United States Postal Service

National Labor Relations Board - Board Decisions

Dec 28, 2007

351 N.L.R.B. 1226 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 82
1226
United States Postal Service and National Association
of Letter Carriers, Branch 753, AFL–CIO. Case
25–CA–29340
December 28, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On June 30, 2006, Administrative Law Judge Margaret
G. Brakebusch issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief to the Respon-
dent’s exceptions.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
1. The General Counsel moves to strike the Respon-
dent’s exceptions on the basis that, even though the Re-
spondent also filed a separate brief in support of excep-
tions, the exceptions contain argument and citations of
authority and are therefore contrary to Section
102.46(b)(1) of the Board’s Rules and Regulations. The
General Counsel also moves to strike the Respondent’s
brief on the ground that it violates Section 102.46(c) be-
cause it lacks a clear and concise statement of the case
and does not specify or argue the relevant questions in an
orderly fashion.
We agree with the General Counsel that the Respon-
dent’s exceptions are defective. Section 102.46(b)(1)
states, inter alia: “If a supporting brief is filed the excep-
tions document shall not contain any argument or citation
of authority in support of the exceptions, but such mat-
ters shall be set forth only in the brief.” However, Sec-
tion 102.46(b)(2) provides that any exception that fails to
comply with the requirements of Section 102.46(b)(1)
“may be disregarded” (emphasis added). In exercising
the discretion afforded by Section 102.46(b)(2), the
Board “usually accepts exceptions that contain argument
if the number of pages of argument in the exceptions,
when added to the pages in the brief, do not cause the
brief to total more than 50 pages, or other page limit set
by the Board.” Hotel del Coronado, 344 NLRB 360
(2005). That is the case here: the Respondent’s excep-
tions and supporting brief together total far fewer than 50
pages. Thus, we will deny the General Counsel’s motion
to strike the Respondent’s exceptions.
Turning to the General Counsel’s motion to strike the
Respondent’s brief, although that brief is not in precise
conformity with Section 102.46(c), we find that it sub-
stantially complies with that rule, and we will exercise
our discretion to accept it on that ground. See, e.g.,
Metta Electric, 338 NLRB 1059 (2003), enfd. in relevant
part sub nom. JHP & Associates, LLC v. NLRB, 360 F.3d
904 (8th Cir. 2004).
2. In adopting the judge’s conclusion that the Respon-
dent violated Section 8(a)(1), we rely, in addition to the
cases cited by the judge, on Lockheed Martin Astronaut-
ics, 330 NLRB 422 (2000). In that case, the employee’s
Weingarten representative was prevented from speaking
at a certain point during an investigatory interview, and
then permitted to participate later on.1 The Board
adopted the judge’s finding that the representative’s sub-
sequent participation “[did] not excuse [the respondent’s]
effort to confine his participation during the interview.”
330 NLRB at 429. Lockheed Martin Astronautics is on
point here. Respondent’s agent, Irma Miranda, asked
employee Robert Kuch if he was aware of the penalties
for willfully delaying the mail. Miranda admitted at the
hearing that she would have taken an affirmative answer
as an admission of willful delay. Kuch’s Weingarten
representative, Michael Daly, attempted to challenge
Miranda’s question with respect to the implication of
“willful,” but Miranda precluded Daly from speaking.
Later, Miranda asked Daly if he wanted to add anything,
but the fact remains that Daly’s participation was im-
properly limited at a crucial juncture of the interview.
Thus, we agree with the judge’s finding that the Respon-
dent violated Section 8(a)(1).
Our concurring colleague says that Lockheed Martin
Astronautics and this case depart from the Board’s posi-
tion as presented to the Supreme Court in Weingarten
itself. He notes that in its brief to the Court, the Board
stated that, in response to a representative’s attempt to
“clarify the facts . . . . [t]he employer . . . is free to insist
that he is only interested, at that time, in hearing the em-
ployee’s own account of the matter under investigation.”
Here, however, Miranda did not insist on hearing Kuch’s
factual account. Rather, she insisted that Kuch answer a
loaded question.2 Thus, contrary to our colleague’s view,

1 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
2 Our concurring colleague finds it significant that Daly had the option
of later arguing that an affirmative answer by Kuch acknowledged only
that he was “aware” of the penalties for willfully delaying the mail.
However, in view of Miranda’s admission that she would have taken such
an answer as an actual confession of willful misconduct, that after-the-fact
lawyer’s option would have been no substitute for clarifying the meaning
of Miranda’s question at the time. Cf., Weingarten, supra at 263 (reject-
ing employer’s argument that postdiscipline representation is sufficient,
because “[a]t that point, it becomes increasingly difficult for the employee
to vindicate himself, and the value of representation is correspondingly
diminished”). Our colleague’s analogy between a disciplinary interview
and a legal proceeding conducted by an impartial judge is not convincing.
If anything the analogy is much closer to a police interview with a suspect
POSTAL SERVICE 1227
finding the Weingarten violation here is not inconsistent
with Weingarten itself. To the contrary, the Weingarten
Court recognized the importance of enforcing the right to
a union representative “when it is most useful to both
employee and employer.” Weingarten, supra, 420 U.S.
at 262. The moment of maximum usefulness may arrive,
as it did here, in the middle of the employer’s question-
ing—particularly when one considers, as did the Wein-
garten Court, that the employee under investigation
“may be too fearful or inarticulate to relate accurately the
incident being investigated, or too ignorant to raise ex-
tenuating factors.” Id. at 263.3 Afraid of losing his job,
Kuch could hardly be expected to detect the trap Miranda
was setting. But Daly saw it. To vindicate Kuch’s Sec-
tion 7 rights, his union representative’s right to intervene
in a timely manner must also be protected. Neither an
employer’s right to conduct the interview, nor any other
legitimate prerogative, extends to entrapping an em-
ployee into unknowingly confessing to misconduct with-
out objection from his representative.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Postal Service,
Valparaiso, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
MEMBER KIRSANOW, concurring.
I agree with my colleagues that, under Lockheed Mar-
tin Astronautics, 330 NLRB 422 (2000), the General
Counsel has made out a Weingarten violation in this
case. I question, however, whether both Lockheed and
this case depart from the Supreme Court’s original un-
derstanding of the Weingarten rule, and also from the
Board’s own understanding as presented to the Court. In
Weingarten, the Court quoted approvingly the following
passage from the Board’s brief to the Court: “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, however,
is free to insist that he is only interested, at that time, in
hearing the employee’s own account of the matter under

represented by counsel. And in that situation, the lawyer could certainly
participate as Daly tried to do.
3 As the Weingarten Court explained:
Participation by the union representative might reasonably be de-
signed to clarify the issues at this first stage of the existence of a ques-
tion, to bring out the facts and the policies concerned at this stage, to
give assistance to employees who may lack the ability to express
themselves in their cases, and who, when their livelihood is at stake,
might in fact need the more experienced kind of counsel which their
union steward might represent.
420 U.S. at 264 fn. 7 (internal citation omitted).
investigation.” NLRB v. J. Weingarten, Inc., 420 U.S.
251, 260 (1975). That is what happened here. Miranda
asked Kuch a question, Daly attempted to object, and
Miranda insisted on hearing Kuch’s answer before per-
mitting Daly to speak. This would be comparable, in a
courtroom, to a judge overruling an objection and requir-
ing the witness to answer the objected-to question. If
parties to a court proceeding, where constitutional pro-
tections attach, do not have a right to be heard any time
they choose to speak, I question whether such a right
should be extended to Weingarten representatives.1
My colleagues say that their finding is not inconsistent
with Weingarten because Miranda was not insisting on
hearing Kuch’s own account of the matter under investiga-
tion, but rather on getting his answer to a loaded question.
However, I take the Court to have been making a broader
point, namely, that the employee’s right to a representative
does not derogate from the employer’s right to conduct the
investigatory interview. Indeed, the Court stated that the
employee’s “exercise of the right [to a representative] may
not interfere with legitimate employer prerogatives.” Id. at
258. My colleagues say that such prerogatives do not ex-
tend “to entrapping an employee into unknowingly con-
fessing to misconduct without objection from his represen-
tative.” But there is no need to reach that issue here be-
cause, although Miranda believed her question was loaded,
in fact it was not. Had Kuch admitted knowledge of the
penalties for willfully delaying the mail, that would not
have been an admission of willful delay and thus would
not have been a confession of misconduct. Daly could
have pointed out that obvious fact when Miranda invited
him to speak and might thereby have prevented Miranda
from imposing a discipline that never could have survived
the grievance process (and in fact, no discipline was im-
posed). Thus, although there may well be instances when
the right to an immediate response from a Weingarten
representative must be protected, I do not think this is such
a case. Nonetheless, because Lockheed is not distinguish-
able, I somewhat reluctantly concur with my colleagues’
8(a)(1) finding.
Derek Johnson, Esq., for the General Counsel.
Scott A. Mayer, Esq. and Stuart J. Blenner, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Valparaiso, Indiana, on May 4, 2006.
The charge was filed by the National Association of Letter
Carriers, Branch 753, AFL–CIO (the Union), on September 23,

1 I disagree with my colleagues’ bleak view of a workplace investiga-
tory interview as comparable to a police station criminal interrogation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
2004,1 and the complaint was issued February 9, 2006. The
complaint alleges that about September 13, 2004, the United
States Postal Service (Respondent) denied the request of Robert
Kuch to be represented by the Union during an interview by
refusing to allow a union representative to participate and assist
Kuch during the interview. The complaint further alleges that
although Kuch had reasonable cause to believe that the inter-
view would result in disciplinary action being taken against
him, the Respondent denied the request to be represented as
described above and conducted the interview on September 13,2
2004. Respondent filed a timely answer denying the essential
allegations in the complaint, and asserting certain defenses.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent provides postal services for the United States
and operates various facilities throughout the United States,
including the facility located in Valparaiso, Indiana, which is
the subject of this proceeding. The Board has jurisdiction of
this matter pursuant to Section 1209 of the Postal Reorganiza-
tion Act, 39 U.S.C. § 1209. Respondent admits, and I find and
conclude, that the United States Postal Service is an employer
within the jurisdiction of the National Labor Relations Board
(the Board). Respondent admits, and I further find that the
National Association of Letter Carriers, Branch 753, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Michael Daly has been employed by Respondent for 30
years. For almost the entire period of his employment, he has
been a member of the Union. Over the course of the last 25
years, Daily has served as president, vice president, and stew-
ard for the Union. Daly testified that as a union officer, he has
received guidance as to the application of employees’ Weingar-
ten4 rights through the joint contract administration manual that
was prepared by the Union and the Respondent. The introduc-
tion to the existing manual provides that the manual was pub-
lished in order to educate the local parties and to facilitate the
resolution of disputes concerning issues on which the national
parties are in agreement. The manual includes a specific sec-

1 All dates are in 2004, unless otherwise indicated.
2 During the hearing, the parties stipulated that the investigatory in-
terview occurred on September 14, 2004.
3 In Respondent’s initial answer to the complaint, Respondent raised
the affirmative defense that the matter should be deferred to the parties’
grievance-arbitration procedures consistent with the Board’s policy as
embodied in Collyer Insulated Wire, 192 NLRB 837 (1971), and pursu-
ant to Arbitration Deferral Policy Under Collyer-Revised Guidelines
issued by the General Counsel on May 10, 1973. Prior to the hearing in
this matter, Respondent filed an amended answer to the complaint
withdrawing its affirmative defense as described above.
4 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
tion identified as “Weingarten Rights” and provides that the
Weingarten5 rule gives each employee the right to representa-
tion during any investigatory interview which he or she rea-
sonably believes may lead to discipline. The manual further
provides:
In a Weingarten interview the employee has the right to a
steward’s assistance—not just a silent presence. The em-
ployer would violate the employee’s Weingarten rights if it
refused to allow the representative to speak or tried to restrict
the steward to the role of a passive observer.
B. Issues
It is undisputed that Customer Service Supervisor Irma
Miranda conducted an investigatory interview with employee
Robert Kuch on September 14, 2004. Michael Daly attended
the meeting as Kuch’s union representative. Supervisor Sharon
Swart also attended the meeting as a management witness. The
parties do not dispute that Kuch had reasonable cause to believe
that the investigatory interview could result in disciplinary
action. Counsel for the General Counsel maintains that “at a
critical juncture in the interview, Kuch was effectively denied
his right to union representation when Miranda refused to let
Daly speak and clarify a question that had just been asked.”
Respondent asserts that it fully complied with all of Kuch’s
Weingarten rights and that Miranda had the right to get the
answers to her questions “untainted by Daly’s interruption.”
C. The Events Prior to the September 14, 2004 Meeting
Irma Miranda has been employed with Respondent for 21
years. On September 13, 2004, Miranda worked in Respon-
dent’s Valparaiso, Indiana facility as supervisor of customer
service and her duties included the supervision of the city carri-
ers. On September 13, 2004, Miranda completed her workday
and left the facility at approximately 3 to 3:30 p.m. Prior to
leaving, she saw two trays of DPS or Delivery Point Sequence
mail that had been scheduled for delivery by two carriers on
their respective routes. DPS mail is mail that is machined first
class mail that is not cased by the carriers and is designated to
go straight to the street with the carrier’s cased mail. Robert
Kuch was one of the carriers who had left the DPS mail.
Miranda testified that normally if a carrier discovers that he
or she has left mail behind at the facility, they will call back to
the facility. Prior to leaving for the day, Miranda left the two
trays of DPS mail with the evening supervisor and explained
that the carriers would return for their mail that had been left
behind. She explained that while she had not spoken with
Kuch, she had just assumed that he would return to the facility
to pick up the mail that he had left behind. When Miranda
began her workday on September 14, 2004, she noticed that
Kuch’s DPS mail from the following day was still at the facil-
ity. Miranda told Union Steward Michael Daly that she
planned to conduct an investigatory interview with Kuch con-
cerning the undelivered DPS mail.
Daly recalled that Miranda spoke with him between 7:30 and
10 a.m. on September 14, and told him that she planned to con-
duct an investigatory interview with Kuch. While Daly could

5 The section references the case citation for Weingarten.
POSTAL SERVICE 1229
not recall what Miranda specifically told him, he confirmed that
Miranda told him the subject matter of the upcoming meeting.
Both Daly and Kuch testified that prior to Miranda’s meeting
with Kuch, Kuch was given an opportunity to speak with Daly.
Kuch recalled that he and Daly were allowed to speak for an
unlimited period of time in the bathroom/locker room area and
outside the presence of other employees.
D. Daly’s Description of Miranda’s Meeting with Kuch
Daly recalled that Miranda began the meeting by telling
Kuch that she was conducting an investigatory interview that
might or might not lead to discipline up to and including his
removal from service. She asked him if he wanted union repre-
sentation and Kuch stated that he did. While Daly could not
recall with specificity all the questions asked by Miranda, he
recalled that she asked Kuch why he left the mail and what time
he discovered that he had done so. Daly recalled that Miranda
asked Kuch if he was aware of the penalties for willfully delay-
ing the mail. Daly testified: “And at that point, I tried to—I
tried to say something because I didn’t like the question. He
did not willfully delay the mail. The mail wasn’t in order prop-
erly and he left it there. And I started to say something and she
wouldn’t let me speak, told me I could speak later, and just let
Bob answer the questions.” Daly further recalled that Miranda
told him, “[J]ust let Bob answer the question, I’ll let you talk
later.” He further acknowledged that Miranda told him that he
just couldn’t talk while she was trying to get an answer to the
question. Daly recalled that Kuch had not begun to answer the
question when Miranda made this statement to Daly. Daly
acknowledged that while his initial comment had been in a
normal tone of voice, his voice may have “raised a little” when
Miranda had not allowed him to speak. Daly also recalled that
he told Miranda that she was violating Kuch’s Weingarten
rights by not allowing Daly to speak when he tried to do so.
Daly recalled that after Miranda told him that Kuch needed to
answer the question, Kuch did so. After asking Kuch two or
three additional questions, she asked Daly if he had anything to
add. Daly stated that he did not. Miranda then asked Kuch if
he had anything to add. Kuch asked Miranda what time she
had discovered that the mail had been left behind and if she had
taken any action to get the mail delivered when she had discov-
ered the mail.
Daly maintained that while he had not wanted Kuch to an-
swer Miranda’s question, he had not interrupted Kuch while he
was answering. He also asserted that while Miranda had given
him the opportunity to speak, it had not been when he wanted
to speak and he initially declined.
E. Kuch’s Description of his Meeting with Miranda
Kuch recalled that Miranda told him that the interview could
lead to discipline up to and including his removal from em-
ployment. In response to her inquiry, he told her that he de-
sired union representation. Kuch recalled that the tray of mail
that had been left behind on September 13 was positioned on
Miranda’s desk during the interview. Miranda asked him the
standard operating procedure for a mail carrier when the carrier
discovers that mail is missing. Kuch explained that while he
understood that the procedure required him to call the post
office; he had not had time to do so. In response to Miranda’s
question, Kuch acknowledged that he had failed to follow the
standard operating procedure by failing to call the postal facil-
ity. Kuch recalled that Miranda next asked him if he knew that
there were penalties for willfully delaying the mail. Kuch testi-
fied that before he “could even get a sentence out,” Daly inter-
jected6 and stated that it had not been a willful delay of mail.
Miranda told Daly to let Kuch finish talking. Miranda told
Daly that she was going to let him speak; however, he was
interrupting Kuch from answering her question. Kuch recalled
that when Daly asserted that Miranda was violating Kuch’s
Weingarten rights, she told him that she would allow him to
speak at the end of the meeting. In response to Miranda’s ques-
tions, Kuch continued to explain that DPS mail is often mis-
placed and that other carriers have left the mail behind and have
not been disciplined. Kuch recalled that Miranda then allowed
Daly to speak and Daly began asking questions. Daly asked
Miranda when she first knew that the mail had been left and
was not with Kuch on his route. Miranda told him that she
noticed that the mail was not with Kuch at approximately 2
p.m. Daly then explained that since Kuch did not notice that
his mail was missing until approximately 4 p.m., Miranda could
have sent the mail out to Kuch between 2 and 4 p.m. Miranda
told Daly that it was not her duty to bring out the mail to the
carries. Kuch recalled that the meeting essentially ended at that
point.
Kuch recalled that when Daly spoke in the meeting, he was
loud but he was not screaming. When Miranda permitted Daly
to speak, he was not as loud as he was earlier in the meeting
and when he was asserting that Miranda was violating Kuch’s
Weingarten rights. Kuch confirmed that Daly participated in the
meeting and assisted him during the September 14, 2004 meet-
ing. Kuch acknowledged that other than the time in which
Miranda did not permit Daly to speak, both he and Daly were
allowed to say everything that they wanted to say before the
conclusion of the meeting. Kuch did not recall any point dur-
ing the meeting when Daly instructed him not to respond to
Miranda’s questions. Kuch did not recall that Daly requested
time to confer with him during the course of the meeting.
F. Miranda’s Description of the September 14, 2004 Meeting
Before beginning the meeting, Miranda requested that Cus-
tomer Supervisor Sharon Swart also attend the meeting. With
Daly, Kuch, and Swart present, Miranda began the meeting by
informing Kuch that the meeting was investigatory and that it
could lead to discipline up to and including termination. In
response to her inquiry, Kuch requested the presence of a union
steward. She told Kuch that she had found the DPS mail tray
and asked him at what point that he realized that the tray was
missing. Kuch confirmed that he had discovered the missing
tray at approximately 4 p.m. In response to additional ques-
tioning, Kuch explained that he had not called the facility to
report the missing tray because he would not have been able to
finish by 6:30 p.m. Upon inquiry, he also confirmed that he
completed the delivery of his mail without the DPS mail tray.

6 Kuch testified that he had opened his mouth to speak; however,
Daly’s response was faster.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
Miranda recalled that she then asked Kuch if he knew the
penalty for willfully7 delaying the mail. Miranda testified that
Kuch began to answer the question by stating that he was not
the only carrier who had left DPS mail. As Kuch was answer-
ing the question, Daly interrupted Kuch’s answer. Miranda
acknowledged that while Daly interrupted and began speaking,
he did not physically stop Kuch from answering. Miranda
asked Daly if he could wait and allow Kuch to answer the ques-
tion. Miranda recalled that Daly asked if she were going to
allow him to speak. Miranda told Daly that she would allow
Daly to speak; however, she wanted Kuch to finish his answer.
When Daly stopped the interruption, Kuch completed his an-
swer. After additional questioning of Kuch, Miranda asked
Daly if he had anything to add and Daly shook his head to indi-
cate that he did not. When Miranda asked Kuch if he had any-
thing to add, he told her that he had some of the DPS mail with
him. Miranda then showed Kuch the tray in issue and pointed
out that he had not delivered any portion of the DPS tray.
Miranda recalled that at that point in the meeting Daly asked
her when she had discovered that the mail had been left behind.
When she told him that it had been about 2 or 2:30 p.m., he
asked her if she had then taken the missing mail out to the two
carriers. She told him that she had not. While Miranda re-
called that Kuch had added something further, she could not
recall specifically what he had said.
Miranda testified that she had allowed Daly to participate and
to assist Kuch during the meeting. She confirmed that at no time
did Daly ever instruct Kuch to refrain from answering a question.
She also added that she allowed both Daly and Kuch to say eve-
rything that they wanted to say before the meeting ended.
G. Sharon Swart’s Description of the Meeting
Sharon Swart, herein Swart, was employed as a customer
service supervisor on September 14, 2004. As supervisor of the
clerks, she was the first supervisor on the floor each morning.
At approximately 8 a.m. on September 14, Miranda asked her
to attend an investigatory interview as a management witness
and to take notes. Swart estimated that the meeting lasted for
only 10 to 15 minutes. Swart testified that she did not speak
during the meeting and she prepared notes contemporaneously
with participants’ statements.
Swart’s notes reflect that the meeting began at 8:15 a.m. She
recorded8 Miranda’s initial statement to Kuch as: “On Septem-
ber 13, I left 2 trays of DPS for you and another carrier with
another supervisor. What time did you get to that point (when
miss DPS).” The conversation continues with Kuch’s answer
of 4 p.m. When Miranda asked Kuch why he did not call, he
told her he did not because he would not have been able to
complete the route by 6:30 [p.m.]. Swart records Miranda as
responding: “So you went ahead and delivered your cased mail
without the DPS?” Kuch confirms that he did so; along with a
specific bundled flier. Swart then records Miranda as saying:
“Bob, you know there is [are] penalties to willfully delaying the
mail?” Her notes reflect that Kuch responded that there had

7 Miranda testified without contradiction that the penalty for will-
fully delaying the mail is termination.
8 The wording reflects the words documented in Swart’s handwritten
notes.
been many other times when the DPS had been missing for
other carriers as well as for him. Swart added a star preceding
Kuch’s response. She testified that she added the star to indi-
cate that she had added a footnote to her notes. Swart’s foot-
note, that is located on the last page of the notes, reflects:
“Mike interrupts. Said you are violating his rights. Mike
wanted to speak before Kuch answered.”9 Swart also wrote
“loudly” above “interrupts.” She admitted that her reference to
Daly wanting to speak before Kuch spoke and her description
of “loudly” were summaries of what happened rather than an
exact description of what was said. In her testimony, Swart
asserted that Miranda asked Daly to let Kuch finish his answer.
Those specific words, however, were not recorded in the notes.
Swart’s notes additionally reflect that Miranda asked Kuch
an additional question before asking Daly if there was anything
else that he wanted to add. Daly declined. Miranda then asked
Kuch if he had anything to add and he provided some addi-
tional information. Miranda responded to Kuch’s comments by
showing him the DPS tray in issue. Daly then asked Miranda
when she realized that the mail had been left behind and why
she did to rectify the situation. Swart’s notes end with the fol-
lowing words: “Kuch thought if he left route while someone
brought DPS out.” Swart testified that she was not sure
whether these words referred to a comment by Kuch or Daly.
The last sentence in the notes was documented as: “At 4:00
[p.m.] you thought about calling when you saw DPS was miss-
ing, but you didn’t?”
III. ANALYSIS AND CONCLUSIONS
A. Applicable Case Authority
In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Su-
preme Court held, in agreement with the Board, that an em-
ployee has a statutory right to union representation in an inter-
view in which the employee reasonably fears may result in
discipline. 420 U.S. at 256. The Board and the courts have
also held that even if a union representative is present during
the investigatory interview, an employer may nevertheless vio-
late an employee’s Weingarten rights when the employer re-
quires the representative to be a silent observer; prohibited from
speaking. Barnard College, 340 NLRB 934, 935 (2003); Tal-
stol Corp., 317 NLRB 290, 331–332 (1995), enfd. 155 F.3d
785 (6th Cir. 1998). As discussed above, the parties’ existing
joint contract administration manual provides that an employee
has the right to the steward’s assistance during an investigatory
interview and not just a silent presence. The manual provides
that the employer would violate the employee’s Weingarten
rights if it refused to allow the representative to speak or tried
to restrict the steward to the role of a passive observer.
In Texaco, Inc., 251 NLRB 633, 636 (1980), the Board ad-
dressed the issue of whether the right to a representative under
Weingarten includes the right not only to the presence of a
representative, but to the active assistance of that representative
during a confrontation with the employer which threatens the
employee’s employment security. The Board referenced its

9 She further acknowledged that while she had testified that Daly
wanted to speak before Kuch finished his answer, her notes had only
reflected that Daly wanted to speak “before Kuch answered.”
POSTAL SERVICE 1231
earlier decision in Southwestern Bell Telephone Co., 251
NLRB 612 (1980), where it noted:
There we held that the Court in Weingarten intended to strike
a balance between the right of an employer to investigate the
conduct of its employees at a personal interview, and the role
of the representative present at such an interview. While we
noted the Court’s admonition that the presence of a represen-
tative “need not transform the interview into an adversary
contest,” we nevertheless recognized that the Court limited
the employer’s right to regulate the role of the representative
at the interview. In short, such regulation cannot exceed that
which is necessary to ensure the “reasonable prevention of
such a collective bargaining or adversary confrontation with
the statutory representative.
Counsel for the General Counsel asserts that while Daly was
present during the investigatory interview, he was relegated to
the role of a passive observer during the “key part of the inter-
view and was not permitted to speak when he felt it was neces-
sary to do so to represent Kuch’s interests.” In contrast, Re-
spondent argues that while a steward may be present and par-
ticipate in an investigatory interview, the union representative
may not turn the meeting into an adversarial proceeding and
prevent the employer from questioning the employee or to in-
terfere with legitimate employer prerogatives. Weingarten,
supra, 420 U.S. at 258–259, 263. Certainly, the Board has
found that in certain instances, a union representative’s behav-
ior during an investigative interview exceeded the bounds of
Weingarten and interfered with the employer’s legitimate pre-
rogatives. In New Jersey Bell Telephone, 308 NLRB 277, 279,
(1992), a union steward advised the employee to answer the
employer’s questions only once. The Board concluded that
Weingarten did not grant a union representative the right to
preclude an employer from repeating a question to an employee
during an investigative interview.
B. Issues and Facts in Dispute
Interestingly, this case seems to involve a limited number of
facts in dispute. There is no dispute that Miranda allowed
Kuch to confer with Daly prior to the investigative interview.
Additionally, there is no dispute that during the course of the
meeting, both Kuch and Daly were given the opportunity to
provide information they felt to be pertinent. Daly was not
only given an opportunity to speak during the interview; he also
asked questions of Miranda. There is no allegation that either
Daly or Kuch asked for the opportunity to confer during the
course of the interview or at the conclusion of the interview or
that such request was denied. The only alleged Weingarten
violation involves Miranda’s conduct when Daly attempted to
speak in response to one of Miranda’s questions. There is, in
fact, no dispute that Daly spoke and interrupted Kuch in his
response to Miranda. The primary factual dispute seems to be
whether Daly interrupted Kuch in the middle of his answer or
before Kuch began to answer. Counsel for the General Counsel
asserts that Daly spoke before Kuch answered and Respondent
maintains that Daly interrupted Kuch while he was answering
the question. While the parties agree that Miranda later gave
Daly an opportunity to speak, Miranda acknowledges; and both
her notes and those of Swart indicate that she asked at least one
additional question of Kuch before allowing Daly to speak.
Accordingly, inasmuch as Miranda did not give Daly an oppor-
tunity to speak until after additional inquiry beyond the ques-
tion in issue, Daly’s interruption before or during Kuch’s re-
sponse is not dispositive.
Respondent maintains that under Weingarten, Daly did not
have the right to prevent or obstruct Miranda from asking her
question. Respondent argues that while “exuberant, discourte-
ous conduct or rude language” engaged in during grievances
and arbitrations is tolerated, the same is not true for Weingarten
situations. As a part of this argument, Respondent cites the
Board’s decision in Yellow Freight Systems, 317 NLRB 115,
123 (1995). As distinguished from the facts in this case, the
steward attending the investigatory meeting in Yellow Freight
Systems disrupted the process by verbally abusive and arro-
gantly insulting interruptions. The steward’s conduct also con-
sisted of shouting obscenities and violent desk pounding, as
well as calling the manager a liar and demeaning his manage-
rial status in front of the employee.
In asserting that Daly transformed the meeting into an adver-
sarial meeting, Respondent relies upon the testimony of Daly
and Kuch as well as Miranda and Swart. Miranda testified that
when Daly told her that she was violating his rights, he spoke in
a “very loud” voice. She also asserted that the interruption had
lasted for “a couple of minutes.” Miranda testified that while
she took notes during the interview, those notes were later dis-
carded and she later prepared typewritten notes taken from her
discarded notes and the notes written by Swart. Even in these
subsequently prepared notes, Miranda included only two state-
ments by Daly to cover the entire period of the interruption.
She documented only that he asked if she were going to let him
talk and then he told her that it was a violation of his rights
when she told him that he was interrupting. Her notes then
included the statement: “After Mike Daly stopped yelling, Bob
continued with his answer.” There is no description of what
Daly said other than the two statements described above. It is
not realistic that Daly’s exchange with Miranda in making these
two statements lasted for 2 minutes. Additionally, the total
record evidence does not support Miranda’s assertion that Daly
was yelling during his interruption. While Daly conceded that
he may have raised his voice, neither Kuch nor Swart testified
that he yelled or screamed. Kuch testified that when Daly as-
serted his Weingarten rights during the meeting, he was excited
and loud, however, not screaming. Swart recalled that when
Daly interrupted Kuch’s answer, he leaned forward in his chair.
I note, however, that she also acknowledged that Daly did not
yell at any time during the meeting. She recalled that he had
simply spoken in an elevated tone of voice. Accordingly, cred-
iting Swart, Kuch, and, Daly, the record evidence does not
support a finding that Daly was engaged in yelling or shouting
during this conversation. While Swart recalled that he leaned
forward in his chair, there is no allegation that he said or did
anything to threaten or intimidate Miranda or Swart. Thus, it
appears that while Daly may have raised his voice and leaned
forward in his chair at the time that he attempted to participate
in the meeting, his conduct did not rise to the level of insubor-
dination, rudeness, or discourtesy that would remove the rights
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
accorded by Weingarten. The overall record testimony does
not reflect that Daly’s statements constituted an attempt to turn
the meeting into an adversarial confrontation as alleged by
Respondent.
Counsel for the General Counsel submits that before Kuch
could answer Miranda’s question, Daly attempted to clarify the
question. Counsel asserts: “Daly did nothing more than at-
tempt to clarify a single question that Miranda had asked,
something which an active representative (as recognized by the
Court in Weingarten) is entitled to do.” Counsel for the Gen-
eral Counsel further submits that Kuch needed the active par-
ticipation of his union representative at the exact point in which
Daly interrupted. Counsel points out that by her own admis-
sion, Miranda indicated that if Kuch had answered “yes” to her
question, she would have understood that to mean that he had,
in fact, willfully delayed the mail, and the penalty for such an
infraction was termination.
C. Summary and Conclusions
As reflected above, there were four people who attended this
meeting and four separate and unique recollections of what oc-
curred during the meeting. What is especially interesting is the
fact that only Kuch seemed to recall what Daly actually said
when he made the interruption that is in issue here. Daly testified
that because Kuch had not willfully delayed the mail, he had tried
to speak. He testified: “And at that point, I tried to—say some-
thing because I didn’t like the question.” He asserted that he
started to say something and Miranda had not allowed him to
speak. Swart’s notes only reflect that Daly wanted to speak be-
fore Kuch answered, however, she does not record what he said
when interrupting. Miranda’s typewritten notes include: “Mike
interrupts loudly,” however, she does not include what he said to
interrupt. Only Kuch testified that when Miranda asked him if he
realized that there were penalties for willfully delaying the mail,
Daly interjected: “this was not a willful delay of mail.” During
her testimony, Miranda was asked if she could recall what Daly
said when he interrupted Kuch. She admitted that she had no
recollection of what he said; remembering only that his interrup-
tion stopped Kuch from answering. Inasmuch as only one of the
four meeting participants recalled what Daly actually said during
the interruption, it would appear that his speaking at that precise
time was more significant than his actual words.
In United States Postal Service, 288 NLRB 864, 867 (1988), a
union steward did not participate as a silent observer during an
investigative interview. During the beginning of the interview,
the steward asked the manager questions about his investigation
into the alleged misconduct. While the manager answered the
questions, he asked the steward to refrain from interrupting and
to permit the employee to answer the questions directed to her.
Later in the same interview, the steward again interrupted with
challenging questions and the manager again asked him not to
interrupt. In all, the steward spoke up three times during the
interview and was accused of interrupting the interview in each
instance. The judge concluded that the steward’s interruptions
did not appear to be those of an obstructionist, but rather reac-
tions to the manager’s accusations that the employee had en-
gaged in unlawful conduct. The judge went on to note that the
steward seemed to be trying to participate and to assist and pro-
tect the employee. The judge also noted that the steward’s efforts
were low key and conciliatory. The Board affirmed the adminis-
trative law judge in finding that the employer denied the steward
the right to participate in the employee’s interview. Thus, while
the facts of this earlier case are not totally analogous to the facts
herein, the conduct of the two stewards is similar. As pointed out
by counsel for the General Counsel, Kuch’s answer to Miranda’s
question could have triggered a termination. He had already
acknowledged that he was aware that he had left the DPS mail at
the postal facility and he had opted to finish his route without
going back for the mail. Had he then acknowledged that he was
aware of the penalty for willfully delaying the mail, he may have
put himself in an indefensible position. As it turns out, he didn’t
really answer Miranda’s question and he simply pointed out that
other employees had also left the mail behind. Daly’s interrup-
tion, however, appeared to be an attempt to assist Kuch and to
protect him from unwittingly admitting to something that could
trigger his discharge. Additionally, because of her particular
wording or phrasing, Miranda could have elicited an erroneous
answer to her question. Asking Kuch if he were aware of the
penalty for willfully delaying the mail is much akin to the age-old
loaded and misleading question, “Are you still beating your
wife.” Inasmuch as Miranda acknowledged that if Kuch an-
swered “yes,” she would have understood his response to mean
that he had willfully delayed the mail. It is reasonable that Daly
would have wanted to assist Kuch in responding to this poten-
tially incriminating question.
While the Board’s decisions in cases cited above indicate that
the employer cannot lawfully preclude the union representative’s
participation in the interview, there are a limited number of cases
dealing with the issue of participation and none that precisely
define the boundaries of a representative’s participation. Cer-
tainly, because each factual situation differs because of the indi-
vidual conduct of the supervisor conducting the investigatory
interview and the employee representative attending the inter-
view, the boundaries for appropriate participation must vary for
each factual situation.
As discussed above, during the majority of the interview, Daly
was allowed to participate and was not relegated to the role of a
silent observer. The record reflects, however, that for at least one
limited and arguably significant portion of the interview, Daly
was restricted in his ability to fully represent Kuch’s interests and
to participate in the interview as contemplated by the Court’s
decision in Weingarten. It should be noted that my finding is
based upon a very narrow factual situation. I am also cognizant
that the violation as presented in this very fact-specific situation
might also be characterized as de minimis inasmuch as Daly
again became an active and unrestricted interview participant
following a relatively brief period of restriction. While Daly may
have had the opportunity to later participate without restrictions,
Respondent’s lifting of the restriction does not, however, void the
earlier restriction imposed upon Daly. Accordingly, I find that
Respondent violated Section 8(a)(1) as alleged in the complaint.
CONCLUSIONS OF LAW
1. The United States Postal Service is now, and at all times
herein, has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
POSTAL SERVICE 1233
2. The National Association of Letter Carriers, Branch 753,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By refusing to allow a union representative to participate
and assist an employee during an investigatory interview on Sep-
tember 14, 2004, Respondent violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, United States Postal Service, Valparaiso,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Violating Section 8(a)(1) of the Act by refusing to permit
the Union’s representative to participate and assist an employee
during an investigatory interview when the employee has rea-
sonable cause to believe that the interview would result in dis-
ciplinary action taken against him or her.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Within 14 days after service by the Region, post at its
Valparaiso, Indiana facility copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 14, 2004.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT violate Section 8(a)(1) of the Act by refusing
to permit the Union’s representative to fully participate and
assist in an investigatory interview when the employee has
reasonable cause to believe that the interview would result in
disciplinary action being taken against him or her.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
UNITED STATES POSTAL SERVICE