union representative present?
A. No.
Q Did you ever withdraw your requests for
union representative?
A. No.
Q. Did you ever refuse a union representative?
A. No.
It will not do for counsel for the General Counsel to put
words in his principal witness' mouth , to lead her to a
"yes" agreement with him that the complaint is a good
one. It is the direct testimony of the witness that counts.
2. Jones testified for 18 pages of transcript in direct
testimony about her continuing talks with the supervi-
sors, but not once did she assert she ever asked for a
"union" representative or steward , always repeating-
time and time again-that she was careful to use only the
words "representative ." Had Thomas really told her to
ask for a "union" steward, after warning her that the
Company in all probability would refuse her request to
have him present, it is possible to believe she would not
once use the word "union?" I think not.
In fact, she and Thomas made a farce of this entire
record when they related a preconference talk they had
with the supervisors . When Harvill , the highest supervi-
sor, told Jones she could not have just a "representa-
tive," Thomas started explaining the meaning of the
Weingarten rule. An expert in the field of union represen-
tation, he surely knew just what the critical word
"union" means in that context . He told Jones to repeat
her request three times . She did , repeating three times
the word "representation." Can there be any doubt she
was not even thinking about union representation?
3. Cleo Thomas is not a member of the Postal Service
Union . He said he is a member of the labor organization
called The National Alliance of Postal and Federal Em-
ployees, which represents employees other than those in
this post office location. He explained he represents em-
ployees in questions concerning their "statutory " rights.
This witness, in his repeated testimony about explaining
the meaning of Weingarten, and about his instructing
Jones as to just what to ask for, never used the word
"union ," but kept repeating only the word "representa-
tion." Did he advise her to ask for him as his steward?
He denied that and stated:
Q. Well, let me give you the question again. Isn't
it a fact that you told Ms . Jones to ask for an
APWU steward only if they decline her request for
you?
A. No, I did not say that.
His prehearing affidavit contains the following state-
ment: "I told her to ask for an APWU steward if they
would not allow me to be present ." Thomas was not a
credible witness.
4. Carter, the supervisor, testified that when he first
took Jones into Harvill's office to talk, Harvill told her
she could have a union steward if she wished , but she
answered : "No, I want Cleo." When it became necessary
for Jones to write her version of the incident she asked
could Cleo help her write it up in the next room, and her
supervisor said yes. Thomas did help her. When she re-
turned with the prepared statement, she again asked for
representation . When Carter asked did she mean a
"union" steward, again Jones said : "No, I want Cleo."
This is still from Carter's testimony.
Harvill's testimony conforms with that of Carter's. He
said he advised Jones of her right to a union representa-
tive, and when she asked could she have her "representa-
tive" assist in the drafting of her written report, he did
let her do that, knowing it was Thomas . Harvill denied
ever saying Jones did not need a "union" steward. Har-
vill remembered Jones mentioning Thomas' name in the
conversation but did not recall exactly in what context.
5. Throughout the events of the night, including every
talk she had with the supervisors until the entire matter
ended in mutual apologies by the two women, and a
forget-about-it attitude by management , Jones never once
went near the union steward on the job with her, whom
she knew very well. The only person she talked to for
assistance was Thomas . She several times denied having
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked for him by name as her representative during her
disciplinary interviews, but she did say, more than once,
he told her she "could" ask for him. Her prehearing affi-
davit contains the following statement: "Thomas said I
should request an APWU rep., such as a steward, if the
supervisors did not honor my request for him." This is
the clearest evidence that Thomas advised her to ask for
him by name. In the light of such a direct admission in
her affidavit, how can I not believe the supervisors that
she did exactly what her sole advisor had told her to do?
I conclude from all this that Jones did not, at any time
during those night interviews, ask for union representa-
tion during her talks with management, and that the Re-
spondent's refusal to permit an outsider-an officer of a
labor organization that does not represent these employ-
ees-to be present at the interviews did not constitute an
unfair labor practice under Board law.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
I recommend that the complaint be dismissed.
' 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 objections to them shall be deemed waived for all pur-
poses