Postal Service

POSTAL SERVICE 347 NLRB No. 89 885 United States Postal Service and American Postal Workers Union, Local 232, AFL–CIO. Case 9– CA–42466 August 11, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On April 20, 2006, Administrative Law Judge Keltner W. Locke issued the attached bench decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision in light of the record and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the rec- 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) when Supervisor Dorothy Johnson refused to allow Union Rep- resentative Robert Gardner to speak during a Weingarten prediscipli- nary interview of employee Robert Bruff, we reject the Respondent’s contention that the judge’s finding is inconsistent with St. Francis Hotel, 260 NLRB 1259 (1982). In St. Francis Hotel, the Board found that the employer did not violate the Act by issuing a memorandum to supervisors giving examples of how to handle Weingarten-type meet- ings. The memorandum stated, in part, that “[t]he role of the shop steward is to observe and assist Mary Jane [a fictional employee] in responding to questions, however, the shop steward may not speak for her.” Id. at 1259. The Board found that the memorandum did not inter- fere with employees’ Sec. 7 rights, because the memorandum was not distributed to employees, and was ambiguous in any event, as it could reasonably have been interpreted to mean only that the shop steward, in assisting the employee, could not prevent the employer from getting answers from the employee herself. Here, in contrast, credited testimony establishes that Supervisor Johnson told both employee Bruff and Union Representative Gardner that Gardner was present to witness Bruff’s predisciplinary interview and that he could not speak on behalf of Bruff. When Gardner ques- tioned whether he could talk during the meeting, Johnson replied “no.” Thus, we find that, unlike in St. Francis Hotel, there was nothing am- biguous about Johnson’s statements to Bruff and Gardner. Those statements limited the union representative’s role to that of an observer, and “[s]uch a limitation is inconsistent with the Supreme Court’s rec- ognition that a union representative is present to assist the employee being interviewed.” Barnard College, 340 NLRB 934, 935 (2003) (respondent violated Sec. 8(a)(1) by denying an employee’s right to have a union representative assist during an investigatory meeting) (citations omitted). For this reason, we find that St. Francis Hotel is distinguishable from the instant case. Finally, we disavow the judge’s suggestion that Supervisor John- son’s statements indicated a lack of intent to conduct an impartial in- vestigation of Bruff’s alleged infractions. ommended Order as modified and set forth in full be- low.2 ORDER The National Labor Relations Board orders that the Respondent, United States Postal Service, 2323 City Gate Drive, Columbus, Ohio, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Prohibiting union representatives from speaking during predisciplinary meetings with employees and during all other interviews of employees which rea- sonably could result in disciplinary action. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Permit union representatives to speak at pre- disciplinary meetings with employees and at all other interviews with employees which reasonably could result in disciplinary action. (b) Within 14 days after service by the Region, post at its facility at 2323 City Gate Drive, Columbus, Ohio, copies of the attached notice marked “Appen- dix.”3 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the fa- cility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since October 4, 2005. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a 2 We shall modify the judge’s recommended Order in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container, 325 NLRB 17 (1997). In addition, we shall modify the judge’s narrow cease-and-desist order to conform to the standard language used by the Board in cases involving respon- dent employers. 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886 responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Eric Taylor, Esq., for the General Counsel. Arthur S. Kramer, Esq., of Philadelphia, Pennsylvania, for the Respondent. BENCH DECISION AND CERTIFICATION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. I heard this case on March 14, 2006, in Columbus, Ohio. After the parties rested, I heard oral argument, and on March 16, 2006, issued a bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules and Regulations, setting forth findings of fact and conclu- sions of law. In accordance with Section 102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Ap- pendix A,” the portion of the transcript containing this decision.1 The Conclusions of Law, Remedy, Order, and notice provisions are set forth below. CONCLUSIONS OF LAW 1. The National Labor Relations Board has jurisdiction over this matter by virtue of section 1209 of the Postal Reorganization Act. 2. The Charging Party, American Postal Workers Union, Local 252, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by refus- ing to allow the Union’s representative to speak during a discipli- nary interview. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not engage in any unfair labor practices alleged in the consolidated complaint not specifically found herein. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to post the notice to employees attached hereto as Appendix B. [Recommended Order omitted from publication.] APPENDIX A BENCH DECISION KELTNER W. LOCKE, Administrative Law Judge. This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the Board’s Rules and Regulations. I find that Respondent vio- lated Section 8(a)(1) of the Act, as alleged in the Complaint. 1 The bench decision appears in uncorrected form at pages 3 through 26 and in the corrected version as volume 2 page 283 through 308 of the transcript. The final version, after correction of oral and transcrip- tional errors, is attached as “Appendix A” to this certification. PROCEDURAL HISTORY This case began on November 17, 2005, when the Charging Party, American Postal Workers Union, Local 252, AFL–CIO, filed an unfair labor practice charge against the United States Postal Service, which I will refer to as the Respondent. After an investigation, the Regional Director for Region 9 of the Na- tional Labor Relations Board issued an unfair labor practice complaint against the Respondent on January 25, 2006. In issuing this Complaint, the Regional Director acted for, and by authority delegated by, the Board’s General Counsel. I will refer to the General Counsel’s representative as the “General Counsel” or, simply, as the “government.” A hearing opened before me on March 14, 2006, in Colum- bus, Ohio. On that day, both the government and the Respon- dent presented evidence and, after both sides had rested, argued the case orally on the record. Today, March 16, 2006, I am issuing this bench decision. UNDISPUTED ALLEGATIONS In its Answer to the Complaint, the Respondent admitted a number of allegations. Based upon those admissions, I make the following findings: Respondent’s law department received a copy of the No- vember 17, 2005 unfair labor practice charge on about Novem- ber 21, 2005. Receipt of the charge on November 21, 2005, a Monday, is consistent with the allegation in Complaint para- graph 1 that the charge was served on Respondent by regular mail on November 18, 2005, a Friday. I conclude that the charge was timely filed and served. Respondent also has admitted that it provides postal services for the United States and operates various facilities through the United States, including a facility at 2323 City Gate Drive, Columbus, Ohio, which is the only facility involved in this proceeding. I so find. Respondent also admits, and I find, that the Board has juris- diction over the Respondent, and this matter, by virtue of Sec- tion 1209 of the Postal Reorganization Act. Additionally, based on Respondent’s admissions, I find that at all material times, the Charging Party has been a labor organization within the meaning of Section 2(5) Act. Also based on Respondent’s admissions, I find that the three indi- viduals named in Complaint paragraph 4 are supervisors of Respondent within the meaning of Section 2(11) and agents of Respondent within the meaning of Section 2(13) of the National Labor Relations Act, which I will refer to as the Act. These supervisors are Supervisor of Maintenance Op- erations Dorothy A. Johnson, Supervisor of Maintenance Operations Tom Lane, and Manager of Maintenance Opera- tions Gary Sunderman. Complaint Subparagraphs 5(a), 5(b), 5(c), and 5(d) Complaint paragraph 5(a) alleges that about October 4, 2005, Respondent, by Dorothy A. Johnson, conducted a pre– disciplinary interview of its employee Robert Bruff. Respon- dent’s Answer admits this allegation and I so find. Complaint paragraph 5(b) alleges that employee Robert Bruff had reasonable cause to believe that the interview de- scribed above in paragraph 5(a) would result in disciplinary POSTAL SERVICE 887 action being taken against him. Respondent’s Answer states, “Respondent Postal Service lacks information sufficient to form a belief as to Mr. Bruff’s state of mind leading up to and during the predisciplinary interview.” That Answer is not responsive to the allegation, which does not concern Mr. Bruff’s state of mind. Rather, the Complaint alleges, in essence, that Mr. Bruff had reasonable cause to believe that the interview would result in disciplinary action. In other words, the government does not have to offer testimony or other evidence to prove what a given employee actually thought would be the result of a meeting with a supervisor. In theory, an employee might be under the mistaken impression that his supervisor was going to surprise him with a birthday cake. The Board does not concern itself with what the actual em- ployee might have been thinking. Rather, the Board determines, from the evidence, whether it would have been reasonable for someone to believe that disciplinary action would result from the interview. In a sense, we are talking about that hypothetical “rea- sonable man” who pops up in so many areas of the law that he will never have to worry about being out of work. However, Complaint paragraph 5(b) in effect pleads a legal conclusion to be drawn from the evidence, so I do not suggest that Respondent’s Answer is insufficient. However, it is appropriate to make the point that the Board here applies an objective standard rather than a subjective one. The Board similarly applies an ob- jective standard in determining whether an employer has inter- fered with, restrained, or coerced an employee in the exercise of Section 7 rights, in violation of Section 8(a)(1) of the Act. It does not look to whether particular words or deeds actually had that effect on a particular individual but instead decides what effect the conduct reasonably would be expected to have on employees in the exercise of their statutory rights. The present Complaint alleges a violation of Section 8(a)(1) of the Act. To resolve that allegation will require more than one step. First, of course, I must determine what evidence should be credited and then, based on that evidence, I must decide what actually happened. If the General Counsel has proven the factual allegation, then I must decide what effects the conduct reasonably would have on an employee’s exercise of rights protected by the Act. Let us return now to the allegation raised in Complaint para- graph 5(b), that the employee had reasonable cause to believe that the interview would result in disciplinary action. Although Re- spondent’s Answer doesn’t address this allegation, it is difficult to understand how Respondent could take issue with it. After all, the interview in question was called a “Pre– Disciplinary Interview,” or, in Postal parlance, a “PDI.” The name “Pre–Disciplinary Interview” certainly suggests that it would be reasonable for an employee to believe that discipline would, or at least could, result from it. Additionally, during the hearing, counsel entered into the following stipulation concerning the meeting: A preliminary disciplinary interview was held at the City Gate Drive facility of the United States Postal Service in Colum- bus, Ohio on October 4, 2005. That proceeding was attended by employee Robert Bruff, Robert Gardner, whose title is maintenance craft director for the American Postal Workers Union, Local 232, and, for the United States Postal Service, the interview was attended by Dorothy Johnson and Tom Lane, who are supervisors for maintenance operations. The named individuals were the only persons in atten- dance. The stipulation’s use of the term “preliminary disciplinary interview” certainly connects that meeting with the prospect of discipline. Moreover, before the supervisor conducted this particular interview, she prepared written questions which be- gan with this statement: “A series of Postal infractions which occurred on Thursday, September 22, 2005 has brought us here together today for a preliminary discipline investigation.” It would be quite reasonable for an employee to believe that dis- cipline would result from an interview which the supervisor called a “preliminary discipline investigation.” The parties’ stipulation and other evidence clearly establishes that an employee reasonably would believe that disciplinary action would result from the “Pre–Disciplinary Interview.” Accordingly, I conclude that the government has proven the allegation in Complaint paragraph 5(b). Complaint paragraph 5(c) alleges that “Respondent, by Dorothy A. Johnson granted employee Robert Bruff’s request for the presence of a union representative during the interview but prohibited the union representative from participating in the interview.” Respondent’s Answer agrees that Johnson allowed Bruff to have a Union representative attend the meeting, but denies that Johnson prohibited the representative from partici- pating. Complaint paragraph 5(d) alleges that Respondent, by Doro- thy A. Johnson, conducted the interview with Bruff even though Respondent prohibited the Union representative from participating. Respondent’s Answer admits that Johnson con- ducted the interview, adding “but not in the manner described in paragraphs 5(c) or 5(d).” Thus, the way Johnson conducted the meeting is a disputed issue of fact which I will examine later in this decision. Complaint paragraph 6 alleges the conclusion that Respon- dent’s conduct violated Section 8(a)(1) of the Act, a conclusion which Respondent denies. The Evidence Robert Bruff had worked for the Postal Service more than 19 years. However, he had never been subjected to a pre– disciplinary interview until October 4, 2005. The interview concerned some events which reportedly took place on Sep- tember 22, 2005. His supervisor had received reports that Bruff worked more than 6 hours without taking a lunch break, which appears to have been against a rule or policy. Then, Bruff reportedly left work without asking his supervisor, got a sandwich at a fast food restaurant and returned to the post office with it. It appears that he was in a hurry to get back to work. Ac- cording to a report received by the supervisor, Bruff did not use his identification card to get back onto the Postal Service prop- erty but instead followed quickly when another car went through the gate. He then put his car in the management park- ing lot and returned to the building. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888 Before the pre–disciplinary interview, Supervisor Johnson wrote out a list of questions, which was her usual practice. Most of these questions were somewhat similar to the kind a lawyer would ask on cross–examination, in that they sought “yes” or “no” answers rather than explanations. Those questions are not at issue in this proceeding, which concerns the statement Johnson made before she began asking the questions. When Bruff learned that he was being called in for a pre– disciplinary interview, he contacted a Union official, Robert L. Gardner. At Bruff’s request, Gardner accompanied Bruff to the interview, to provide Union representation. As noted in the stipu- lation, another supervisor, Tom Lane, also was present at the meeting, but Lane did not testify. Based on my observations of the witnesses, I conclude that both Bruff and Gardner were reli- able witnesses. To the extent their testimony conflicts with that of Johnson, I credit Bruff and Gardner. However, Johnson’s account largely supports that given by Bruff and Gardner. From Johnson’s testimony, and from the questions she wrote down, I formed the impression that Johnson was very orderly and attentive to procedure. It would surprise me if, after preparing questions in advance, she simply ignored them and decided to have a chat. To the contrary, the evidence suggests she followed the written questions carefully. They began with this statement, which I quote verbatim: A series of Postal infractions which occurred on Thursday, September 22, 2005, has brought us here together today for a preliminary discipline investigation. This is my meeting. I will be making statements and asking questions in which I will record your responses in writing. Robert Gardner, your APWU steward representative, is here to witness this inter- view, but may not speak in your behalf. Based on the testimony of Gardner and Bruff, I find that Super- visor Johnson made this statement to them. Specifically, Gardner testified that she began the meeting by reading the questions and that, “in her very first paragraph she said this is my meet- ing. . .Although Mr. Gardner is here as your APWU representative he may not speak in your behalf.” Thus, Gardner’s recollection is quite similar to the document which Johnson had prepared. Bruff’s testimony is similar. In his words, “Dorothy had a piece of paper which she just started read- ing from the top.” Bruff further testified that, after Johnson read the part about the Union representative not being permitted to speak, Gardner asked, “You mean I’m not allowed to say any- thing?” According to Bruff, Supervisor Johnson said yes and then went back to reading from the sheet. Based on the credited testimony of Gardner and Bruff and on the written document prepared by Supervisor Johnson, I find that, at the beginning of the meeting, she told them that Gardner “is here to witness this interview, but may not speak in your behalf.” I further conclude that, in response to Gardner’s question, Johnson confirmed that he was not allowed to speak during the meeting. Further, I credit Gardner’s testimony that, after being told he could not speak, he remained silent. Gardner explained that, “I’ve been in the Postal Service long enough to know that if manage- ment gives you a direct order, you do as you’re told,” and then file a grievance about it later. Legal Analysis The Complaint alleges that Respondent violated Section 8(a)(1) of the Act by prohibiting Gardner from speaking at the meeting. Based on the credited evidence, I conclude that Re- spondent did not allow Gardner to participate in the meeting, but just to witness it. Therefore, I must determine whether this conduct violates Section 8(a)(1) of the Act, which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7” of the Act. 29 U.S.C. ‘ 158(a)(1). Section 7 of the Act grants employees the “right to self–organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection,” and also “the right to refrain from any or all of such activities. . .” 29 U.S.C. ‘ 157. In NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the Su- preme Court upheld the Board’s determination that an em- ployer violated Section 8(a)(1) by denying an employee’s re- quest to have a union representative present at an investigatory interview which the employee reasonably believed might result in disciplinary action. In Barnard College, 340 NLRB No. 106 (October 21, 2003, the Board found that an employer violated Section 8(a)(1) when it allowed a union representative to attend a disciplinary inter- view as a witness, but prohibited him from speaking. Respon- dent’s supervisor did precisely that in the present case. In I understood Respondent’s counsel correctly, the Respon- dent argues here that Supervisor Johnson did not tell the Union representative, Gardner, that he could not participate in the meeting but instead made that statement to the represented employee, Bruff. Johnson’s written “script” is consistent with Respon- dent’s argument, because this script has Johnson telling Bruff that his Union representative “is here to witness this inter- view, but may not speak in your behalf.” What possible difference could that make? Whether a state- ment violates Section 8(a)(1) depends on whether the statement reasonably would interfere with the exercise of Section 7 rights. The same harm occurs regardless of whether the supervisor tells the union steward that he may not speak, or tells the employee sitting next to the steward that the representative may not speak. The same message is communicated in either case and it has the same harmful effect. Based on the credited testimony, I conclude that, in response to Gardner’s question, Supervisor Johnson did tell him directly that he could not speak. But even if Johnson hadn’t made the statement directly to Gardner, making it to Bruff in Gardner’s presence causes the same harm. Respondent also appears to argue that Supervisor Johnson made the statement because Bruff had never participated in a pre–disciplinary interview before and Johnson, in effect, wanted him to be aware of the ground rules. This argument seems to imply that when Johnson told Bruff that his Union representative could not speak, she was just being thoughtful. For several reasons, I must reject this argument. Most importantly, the supervisor’s motivation is irrelevant. The Board determines whether a statement violates Section 8(a)(1) but considering that such a statement reasonably would POSTAL SERVICE 889 have an effect on employees’ exercise of statutory rights. When judging 8(a)(1) allegations, the Board is concerned with the effects of the statements rather than their cause. Moreover, Supervisor Johnson’s statement cannot be consid- ered an effort to explain the ground rules to Bruff because those weren’t the ground rules. In fact, what Supervisor Johnson said – namely, that the Union representative would not be allowed to speak – directly contradicted the ground rules negotiated by the Union and the Respondent and published in a booklet entitled “JCIM 2004 – Joint Contract Interpretation Manual.” Article 17 of this manual states, in part, as follows: “The em- ployee has the right to a steward’s assistance, not just a silent presence, during an interview covered by the Weingarten rule. An employee’s Weingaryten rights are violated when the union repre- sentative is not allowed to speak or is restricted to the role of a passive observer.” So Supervisor Johnson’s statement cannot be viewed as an ef- fort to explain the ground rules to an employee who hadn’t previ- ously been the subject of a disciplinary interview. What Supervi- sor Johnson said can hardly be considered an explanation of the rules because it directly violated the written procedure which management and the Union had negotiated. The only unlawful act attributed to Supervisor Johnson is her statement prohibiting the Union representative from speaking. Otherwise, I have no authority to judge how Johnson went about conducting the interview or otherwise performing her functions as a supervisor. However, her conduct is relevant to evaluating an- other of Respondent’s arguments, as well as Johnson’s credibility as a witness. Before announcing that the Union representative could not speak, Johnson said “This is my meeting. I will be making state- ments and asking questions in which I will record your responses in writing.” Those words and the tenor of her written questions, do not indicate any particular intent to conduct an impartial inves- tigation aimed at ascertaining the truth. Reading them, I get the impression that Johnson had already made up her mind about Bruff’s actions even before talking to him, and that she was asking these questions as kind of a pro forma exercise, a step that had to be taken but that she wanted to complete as quickly as possible. Allowing the Union representative to speak would slow things down. Respondent argues that it was official policy, negotiated with the Union and published in the Joint Contract Interpretation Man- ual, that a Union steward had the right to speak at such a meeting. Respondent further argues that Gardner, who had held Union office for many years, was well aware of this policy. Thus, the Respondent contends, when Gardner heard Johnson prohibit him from speaking, he was well aware that she had no legitimate basis for doing so. Therefore, Respondent contends, Gardner remained quiet not because he had to remain quiet but because he chose not to speak. For a couple of reasons, that argument is not persuasive. Re- spondent’s counsel is contending, in effect, that Gardner should have done something directly contrary to the supervisor’s instruc- tions, in other words, commit an act of insubordination. Such an argument seems remarkable because of a principle generally ac- cepted in the workplace: If an employee disagrees with a supervi- sor’s instructions, the employee still obeys these instructions but then files a grievance later. Gardner alluded to this principle while explaining why he kept quiet. Moreover, although Respondent suggests that Gardner, as a longtime Union official, had the courage needed to defy Supervisor Johnson’s instructions, the evidence indi- cates he would have substantial reasons to fear the conse- quences. As already noted, Johnson’s questioning of Bruff did not suggest particularly impartial or unbiased factfinding. The attitude which Johnson displayed towards Bruff reasonably would make someone hesitate before disobeying her instruc- tions. Moreover, what happened to Bruff suggests an environment in which Gardner might reasonably be concerned about the consequences of disobeying a supervisor’s instruction. Bruff later settled the grievance and I will assume here that he en- gaged in the conduct for which he received discipline. This conduct consisted of a number of things: Working longer than 6 hours without going to lunch, then leaving without telling his supervisor, coming back onto the Postal Service drive without using his identification, and parking in the manager’s parking lot. In other words, it appears that he got busy and then, run- ning late to lunch, decided to buy a sandwich and bring it back. Impatient to return to his post, he failed to show his idea and then parked in the managers’ lot which, presumably, was closer to the building. There is no reason to doubt that each of these actions vio- lated some rule or policy and they all occurred on the same day. The fact that Bruff received some sort of discipline would not imply that anything was unusual in the workplace. However, the way he received discipline is a different matter. Bruff’s rule violations occurred on September 22, 2005. Eleven days later, he received an “Emergency Placement in Off–Duty Status.” Management took this action under a provi- sion of the collective–bargaining agreement which applies in extreme cases such as an employee being intoxicated, stealing, failing to obey safety rules or appears to present a danger. From some tragic incidents in the past, it is easy to understand why the parties negotiated a procedure allowing the removal of an employee who appeared to be capable of injuring others. Bruff’s rule infractions did not fit obviously into any of these extreme categories. It appears that he simply wanted to get a sandwich quickly and return to his job. The letter suspending Bruff from duty addressed the question of whether Bruff’s conduct fell into one of the extreme categories. It stated: “The act of being off of the premises, on personal business, on the clock is in effect stealing from the Agency. Retaining you on duty may result in loss of funds.” It should be stressed the issue of Bruff’s discipline is not be- fore me and has not been litigated. It would be quite improper for me to pass judgment on Respondent’s labor relations prac- tices which are not before me and which do not concern an alleged violation of the Act. I mentioned Bruff’s discipline only because of Respondent’s argument that the Union representative knew that he had the right to speak at the meeting and had the courage to do so. However, the present record does not allow me to assume DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890 Gardner could have defied his supervisor’s instructions without reasonably fearing that discipline would result. Therefore, I must reject Respondent’s argument that Gardner kept silent merely because he chose to do so. Moreover, the 8(a)(1) violation does not turn on whether Gard- ner followed the supervisor’s order and kept quiet or defied it and spoke out. The interference with protected rights, which is the heart of the violation, inheres in Johnson’s statement, not in any particular employee’s individual reaction to it. Applying an objec- tive standard, and in accordance with Barnard College, above, I conclude that when Respondent prohibited the union representa- tive from speaking at the predisciplinary interview, that action violated Section 8(a)(1) of the Act. When the transcript of this proceeding has been prepared, I will issue a Certification which attaches as an appendix the portion of the transcript reporting this bench decision. This Certification also will include provisions relating to the Findings of Fact, Conclu- sions of Law, Remedy, Order and Notice. When that Certification is served upon the parties, the time period for filing an appeal will begin to run. I truly appreciate the civility and professionalism which all counsel displayed during this proceeding. The hearing is closed. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT prohibit a union steward or other union repre- sentatives from speaking during a pre–disciplinary interview or during any other interview with an employee which reasonably may result in disciplinary action. WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL allow a union steward or other union representative to speak during a pre–disciplinary interview and at any other interview with an employee which reasonably may result in disciplinary action. UNITED STATES POSTAL SERVICE