United States Postal Service

United States Postal Service and Eddie L. Jenkins. Case 13-CA- 16195-P March 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MFMBI RS PENI.I O AND TRUESDAI.E On September 19, 1978, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter Respondent filed excep- tions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended. the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge, as fur- ther explained herein, and to adopt her recommended Order. The Administrative Law Judge found that Respon- dent violated Section 8(a)(l) of the Act by requiring employee Eddie L. Jenkins to submit to an interview with Postal Service inspectors, which the employee reasonably feared might result in disciplinary action, while denying his request for union representation at the interview. Respondent has excepted to the Ad- Respondent has requested oral argument. This request is hereby denied. as the record, the exceptions, and the brief adequately presents the issues and the positions of the parties. 2 Respondent asserts that the Administrative Law Judge's resolution of credibility, findings of fact, and conclusions of law are the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partial- ity existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Companyv, 337 U.S. 656, 659 (1949), "ITlotal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." Furthermore, it is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. In the course of her decision, the Administrative Law Judge cited Climax Molybdenum Compans, a Division of Amax, Inc., 227 NLRB 1189 (1977), in support of her statement that "both Miranda and Weingarten rights include the right to preinterview consultation with the representative." Member Penello, for the reasons discussed in his dissenting opinion in Climax Mohb- denum, would not rely on that case to support the decision herein. While expressing no view on Climax Molybdenum, Member Truesdale finds the facts in that case inapposite to those here and, accordingly, places on reli- ance on that decision in affirming the Administrative Law Judge. In addition, in recommending that Respondent be ordered to rescind the warning notice issued to Jenkins and to reimburse Jenkins for the $216.95 deducted from his salary, the Administrative Law Judge relied on South'est- ern Bell Telephone Company, 227 NLRB 1223 (1977). Member Penello agrees with the Administrative Law Judge's recommended remedy. but in doing so. he would not rely on Southestern Bell Telephone Conipnn , in which he dissented UNITED STATES POSTAL SERVICE ministrative Law Judge's finding that the rendition to an employee in a criminal investigation of his rights under Miranda v. Statle of Arizona 3 does not supersede or satisfy the rights under N.L.R.B. v. J. Weingarten, In., 4 which might also attach to such an investiga- tion. We find no merit in this exception, for the rea- sons discussed below. There is no dispute in the instant case that Jenkins reasonably feared that the February 2, 1977, inter- view with Postal Inspectors Hagedorn and Strachan might result in his discipline. In addition, the credited testimony reveals that Jenkins requested a union rep- resentative during the February 2 interview and that he was told by Inspector Hagedorn that Union repre- sentatives were not permitted to attend such criminal investigations. Under Weingarten, once an employee makes such a valid request for union representation' the employer is permitted one of three options: (1) grant the re- quest, (2) discontinue the interview,6 or (3) offer the employee the choice between continuing the inter- view unaccompanied by a union representative or having no interview at all.7 Under no circumstances may the employer continue the interview without granting the employee union representation, nless the employee voluntarily agrees to remain unrepre- sented after having been presented by the employer with the choices mentioned in option (3) above or if the employee is otherwise aware of those choices.8 In the instant case, after Jenkins requested union representation Respondent not only denied his re- quest but also failed to offer Jenkins the option of continuing the interview unaccompanied by a union representative or having no interview at all.9 Rather, Respondent merely continued with the interview. Un- der these circumstances, it is clear that Jenkins did not waive his Weingarten rights, and, thus, Respon- dent violated Jenkins' Section 7 right to union repre- sentation at the February 2 interview. Respondent nevertheless contends that it satisfied its obligations under Weingarten by informing Jen- kins of his Miranda rights and, in addition, that Jen- kins in effect waived his Weingarten rights by signing the Miranda waiver. We find no merit in these con- 3384 U.S. 436 (1966). '420 U.S. 251 (1975). Compare Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977), where a majority of the Board concluded that an employee's request for union representation was not valid, since he knew that a particular union steward was unavailable for several days and failed to request an alternative representative. I See Amoco Oil Companv, 238 NLRB No. 84 (1978). * See Meharry Medical College, 236 NLRB 1396 (19781. ' See Super Valu Xenia, a Division of Super Value Stores. Inc., 236 NLRB 1581, 1590-91 (1978). 9 There is no evidence to indicate that Jenkins was otherwise aware that he could choose to discontinue the interview or to proceed with the interview without a unionr representative. 241 NLRB No. 18 141 DECISIONS OF NAIIONAL LABOR RELATIONS BOARD tentions. We are in complete agreement with the Ad- ministrative Law Judge's analysis of the significant differences in foundation and scope of Miranda and Weingarten rights, and we adopt her conclusion that "Jenkins' Weingarten rights were unaffected by any rights he may also have possessed or been accorded under Miranda." "The fact that Jenkins signed the Mi- randa waiver at the outset of the interview is com- pletely irrelevant to his subsequent assertion of his Weingarten rights, since we have found that at the time Jenkins requested his union representative, Re- spondent failed to offer Jenkins the option of continu- ing the interview unaccompanied by a union repre- sentative or having no interview at all. Thus, Jenkins never expressed a willingness to waive his Weingarlen rights after his assertion of such rights, nor was he even given the opportunity to do so.1' Respondent further contends that if an employee is afforded the right to have a union representative pre- sent during a criminal investigation conducted by postal inspectors, there might exist a significant inter- ference with "legitimate employer prerogatives,"'' as well as societal prerogatives, in having the Federal laws dealing with postal offenses properly investi- gated. Although we are not unmindful of the serious nature of the offenses which the Postal Inspection Service is charged with investigating, the fact remains that in the instant case, Respondent administratively disciplined 43 security police officers for unauthorized purchases under the uniform-allowance program, and in each case the discipline was based on evidence ob- tained as a result of the criminal investigation con- ducted by the Postal Inspection Service. The only em- ployee who was accorded a separate administrative investigation was Jenkins, but, as the Administrative Law Judge correctly found, the "letter of warning" issued to Jenkins was based on evidence derived from the criminal investigation. Thus, were we to accept Respondent's argument that "legitimate employer prerogatives" and the public safety require the exclu- sion of all union representatives from criminal investi- gations conducted by the Postal Inspection Service, while at the same time permitting Respondent to ad- ministratively discipline employees based on the fruits of such criminal investigations, we would in ef- fect be nullifying the Weingarten rights of any Postal Service employee who might be administratively dis- ciplined as the result of a criminal investigation. Such an outcome is clearly repugnant to the historical de- "I We also note that the question as to whether Jenkins did in act waise his Miranda rights is not free from doubt, in light of the evidence that at the time Jenkins signed the Sfirandi w;aiver, he was told it was merely a formal- ity and that when Jenkins lter requested legal counseling, such request wils denied. N.L R.B s. J 11vitigrle,. Inc , supra at 258, fn 4. velopment by the Board of the principle, approved by the Supreme Court in Weingarten, that Section 7 cre- ates a statutory right in an employee to refuse to sub- mit without union representation to an interview which he reasonably fears may result in his disci- pline.l2 Accordingly, we reject the Respondent's con- tention as being wholly without merit. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, United States Postal Service, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. :See Exxon Company, U SA. 223 ANLRB 203 (1976) (violation found vhere the investigation involved alleged criminal conduct by the employee); Illinois Bell Telephone Company, 221 NLRB 989 (1975) (violation found where the investigation involved alleged theft of company property by the employee, and it was conducted by employer's security representative); De- troit Edison Company, 217 NIRB 622 (1975) (violation found where the investigation involved alleged irregularities in travel reimbursement claims by the employer, and it was conducted by the employer's secunty depart- ment.) DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This case was heard in Chicago. Illinois, on May 15 and 16, 1978, pursuant to a charge filed on February 7, 1977, and a complaint issued on June 16, 1977. The issue presented is whether Respondent United States Postal Service violated the Postal Reorganization Act (the PRA) and Section 8(a)(1) of the National Labor Relations Act, as amended (the NLRA), by requiring the Charging Party, employee Eddie L. Jenkins, to submit to an interview, which he rea- sonably feared would lead to disciplinary action against him, while denying his alleged request for union representa- tion during the interview. The General Counsel contends that Jenkins was entitled to such representation under N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Postal Service contends, inter alia, that any such right was sufficiently satisfied by the Postal Service's action in alleg- edly affording Jenkins rights under Miranda v. State of Ari- zona, 384 U.S. 436 (1966). Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel (the General C('ounsel) and the Postal Service, I hereby make the following: FINDIN(S ()I FA I I. JRISI)I(IiON At all imes material, the Board has had jurisdiction over this mattler b virtue of Section 1209 of the PRA. The Fed- 142 eration of Postal Security Police (the Union) is a labor or- ganization within the meaning of the NLRA. II. IltE AI.I.E(iEI) NFIAIR IABOR PRA('II('IS A. Background The Postal Service maintains a Postal Inspection Service which is responsible for, inter alia. enforcement of postal laws, plant and personnel security, and internal audits. Its responsibilities include carrying out investigations and pre- senting evidence to the Department of Justice and United States attorneys in investigations of a criminal nature and the performance of operating inspections and audits for the Postal Service. 39 CFR 224.7. The Postal Inspection Service is headed by the postal inspector in Washington, D.C. Among the officials reporting directly to him is Regional Chief Inspector Carl E. Lawrence. whose office is in Chi- cago. Illinois, but whose duties encompass 13 Midwestern States. Among the officials reporting directly to Lawrence is the postal inspector in charge of the Chicago division, Rob- ert N. Moore, whose office is also in Chicago but whose duties encompass northern Illinois and portions of Iowa and Indiana. Among the personnel under Moore's jurisdic- tion are about 106 postal inspectors and about 290 security police officers. Directly under Moore are, inter alia. an assistant inspector in charge for fraud and prohibited mail- ings (Henrickson) and an assistant inspector in charge for security and internal crimes, who during the period here involved was Dobbins. Directly under Dobbins were per- sons classified as security officers in charge. Directly under each such security officer in charge are lieutenants: at the Chicago main post office, there are three lieutenants, each of whom is responsible for a particular 8-hour shift out of the 24-hour day. Under the lieutenants are persons classi- fied as sergeants, and under them are employees classified as security police officers. At all times relevant here, the Union has represented the security police officers in the Chicago division. Some of the security officers' duties are summarized infra at footnote 30. The Postal Service requires all security officers to wear "approved uniform items." at least some of which are ac- ceptable as ordinary civilian dress. Among such items are "[b]lack, lace type shoes as prescribed in Postal Service Manual."' The security force manual given to each security police officer when he enters on duty states that upon graduation from the security force training course, each em- ployee will receive a first-year uniform allowance of $250, and that thereafter he will receive a uniform allowance of $154 a year (see fn. 2 irfr). Administratively, this uniform allowance is handled b giving each emplo'ee a card or cards which resemble checks. Ater selecting "approved uniform" items from a vendor approved by the Postal Ser- vice, the employee signs a statement that the merchandise conforms to Postal Service regulations and gives a stub from the card to the vendor, who sends the stub to the Postal Service to get paid. Many, if not all, of these vendors also sell items which are not on the Postal Service's "ap- I Such items also include black lealher bells. black gloses neckties, fur caps, hoots, rubbers, and galoshes. UNITED SATES POSI'AL. SERVICE proved uniform items" list to persons who are not necessar- ily uniformed postal service personnel. An employee who fails to use up his entire uniform allowance in I year loses the unused amount. At all times here relevant, the security police have been covered by a bargaining agreement which contains provisions for uniform allowances.2 he Postal Services's security force manual provides. inter alia, "Pay- ments shall not be claimed and may not be made for any items of clothing that do not conform with the detailed male or female specifications and styles for the employees' category of employment." In early January 1977 Moore received a report from Postal Inspector McCloud that examination of uniform-al- lowance records showed that several security police officers were purchasing unusual numbers of shoes from one ven- dor. McCloud further advised Moore of a report from one such officer that these purchases had been encouraged by the vendor. In late January or early February Moore di- rected Postal Inspector Wilbur E. Holmes, Jr.. to conduct an investigation into possible conspiracy by the vendor and possible intent to defraud by the security police officers.' In order to conduct this investigation. Holmes had about seven two-man teams of postal inspectors conduct inter- views of the 75 security police officers who were the subjects of the investigation. Among these 75 security police officers was the Charging Party. Eddie L. Jenkins, who has been employed by the Postal Service as a security police officer since about 1972. B. Jenkins' Interiew With Postal Inspectors StrachLn alnd Hagedorn Among the postal inspectors assigned to the investigation were John S. Strachan and imothy W. Hagedorn. The) arranged through Jenkins' supervisor to have Jenkins report to the security office on February 2. 1977. That day Jen- kins' superior. Lieutenant Lomax. gave Jenkins a slip with his namle on it and. in the presence of Sergeant Magee. instructed Jenkins to leave his gun. belt, baton. and hand- cutTs in his locker and to go to the security office. This was the first occasion on which Jenkins had been directed to leave his gun belt in his locker before going to the security office. When Jenkins came into the security office, Strachan and Hagedorn showed him their credentials and asked him to 2 [)'lslron Postal Inspector Moore so testified. He further testified that prior to the hearing he filed an affidavit ith the Boaird and attached thereto certain pr'sisions of the collectise-bargaining agreement. This ffidavit and these attachments were attached to Respondentl' preheanng September 1977 and Max 1978 motions for summarN judgment. both of which were denicd. by the Board and which were offered hb the General Counsel, and receiled I edenie wlthorit object,n, ai part of the folnial pleadings. See (; (. Ixhs l(f and l(p). Sec XXVIII oft the agreement n question deals with ulniform allou a;nces I need not and do lot ietel nine the extent, It an, to which these attachments ma? he regarded as probatlve esidense. I Such conduct might have violated 18 L S.C( §§371 ( Conspirac to coni- mit offense or to defraud Unilted States"). IX)II (in nmatter withi uridiction of a tUnited States department or agency . making or using dxiument a with talse, ti ti ,ilus or trauiduilen statenent), IO3 use of a alse document to support a. nlone5 deirnand gain t nlitredl S.ul. 1711 I"Ml sappropriation of pnstial funds"). or 1712 IiI-alsfication ,o postal return to increase cornpensi- tion") Such otlensc, ire punilshahble line i1 onrlme instances urp to l10.000) .liiii or ill[risir.: iicll it ri llsonic Inst.aitr es u lp t > \e.rs) 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sit down. In order to make sure that Jenkins was the person the inspectors were supposed to interview, and in order "to get [Jenkins] to start talking in an atmosphere of conversa- tion," Strachan or Hagedorn asked Jenkins whether he was married, whether he had any children, and how long he had been working on the job. Jenkins answered all these ques- tions. Hagedorn then told Jenkins that Hagedorn and Stra- chan were investigating various security police officers that might be involved in misuse of the uniform allowance and that Jenkins might be one of them. Hagedorn asked Jenkins not to reply at this point. Hagedorn went on to inquire if Jenkins was familiar with the Miranda decision (384 U.S. 436). As a security police officer, Jenkins had status as a law enforcement officer and had the power to make arrests (see fn. 30 infra). In being trained 5 years earlier for his job as a security police officer, Jenkins had been told to give Miran- da warnings when someone was placed under arrest, but he had never in practice had occasion to give any such warn- ing and had forgotten much of what he had been taught in this connection. Hagedorn read Jenkins, and asked him to sign, the following document: Before you are asked any questions you must under- stand your rights. You have a right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop an- swering at any time. You also have the right to stop answering at any time until you talk to a lawyer. I have read this statement of my rights and I under- stand what my rights are. I am willing to make a state- ment and answer questions. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Jenkins said that "the only time you read the Miranda decision to anyone is when they are under arrest. Am I under arrest?" Hagedorn said he was not and that it was "just a formality." Jenkins then signed the document. Strachan then produced nine vouchers, which bore dates between April 30, 1973, and April 23, 1976. a period of almost 3 years. Each of these vouchers was signed by Jen- kins and stated that he had purchased shoes conforming to Postal Service requirements. The vouchers covered the pur- chase of 13 pairs of shoes.4 Hagedorn said that "we know" all those shoes were not for the job and asked Jenkins how many pairs he had bought for his own personal use. Hage- dorn said that Jenkins might as well tell them because they were going to subpena the records of the store where Jen- kins bought most of the shoes, and if Hagedorn and Stra- chan found out he was lying, it could be hard on him. Jen- kins said that he thought he should have some kind of legal counseling before answering any more questions and asked whether he could get a lawyer. Hagedorn said that he could 4 Vouchers which included the shoe size variouslI specified 9M, 91). 9-1/2, 9-1/2D, and 10E. The price per pair varied from about $17 (June 1976) to $30.95 (March 1976). obtain one at his own expense, but it would be foolish to get a lawyer because a lawyer could not sit in on an investiga- tion. Jenkins said, ". . . so this is an investigation?" Hage- dorn said, "Yes." Jenkins said, ".. . if I can't get a lawyer in on the investigation, can I get a union steward in?" Hage- dorn said that a union steward cannot sit on an investiga- tion. In a series of questions, he asked Jenkins to name the union steward, the chief steward, the president. and the assistant steward. In response, Jenkins named each of them, including two referred to herein as John Doe and Richard Roe (see fn. 16 infra). All of them worked on Jenkins' "tour" (shift). Jenkins said, ". .. just a minute ago you read me my rights and said I could have legal counselling. Now you are saying I can't have legal counselling." Hagedorn said, ". . . [D]o you think you should have legal counselling for defrauding the government?" Jenkins denied defrauding the Government and asked how long the investigation had been going on. Hagedorn said that it had been going on for 3 months.' Jenkins asked who was being investigated. Hagedorn said that anybody that had a uniform allowance was being investigated.' Strachan asked how many pairs of shoes Jenkins had bought for the job. Jenkins, Strachan, and Hagedorn went through nine vouchers, two of them issued by Kale Uniforms and seven of them issued by a firm referred to herein as the X Company (see fn. 17 infra). Jen- kins, Hagedorn, and Strachan all initialed each voucher where Jenkins could authenticate his signature and was sure that he had not paid the voucher from his own funds. All of the vouchers so initialed were issued by the X Com- pany, and they covered a total of 11 pairs of shoes, 2 of them having been bought on March 13, 1975, and 3 having been bought on June 30, 1975. Jenkins declined to identify his signature on or initial one of the Kale Uniform vouch- ers, dated almost 4 years earlier, on the ground that it had been issued some time ago. Hagedorn said, ". . . you are so God damn stupid you can't identify your own signature on the voucher." Jenkins said that he did not appreciate Hage- dorn's "cussing at" him. Strachan told Hagedorn to "cool down because everybody's nerves were on edge." Jenkins said that 10 of the I pairs of shoes covered by X Company vouchers had been purchased from the X Company for his personal use. Hagedorn and Strachan thereupon added up the total amount of the X Company vouchers, divided this total by I 1 to determine the average price per pair of shoes, and multiplied this average by 10. They reached the arith- metic result of $240.90. St:achan then took a premimeo- graphed form, typed in Jenkins' name and the amount. typed in an additional sentence, signed the form, and gave it to Jenkins. The form as given to Jenkins stated, in mate- rial part (emphasis to indicate portions tped in b Stra- chan): Subject: Demand for Payment This letter is demand for payment of S240.90 for items purchased and paid for through the uniform al- lowance program. These items do not comply with Postal Service uniform specifications for your employ- ment category. They were purchased by you for per- The investigation was already in progress when Moore became division postal inspector In January 1977. b In fact, Ihe insestigation awas limtted to securit) police officers. 144 UNITED STATES POSTAL SERVICE sonal use. Payment by certified check or money order should be made within 15 daysfrom this date.7 Jenkins said that if it was illegal for the employees to purchase shoes from the X Company on their uniform al- lowance, why had the vouchers been approved, and why had this not been stopped 4 years ago, when it started? Strachan or Hagedorn asked whether anyone had told Jen- kins to go to the X Company. Jenkins said, "No." Strachan or Hagedorn asked whether Jenkins had heard any locker room talk and, when Jenkins said "No," asked him what had happened. He said that he had shopped at the X Com- pany before he had started working at the post office and that when an X Company salesman learned during a con- versation with Jenkins where he was working, the salesman told him that he could buy shoes on his uniform allowance. Strachan said that this corresponded with what everybody else had said. Hagedorn asked Jenkins to write a statement about whether he had seen any postal employees at the X Company the first time he went there and how he had found out about X Company's arrangements about selling shoes to Postal Service employees. Jenkins refused to write any statement. Strachan and Hagedorn asked whether Jen- kins knew of any supervisors that were buying shoes at the X Company and whether any supervisor had told him about going down there. Jenkins said "No". Hagedorn and Strachan said that the investigation was secret and told Jen- kins not to talk with anyone about it, including "security" or the X Company. Jenkins told Hagedorn that Jenkins had paid out of his own pocket for some of the shoes listed on the vouchers, because when the vouchers came through he had no more money left on his uniform allowance, and the store had sent him a letter that he owed this money because the Postal Service had not paid it. Hagedorn said that he and Strachan had no way of verifying this. Upon termina- tion of the interview, Jenkins was "excused." About Febru- ary 4, 1977, Hagedorn and Strachan, in accordance with the general practice followed during the uniform-allowance investigation, gave their handwritten field notes of this in- terview to Postal Inspector Holmes. My findings as to this February 2 conversation are based on a composite of and inferences from the vouchers, the "Demand for Payment," and credible portions of the testi- mony of Jenkins, Hagedorn, and Strachan. I do not credit Hagedorn's and Strachan's denials that Jenkins asked for a union steward, for demeanor reasons, because both postal inspectors admitted that Hagedorn asked Jenkins to name his union representatives, and because I regard as some- what improbable Hagedorn's explanation (uncorroborated I The Postal Service's memorandum in support of its prehearing motions for summary judgment asserts that the "Demand for Payment" was autho- rized by 39 U.S.C. §2601(a), 39 CFR 946.1(g) (see fn. 31 infra). and Art. XXVI of the bargaining agreement. According to the attachments to this memorandum (see fn. 2 supra). Art. XXVI reads as follows: Section 1. The parties agree that continued public confidence in the Service requires the proper care and protection of the U. S. P. S. prop- erty, postal funds, and the mails. In advance of any mone5 demand upon an employee, he must be informed in writing and the demand must include the reasons therefor. Section 2. An employee shall be financially liable for an) loss or damage to propert 5 of the Employer including leased propert) and e- hicles only when the loss or damage as the result of the vuillful or deliberate misconduct of such employee. by Strachan, who could not recall the context of Hage- dorn's inquiries) that he asked these questions in order to "maintain rapport" with Jenkins and because he knew that he and Strachan were going to interview union representa- tives accused of the same violation. To the extent that it is inconsistent with my findings in the preceding paragraphs, I do not credit Strachan's testimony that Jenkins did not ask for a lawyer, Hagedorn's testimony that Jenkins never asked for legal counseling and was not denied the right to obtain a lawyer. or Strachan's denial that Jenkins was told that a lawyer would not be able to sit in on the investiga- tion, for demeanor reasons and in view of Hagedorn's testi- mony that toward the middle of the interview. Jenkins said that he might need a lawyer and that Hagedorn said he could have one at his own expense if he wished. In view of the probabilities of the situation, I do not accept Jenkins' testimony that before signing the Miranda form he said, "Seems like I should have some sort of legal counselling," and I accept Hagedorn's denial. However, for demeanor reasons, I do not accept Strachan's testimony that Jenkins signed the Miranda form without hesitation. I do not accept Hagedorn's testimony that Jenkins initialed the vouchers for shoes he admittedly purchased for personal use, in view of Hagedorn's further testimony that Jenkins said 10 pairs of the shoes he bought from the X Company were for his personal use and the fact that Jenkins intialed X Company vouchers for 11 pairs of shoes. I do not credit Hagedorn's or Strachan's denial of Jenkin's testimony that Hagedorn called him stupid and "cussed" him for being unable to authenticate his signature on a 4-year-old voucher, for de- meanor reasons and because Strachan did not corroborate Hagedorn's testimony that Jenkins did not question the au- thenticity of his signature on any of these documents. My findings that Jenkins failed to initial vouchers which he thought he might have paid for himself is based on an infer- ence drawn from the fact that the two he failed to initial each involved one pair of shoes from Kale Uniforms; he in fact had paid at least one of these vouchers himself (see sec. II, C infra), and both Jenkins and Strachan testified that Jenkins said he had paid some of the vouchers out of his own pocket-according to Strachan, vouchers for two or three pairs. In crediting Jenkins' testimony to the extent indicated. I have taken into account his obviously untruth- ful disclaimer of knowledge that he had arrest powers. My credibility findings would not be altered were I to give to Jenkins' admissions to Hagedorn and Strachan about buy- ing shoes for personal use the same weight that I would give them by assuming with Respondent that Jenkins did not ask for his Weingarten rights. In any event, see fn. 41 infra. C. Jenkins' Second Interview With Postal Inspectors Hagedorn and Strachan After this interview, Jenkins located at his home certain documents which showed that he had paid out of his own pocket one of the nine vouchers produced by Hagedorn and Strachan during the February 2 interview--namely. a $23.95 voucher issued by Kale Uniforms in April 1976. At Jenkins request. on February 3 he again went down to see Hagedorn and Strachan. Hagedorn again read and asked Jenkins to sign a Miranda form. identical to the form signed 145 I)L('ISIONS OF NATIONAL LABOR RELATIONS BOARD by Jenkins on February 2. Jenkins refused but said that he understood his Miranda rights. Jenkins then showed the proof of payment to lagedorn. Hagedorn said that he would not reduce the size of the "Demand for Payment" unless Jenkins left the documents with Hagedorn and Strachan or permitted them to make copies, but Jenkins refused on the ground that "there might be something incriminating against me." Jenkins did not request union representation during this interview. D. Events Preceding Jenkins' Interview With Security Officers in Charge Cruse and Scott On February 7. 1977. Jenkins filed his charge herein, al- leging that the Postal Service, in violation of the PRA and Section 8(a)(1) of the NLRA, had "[s]ince on or about Feb- ruary 2, 1977 .. denied Eddie .. Jenkins union representa- tion." On February 9, 1977, this charge was received by an agent of Richard Froelke, counsel for the Postal Service. On February 15. 1977, Jenkins received a "Demand fbr Payment," signed by Postal Inspector Holmes, which stated: This memorandum is demand for payment of $216.95 for items purchased and paid for through the uniform allowance program, which items do not corn- ply with Postal Service uniform specifications for your employment category. This memorandum rescinds the earlier letter of demand dated February 2, 1977. The amount is reduced based on a review of the invoices you submitted for payment under the uniform allowance program during uniform allowance year be- ginning March 10, 1976 sic; cf. fn. 12 inria]. The total invoices submitted tfr payment exceeded youIr axi- mum allowance by $23.95 and the last invoice generat- ing the excess was for unauthorized items. Payment by certified check or money order should he made within 15 days from this date. The $23.95 reduction had been authorized by Holmes per- sonally. A day or two later Jenkins told Strachan and lHagedorn that Jenkins would pay this amount in a lump sum. Jenkins then decided that rather than pay in a lump sum. he would have the money taken out of his paycheck in installments. On February 18, at Jenkins' request, he went down to see Strachan and advised him of this decision. Jenkins did not request union representation during this interview. hat same day Jenkins signed an "Authorization for Payroll De- duction to liquidate Indebtedness" fIrm which read, in part (emphasis to indicate nonprinted portions 'f docu- ment): I acknowledge that I am indebted to the .S. Postal Service in the amount of X$216. 5. Since it will be to my financial advantage, I respectfully request that I he permitted to liquidate this indebtedness in the follow- ing manner: 2. A balance of $216.95 to he deducted in 5 equal installments of $43.39 from mi salary checks ... begin- ning with the check due ... 1. -I8-77, and conltlnuig until the debt is liquidated. Reimbursement for unautho- rized purchases lunder the uniform allowance progrtam. I hereby certify that the foregoing statements are true and correct to the best of my knowledge and be- lief, and they are made of my own free will and at my own direction. Jenkins credibly testified that he signed this document "be- cause they told me I had to pay the money back so I didn't want to pay it out of my pocket so I told them to take it out of' my check." When Postal Service counsel then asked, "So you agreed to this arrangement? There is no question in your mind about that, is there?," Jenkins credibly replied, "Well, I had to." The deductions so authorized were duly made, with the final deduction made on April 15, 1977. Jenkins testified at the hearing that the word "reimbursement" means "pay back." Meanwhile, Postal Service attorney Froelke got in touch with an assistant to Division Postal Inspector Moore about February 10 and with Moore himself about March 25. Dur- ing this latter meeting, Froelke advised Moore of the con- tention that the merits of the instant charge were governed by Weingarten (420 U.S. 251). Postal Inspector Holmes, who was in charge of the investigation regarding uniform allowances, testified that about this same ime Assistant In- spector in Charge Henrickson instructed him to return the uniformi-invoice file regarding Jenkins back to the person- nel section because a separate administrative investigation would be conducted by someone else. Holmes further testi- fied that he thereupon returned these documents to Ms. A. Spencer. a security force program analyst whose immediate superior was Dobbins, the assistant inspector in charge fr security and internal crimes. Hlenrickson, Spencer, and I)obbins did not testif. BH letter to Moore dated May 12. 1977, Regional Chief Inspector awrence stated: This has reference to your request for procedural instructions regarding the possible misuse of uniform allowance funds by Security Fiorce personnel. Because of the unusual circumstances of this case and specifically the position taken bh the Postal Ser- vice in its preliminary statement to the Board's Re- gional Office in the instant case]. Mr. Froelke's advice as expressed in his April 15, 1977. memonrandurm should be followed. In this regard. it is suggested that the Inspection Service manager selected to supervise the administrative investigation should be rne ho neither was involved in the criminal insestigatio nor has any responsibilities in connection with the process- ing of grievances under the contract. Further, should the employee request union rcpre- sentation during any investigative interview. such re- quest should be granted,. notwithstanding the fact that Security Force labor contracts do not contain a Memo- randurn of 'nderstanding regarding union representa- tion like that relating to the 1975 National Agreement with other postal crafts. In view of the unavailability of grand jur testimony and subpoenaed documents, evidence upon which dis- ciplinary action may be taken will, of' necessity. have to be de eloped indep endent of the criminal investiga- tion through intcivieAs of involved personnel, exami- 146 I[NITEI) STATES POSTAl SERVICT[- nation of internal Postal Service documents relating to the uniform program, etc. If; of course, indictments are handed down, the indicted employees may be placed on indefinite suspension under the discipline procedure in Section 3 of Article XVI of the Federation of Postal Security Police contract, which permits the Postal Ser- vice to immediately remove n employee from a pa' status where there is reasonable cause to believe that the employee is guilty of a crime for which a sentence of imprisonment can be imposed. It is further sug- gested that all notices of charges prepared in their case be coordinated with Mr. Froelke's office. National Headquarters is continuing to assess the impact of recent NL.RB decisions interpreting Wein- garten on the Postal Service's long-standing policy re- garding union representation during investigatory in- terviews and as soon as a decision is reached as to what legal obligations these Board decisions impose upon the Postal Service, a policy statement will he dissemi- nated to all affected Postal Service elements. Moore testified that during llolmes' investigation of the uniformi-allowance program, on two or three occasions Holmes described to Moore the overall progress of the in- vestigation but never related to him specific data as to spe- cific conduct of specific security police officers. Moore fur- ther testified that as of his conversation with attorney Froelke on March 25, Moore did not have in his possession any of the criminal data developed by Hlolmes' group with respect to Jenkins personally, and, so far as Moore knew, as of that date neither the assistant inspector in charge for security and internal crimes (I)obbins) nor any direct super- visor of security police officers had an) such data. In addi- tion, Moore testified that. so far as he knew, and laying Jenkins to one side, none of the security police personnel interviewed in connection with the uniform-allowance in- vestigation requested union representation.' Moore testified that after receiving Lawrence's May 12 letter, he instructed Henrickson, the assistant inspector in charge for fraud and prohibited mailings, to cause the con- duct of an administrative investigation of Jenkins' use of his uniform allowance. Still according to Moore. he instructed Henrickson to have the investigation conducted by two su- pervisors who had no knowledge whatever of the investiga- tion being conducted and not to afford such supervisors any of the material collected in connection with the criminal investigation. The two supervisors selected were Security Officers in Charge P. E. ('ruse and R. 1. Scott. Moore had no personal knowledge of what they were told to do. Hen- rickson. Cruse. and Scott did not testify. [. Jenkins' Interviciw I ith Security Of)licr.s in ('hiargte C('rstc and Scot On Ma) 27. lieutenant Lomax instructed Jenkins to wait in I.omax's office l;r Security Officer in Charge ('ruse, A ho llwevcr. lllmes liter reported to NMx)re that an undisclosed nulilrher had refused , dsicuss the nifornl-.ll.t altce r llael atter iecelving their lrJLanda rights. See itrril ,'As discussed inu"ra. such materill was in Itllnies' oMcff files or Itl the possession of the grand Jkl MInxrc testified that none tf this rmalertil ,,oild be in Jenkins' personnel fIlder wanted to talk with Jenkins. A few minutes later Cruse came into I.omax's office and escorted Jenkins to Cruse's office, where Cruse said they had to wait for Security Offi- cer in Charge Scott. Jenkins and ('ruse discussed sports un- til, about i/2 hour later, Scott came in with a briefcase. Scott sat at one end of Cruse's desk and pulled out some papers. ('ruse sat at the other end. pulled out Jenkins' file. and said that ('ruse and Scott had to question Jenkins about vouchers foir shoes he bought at the X ompany. Jenkins said that he had already been through this investi- gation once with the postal inspectors and saw no reason why he had to go through the matter again. Cruse said that he had orders to question Jenkins. Jenkins asked who had issued these orders. Cruse said that he did not know and that he ':just had a piece of paper on his desk to question" Jenkins. Jenkins said that he wanted a union steward to be present. Cruse asked the identity of the union steward on duty. John Doe was "off." and Jenkins said it was Gentry Daniels. Cruse then called for Daniels. After Daniels had arrived, Cruse again said that he had to ask Jenkins about shoes he bought from the X Company. Jenkins said that he wanted to talk to Daniels privately. Cruse told them to go into the hall to discuss what they had to say. When they went out into the hall Daniels said that Jenkins did not have to say anything and that Daniels did not see why Jenkins had to go back through the investiga- tion again. After the two returned to Cruse's office. Jenkins again asked Cruse why he was questioning Jenkins. Cruse said that he had orders to question Jenkins. Jenkins asked whether Cruse would he questioning anyone else. Cruse said that "we" had already questioned one security police officer and would be questioning others.,, Daniels said that he did not see why Jenkins had to go through this. Jenkins asked Cruse whether he had had knowledge of the investi- gation when it had been conducted in February. Cruse said that the investigation had been just about over when he heard about it, that the postal inspectors did not usually tell him anything, that they had not told him anything about the investigation. and that he knew nothing about their in- vestigation of Jenkins. Cruse told Jenkins to explain what happened when he went to see the inspectors. Jenkins gave him an account which included the Miranda warning mat- ter and the fact that Jenkins had asked for and been denied a union steward. ('ruse and Scott then started asking Jenkins questions from lists they had in front of them. From time to time Scott prefaced a question with: "... [D]id the inspectors ask you this?" Jenkins said "Yes," and Scott said, ".. . [Well, I will go on to the next one." The record fails to show the subject matter of these particular questions. Daniels an- swered some of the questions asked b Cruse, including questions regarding the relative quality and price of shoes (see fit. 4 spra).l Cruse asked Jenkins why he had not '' No "admitllstrative investgation" was conducted of an, other emplo>- ees regarding the ulniform-allowance matter. 1 I'he Postal Service's brief states that Jenkins was annosed h the fact that D)aniels answered some of these questions While the Postal Sersice's contention may he jlustiied h it reading of' the cold record. when I watched Jenkins eslit .hbout the matter I did not conclude that [)aniels' conduct Inoedl.Jenkin in Ians respect here is no es idence that Jenkins ever asked D).niel, t1, he tilet or I les 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bought any shoes recently.' Jenkins said, "I'd be a fool to buy some shoes now. The inspector still has this investiga- tion going on." Scott asked Jenkins whether he had bad feet, and Jenkins said "No." Cruse asked how much money he had paid back, and Jenkins told him. After Cruse and Scott had finished questioning Jenkins and he was prepar- ing to leave, he asked Cruse what was going to happen "behind all this" and whether Jenkins would be suspended or fired or "something like that." Cruse said, ". . . [D]on't worry, nothing's going to happen." Jenkins and Daniels then left the office. My findings as to what happened during this May 27 conversation are based on Jenkins' uncontradicted testi- mony. At the time of the hearing, Cruse and Scott were still working for the Postal Service, at locations a short distance from the hearing room, but they did not testify.'3 Respon- dent's brief nonetheless attacks as unworthy of belief Jen- kins' uncontradicted testimony that he told Cruse and Scott that during the February 2 interview he had asked for and been denied the presence of a union steward, on the ground that this allegation is not set forth in Jenkins' prehearing affidavit although Jenkins said he told the Board agent about the matter. I do not regard this omission as sufficient to warrant my discrediting Jenkins in this respect, because any directly contradictory testimony which existed would be readily available to Respondent but was not produced. On June 7, 1977, Cruse and Scott submitted to Moore an "Investigative Memorandum" regarding investigation of Jenkins' uniform invoices. This document was not offered to show the truth of the matters asserted therein. The memorandum states that Jenkins told them he had prom- ised to pay the Postal Service $216 in connection with the postal inspectors' investigation, but had not admitted to the inspectors that he had made illegal purchases on his uni- form allowance. Also, the memorandum states that Jenkins said all the shoes he purchased met Postal Service specifica- tions, so far as he knew. There is no specific probative evi- dence that Jenkins made either statement to Cruse and Scott. The memorandum contains further assertions as to which there is no probative evidence. Thus, the memoran- dum states that Jenkins was told that the Cruse-Scott inves- tigation was a management inquiry, that it had no relation- ship to the postal inspectors' investigation, and that a Miranda warning and waiver were not necessary because Cruse and Scott were conducting a management inquiry and not a criminal investigation. Further, the memorandum states that upon being given the purpose of the interview, steward Daniels said he had no objection and that "it was evident" to Daniels that Jenkins "was being evasive and As to each employee, the I-year period within which the annual uniform allowance must be used or lost runs from the anniversary date of the employ- ee's hiring. Jenkins' anniversary date was March 10. So far as the record shows, as of the May 27. 1977, date of his interview he had bought no shoes under his uniform allowance since June 1, 1976, when he bought two pairs. Since March 10, 1976, he had bought four pairs under his uniform allow- ance, including one pair in April 1976 from Kale Uniforms for which he eventually paid out of his own pocket (see sec. II, C supra). '1 On the second day of the hearing, counsel for the General Counsel stated on the record without denial that both Scott and Cruse had been present during the first day of the hearing. Jenkins, Hagedom, and Strachan testified on that day. Because neither Cruse nor Scott was identified to me, I do not know whose testimony they heard. Before the first witness testified, and over the objection of Respondent's counsel, I granted the General Coun- sel's motion to sequester the witnesses. giving vague answers." Also, the memorandum states that Jenkins said he had thrown out all of the shoes, except those he was wearing, which he had bought with his uni- form allowance and that he refused to give a written state- ment on the ground that he had not given one to the postal inspectors. Furthermore, the memorandum states that Cruse and Scott decided to interview Jenkins because Cruse and Scott had inspected his uniform-voucher file, and it appeared to show irregularities. However, during this interview Cruse told Jenkins that Cruse had been ordered to conduct the interview by someone whose identity he did not know. The memorandum states that when asked how long Jenkins wears a pair of shoes, he replied that he had bad feet and had to wear comfortable shoes. However, during this inter- view Jenkins had in fact denied having bad feet. The memorandum states that when asked why he had not bought any shoes recently or since June 1, 1976, Jenkins said that he did not know. However, Jenkins had in fact told Cruse and Scott that Jenkins had not bought any shoes recently because of the pending uniform-allowance investi- gation. ' 1 4 The memorandum begins with the assertion that on May 23 Cruse and Scott were instructed to conduct a manage- ment investigative inquiry of Jenkins' uniform vouchers, and "[n]o other information was given us at that time." The memorandum is dated II days after Cruse's and Scott's interview with Jenkins. Division Postal Inspector Moore testified that this memorandum constituted his only per- sonal knowledge of what Cruse and Scott had available to look at when they conducted their investigation of Jenkins. F. The Postal Service's Contacts With the United Slates A ttorney The uniform-allowance investigation covered 75 security officers, both supervisory and nonsupervisory. On the basis of this investigation, Postal Inspector Holmes concluded that 44 security officers, including Jenkins, had improperly used their uniform allowances. On various occasions be- tween March and June 1977, Holmes forwarded to the United States Attorney for the Northern District of Illinois all of the investigative notes of all the postal inspectors as- signed to help Holmes in the investigation. These notes in- cluded the field notes of Inspectors Hagedorn and Strachan about their interview with Jenkins. Holmes also retained copies of these Jenkins notes in his office. In consequence of a subpena issued at the instance of Postal Service counsel, these notes were tendered to such counsel, but they are not in the record. G. The Letters of Warning Issued in Connection With the Uniform-A lowance Investigation In connection with the uniform-allowance investigation, Inspector Holmes wrote 43 investigative memorandums, each dealing with a particular member of the security force, " The investigation had begun on an undisclosed date before January I, 1977. However, none of the security officers was interviewed before Febru- ary 1977, and Jenkins' May 27 remarks aside, there is no evidence that he knew about the investigation before his own interview on February 2, 1977. 148 UNITED STATES POSTAL SERVItE to Division Postal Inspector Moore. Each memorandum stated that the particular individual had purchased "unau- thorized pairs of shoes" on his uniform allowance. Holmes' June 29, 1977, memorandum of transmittal states. "All memorandums are based on voluntary admissions in writ- ing and/or orally." The sums involved ranged from about $20 to about $284 per person. with a total amount of about $3,121, over a period of a little more than 4 years. Among the persons who were the subjects of these memorandums were a security officer in charge (not Cruse or Scott), two sergeants (not including Magee), and three union stewards (including John Doe and Richard Roe," but not Daniels). Holmes testified that no investigative memorandum was written about Jenkins, and his name is not included in the 43-person list attached to the memorandum of transmittal. Holmes' memorandum of transmittal further stated: "After the investigation met with a high degree of success for re- petitive purchases, the investigation was expanded to cover singular instances of purchases at [the X Company"]. Addi- tional success in this area indicated that Security Police Officers generally using other licensed vendors may have specifically visited [the X Company], intending to make un- authorized purchases." The February 2 Jenkins interview was conducted by Hagedorn and Strachan on the second day of their interviews as one of about seven two-man teams. Holmes' memorandum of transmittal concluded with the following paragraph: The investigation includes about twelve files of indi- viduals who may have made unauthorized purchases and who are suspected of making false negative state- ments or who declined to discuss the matter after re- ceiving their Miranda rights. These files were retained for the possibility of proving unauthorized purchases by the material obtained from the vendor through a grand jury subpoena. However, this is not possible be- cause the United States Attorney advised that subpoe- naed documents cannot be used administratively, and also because the documents do not appear to be com- plete and may work only in an isolated instance. Ex- amples of these suspicious files are a Security Officer in Charge who spent $118.00 of his uniform allowance at one time at [the X Company] for five pairs of shoes which could not be produced because his dog chewed them all up; another Security Police Officer who pur- chased fourteen pairs of shoes on his uniform allow- ance on a total of seven occasions within twenty-six months is employed in a sedentary indoors position of Communications Room duties. It is suggested that these files receive administrative consideration in the '' Some of these purchases were for shoes which did not conform to Postal Service requirements but which may in fact have been bought for and used on the job because the wearers believed them to be permitted. 16 Whether these stewards had actually misused their uniform allowances was not material to the issues here and was not litigated. To avoid possible unfairness to their reputations, they are referred to herein as John Doe and Richard Roe. Holmes' memorandum states that one of them failed to com- ply with or respond to the letter of demand and a followup letter of demand. "Because of implied allegations in the record that this firm may have been involved in fraudulent activity and because the truth of any such alle- gations is immaterial to the issues herein and was not litigated, to aoid possible unfairness to the reputation of that firm, it is referred to herein as the X Company. same manner as the Secuit Police Officer Eddie Jen- kins matter. Moore testified that the June 7 Cruse-Scott miemoran- dum regarding their interview vwith Jenkins was referred to the security section for "preparation of disciplinary action" by it and by Jenkins' supervisor. Jenkins' immediate supe- rior was Lieutenant Lomax. Jenkins' squad leader was sectu- rity supervisor Joseph P. Pizzurro. Ulnder the letterhead "United States Postal Service Office of the Inspector in Charge/Chicago." and the date July 22, 1977. the following "Letter of Warning" signed b Pizzurro was issued to Jlen- kins, who refused Pizzurro's request to sign it: The official Letter of Warning is being Issued to ou for the following reason. Between April 30. 1973. and June 1, 1976. ou pur- chased a total of thirteen (13) pairs of shoes that werce charged to your uniform allowance. Five () pairs of the referenced shoes were purchased between March 13. 1975, and June 30. 1975. During an interviexw with SOIC'"s [Security Officers in Charge] Pautl ('ruse and Richard Scott on May 27. 1977. ou acknow\ledged that you are reimbursing the [.S. Postal Serv ice in the amount of $216.00 for non-uniform shoes purchased during the referenced period. Your attention is directed to Part I of the Security Force Manual which states that all Security Police Of- ficers must be thoroughly familiar with the contents of the Security Force Manual as well as Postal laws and regulations pertaining to the area of responsibility covo- ered. It is expected that ou will familiarize outrsel' with the authorized uniform items as listed in the Secu- rity Force Manual Part 4 and Postal Service Manual SubChapter 420. Part 422. If you have some question as to whether a particular item is authorized, please call on me or you maN consult with your other supervi- sors and we will assist you where possible. Howee\er. I must warn you that future infractions such as outlined above will result in more severe disciplinary action being taken against you including suspensions or re- moval from the Postal Service. You may appeal this Letter of Warning in accord- ance with Article XV of the Bargaining Agreement within 10 days from the date you receive this letter. Pizzurro did not testify. When asked to account tfor the 6- week interval between Moore's receipt of the June 7. 1977. Cruse-Scott report and the issuance of the July 22. 1977. letter of reprimand to Jenkins Moore testified. "At that time we [were]' still waiting for the release of the criminal investigative results from the grand jury on the other secu- rity police officers and supervisors who . . . had committed similar offenses as Mr. Jenkins had committed and I wanted to ... weigh all the evidence and to invoke fair and equitable disciplinary procedures against the entire person- nel that was involved." Attached to the Postal Sersice's mo- tions for summary judgment is an affidavit from Postal In- spector Holmes. dated September 9, 1977, which states. inter alia, "The investigation has been continued bs the 18 The oficial transcript sa'. "are " 149 I)l('ISIONS OF NATIONAI. LABOR RELATIONS BOARD I nited States Attorney through an impaneled Grand Jury. I am still to date personally involved in this investigation and am therefore unable to supply any further information in connection therewith." As of the May 1978 date of the hearing before me, no prosecutions had been initiated against any security personnel, including Jenkins. Moore testified that he believed, but was not sure, that the grand jury had released all the material connected with the inves- tigation. The record otherwise fails to show when this hap- pened or when the Postal Service found out about it. On July 22. 1977, the date of Jenkins' letter of warning, the following letter was sent over Pizzurro's signature to a secu- rity police officer not involved in the instant proceeding: This official letter of w arning is being issued to you for the following reason. You have lmisused your uniform allowance by the purchase of non-unifornl items in violation of the Se- curity F:orce Manual, Part 4. and Postal Service Man- ual, Sub-Chapter 420, Part 422.715. Specifically, on July 28, 1976, you purchased two (2) pairs of shoes that do not conform to the specifications for the Secu- rity Force Police Officer Uniform as detailed in Secu- rity 'Force Manual. Part 4, and Postal Service Manual, Part 422.41i). You further certified that the statement of' charges submitted by the vendor on 7 28 76, for those items was correct and just. 'Your attention is directed to Part I of the Security Force Manual which states that all Security Police Of- ficers must be thoroughly familiar with the contents of the Security Force Manual as well as Postal laws and regulations pertaining to the area of responsibility cov- ered. It is expected that you wi:l familiarize yourself with the authorized uniform items as listed in the Secu- rity orce Manual, Part 4, and Postal Service Manual Sub-Chapter 420, Part 422. If you have some question as to whether a particular item is authorized, please call on me or you mlay consult with your other supervi- sors and we will assist you where possible. lowever. I must warn you that future infractions such as outlined above will result in more severe disciplinary action being taken against you including suspensions or re- moval front the Postal Service. You may appeal this letter of warning in accordance with Article XV of the Bargaining Agreement within 10 days from the date you receive this letter. The parties stipulated that this is one of 42 substantially identical letters issued on July 22, 1977, to security police officers bh their immediate supervisors under Division Postal Inspector Moore's authorization and that these 42 letters were issued as a result of the inspectors' investigation of' these employ es in l:ebruary and March 1977.19 Moore 1 Oe ,lI tihe 4 cnmplosNcs (int a union reprcsentative) named in Postal Inspector llnhies June 29, 1977. mreioranduml had died. Attached to the General ('Counsel's September 1977 pposition to Respon- dent's motion lir summary judgment are'purported copies of two additional letters of warning not oulhcrwise in the record, one of them to union repre- sentative Richard Roe. Although otherwise substantially the same as those reproduced in the exl, both of these are signed bh "Randolph .. I omax, Securily Supervisor in (harge." interentiall the same person as the I ieuten- anTt lornlax who u;islJeInkins' Immlediate superior and directed him to attend the lagedorni-Stracha.n titersiew. testified that he sent out these 43 letters after "reviewing a representative number" of the investigative memorandums which Holmes had forwarded to him with the June 29 memorandum of transmittal. However. because these memorandums did not include any investigatory memoran- dum about Jenkins, I infer that Moore must also have con- sidered the June 7 Cruse-Scott memorandum. As previously noted, when sending Moore the files attached to the June 29 memorandum of transmittal, Holmes had retained the files of about 12 security officers, including some who had re- fused to discuss the matter after receiving their Miranda rights. None of these 12 ever received a letter of warning. On August 10, 1977, steward John Doe filed a grievance on Jenkins' behalf. The form stated the grievance as fol- lows: "e had made restitution for whatever wrong that was done. He was led to believe that no action would be taken against him after restitution was made." The griev- ance further alleged that the discipline violated article XVI of the collective-bargaining agreements and was untimely and, as to the remedy expected, stated, "Rescind the letter of warning." The grievance form does not call for the griev- ing employee's signature, and Jenkins did not sign the grievance. In support of that grievance, Jenkins supplied steward Doe with a written statement which asserted that during the May 27 interview, Cruse and Scott had told him they had orders to question Jenkins again about the shoe purchases; that when Jenkins said he had already under- gone a postal inspectors' investigation, Cruse said he knew nothing about that; that Cruse said he would interview oth- ers besides Jenkins but he was the only one called into ('ruse's office; and that Jenkins told Cruse that the inspec- tors had "made [Jenkins] pay back the money for the shoes." Jenkins' supporting statement did not deal with whether Jenkins actually owed the $216.95 which had been deducted from his pay and paid to the Postal Service pursu- ant to his written authorization (see fn. 41 infra), nor, so far as the record shows, did the grievance itself. On August 23, 1977, Postal Inspector Witkowski sent Moore a memorandum which stated that Witkowski had discussed Jenkins' grievance with steward John Doe on Au- gust 15. 1977. This summary, which was not received in evidence to prove the truth of the matter asserted, describes the union position as follows: SPO [security police officer] Jenkins was singled out and had to go through a second different type of inves- tigation concerning misuse of his uniform allowance. Why was Jenkins singled out to be coerced? The Inves- tigative Memorandum prepared by SOICs Paul Cruse and Richard Scott states they were instructed to con- duct a management inquiry. On what basis, who in- structed them? They must have gotten their inftbrma- tion from somewhere ----probably the previous investigation conducted by the Inspection Service. Why didn't Mr. Jenkins' letter of warning pertain to the first investigation? Mr. Jenkins has a hearing next month concerning 20 According to the attachments to the Postal Sers ice's prehearing motions for summary judgment (fn. 2 supral). this article deals with just cause and procedures fr discipline The article does not in terms refer to letters of u arning 150 UNITED STATES POSTAL SERVICE the Inspector's investigation.' If that hearing results in a finding in favor of Mr. Jenkins, then any action taken against him would be null and void. Therefore, he should not have been issued the letter of warning at this time. The summary further describes management's position as follows: Disciplinary action taken against SPO Jenkins was based solely on the management investigation con- ducted by SOICs Paul Cruse and Richard Scott. Any previous investigation which may have been conducted was not furnished Messrs. Cruse and Scott. While no admission of the purchase of non-uniform shoes on the uniform allowance was made by SPO Jen- kins to SOIC Cruse and Scott, he acknowledged that he was repaying the Postal Service an amount of $216.00. Also, the grievance form submitted by the union states that SPO Jenkins "made restitution for whatever wrong that was done. He was led to believe that no action would be taken against him after restitu- tion was made." By letter dated August 23, 1977, Moore stated, "Griev- ance denied. Disciplinary action taken was warranted and considered timely in this case." This grievance could have been, but was not, appealed to binding third-party arbitra- tion (see fn. 39 infra). Moore testified that in preparing and issuing his decision on the grievance, he relied on Witkowski's memorandum. whose recommendation Moore adopted verbatim. Witkow- ski did not testify. Moore further testified that so far as he knew, in the Postal Service's handling of Jenkins' grievance, no data from Inspector Holmes' criminal task force regard- ing Jenkins were used. Holmes testified that he never pre- pared an investigative memorandum regarding his criminal investigation of Jenkins, and Moore testified that he never received any such memorandum from Holmes. Holmes tes- tified that he retained Strachan's and Hagedorn's notes of their interview with Jenkins in Holmes' office; that the3 had not been made available to Mo(xre: that nobody, including Scott or Cruse, had ever asked to see them: and that Scott and Cruse had never contacted Holmes regarding Jenkins. Scott and Cruse did not testify. Hagedorn and Strachan testified on the Postal Service's behalf, but then were not asked whether they had ever discussed Jenkins' case with Scott or Cruse. Three or four other employees filed grievances regarding their respective July 22 letters of warning. All were denied at the first step, and none of' them was appealed. H. Analysis and Conclusions Weingarten held that an employee has a statutory right to refuse to submit without union representation to an inter- view with an emplover representative which he reasonably fears may result in his discipline. 420 U.S. at 256 267. Lay- ing to one side the facts that Jenkins' employer is the Postal Service and that the employer agents who interviewed him 21 Inferentially, the hearing in the instant case. That hearing was initially scheduled for September 19. 1977. It was postponed on September 16. 1977. and on various subsequent dates on February 2. 1977. were postal inspectors, the Postal Ser- vice does not appear to question the General (Counsel's con- tention that Weingarten rights would attach to this inter- view, which Jenkins' superior directed him to attend and which he did not leave until the inspectors excused hinm. because Jenkins reasonably feared this intervie, would re- sult in his discipline. I agree. Before asking Jenkins abhout the uniform-allowance matter. Postal Inspector Ilagedorn told him that Hagedorn and Postal Inspector Stracha were investigating various security police officers that might be involved in misuse of the uniform allowance and that Jetn- kins might be one of them. Moreover. Hagedorn then re- minded Jenkins of the Miranda decision (384 U.S. 436), which deals with the rights of an individual who is sub- jected to custodial police interrogation regarding his sus- pected commission of a crime. Furthermore, Jenkins' supe- rior had required him to leave his gun, gun belt. and handcuffs in his locker before proceeding to the interview. and letters of warning resulted from more than halt of the postal inspectors' interviews with other securit officers dur- ing the uniform-allowance investigation. The Postal Service principally contends that as to the February 2. 1977. interview. no statutory rights under Weingarten existed as to Jenkins because. as to that inter- view, he allegedly was entitled to and allegedl, stas at: forded constitutional rights under Miranda, spra 384 U.S. 436. 1 agree with the General Counsel that Jenkilns' alleged entitlement to and alleged receipt of Miranda rights are im- material to the existence of Weingarten rights. It is true that Miranda and [W"eingarten share one ery similar ethical foundation -namely. the belief that a lone individual is subjected to unfair pressures when he is compelled, without being given the right to informed assistance, to submit to an interview about his alleged shortcomings with trained inter- rogators empowered to cause him to suffer adverse conse- quences theretor. Perhaps because of this common ethical foundation. both Miranda and it'eingarten rights include the right to preinterview consultation with the representa- tive. 22 However, the foundations, and therefore in significant re- spects the scope, of Miranda rights and I leingarrten rights are otherwise different. Thus, We'ilgartren rights are tatu- tory rights created by the NlLRA with respect to possible adverse action relating to employment, not w ith respei to possible criminal liahility, and do not hate as their sole purpose the protection of the individual emnploee who seeks representation. Rather, tWeingarten contemplates that the union representative will safeguard "not only the par- ticular employee's interest, but also the interests of the en- tire bargaining unit by exercising vigilance to adke ceritain that the emplos er does not initiate or continue a llpr.ictic of imposing punishment unjustly. The representixc's pr'es- ence is an assurance to other employees in the bargaining unit that they. too, can obtain his aid and protection it called upon to attend a like intervie." 42 I .S. at 2()0 261. Further, although during a I'einartn tterlview the union representative is present to assist the employee and is expected to provide the employee ithl a witness to what :2 Chima.s osbdelum (onrlti a [I)pln ,! A-mut, In , 227 NI RB 189 (19777); .irlndLi. 384 S at 44-4 44 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actually happened during the interview, the union repre- sentative can properly elicit facts favorable to the employer as well as to the employee and is not expected to render the inters iew an adversary proceedings. Moreover, Weingarten is designed partly to empower the union representative to discourage unmeritorious grievances. 420 U.S. at 262-264. In consequence of this Weingarten mix of individual em- ployee rights under Section 7 of the Act and any statutory rights and interests possessed by the union institutionally,24 the Weingarten class of cases implicitly hold that the em- ployer is under no obligation affirmatively to advise the employee of his Weingarten rights. For similar reasons, al- though an employee has the statutory right to refuse to begin a Weingarten interview without a union representa- tive and to refuse to continue it upon the employer's rejec- tion of an initial request during the interview for such a representative,2 the Weingarten class of cases implicitly hold that if such requests are granted, the employee must proceed with the interview. On the other hand, Miranda rights are aspects of the rights to counsel and against self- incrimination which the Constitution affords to individuals as such in connection with criminal investigations. The in- terrogators are required affirmatively to advise the interro- gated person of his Miranrda rights. 384 U.S. at 478 479. Moreover, the attorney at a Miranda interview is expected to act as a wholehearted advocate for his client (subject, of course, to his obligations as officer of the court) and may not ethically subordinate his client's interest to the interests of the bargaining unit or its representative. Also, the inter- rogated person may terminate his own participation in the interview at any time, even when the interview is attended by the counsel whom he requested. Miranda, 384 U.S. at 444 445.26 Nor can it be said that the Miranda protections are in all respects "greater" than the Weingarten protections. While an attorney would likely be more familiar than a union representative with the employee's rights under the criminal law, a union representative would likely be more familiar with the employec's bargaining agreement rights regarding the uniform allowance. retention of his job, and the disci- plinary and grievance-arbitration procedure. Furthermore, the union representative costs the employee no money, the representative is ordinarily (as here) immediately available, and the employee is likely to have had some firsthand op- portunilt to assess the representative's competence. On the other hand, the employee would have to affirmatively seek out an attorney. might well have difficulty finding one whose abilities he knew something about, and would prob- ably have to pay him. Respondent suggests that representa- tion by a lay union steward during a criminal investigation 23 Weingarren, 420 U.S. at 260, 262 263; Climax Molybdenum, 227 NLRB at 1190; Keyrone Steel & Wiire, Division of Kerstone Consolidated Industries, Inc., 217 NLRB 995 (1975). 24 However, the Board has recentlI held that Weingarten rights are pos- sessed by employees who are not in a union-represented bargaining unit. Glomac Plastics, Inc., 234 NLRB 1309 (1978). 25 Weingarten, 420 U.S at 256-259; Mobil Oil Corporation, 196 NLRB 1052 (1972), enforcement denied 482 F.2d 842 (7th Cir. 1973) (per then Circuit Judge John Paul Stevens). Portions of the Board's Mobil decision were quoted with approval in Weingarten. supra 26 (Compare the "Miranda" form used by the Postal Service, which states, inter alia, "You also have the right to stop answering at any time until ou talk to a lawyer." might disadvantage the employee. This contention is some- what difficult to reconcile with the Postal Service's further contention, discussed infra, that affording the employee the right to such participation might interfere with the effec- tiveness of the postal inspectors' investigation. In any event, the choice of whether to be represented by a union steward, an attorney, both, or neither during an investigation is nor- mally confided to the employee and/or his bargaining rep- resentative rather than to the employer who is conducting the investigation of the employee. See National Can Corpo- ration, 200 NLRB 1116, 1123 (1972). In my discussion up to this point, I have assumed with Respondent that Jenkins was entitled to Miranda rights during the February 2 interview and that he was afforded such rights. However, I am by no means easy with respect to either assumption. It is true that, at least in some circum- stances, interrogation by a postal inspector does not consti- tute a purely private interrogation, where Miranda is inap- plicable, but instead may render relevant a determination as to whether Miranda attached and was satisfied.27 How- ever, Miranda rights exist only after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, or where special circum- stances exist which render the law enforcement officials' be- havior such as to overbear the person's will to resist and bring about a confession not freely self-determined.t 8 Dur- ing the February 2 interview in the instant case, Jenkins was told that he was not under arrest, and it is at least arguable that Miranda rights were not generated by the fact that Jenkins (himself a law enforcement officer) had come pursuant to the instructions of his superior on the job and by that superior's instructions to leave Jenkins' gun and handcuffs in his locker prior to the interview.29 Further- more, when Jenkins asked during the interview whether he could get a lawyer, Hagedorn said that the interview was an investigation and that a lawyer could not sit in on an inves- tigation and further asked whether Jenkins thought he should have legal counseling for defrauding the Govern- ment. It is at least arguable that at that point Jenkins was improperly denied any Miranda rights which the circum- stances of the interview may have generated. Miranda, 384 U.S. at 444-445. Indeed, if Miranda rights were generated by the circumstances of the February 2 interview, Jenkins 27 U'nited States v. Brunson, 549 F.2d 348 (5th Cir. 1977), cert. denied 434 U.S. 842; cf. United Stares v. Gardner, 516 F.2d 334, 339-340 (7th Cir. 1975); United States . Parr-Pla, 549 F.2d 660, 663 (9th Cir 1977), cert. denied 431 U.S. 972. l8 Beckwith v. United States, 425 U.S. 341 (1976); United States s Fitzger- ald, 545 F.2d 578, 580-581 (7th Cir. 1976). Strachan's and Hagedorn's action in reading a purported Miranda warn- ing to Jenkins at the February 2 interviews is entitled to virtually no weight in determining whether a Miranda warning was constitutionally required. They also read a purported Miranda warning to him at the February 3 interview, which was held at Jenkins' own request. Moreover, Strachan testified, "Our instructions with regard to Miranda is that Miranda comes into application during a criminal investigation at [the] point [when] the interview revolves to an accusatorial position with respect to questions asked the individual in the interview. In other words, before you ask specific questions about an individ- ual's involvement in an alleged violation, Miranda [rights are] to be advised to the individual." Strachan did not refer at all to the custodial or related circumstances of the interview. 29 See Oregon v. Mathiason, 97 S.Ct. 711, 713-714 (1977); Fitzgerald, 545 F,2d 578: Barfield v. State of Alabama, 552 F.2d 1114 (5th Cir. 1977). 152 UNITED STATES POSTAL SERVICE may at least arguably have been entitled to Miranda rights (which admittedly he was not afforded) during his May 27 interview with Cruse and Scott about alleged violation of Postal Service rules regarding the uniform allowance. Jen- kins attended this interview, as well as the Februarv 2 inter- view, because his superior instructed him to do so; and as members of the Postal Service security police force. Cruse and Scott had the power to enforce Postal Service rules and regulations and to make arrests (including arrests of postal employees) which could involve the use of handcuffs. 0 In view of my ultimate conclusion herein that Jenkins' Weingarten rights were unaffected by any rights he may also have possessed or been accorded under Miranda, I need not and do not determine whether. as to the February 2 interview, he possessed Miranda rights and they were honored. However, I do regard as militating against the Postal Service's Miranda defense herein its implicit require- ment that in each instance involving an interview by postal inspectors (if indeed not by security officers as well), the employee, the interrogators, and the Board must determine whether Miranda attached (and, perhaps. whether it was satisfied) before they can determine whether W'eingarten rights existed. Cf. fn. 28 supra. No like problem was pre- sented in Mi. Vernon Tanker Comrpany v. '.L. R.B.. 549 F.2d 571 (9th Cir. 1977). on which the Postal Service heav- ily relies. The Court there held, as an alternative basis for rejecting the Board's finding of a Weingarten violation. that while "at sea" a seaman does not have the statutory right to refuse to submit to a master's orders to attend a Weingart- en-type investigatory interview without union representa- tion. Whether a seaman is or is not "at sea" is a good deal easier to determine, for the seaman and the master as well as the Board, than whether Miranda attaches and is satis- fied. A more significant difference between Mi. Vernon Tanker and the instant case is the nature of the interests which, in the Court's view, exclude Weingarten rights while a vessel is at sea. The Court relied on Federal law, which charges the ship's master with responsibility for the safety of ship, cargo, and crew and, in order to enable him to discharge this responsibility, gives him authority to main- tain strict discipline, including the authority summarily to punish willful disobedience at sea by placing the disobedi- ent seaman in irons and on bread and water. In the instant case the interest which allegedly excludes Weingarten is the public interest in the postal inspectors' discharge of their power by statute and regulation to enforce, against the gen- -0 The Code of Federal Regulations provides. "Members of the U.S. Postal Service secunlty force shall exercise the powers of special policemen pros ided by 40 U.S.C. 318 and shall be responsible for enforcing the regulations in this section in a manner that will protect Postal Service property." 39 CFR 232.6(p). Section 232.6 forbids conduct on postal property which includes disorderly conduct, carrying weapons or explosives. gamhling, use of alcohol or drugs, creating hazard to persons or things, dangerous driving, and de- struction of property. 40 ULS.C. §318 gives special policemen, on Federal property, the powers of sheriffs and constables (except service of civil pro- cess) to enforce laws for the protection of persons and property, to prevent breaches of the peace, to suppress affrays or unlawful assemblies, and to enforce certain administrative rules and regulations. Rather similar provi- sions are included in the Postal Service's security force manual, which erro- neously refers to 40 U.S C §18 rather than §3 18. The security force manual specifically empowers secunrity personnel "to enforce Postal Service rules and regulations" and contains instructions regarding use of force in arrests, spe- cifically including arrests of postal ervice employees. and regarding use of handcuffs. eral public as well as against postal employees. laws regard- ing property of the United States in the custody of the Postal Service. the use of the mails, and other postal of- fenses.?' he laws enforced b postal inspectors, unlike or- ders issued by the master of a ship, are enforced through conventional civil and criminal procedures and do not in- volve the safety at sea of human beings, ships, and cargo. Of course, Weingarten rights extend to interviews regarding alleged criminal acts. Indeed, Weingarten itself involved a grocery store employee who was accused of fraudulently underpaying for groceries and of eating lunches at a store facility without paying for them. See also .Mobil Oil. 196 NLRB 1052. Furthermore, the Postal Service's conduct evinces a con- clusion by it that adherence to Weingarten does not in fact impair effective performance of the postal inspectors' du- ties. Thus. Holmes' memorandum about the uniform-allow- ance investigation to Moore on June 29, 1977, some 3 weeks after Holmes received the report from Security Offi- cers Cruse and Scott about their interview with Jenkins in Union Steward Daniels' presence, suggests that the files of 12 security officers who during interviews with the postal inspectors had been given their Miranda rights and who had then declined to discuss the uniform-allowance matter or were suspected of making false negative statements could not be handled by use of documents obtained through grand jury subpena and should "receive administrative con- sideration in the same manner as the . . Jenkins matter."' Further. the Postal Service issued to Jenkins, after the Cruse-Scott interview where he was afforded W 'eingarrten rights and allegedly without regard to anything developed during his interview with Postal Inspectors Hagedorn and Strachan, substantially the same letter of warning which it issued to 42 other employees on the basis of interviews with the postal inspectors where no union representative was present. Moreover, Regional Chief Inspector awrence's May 1977 letter to Division Postal Inspector Moore indi- cates that the Postal Service's 1975 national agreement with other postal crafts contains an express provision affording the right to union representation during at least certain kinds of investigative interviews. Indeed, page Il of the Postal Service's "Verified Memorandum in Supprt of Mo- tion for Summary Judgment." filed in September 1977 and in May 1978. avers, "Respondent Postal Service [has] recog- nized [thel general principle [of WJeingartenj in our national craft bargaining units since 1973-was before the Supreme Court endorsed the Board's construction of Section 7 of the Act." For the foregoing reasons I reject the Postal Service's defenses to the complaint to the extent that such defenses rely on the Supreme Court's Miranda decision. In its brief the Postal Service also suggests in passing that it was under no duty to comply with any request for union representation made by Jenkins, because union representa- ' 18 U.S.C. §3061. 39 U.S.C. §2601(a)(1), 39 CFR 2325, 946.l(g). These powers include he power to make and disburse collections regarding m- properly paid money orders. customs dut). damage b the public to postal equipment, co.d. charges embezzled b an employee. certain kinds of rev- enues, discrepancies in postmasters' accounts, salary overpayments, or im- proper payments of uniform allowances. n) Htoess er, this sas, not n Fact done fn 10 upr,tl 153 I) ISItINS Ok NAII ONAI. I ABO(R RI IAII(ONS, H\ORI) tives ma y have beenh suljects i ti :ci i ,cstilgatiIilI Ii- reclted partly against Jenlkins. NlMoreosel l, aniig the sectrilo, officers whio eventualll r.ceived letters of wa;rning in consc- quence of this insestigatinl tcrC two (t' Ilic nion repicsenl- tatives whomil Jenkins identifie 1( tIle i shtl inspectors dul- ing tilhe ebhruari 2 illleiVleViC I ilowev,,e-.V tiheT 1s no CililI) or evidence that an InIICestigtioii W% ;Is eVi diried t It lhe other two whomn hc Iramed o01 t the steswald who atieidled Jenkins' May interlvicw lor (lit Jenkins express pci'clcnce ftir any particular uniionl ieprcseltlative. I notc, IllircieCl, that ,two sectirits ollicTs in hllarge (liltlctrcd .IcnkillS' sec- ond interview, although ;noiLthel scuirity otlicer in cha;ge later received a letcir oif 'la ill" i ,l ll in tion with tfile unifoirnl-alliwancr ix estigatio)n arLd still altlilher vI s founid by Postal Inspecor I IOreiies to ihae 'pell t $1 IX of ili unifornm alowanee at one title t tlhe X ('olpanl ior fix e pairs of shoes uhih coilld tiot he podiuccd because his il dg allegedly chew'ed thlen u. Ilndcr these ciicuimstancs I l- jectl any relianlce by tile Postal Service on the fltilt the unitorm-allosxance invcstigatiion inlcluiled tIlion stc\aili (T. Srvic 'l Lti,hlog ( or'ira tioti, a .';hi i iiiri ,i/ 1 I I Aero. ,lm: ('CoW/o;tio. 196 NI li 45 (1972): ('Ct' (',/l Bottlilng (C'. of /o. .n iigel:c , 22'7 NIt.R 1276 (977). I'or the loiegoing ieasions I cltcluci deIi i the P'osii Sel-- vice violateu Ihle PI'A and , lSccioi Sa)(1 It of tle NI iR A l, reqtlirig Jelaills t Stlihili ; is ' I r,v 2. ' 1)/' Ilitel- viessw with te postal isfipcc.tlors tile dcilig hlS iLct/l¢st for union represenltationI at thel illterviCA. ((oN I sll's O I \xx 1 lc liBoaid has jisdtitill to tliS iiiittet IN illlte of Section 12) of tle I'RA. 2. 1 e niol is labot oiigaizatio within tie llcltaiig of the NRI RA. 3. TIhe Postal Seliice ioliteid Stion 8(a)( ) , tile N IRA Lonl :ebrluai 2. 1977, I, IleuIiiig clnl ,tvcc 1 i(Ltlr L. Jenkins to Stiiit til ii ititisC`e t illh Postal Scicc inspectols, whilh lie rlsotlasls IcHod igl lc,ll1 i! ill inS pUet i i s. i t* ( I1 i 1 t | i I ( >t i ( I 1i t I I i* I i I disciplinc. xwhifle leini i, I'.i ti: ii iii.i illli IC ti- tiOll it tile illtlIce. Itlatill Ig liuld illit tilI' Postal SL. l ii L. ils x iiiolll ilt tf NIRtA i erl;l lSNrTpccis, I fhil T(Ltiitiiiil Ilihit it be required to cease and desist licietoni uld lieu) i like i relatc( roidlnct Illl to ,s i )tlLpioipl ie iiLt',. I li' tvkllcS tion rellitls of VIItt atinilllitiive wiiic1. It t)\i. Sth ld provided t Jnkitns indiviTliall. Ilitially, I Colisd l vi , xlii Liictl .rllvd iploli ,itc it thle Max! 27 itlxic xx iti ('ILrusc ll SColl had i ci hcL) helLd tLnd it gril 'ilTire i .a cxIi 1col till ll ,,xncll'iii withi Jllkilis Il utiln's ly ( ,iiignlrn ,ilss he liTlld lii, ll discutssiimr aflicrled no teLniedtt'N fr Iipli\X'CS whxio llaltd adveise pelsoille ation Ai te CuItl lt o ' Cnts ,\ivhJi included intcris cs regaldieig allfeged eimplosce drficiincies durtiig licl ' tltill it reiuired Illioii TlepreCillltiol vasx tehiscnd Se, i.1.. / Oil. 196 N R I Iit, pii Ii Iii C (iOrilljsZI 17 N I 1 i 9 ( t: M ; urur >,r, (I 1 ,rc 217 N .A1 99S. ' l h'ai er I II l le ieccnt t idecisionIs TIC Bidl has equileted tle Test.iilitioni DI' te vlilt'Is qu(o 1tzlC b ILequiirtig Ittliriiatiec corllettion of such personnel action. Sotlhti cttitl ?c/ It'L'JIt/liot ('Croqiuli, 227 NLRB 1223 1'177 ) Ireillstatellcri \vitl barckpavts t' eiplotees dis- cli.igcd .f sIsplfCecv t io[ iitkng tiilse clainis that a fellow ciilroc's lliijll xis x\xtik iclat':): (C ertii'd Grocers lul/.rinii, 227 NI RB 121 I 9/) I) backpi' and excision of iit ollo t oiitr irL c11t ipir U ]cc id lott for 2 x eeks because of lo, prodILctin). Sti lal \lig t o ille SIc itle %NIx 1')77 InMtervlxcw and the A\ugusi 17'1 giesLc e !roceedilig, tihese decisiions plainli lcitIle an ll( 'rlel Ihlat tilc Juis 22 witliing notice he be re- lltslNd tin leltnkiins' fil'. (liltl'I I)o tl IPostal Service, I cLiritltilc tht t e, als, calfl ot itln ilci reqtuirinlg the re- pi5,i nulIct to !elnkis t 1tlc $216.9 t iclucted ronm his salar ilsltlailt Jellkil!> ' nilitilCel ithoriiLtltiol. i h tile e plosers' iOllvItdi 't Ill tle IiNiiiit ,,i se, i n SXol iuht'StC l Be/ll, and in tilfij,'/ //r'L~,\ Wits ounld ihIaxtill lor the sert reason talii[xii htll ii l) i t it i te elpl))er hid permittlled Ulnion lrci eltitlxe t - piarticilpiate Ill tic Ii riigarlln-type inter- xixw, te avtiIsecs TcS ittl ,icttll hxl beli t t eployel ac- tluailx took iel' tlie iit lvi lViex illnght ntll have been taken or iilri igh l le ss e sSCe 1 ' cv S't I llT, /I t'rIn, 420 t1. . at >, '4 ,-\t A t nities tile cipll;ilir tTl ailirnl'atively " tl. ill. A! 11 x\, u1 1d hie 1 iet l liv' sie a:; lle ictloil ercn ilf the ulii ivprescitatsc had ieci periitlfcd to attend, the doutbts ticaiedl b hs ll xiiuil`,i tonduct about what he xoLid hiI\C doiil- sMlUild iii tllCess e iesolved against ]i t 1.a iv t'.l dd ,tilTii iTt,) ITonlS tile Postil S rer 's ie' onterl- tiiill t li i i i ' ,hIiilld ]Io fir l l c u iiC Itii ) ltili t $216.95 to Jlil'll, bl cLsC ltls ,IlIll [ Tw I ll fi l did Ilot constittite dlisCIi'lie ,il!d ssi> pii SLit-i .l;il t l lis ilttel aillthoriza- till l)l Sill i',slii Isneltoil \loolc testificd thtlt i Jell- kils h[ad ,,lt Ciirripll , \itf th I'tfl S e\ Lce's demaillnld o pyLtillL1i. ir c',ldl 1sc beniSi s)ibrCt [Ti dlsciplinla;ry ;ic- tl u l!. ill d i Ieed M.ooc J1l lOt ksxN xvhethecr Jelnkins xxirtlil. ll c L [hslvb i l IT it ' lt lu t p ild.) Nlorevecl, if' .I·iskiii iv id ITq ,,lv' s'u 0 lA Ni iii oft ttlc $2160.95 or coe II I1i h1 lc'. cil IlI vi ! I HlOt, li(' ct lIcci til hll I ii t llln lg to f'ul i t 'I['as illhtlli .u-f.i'l[. lio lil tlt' C'vl 't i1 a tiil.. I'llThe 'iostal Scil Icc.: Iii1tili.i lill tis pi llenllt (lid tlot coll- sliute ,iNLo ll lnc DCvtul,st JtiI Nln Iln tL[LI txxAed the Illine 1iill ills io' slo t . il iu I'ostii SNci\ itS l,itoil tie doubilts 'cilt.'vil til ' il ,"ihcu\XC- L aitiltiii l f 'r pl-ctirlr. illt i 1 , i It . i, 'L · ' I ... t'tth . ' ulkIcrs pcrsotInel .i rhill 'I' i ,l ; .lc 1I tti"L 'i . I it l l il t ' l. !ll l g III ISC hb) tl I)t , tli o tigi r -I . C 'l,.ic', % 1t"i ll w eIpItI lJ:I Il t ~lci; rs, d Ir ict ,] i i , , i, 1 ) Ir t , * .. l v . il dt'en TI. lwch ,- lSL.pors fll t iLke L]i k tl L' IMIs l C1. , - ;l Si C .k ll- Ikl tl' S IC C CkdI0 iJ; el ,tiken 11, i Ir. ,' , ' H /ilit 1: 1 Cir k I'[ iUvL riCL ' ', t i l] i, t le Id je) t in the I11[CI ,L 1S \1 / I R st . 1...,.,,,.:,.,: K~,~ ,. r, 4[ £di 2! S'7 2d (u 19l18, cert ,:Crlic '(l t ' / . .. i-t' ,r/. l /.i 214 N R 7 78tl0 78t 1i' i I,itcc I il t il J i' Cr i tI t lti ['I v r ilq llrllr lt ha cl Ilage- i,l 1 l Sl I tll Irt1 c'Itctl 11 -x . 'it 't ''" It d frti trr o[ - tiiu natl- it lilt ic i t i [m ' l i Cl Il[ J Ir , .' Hil li idjc I :lcd I ecrkins I k I i t1L ] 'cu N il lill i tiL,,L::. fl iii 'l i ilii' %1 Iti' .g ill'i n/lll:. . Ilc tv -15 'lI I, 1 Li, Cl tLikill tci)kilS' CirIC ,Illti. I t ' .'ll Sl A Ir1[, s'1 - Ittdkl '1]' 1, cmI pI l w¢ '1C li dlllll.[C(i i l 'Ili - liI cI li l tL , q rriLi r i i '' tI 11hT m ! L bLlcd } .qi. , ',: 11 11 111, il' L ll r 1 t.ll I llclls ftbr !' I'Ui '' iit' c, I ' i c Iil, , it / 1 s., , c i i 154 t N It I ) STl \I S P()SI \I S:R\ ( I TIhe Postal Serice conetnds that In ans c\cilt n, tlirlmla tive relifct' sh.tild e aitordcdtl to Jnkins oil the hi. o the I:Febhruar 2 inlcrvie , wil th e postiTI InlTSIcclil-r bcCitiJse i the Max 27 interlie[ ith he securilx flicerls hli iig which Jenkins was alforded I'ilnlurrnu ri!hllts Iand hbeclC the July 22 letter oit 'warnine issued Io Jenkinl s i:1 Jil!c'Cll, issued iwithout regard lo to e -ehIrulrI t ilelrs cx ()t course, all of' the eidence regardinlzi the I)o t li S rltc". real basis tbr issuing the ill ?2 lettel hies sole \ilt!in tile' knowledge of Postal Srx ice mllniagtiicnl t pir siTln i nld the Postal Service's , wn records. I he I nl sllsxi;lli c\ de11ce produced bh the Postal Serlike in suiptlr!i ,t it, t olienti that enkins' interview with Ptil Inspeil-i ltienilwn and Strachan did not afi'Cet tlil dcixion Io issurc hl letticr ot warning consists o ertain prtilns ot NIolic'x lind ottio tInes' lestil. /\1 x ps cxi isis Iotl. s i 1 Ipc ct0r tohles. xith Isonic CIlrroboir:itton bx \irc ttlestifild thit hIolhes had Iexer plIejUared ;i Illililte IllTi. iiliTu regarding his riminal inxeltii.ition ol' .llkins alind t iIl, body had ever askedl o see I Iagedorn's and Slltr ht', icli notes, which 1lieomes zhad ret:lileCd il l c t!tC tiotht'.! IHtilmes testified thali ('ruse arild Scot tie cLI it li tc.iu hi regarding Jenkins Als.,). Mnlote Iciticdi thl:it so i:i :! tie knew, ini te Postal Ser\ ic's ltililig e .t'tkiis' riCV;ilCC no ilatal about Jelnkin\s i-fr I lols' ctiltiiI tli tt were utsedl. For dlllemanor risonlls I beCliC ,rc Ilit []iel es illl Moore were were truthful in so cstifxini i Io elex\ei. diilIl tLhe May 27 interieu ('rilic asked .Ionkin l 11i hlii h:l pe nci dulring te [clitlirX 2 inter xx ,, [ id Iciks ri-liei: Solt skipped questilons ot1 his cp pul;lpu i sl t lk L ,li.t'1itIi1111. trol Jenkins that the sit questin, l;ild bcin ;isked dti ing the ebruaris 2 iletrlie ini ('ru.e ;ill eti. ciell t Jenkins a;ls not ginl to h diislciphncd It: conxctelttiltiC Ot the NMa 27 interi lcx l el, he ici'ii ,i '. i.lit,l! c ell- tual; issuel Ilo Jcnkti tii te ,/ it, ilI ;iilI x.crii a! the same contenlts a the lettelrs l ii in t othul Uliit tedly issue o the basis ,1 the posil[ li.ptthus' Flti ri le\s Further, ('ruse and \Scott hadl I I , P i hcts ccn tnhil N1 ii' interview ixith enlkins hllnd [ itc ltIlC 7 il/tOe )' then il1lill[, randurn to discuss the f[cbrllils 2 intclxile Itilh lLaicinu and Strachan. ;andlt thell is nlo estiini;l dCilA iil thit ll, II conversations occurled"l Also. i pll plu-tedl dlibillc the Ma 27 conxcrsation. lx cIrle liriIIllitillI contatillcd some assertions xlhiic 'sC-CI ilttlral i sitl I S t11 ( Cisos' source te record fils 1,t) shsl In Itlditilli Sl!pCrxlx i f/i/- urro a;ts not called as a sitTesi [l1 is lhe c\ Icti C Oili which he based his Ju.il 22 Icltct o, li' it n tii ti , Jllli, and Postal Inspecior Witkiiskl i;s'. nit ileli 1 a i kltess to specif\ the evideni e on v fli ii I ;I.c 1 i \ i,\ust I' recometidatlon that iCllkiil' Ictilr o,' L i t elllg be sII- trained, xNhich retlint litlll.l x is 'iCo]'til 1 N o(\lo Oi the basis of Witkowski's niemnr:induil. I i;llN, .Iikils' February 18 authorizalion I t ilnT:.:lltnl dldltictill o $216.95 fronm his paichck, isa' iuLct n. int the JIme 7 (ruse-SCott rIlcntio.itnklii. x I I el t il ilIi Jl kI I 'Ns LIIi haS swen thes e e ilh 4ml Holm s ktl,,n-tl ' lit,s ' ,: , o A T t'¢ oblaitled these notes h subpitai, iT c , 1.d n, , 1, ,,rif t ll II/ . I, C I -,e c 17 AS prc ioix[\ 1lieed I LIgcd¢: .i,! Sl1,i [5,i- i t .i ,rl te }1 , P ,:-t Se' sice'shehali ibiu ihs itt , sk. i belhal t , : .'l. ,' br *t'HC ('ruse and Scotil i r tt l il i ' .t.d] k k . , , ,, I,/ I 'r , d . Ib'A!, ;IN ,Iticn eNi xi llt ii. ic - ' 'hii i. it ' .22 litcI l arnii lg. an111d \x l Iincluded in the .lllm11;ar of nl ngicmnt's it',ol! n i'tl tinex in \ itiko\\ ski's Augist 5 iti)r i ntl mI to NItore recgirdinLg .lenkins' rieillce I' he Pi.LTlilils so allithOrtCd hid all beenl mla e hbefore tht \Ma' )2 'l lsC Scott i illc\t O(1 this stlate 1 the recold. I decline to ind thal tihe iuli 22 lcr of \Ii11n \\; is x.icxl ind l utheld ilollt rega rd to I th I l;tgc rn-Str.ll: i'i tersic. In t the irst place ill tl I .ele it ! t' llllnents llLteS t t J enkins' $2 1.95 deduction ltlh'rlatl11tll. \'i lliC n1lltCld .io1slt enltirls I rolll the II lVtidrtl-Sti .IIl;i itCrs\ is :itl .is ttot n Itlectled a ll by the ( ill ,c-SctIll ittlri lc\ I nthermore. the lPostal Service' filille It : ;ik it i, sc\sc h cdl' I antd Str:challn ahether the,, rl:icld ii i i )i iep i ot ti thei r iiter cx to ('ruse SL l.tti Pi/urr el \\ itko li it nd the Postal Set lie's tail- tie I Ci11 thue lst tillI il idii lt:tal as \ite s ci lu me to ilItcr lit such 1oril iCpo llt xerc nmadel. ,Zps (',7!torfl(ol, I I N R 1 23l 1 S I hix hnlitrenee is ti rctlhenei b! S, i it'S :i :li 'tlileilt it O! lli i'titl ts :M cred lll tlte I lage- 1ii Stii i.; ili ii; 11r c i1id Ir\ the h lhll Ix iexplained il .l! Ciclti Cis t! sci lic tttli IItlti of tlec ( 'r -S Nll litr- \ilex Ii i'c t polil L l tl' t \\lic thex slbit. hil lo Ian- i:L'uicl'I t 1 in , ilx. Ii hc Pt Itil S lr " ic llhis tilcd tio (liseclltrgc it bhiurliel (In 3-l1 Iqri i t lest il hisng that thl letter ot \it1111 iiti i .itilitiC ;e i1ere ot ased at all ili the [;i.es,,ri tl.:~ih;Ii ileix \i\\. particilal ili lx o the f t Sx CC . Ii)iliilled e elitiatce on tenkiins' sdetlLieIon :Ililot'I i i/liii ('I'IlSC' iIxlra1? 11'c (JI lelkillis iiht hIIe \x\Ilitd liit bi iisciplinlle ill nl'11it itIC it the ( rue-Scott inltr- . x I i thl t; it tI I .ltkis' ]Ittcil ot irninL ColntiIs llothly oii it, tie diitiTi'iislh it t mIl the 42 lettelrs ai- I liliexl. Rved ii i it [t. tptill l 1l 0 t tlors l txti cie shlii Il c tfi Icd , , ,kl' . becliSe lthe rie ne tile id Oil hi,. hlalt lid ni t hli.:c the proplrict> ot he $I 9, "Ilcttl it' tlei.liid"'' tlltch lellkls had [ tolplied \ith and %'c.tic the gries :i l ig:irding his letter it xililIIg \ as ii tent : iIt',lt I hlis contetion nlStneceix es the Icx v, l Rp.ii.l'cI C Illtct xas nliwlill. lie rea- x,rlfi tl tiIIlI Rlp, clcnl to remeti i. and Respon- I8 t rce,1. ;IS IllHT1;btUIlJ Ntxre r' r i~ n c Lhll ]It lhlklO k h% o r11 stl[ dii.its ', i lt l ,ici L'I - ir x C[ hi F l xrcr III tcl tasedt p;irtli l he tJngc .,trn -siir,iilc i tlrtu Jal*, " , /i er i 'i(iirio . t t 211 N RB X91. i i i itt l it l ii it . idt tI Rsltllitlit'I s prehearing nili in, t Lr IUtIrlItiiT\ itiJdgtleri lil ] '/i'. nd a li. eti that Flie "Tiler ot dil.latd" Ilnd related ICtlIlF tCe l l 12*c. hb[e¢ iild l.ilitlliix rtrable. nd ihe (encral ('ioiisix l dttes 1 ;! ipip?-dl o COFIt-lT .![h rltxe 1 s iialterital ;tso, iFtli 11CI thAl .l- [ihoitgh i til Ciltplxtee uI x tilc grC fl .nce xwiihoi thc I nlionl p.rtilpilion. ,ql; Ih I lill I[is the p ,,,-. I,, ap'ea Ill prc,urc arbilrati l l'Al a dverse dIeterrnllriilil i hi r.rd t l l n) -huo ihether Jelkins isked th I nliln o ippcd ln ?ckank i.?r ding the ltiter Ofi arning Je ls ne.c¢r iled a ]li-'M i '!r ;rL gih!ll(A) th.irge apgrllsl the I lion Itak ig I., a hIacth e1 IW xer 1'11Ai i 'r-celilllS F;i't he t t oan u ld J1l lt i x11t ' Il i eltd llt[Is i t _r' tI i .c p 1ix][ lai c I th ;ll eIi Scri-i e blil iethei l I ritIit L,~:lt11U li k*'11F111k]]O11 t.:11i IhOle ItlC%.II %t' ,litl ll . dl!t Ilill .litl. Ir i1t h; d [;tiT]1 ( , . I ntr/-1 ' i t rhc I1 a* ( .mjtdi,, /i, ), 215 N I Rt I I ' ! i 1 ,.Ill , ,,I , ,, 'i 'I tr x i 1,i ,In /' t1 ft l it,'I) (i ,h :, IJ ,,j k['', ~ r , , ,' ,i l f 1,, ' A , ,, J, I i r, I , a t '!': ~ ""7'~:l' ,' I N I 11 'mt l '% I xus i an Is11su ! ~ . k- ,iil h R -i ld, t'h ,: 11, -. ', d t x h'[.iT[~ l 1/ !l ? I1 , h po hilllrc . J111, n, ,Axe r0lr! iw h! t P1l(Ce ! I[lwt L --11k]% h l, ,[ o , 1 [,-il l h is gllC%- ,[1t T/,' ']'in/-r 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's rights after affording that remedy. Denial of' Wein- garten rights during an investigatory interview is unlawful partly because such denial may render the evidence ad- duced during the interview inaccurate or incomplete. Also, once the employer makes a decision on the basis of such defective evidence. "it becomes increasingly difficult for the employee to vindicate himself; and the value of representa- tion is correspondingly diminished. The employer may then be more concerned with justifying his actions than re-exam- ining them." Weingarlen, 420 U.S. at 263 264. In short, Respondent's unlawful denial of Weingartenl rights at the initial investigatory interview could have contaminated, as to any Jenkins grievance about the deduction or the warn- ing letter, the entire functioning of the grievance-arbitration procedure, by affecting to Jenkins' detriment the evidence presented to Respondent which led it to issue the two de- mands for payment and the letter of warning, which docu- ments may have rendered Respondent disposed to discount corrections or amplifications of the tainted evidence on which Respondent based its initial public commitment about what action should be taken.40 In this connection, I note that both demands for payment alleged that Jenkins had purchased from his uniform allowance some items which did not comply with Postal Service uniform require- ments and that Jenkins' letter of warning alleged that he was reimbursing the Postal Service for non-uniform shoes." These documents aside, there is no evidence what- ever that Jenkins bought any shoes which did not conform to Postal Service uniform specifications. Moreover, as a practical matter, which party actually has in hand the dis- puted $216.95 at the outset of the investigation (as Jenkins did before the February 1977 interview) may in itself have some effect on who has it at the end. After restoring the status quo ante, Respondent will be free, so far as the NLRA is concerned, to conduct a lawful investigation of Jenkins' use of his uniform allowance and, by using lawful procedures, to take such consequent and lawfully motivated personnel action as it wishes. While the evidence in the record before me may well point to a misuse of Jenkins' uniform allowance, this question was not fully litigated, and available evidence favoring Jenkins may not have been of- fered.4' 4cf. N.L.R.B v. Acme Industrial (Co., 385 U.S 432 (1967): Morrison. Knudsen Company, 213 NLRB 280. fn. 2, 287 (1974), enfd. 521 F.2d 1404 (8th Cir. 1975). XI The Postal Service contends that Jenkins should be discredited because he "falsely signed certifications on uniform allowance vouchers," "conced- edly misused his uniform allowance, land] made voluntary restitution of the money to escape criminal charges." I perceive no evidence that Jenkins paid the S216.95 to escape criminal charges rather than to escape discharge or other discipline. Also, for the reasons stated in the text, it cannot be found or assumed in the instant case that Jenkins improperly signed these vouchers. Jenkins' statement to Hagedorn and Strachan about buying shoes for per- sonal use was not made until after they told him, in effect, that concealment would be harder on him than admitting wrongdoing (which assertion was likely untrue; see fn. 34 supra) and had denied his request for union repre- sentation (and, at least arguably, for a lawyer), The Postal Service heavily relies on his deduction authorization. However, whether or not Jenkins had misused his uniform allowance, the fact remains that the Postal Service had paid the amounts called for in the vouchers which Jenkins signed and had charged such payments to his uniform allow- ance. Accordingly, Jenkins' testimony, in effect, that in signing this authori- zation he had agreed to "pay back" the Postal Service is equally consistent with a view by him that he had misused his allowance and a view by him that he had not. The words "I acknowledge that I am indebted to the Postal Service" were printed on the form he signed. The record fails to show Finally, Respondent contends that affirmative relief to Jenkins is precluded by Section 10(c) of the Act, which provides, "No order of the Board shall require the reinstate- ment of any individual who has been suspended or dis- charged, or the payment to him of any back pay. if such individual was suspended or discharged for cause." Of course, Jenkins has not been suspended or discharged, and my recommended Order does not call for his reinstatement or for any hackpay. In any event, the Supreme Court has held that Section 10(c) does not deprive the Board of power to order reinstatement and backpay for employees dis- charged because their employer thought their work could be (lone more cheaply by an independent contractor and therefore contracted out the work without complying with his legal duty to consult their bargaining representative, even though it wits not possible to say that if he had so bargained, an agreement would have been reached under which the employees would have been retained. Fibreboard Paper Products Corporation v. N.L. RB., 379 U.S. 203 (1964); see also Southwestern Bell. 227 NLRB 1223: Certi- fied Grocers, 227 NLRB 1211: Strachan Shipping, 234 NLRB at 513-514; Port Dnan (Co., 180 NLRB 590 (1970); Unlited Steelworkers of Anerica (Iinter-Royal Corp.), 223 NLRB 1184 (1976). For the toregoing reasons I conclude that the remedial order should include excision of the letter of warning from Respondent's records and files and repayment to Jenkins of the $216.95 deducted from his salary, with interest as pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977),42 Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Sec- tion 10(c) of the NL.RA, I hereby issue the following recom- mended: ORDER4 3 Respondent, United States Postal Service, Chicago, Illi- nois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Requiring any employee to take part in an interview without union representation if' such representation has been requested by the employee and he reasonably fears that the interview will lead to disciplinary action against him. b. In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. whether, without this language, the Postal Service would have accepted his arrangement to pay off by installments an amount which he allegedly al- ready owed and which could likely have been covered by a single 2-week paycheck. See fn. 35 supra. This authorization aside, at no time after the interview where he was denied eingarten rights did Jenkins concede misus- ing his uniform allowance. "See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4' In the event no exceptions are filed as prosided 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 waised for all purposes. 156 UrNITED STATES POSTAI. SERVICE 2. Take the followin affirlati e action which is neces- sary to effectuate the policies of the Act: (a) Strike and physically remove fromi its records and files any reference to the letter of warning issued to Eddie L. Jenkins on July 22, 1977. (b) Pay Eddie L. Jenkins $216.95, with interest. as set forth in that portion of this D)ecision entitled The Rem- ed) ." (c) Post at its facilities in Chicago, Illinois, copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Re- gion 13, after being duly signed h\ Respondent's represent- ative, shall be posted by it immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places wvhere notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered bx any other mate- rial. (d) Notify the Regional Director for Region 13. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. " In the event that this Order s enforced h ajudgment of a nited Sitaes Court of Appeals, the words in the notice reading "Posiec h Order of the National l.abor Relations Bo,ird" shall rea:d "Poslted Pursuant to a Judgment of the nited States Court oli Appeals nforc ing an Ordel of Ihe Nalonal;l I.abor Relations Board" APPENDIX law. We have been ordered to post this notice. We intend to carr our the order of the Board and abide by the follow- allg: \VI- wVIII N require an eniployee to submit to an interview with our representatives which he reasonably fears might result in his discipline while den,,ing his request for union representation during the interview. WV \'ll t Nor in any like or related manner interfere with. restrain, or coerce employees in the exercise of the rights guaranteed them b: Section 7 of the Na- tional Labor Relations Act, as aended. It has been found that we Issued a July 22. 1977, letter of warning to Eddie L. Jenkins. and demanded and received $216.95 from him, in consequence of our conclusions based partly on an interview with Jenkins during which he wraSs unlawfully denied union repre- sentation. \I' VitI strike and physicall 3 remove from our records and files an? reference to this letter of warning and return the $216.95 to Jenkins. with inter- est. The National Labor Relations Act and the Board's Order permit us to issue a second letter of warning to Jenkins and to require another money payment from him, both motivated by the same alleged conduct by him which led to the July 22, 1977. letter of warning and the $216.95 payment hby him. b using means and procedures which do not violate the National I.abor Relations Act, as amended. UNllt D SAItS PO()S AI SR\[I( I NOTICE T EMPIY() EiS POSTED BY ORDER OF Tlt N IIONAI. LABOR REI riONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence. it has been decided that we violated the 157