U.S. Postal Service v. N.L.R.B.

• Decision Date: 30 June 1992
• Docket Number: I,No. 91-1373,AFL-CI,AFL-CIO,91-1373
• Citation: 969 F.2d 1064
• Parties: 140 L.R.R.M. (BNA) 2639, 297 U.S.App.D.C. 64, 61 USLW 2024, 122 Lab.Cas. P 10,253 UNITED STATES POSTAL SERVICE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, American Postal Workers Union,, and East Bay Area Local, American Postal Workers Union,, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1064

969 F.2d 1064

140 L.R.R.M. (BNA) 2639, 297 U.S.App.D.C.

64, 61 USLW 2024,

122 Lab.Cas. P 10,253

UNITED STATES POSTAL SERVICE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent American Postal Workers Union, AFL-CIO, and East Bay Area Local, American Postal Workers Union, AFL-CIO, Intervenors.

No. 91-1373.

United States Court of Appeals, District of Columbia Circuit.

Argued May 18, 1992.

Decided June 30, 1992.

Douglas N. Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jeffrica Jenkins Lee and Jacob N. Lewis, Attys., Dept. of Justice, and Karen A. Intrater, Associate Gen. Counsel, Jesse L. Butler, Asst. Gen. Counsel, James A. Friedman and Robert P. Sindermann, Jr., Attys., U.S. Postal Service, Washington, D.C., were on the brief, for petitioner William Kanter, Atty., Dept. of Justice, and Stephen E. Alpren, Washington, D.C., also entered appearances for petitioner.

William M. Bernstein, Atty., N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, Washington, D.C., were on the brief, for respondent.

Anton G. Hajjar, Washington, D.C., was on the brief for intervenors.

Before: RUTH BADER GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.

Opinion of the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), the Supreme Court upheld a National Labor Relations Board (Board or NLRB) decision interpreting section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, ¹ to secure to employees the right to union representation at an investigatory interview that the employee reasonably believes may result in disciplinary action. The dispute before us concerns the propriety of the Board's reading of the section 7 right affirmed in Weingarten to cover pre-interview consultation between employee and union representative.

In the ruling under review, the Board determined that the United States Postal Service (USPS) committed an unfair labor practice ² in March 1989 when Postal Inspectors, following a USPS nationwide policy, denied an employee the opportunity to consult with his union steward prior to an interrogation concerning the employee's alleged misconduct. The NLRB's remedial order directed the Postal Service to cease and desist from interfering with the employee-union representative consultation right recognized in the Board's decision, and it required the Postal Service to post remedial notices at all USPS union-represented facilities.

We conclude that the NLRB has advanced a permissible construction of the NLRA, one that is consistent with the language of the statute and with the Supreme Court's Weingarten decision. The Board's interpretation therefore warrants our respect. We furthermore conclude that, in view of the nationwide policy followed by the Postal Inspectors, the Board acted within its large remedial discretion in requiring the posting of corrective notices at all USPS union-represented facilities. Accordingly, we enforce the NLRB's order in full.

I. FACTS AND NLRB PROCEEDINGS

Benjamin Salvador, a member of the American Postal Workers Union (Union or APWU), began working for the Postal Service in 1977. At the time of the episode in suit, he was employed as a "business reply" clerk at the Fremont, California Post Office. Confronted by his supervisor in March 1989 with apparent inaccuracies in a postal customer's account balance, Salvador attributed the discrepancies to a temporary bookkeeping manoeuver he was trained to use to cope with a time bind. The supervisor, evidently not satisfied that the errors were innocent, contacted the Postal Inspection Service.

Postal Inspectors are USPS employees. They serve, however, as federal law enforcement officers, with authority to carry weapons, make arrests, and enforce postal and other laws of the United States. See 18 U.S.C. § 3061. The Inspection Service undertakes investigations only when criminal conduct is suspected. If an investigation reveals no crime, the Inspectors turn over the evidence they have gathered to USPS management, without recommendation or evaluation. Management then decides whether the evidence warrants disciplinary action.

On March 9, 1989, Salvador was summoned, just after his lunch break and without advance warning, to a training/supply room, where two waiting Inspectors informed him that their inquiry concerned his "job." The collective bargaining agreement between USPS and APWU provided: "If an employee requests a steward or Union representative to be present during the course of an interrogation by the Inspection Service, such request will be granted." Salvador accordingly asked for the attendance of his union steward, Anne Rodrigues. The interview was deferred for forty-five minutes to an hour, pending Rodrigues' attendance, during which time Salvador was kept in isolation in the training /supply room. When Rodrigues arrived, she immediately and repeatedly requested permission to confer privately with Salvador before the interview resumed. The Inspectors refused her request. Their refusal followed official instructions contained in USPS's Inspection Service Manual; the Manual declared it USPS nationwide policy to deny all requests for pre-interrogation consultation between employees and their collective bargaining representatives.

The interview proceeded, and Salvador answered all questions asked of him. Rodrigues also participated in the interview, although when Salvador first requested her presence, he was told she could attend only "as a witness" to the interrogation. The record does not disclose what action was taken regarding Salvador after the investigation concluded.

Shortly after Salvador's interview, the Union lodged an unfair labor practice charge and, in April 1989, the NLRB Regional Director issued a complaint concerning the denial of Rodrigues' request for pre-interview consultation with Salvador. The Postal Service denied that an unfair labor practice had occurred and contended that, in any event, the matter had been remedied by a notice the Service had voluntarily posted in five different locations at Fremont Post Office installations. This notice, unsigned, acknowledged the Union's charge alleging the failure of the Postal Service "to grant employees the right to confer with their union representative before an investigatory interview" and stated, specifically:

We will not prohibit employees from conferring with their union representative, upon request, where the employee has invoked his or her right to have union representation present at an investigatory interview conducted by agents of the Inspection Service which the employee reasonably believes could lead to discipline. We also will not prohibit such union representative from participating in any such interview to the extent permitted by the Supreme Court's Weingarten decision.

In proceedings before an administrative law judge (ALJ), the Regional Director stressed that, in Salvador's case, the Postal Service had repeated a previously adjudicated unfair labor practice. Less than a year earlier, the Board had determined that, in April 1982, at the very same Fremont Post Office, the Service had violated an employee's section 7 right when a Postal Inspector refused to let a union representative confer with the employee prior to an investigatory interview. See United States Postal Serv., 288 NLRB 864 (Apr. 29, 1988). Despite that unappealed ruling, the Postal Service had retained in its Inspection Service Manual, the companywide instruction requiring denial of "all requests for consultations between employees and their [union] representatives prior to any interview by a Postal Inspector." Stipulation at 1-2, NLRB v. United States Postal Serv., No. C 89 2734 FMS (N.D.Cal., Aug. 1989) (Application for Enforcement of NLRB Subpoena).

The Postal Service, in response to the Regional Director's complaint, urged containment of the Weingarten precedent to union presence at an interrogation; the Service pressed, particularly, the inappropriateness of spreading a right of prior consultation to criminal investigations. The Service further argued that even if the right to a representative recognized in Weingarten could be construed to include a right to prior consultation, the latter right should not be allowed in Salvador's case because APWU had a policy of noncooperation.

The ALJ, applying Board precedents, upheld the asserted section 7 employee right to consult privately with a union representative prior to a management interview implicating discipline. See Climax Molybdenum Co., 227 NLRB 1189 (1977), enforcement denied, 584 F.2d 360 (10th Cir.1978); Pacific Tel. & Tel. Co., 262 NLRB 1034, 1048 (1982), enf'd, 711 F.2d 134 (9th Cir.1983). Furthermore, the ALJ noted, the Board had very recently, in an unappealed decision, rejected the Postal Service plea that a consultation right should not be available in a criminal investigation conducted by the Inspection Service. See United States Postal Serv., 288 NLRB at 866. The proof did not bear out, the ALJ found, that Rodrigues, pursuant to Union instructions, would have counseled Salvador against cooperation with the Postal Inspectors. Finally, in view of the USPS policy announced in the Inspection Service Manual, the ALJ recommended that the Postal Service be ordered (1) to cease and desist on a nationwide basis from engaging in the consultation denials declared unlawful, and (2) to make a nationwide posting of USPS's Notice to Employees that

WE WILL NOT refuse to permit union representatives to consult with employees prior to investigatory interviews conducted by Postal Inspectors which the employees reasonably believe will result in disciplinary action and WE WILL NOT refuse to permit employees to speak with union representatives prior to such interviews.

The Board, in a June 21, 1991 dec...