General Motors Corp.

85{} DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Motors Corporation and Jerry G. Allen. Case 7-CA-15990 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) TRUESI)AI.E On February 1, 1980, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, General Motors Corporation, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 'Respondenl has excepted to certain credibility findinlgs made by the Administrative Law Judge. It is the Board's established policy not to overrule an adminisrative law judge's resolutions with respect to credi- hility unless the clear prepondterance of all orf he relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 .2d 362 (d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Administrative l.aw Judge that a make-whole remedy is appropriate in this case, inasmuch as Respondent has not sus- tained its burden of establishing that it would have discharged Allen even in the absence of the unlawful ilieriessw Illioir Bell Telephonet Company. 251 NLRH 932 (I1980): lxaco, Inc., 251 NIRKH 633 (1980) Ideed. the record here indicates that in fact the substance of the unlaswful interview was a significant factor in Respondent's decision to discharge Allen. Thus. although the conduct fr which Allen ssas allegedly discharged occurred ,,1 January 5 Allen was not discharged until January 17. the day fllo Wing the unlawful interview And, although Allen was inter- viewed on three occasions prior to the unlawful interview Respondent did not see fit to discharge him until the unlawful interview during hich it obtained Allen's admission at least partially corroborating the accusa- lion hich formed the basis of his discharge Member Truesdale finds this case factually distinguishable from lixaeo. upra. a case in which he dissented from the majority ' application of the remedial test sit frh in Illinois Bell liTelephone vupra Member Jenkins concurs in the remedy, for the reason expressed in his dissent in Kraft Foodr. Inc.. 251 NLRB 598 (1980). 251 NLRB No. 121 APPENDIX NOIICE To EMPI OYI-SS POSrED BY ORDER OF- I -: NATIONAl. LABOR RH.ATIONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WI.l NOTr require any employee to take part in an interview, meeting, or conference where the employee has reasonable grounds to believe that the matters to be discussed may result in that employee's being the subject of disciplinary action, and where we have refused that employee's request to be represented at such interview, meeting, or conference by a labor organization. WE WLl.1. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act. It has been found that we discharged Jerry Allen in consequence of our conclusions based on an interview with Jerry Allen during which he was unlawfully denied union representation. WE WIL.. offer Jerry Allen immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equiva- lent position, without loss of seniority or other rights or privileges previously enjoyed, and we will make him whole for any loss of earnings he may have suffered as a result of that dis- charge, with interest. WE WILL also expunge from our personnel records any reference to the discharge of Jerry Allen on January 17, 1979. GENERAL. MOTORS CORPORATION DECISION ST ATII MFNT OF I H-E CASE THOMAS R. WIIKS, Administrative Law Judge: This case was heard before me on August 9, 1979, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 7 of the National Labor Relations Board. The complaint alleges violations of Section 8(a)(1) of the National Labor Relations Act, as amended. An answer was filed by the Respondent, which denied the commission of any unfair labor practice. The parties were provided full opportunity to make opening state- ments, to examine and cross-examine the witnesses, to in- troduce relevant evidence, to make closing statements, GENIRAI MI()I()RS CORP()RAII()ON 51 and to file briefs with me. he Respondent timnel filed a post-hearing brief. Upon the basis of the entire record, my observations of the witnesses, and the briefs filed by the Respondent, I make the following: FINI)IN(/S O F( I I. I Ht I BUSINISS 01 I1 11 RISI'ONI)tN I At all material times, the Respondent. a corporation duly organized under and existing by virtue of the laNvs of the State of Delaware, has maintained its principal office and place of business at 3044 West Grand Boule- vard in Detroit. Michigan, and maintains plants in the States of Michigan. Ohio. and other States throughout the United States. The Respondent is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of automobiles. The Respondent's Truck and Coach Plant located in Pontiac, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1978, which period is representa- tive of its operations during all times material hereto, the Respondent. in the course and conduct of its business op- eratioins, had gross revenues in excess of SI million arid purchased and caused to be transported and delivered to its Pontiac plant steel. alutinllm. iron, and other goods and materials valued in excess of $500.0(X) of which goods and materials alued in excess of $50,(XX) were transported and dli ered o its plant in Pontiac, Michi- gan, directly from points located outside the State of Michigan. The Respondent is nos and has been at all material times herein an employer engaged in commerce ithin the meaning of Section 2(6) and (7) of the Act. II. THil I BOR ORG;ANIZATIIN IN'OI VI-.) Local No. 594, International Union, United Auto- mobile. Aerospace and Agricultural Implement Workers, UAW, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. I HI. UNIAIR AtBOR PRACrICES A. The Issues The General Counsel contends that the Respondent violated Section 8(a)(1) of the Act on two occasions, on January 12 and 16. 1979, by persuading the Charging Party "into sacrificing his right to union representation over a matter which led to his discharge on January 17, 1979, by improperly leading him to believe that there was no potential for discipline over the issues being dis- cussed." I B. Pertinent Facts On January 5, the Respondent's plant security officer, Kevin Benner. was present at the parking lot of a bowvl- ing alley. On that date he made observations as to cer- tain conduct by employees of the Re-pondent. Thereaf- ter he filed a report w.hich came to he attention of the All dates hrein re I974 Respondent's manager of labor relations, Robert Goebel. Benner had reported to Gioebel that he had obser ed the conduct of certain employees which led him to belie e that property stolen from the Respondent's plant m as being sold at or near the bowling alley He also reported that the local police department as notified and that they had arrived on the scene and made arrests of certain individuals. Concurrently he reported to Goebel that he had also observed the presence of three union commit- teemen at the bowling alley on that date. There is no in- dication that his report in any way implicated the com- mittieemen vith the alleged theft and sale of stolen prop- erty. IHo, e er his report raised some questions as to the accuracy of the timecards of at least to of those com- mitteemen for the date of January 5; i.e.. Jerry Allen and Willard Sergent. enner had reported that he had ob- served Allen's presence at the bo linhg alle on January 5 from 9:07 a.m. until he departed at 1)0:55 an He also had reported that Sergent and another committeemanil vere present at the bow ling alley on the afternoon of the same day. On January 5, Allen had reported for v ork, and punched in. Thereafter from outside the plant he telephoned and requested that his foreman punch out his timecard at noon. His timecard for that date also re- vealed a second punchout time at 7:22 p.m. ithout any indication that he had punched in again during the after- noon. Allen testified that, on January II, as he ,`as leaving the plant he encountered Benner who asked Allen to identify himself. In that ensuing conversation. Benner told Allen that he had "orders to keep eyes on people that were leaving the plant." He further told Allen that he had observed Allen leave the plant on Monday. Janu- ary 8 (according to Allen's testimony), and that he did not observe Allen return. Allen told him he was right and that he did not return. On January 12. shortly after lunchtime in the plant at or about 10:30 am., Allen as summoned by Foreman Bohinke to a meeting in the office of General Foreman Hoyt Speed. Present in addition to Bohinke and Speed were Benner and Goebel. As Allen entered the room, he observed that all the participants had already arrived According to Allen, Goebel stated that there had been a theft of radios and that some "people" were apprehended at the bowling alley. According to Allen at that point he stated, "Hey if I am in some kind of trouble. . . give me some representation." At that point Goebel stated, "No, you are not involved in a theft. I just want to ask you some questions about your timecard there, and stuff." Goebel further stated, "You are not involved in any of that." Goebel, according to Allen, then stated that he wanted to ask Allen about his timecard and that he de- sired "to clean up a little matter here." Thereupon he proceeded to inquire of Allen as to some handwritten scribbling on the timecard, as to why the timecard as punched out at 7:30 p.m., what time Allen had actually left the plant on January 5, and what did he do after 12 p.m. on that particular date. According to Allen, he re- sponded that the scribbling was hb the timekeeper and related to a dispute as to holiday pay for Monday (appar- X52 I).tCISI()NS OF NATIONAL ILAI)OR RELA'I()NS H()OARD cntl) January I), and that he had left the plant at noon on January 5 and proceeded to go home. According to Allen, Goebel asked him whether he had observed committeeman Sergent at the bowling alley oil the afternoon of that day, and he further asked Allen what his route was when he proceeded o go home. Allen's testimony in this regard was cryptic and he did not indicate what his response was to that last series of questions. On cross-examination Allen testified that he was not questioned as to his presence prior to noon on January 5. Hie conceded that Goebel did, in fact, refer to the arrest of certain employees at the bowling alley. Allen testified that on January 15 he was summoned again to the office of General Foreman Speed, sometime during the morning of that date, when he was told by Speed that Goebel had instructed Speed to ask Allen more questions. Allen admittedly responded that he was agreeable and, as they were alone, according to Allen's testimony, Speed interrogated him again about the time- card and what his activities were on the afternoon of January 5 and whether Allen desired to change any part of his "story." Allen's testimony in this regard was cryp- tic and conclusionary. He testified that Speed merely asked the same questions as Goebel had asked earlier on January 12, and that he. Allen, responded in the same manner. He concedes that at no point in that conversa- tion did he ask for union representation. On cross-exami- nation, when prodded. Allen became a bit more expan- sive as to the January 15 conversation. He testified that he asked Speed "what's going on," and that Speed re- sponded, "I don't know. They seem to be concerned over here about your timecard." Allen conceded that he did not ask Speed just what it was that he was suspected of doing improperly. He testified that in explanation that he had not "seen any problems after 12:00-." He insist- ed that the issues discussed by Speed were the same issues discussed on January 12. He recalled no further conversations with Speed on January 15. On January 16, in the late morning, Allen was in the plant on union business at the assembly line in the axle department. He was answering several "calls" from em- ployees who wanted to discuss with him several prob- lems. When he was approaching an employee next to the line after just finishing talking to another employee, Allen observed Goebel approach him from the other side of the line, come up to within 5 feet of him, and com- mence to speak to him. According to Allen, Goebel stated: "I want to talk to you for a couple of minutes and clear up a few items . . ." at which point Allen stated: "What kind of bull shit is this . . . Give me some repre- sentation .... Jesus Christ what's this all about. You accuse me of theft, playing games with my card what's going on." According to Allen, Goebel continued to talk and told Allen not to get excited and repeated that he wanted to clear up a few questions. At that point it is Allen's testimony that he stated, "Give me a damn lawyer."2 However, Goebel insisted on speaking to Allen stating that he wanted to "clear it up once and for all," and told Allen "just answer a couple of questions for me." He stated that this would clear up the matter I the plan parllance a "laws er" nmean. nilnl represenltilr l once and tfor all and that Allen did not need a repre- sentative. According to Allen, Goebel asked him what his activities were from shortly after 9 a.m. until about 11 a.m., whereupon Alien at first expressed difficulty in recalling what had happened after a lapse of time. Al that point (ioebel told Allen that he had been observed hby the plant security officer at the bowling alley during that period of time. Allen paused for a moment, thought, and theni responded, "Yeah you're right. What about it." Goebel asked Allen whether he thought there was any- thing wrong with that, whereupon Allen stated that he did not think so inasmuch as he attended a meeting with an individual by the name of Donald Douglas on a union matter. Allen protested that it was not unusual for a plant committeeman to leave the plant premises on union business. At that point according to Allen, Goebel men- tioned that there was a union business matter concerning him at the office, and Allen departed and tended to union business. Thereafter on January 17 Allen was summoned by Foreman ohinke and sent to General Foreman Speed's office at which point Speed informed him that he was being discharged for engaging in fraudulent conduct and presented him with a discharge notice form. Allen's written discharge notice stated as follows: On January 5. 1979, you were observed by Plant Security Sergeant K. Benner entering the Orchard Lanes located at 645 South Opdyke road. at ap- proximately 9:07 a.m. You did not leave that estab- lishment until approximately 10:55 a.m. when you were observed leaving by Plant Security Sergeant K. Benner. Your timecard however reflects that on 1/5/79 you were paid for several hours when in fact you did not work that amount of time. The above misconduct constitutes an act of fraud on your part for which you are being issued a Final Release. Allen requested as a union representative an individual other than the normal "zone man" to whom Allen was subordinate. Speed immediately engaged in an effort to secure the individual and to summon him for Allen. Allen's account, as set forth above, with respect to the January 12, 15, and 16 encounters is contradicted by the testimony of Goebel, Speed, and Benner. With respect to the January 12 meeting in Speed's office it is the testimony of Speed, Goebel, and Benner that Allen at no point in that conversation requested union representation, and that at no point did Goebel de- cline such request nor did he indicate to Allen that no discipline would ensue from that conversation nor indi- cate that a union representative was not necessary. It is Goebel's testimony as corroborated by Benner and Speed that Goebel opened the conversation by advising Allen that the Respondent was engaged in an investigation of his activities on January 5 with respect to his timecard of that date, and that Allen responded that he would coop- erate. Goebel advised Allen of Benner's report wherein Benner observed Allen at the bowling alley on the morn- ing of January 5 at a time when Allen was still punched in on his timecard. It was also pointed out that the time- CGINFRAI M()TORS CO()RP()RA II)N S card reflected a double punchout time without an) intcr- vening punch in, i.e., punchout time at noon and a pun- chout time at approximately 7:30 p.m. According to Goebel. Allen responded that he had arranged a pun- chout through the foreman, and that he had not returned to the plant and that possibly someone else punched his timecard out at 7:30 p.m. for the purpose of getting him in trouble. Allen did acknowledge signing the timecard afterwards. According to the testimony of Goebel, Benner, and Speed, Allen denied that he was present at the bowling alley during the morning hours and asserted that he had left the plant at II a.m. and had proceeded to the "union work center" outside the plant, which is used by union committeemen for union business and that he had left to go there for the purpose of engaging in union business. Allen had explained that when he reached the union work center he had been informed that his mother was seriously ill and that he was requested to return home immediately. He explained that he was at the bowling alley at 2 p.m. because his truck had experienced a trans- mission difficulty and he went to the bowling alley to wait for another committeeman to drive there from the plant, and to pick him up and drive him home. All three individuals testified that Allen flatly denied that he was at the bowling alley at 9:07 a.m. on the morning of Janu- ary 5. Goebel pointed out to Allen the report of Benner., wherein Benner had observed Allen's pickup truck and had recorded his license number and described Allen physically. Allen was asked to explain if he was aware of any motivation that Benner might have had to concoct this report. Allen stated that he and Benner had been previously unacquainted, and therefore no motivation ap- parently existed. According to Goebel, Allen simply stated that he could not explain the report but that, in fact, he had not been at the bowling alley in the morn- ing. Goebel also explained to Allen that the other elements of Benner's report have proven to be correct; and that indeed other committeemen were present at the bowling alley on that date; that the local police department had in fact arrested certain individuals for alleged thievery of Respondent's property; and that Allen himself was pres- ent at the bowling alley in the afternoon. Upon Allen's failure to offer any explanation, Goebel instructed him that faced with this contradiction the Respondent would investigate further. After Allen left the office Speed and Goebel remained behind to discuss the matter. They were both "half convinced" that Allen was telling the truth in view of his sincerity and self-composure. They concluded that it was possible that some mistake was made. Speed pointed out that Allen did have a twin brother, and perhaps a further investigation with that in mind would resolve the matter. Goebel agreed to investi- gate further. Speed testified with respect to the January 15 coner- sation that he had engaged in with Allen, in his office, when the two of them were alone. According to Speed he instructed Allen that he wanted to ask him further questions concerning his activities on January 5, and that specifically he asked him where he was between the hours of 9:07 and 10:55 a.m. According to Speed. Allen responded that he was in the plant until sometime after 10 a.m., at which time he left the plant and drove his pickup truck toward Plant 2 where on the way the trans- mission became stuck in second gear. According to Speed, Allen further explained that he parked it on a street running north from the plant and thereafter en- tered the union work center where he discovered that his mother had "taken a turn for the worse," and his presence at home was required. According to Speed. Allen telephoned the home of another committeeman and requested that they contact the committeeman at the plant and tell the other committeemen to pick Allen up at the bowling alley. Thereafter. Allen explained that he retrieved his truck where he had parked it and drove it to the parking lot of the bowling alley and met the com- mitteemen at the bowling alley at which time the other committeemen drove him home. Thereafter Allen re- turned to the bowling alley at 5 p.m. and retrieved his truck. According to Speed he questioned Allen as to whether he loaned his truck to anyone else at 9 a.m. and Allen stated that he had not. According to the testimnion of Speed, Allen again displayed a confident demealor during the intervie\. Speed testified that he engaged in a subsequent con- versation with Allen on January 15. Allen could "recall' no such conversation. According to Speed he again asked Allen whether he loaned his pickup truck to anyone else on the morning of JanuarS 5. At that point according to Speed. Allen stated. "Speed, when it's all over and done, you'll find out I was not there. I was not there." Again Allen did not request union representation. Speed thereafter communicated with Goebel, reported the conversation with Allen, and urged Goebel to "check this out again." On January 16 prior to the encounter with Allen. Goebel and I3enner had entered the plant and were pro- ceeding toward the foreman's office at which point Goebel observed Allen near the assembly line. Goebel advanced in the direction of Allen, whereas Benner walked to the foreman's office. Benner went just inside the doorway, stood, and observed the confrontation be- tween Goebel and Allen from a distance of approximate- ly 25 feet. Because of a certain amount of noise level in the plant, Benner could not hear the conversation at that distance. Goebel testified that when he engaged in this conversation with Allen there were no employees pres- ent within hearing distance. On cross-examination Goebel testified that he did not stop to observe whether anyone else was listening. Thereafter he testified that he did not see any other employees. He further testified that he and Allen stood close to one another so as to be heard above the noise and they therefore spoke some- what louder than normal. He testified that thereafter he looked around and did not observe any other employees. He explained that he purposely looked around to be cer- tain that the two of them were engaging in a prix ate conversation. He conceded that the foreman's desk. i.e.. a standup desk in the assembly area, at which he and Allen were speaking, was approximately 5 feet from the assembly line. Benner testified at first that he observed no employees near the two individuals. but then qualified DECISIONS OF NATIONAL LABOR RELATIONS O()ARD that by excepting those persons who were working on the assembly line. According to Goebel he had told Allen that the Respondent had conducted a further in- vestigation and that "the track led back to him." Allen purportedly responded, "Well I don't understand, I wasn't there." At that point according to Goebel he in- structed Allen to tell him where he was if he were not at the bowvling alley between 9 and I a.m., and that he would check it out. He urged Allen to "come up with something," inasmuch as it involved a "serious matter of fraud equivalent to theft." He urged Allen to "think hard and give me anything." According to Goebel, Allen searched through his notes and stated that he was work- ing on a case on January 5 during the morning between 9 and 11 a.m. in the plant involving an employee by the name of D. Schlata. According to Goebel, Allen stated that he telephoned the labor relations department and spoke with an individual in that department by the name of Dean Parmeinter at 9:15 a.m. on January 5. Goebel testified that he told Allen that he would check it out. Goebel denied Ihat at any point during the conversation did Allen ask for union representation and insisted that at no point did he tell Allen that a union representative was not needed. With respect to the January 16 conversation Allen tes- tified that there wecre several employees present: that he had finished speaking to one employee and was about to speak to another employee when lie was interrupted by Goebel; arid that at least two employees remained within 5 feet on the assembly line while they talked. He could remember only the names of employees Tippet and Beuman. He was uncertain as to how many employees in total were present. Allen testified that he "believed" that there were two or three employees standing around. According to the testimony of employee Kenneth Summers he was also present on that occasion. Summers testified that on January 16 he was engaged in the work of a sweeper. That job involves work that carries him throughout various areas of the plant. On January 16 he wanted to see Allen because of a problem that he had concerning a finance company. He saw Allen engaging in conversation with employees at the assembly line in the axle department. Having observed Allen speaking to other employees he decided to speak to Allen himself. He started to walk toward Allen and as he did so he ob- served Allen and Goebel engaging in a conversation. When he first saw them he did not hear what was being said, and he was unaware of Goebel's identity. Accord- ing to his testimony as he approached within 12 feet of the individuals he heard Allen state to Goebel: "Get me my lawyer." Summers testified that at that point he real- ized it was not the appropriate time to approach Allen and he thereupon backed off. Summers heard no other portion of that conversation. Benner and Goebel testified that they did not observe Summers in the area. Tippet and Beuman were not called upon to testify. Allen testi- fied that on a date which he did not specify he contacted his alternate committeeman and asked him whether he could locate "anybody" who was present at the time that he engaged in the conversation with Goebel on January 16. Accordingly, the alternate committeeman called Allen 2 days later and informed him that most of the em- ployees employed on that date were no longer "there" and that they had been transferred and that most of them were new employees and had "left." Prior to the discharge of Allen the Respondent en- gaged in an investigation with respect to the conduct of at least one other committeeman; i.e., Willard Sergent. Like Allen, Sergent had served as a union committeeman fior approximately 7 years. He had been acquainted with Allen for approximately 8 years. It is the Respondent's obligation under the collective-bargaining agreement to provide a collective-bargaining representative for an em- ployee during a disciplinary or investigatory interview which leads to discipline. Sergent testified that he was aware of that obligation. Therefore he testified that when he was called to the plant protection lobby at Plant 6 on or about January 8 by his foreman, a Mr. Kennan, where he encountered Kennan, Goebel, arid Benner, he immedi- ately asked for his union representative. According to Sergent, Goebel stated to him that he had only a couple of questions that he would like to ask arid that there was a probleni "to clear up." According to Sergent, Goebel asked Sergent about his timecard of January 5 ad asked him what time in fact he punched out. Sergent explained that he had punched out sometime after 1 p.m. on Janu- ary 5. Goebel asked him where he went after work arind Sergent explained that after he punched out he went to the bowling alley. According to Sergent at that point he got up and left, and as he was leaving Goebel told him without any further explanation that he was "on notice until further notice.":' According to Goebel the conversation was as follows: Goebel told Sergent of the substance of Benner's report as to Sergent's activities on January 5, i.e., that he was at the bowling alley in the afternoon. Goebel told Sergent that his timecard reflected that he had punched out at 7 p.m. that night and he was asked how he could collect pay if he was not present at work. Sergent explained that the answer was simple in that he had a special meeting; that it occurred outside of the plant; and that he was called upon to leave suddenly and apparently punched a blank timecard which he turned in to his foreman on Monday. Sergent explained that he had punched out at 1:30 p.m. but he could not explain who punched him out at 7:30 p.m. According to Goebel, Sergent stated that "if this thing is going much further" he might want union representation. At that point Goebel told him that he had only one more question. Sergent responded, "OK what is it." Goebel proceeded to ask him another question, and the interview ended. Sergent is still employed by the Re- spondent and there is no evidence that any disciplinary action was taken toward him. Sergent filed no grievance with respect to the failure to provide him with a union representative during an in- vestigative interview concerning his conduct involving his timecard on January 5. Similarly, Allen filed no such grievance until after his discharge. : his con ersalion occurld l Plllll 6 Allen',l rcspibiliit cols vers 'lant 2 3, 4 5, and lccasionall; s Plainl I 854 GENERAL MOTORS CORPORATION 855 C. Credibility Resolutions The General Counsel argues that Allen should be credited in his testimony with respect to the confronta- tions with management representatives on January 12, 15, and 16. The General Counsel argues that it is improb- able that a man of Allen's experience as a committeeman over a period of 7 years when confronted with a serious situation involving possible accusations of fraudulent misuse of a timecard would not avail himself of assist- ance by another superior union representative. 4 The General Counsel points out that Allen was partially cor- roborated on January 16 by Summers. The General Counsel also argues that the Respondent's agent Goebel engaged in similar conduct with respect to committee- man Willard Sergent involving the investigation of the same matter. The Respondent argues that Allen because of his expe- rience as a committeeman felt confident enough that he could dispose of the matter quite simply and easily him- self. It argues that Allen presented his version of the facts in a confident, convincing manner, and by doing so himself he presented an image of candor and sincerity. The Respondent argues that Allen was aware that fellow committeeman Willard Sergent had been interrogated, had explained his whereabouts, and had suffered no re- percussions. However, there is no evidence in the record that Allen and Sergent communicated with one another concerning this incident. Moreover, it would have been premature as of January 12 for Allen to have assumed no repercussions would ensue for Sergent. It is further con- tended that there is no evidence in the record upon which any motivation exists for the Respondent's agents to have denied representation to Allen. Furthermore, it points out the uncontroverted testimony of Goebel, a man of 27 years' experience as a labor relations manager, that he had never in the past breached his contractual obligation to provide union representation during an in- vestigatory interview and that at no time had he ever been accused of such conduct prior to the investigation of the incidents revolving about January 5. Having reviewed carefully the testimony of the wit- nesses concerning the interviews of January 12 and 15, and having taken into consideration the demeanor of all the witnesses, I credit the testimony of Goebel, Benner, and Speed. Their testimony was mutually corroborative and detailed, and they evinced a demeanor which was more spontaneous, responsive, and certain than that of Allen. The testimony of Allen with respect to these two incidents was cryptic, conclusionary, and rendered with a degree of uncertainty. Furthermore, I find the Re- spondent's version of the substance of the conversation much more plausible and inherently more believable than that of Allen. Goebel had interrogated Allen and Willard Sergent with respect to their whereabouts on the after- noon of January 5. He apparently accepted Sergent's ex- planation with respect to the double punchout on the ti- mecard. Goebel similarly questioned Allen with respect to his whereabouts on the afternoon of January 5 during the January 12 interview. ' Allen himself had been insvoled in excess of 5(X) grie'ances during his 7 years as commitleeman Allen, however, insists that no inquiry was made to his conduct on the morning of January 5. It is Benner's testi- mony which I credit that he reported to Goebel Allen's presence at the bowling alley at 9:05 a.m. on January 5. Benner was present during the interview. Even Allen concedes reference to Benner's investigation during the interview. It is extremely improbable that the labor rela- tions manager, the general foreman, and the plant secu- rity guard would have met with Allen and that the inter- rogation was limited to his conduct and whereabouts after he punched out at noontime on January 5. Clearly that would have been the area of least concern to the Respondent. That is to say, the timecard had two pun- chout times. The first punchout time was effectuated by a telephone call from outside the plant to the foreman. Allen admitted that he had not returned to the plant. Ob- viously someone else punched him out. It is unlikely that a conspiracy would have been involved, because had Allen obtained someone else in the plant to punch him out again at 7:30 p.m., he would have arranged for that person to have had his card punched in prior to 7:30 p.m. Otherwise, it would have been utter foolishness to have arranged a double punchout time on the timecard. Having received the explanation for the late afternoon punchout time it would have been inexplicable for the Respondent's agents to cease their interrogation and not proceed further based on the information submitted to them by Benner concerning Allen's alleged morning ac- tivities. Their testimony concerning such inquiry, and their testimony of detailed explanations set forth by Allen, was spontaneous, convincing, and rendered with- out any indication of artifice or contrivance. It is highly improbable that General Foreman Speed would have engaged again in a second conversation on January 15 with Allen limited to the narrow area of Allen's afternoon activities of January 5 and at that point asked Allen whether he desired to change his story. Such an inquiry only makes sense if there were a much more extensive interrogation. I credit Speed's testimony with respect to the second conversation on January 15 with Allen. Allen on direct testimony merely stated that he recalled no further con- versations on that date. He was not called in rebuttal to specifically deny that a second conversation occurred. As a witness Speed was a much more assured, certain, and spontaneous witness than Allen. I found him far more convincing. Accordingly, I conclude that the Re- spondent specifically interrogated Allen as to his morn- ing and afternoon activities of January 5 in the inter- views conducted on January 12 and in the two inter- views conducted by Speed on January 15. Allen testified that he did not ask for a union representative during the interview with Speed on January 15 because he saw no problem with respect to his activities on the afternoon of that date. Yet he testified that he asked for union repre- senta:ion during the meeting of January 12 which in- volved the "same issues." It is clear according to Allen's testimony that during the January 12 incident the Re- spondent was not attempting to associate Allen's pres- ence at the bowling alley with the matter of thievery. The thrust of his testimony therefore is that he did not DECISIONS OF NATIONAL LABOR RELATIONS BOARD request representation on January 15 because it was un- necessary in view of his proffered defense, and not be- cause he was lulled into a sense of security by an earlier misrepresentation by Goebel, which implied that he would not be subject to discipline. However, as I dis- credited Allen's denial that he was interrogated as to his morning activities on January 5, I conclude that he was interrogated on January 12 by Goebel and by Speed later on January 15 as to his complete activities from 9:05 a.m. and thereafter, and I also conclude that he did not ask for representation during the January 15 inter- view because he was, as is argued by the Respondent, confident of his position and his ability to handle the in- terviews without assistance. Inasmuch as I have concluded that Goebel, Speed, and Benner are the more reliable and credible witnesses con- cerning the interviews of January 12 and 15, I credit their testimony that at no point during those conversa- tions did Allen request a union representative. I do so even assuming that Goebel engaged in the conversation with Willard Sergent as Sergent had so testified. I do not credit Allen's testimony that he requested a union repre- sentative on January 12. Accordingly, whether or not the Respondent denied Sergent's request for a union rep- resentative is immaterial.5 The final credibility resolution in this case involves the confrontation between Goebel and Allen on January 16. On this occasion Goebel, the labor relations manager, personally confronted Allen at the assembly line in the plant concerning the same matters. He stressed the grav- ity of the situation and referred to possible fraud in time- card matters as being equivalent to a theft. According to his testimony, he urged Allen to give him some further facts upon which he could investigate. According to Goebel's version of the encounter, the urgency of the matter was becoming manifest and the investigation was arriving at a critical stage. Yet it is the Respondent's contention that Allen retained his composure and bra- vura to the point where he continued his own defense without requesting the assistance of union representation. Such contention is unconvincing. I find it much more plausible that Allen who had been confronted once before by Goebel and twice by Speed and repeatedly asked about his whereabouts on the morning of January 5 would have at this point realized the vulnerability of his position, and sought some assistance of a union repre- sentative in defending himself. I find Allen's vivid testimony as to his exasperated re- sponse in which he demanded his "lawyer" far more convincing than Goebel's version. Furthermore, Allen with respect to this conversation is corroborated by a witness to the effect that at one point in the conversation Allen demanded to see his "lawyer." The Respondent, in its brief, attempts to characterize Summers' testimony as internally inconsistent and inconsistent with that of Allen. Contrary to the Respondent's contentions, the record does not support that argument. For example, the record does not disclose that Allen testified that only 5 There is no allegation that the Respondent's conduct with respect to Sergent was violatise of the Act In any event, on the basis of demeanor, I found Goebel to have been a much more certain, convincing, spontane- ous, and credible witness than Sergent two employees, Tippet and Beuman, were present, nor does it support the Respondent's contention that Sum- mers could not have been near enough to hear the early part of the conversation wherein Allen asked for his union representative. The record does not reveal that Summers was so far away from Allen when the conver- sation commenced that he could not have been within 12 feet when the demand for the "lawyer was made." Goe- bel's testimony that he did not see Summers is not reli- able in view of the fact that he did not recall seeing any employees present whereas Benner conceded that em- ployees who were working on the assembly line were indeed present. Furthermore, Benner's testimony that he did not see Summers in the area is not meaningful inas- much as there is no indication that he had an unobstruct- ed view of the entire area. Summers may very well have been approaching Allen from Goebel's rear and from an angle where he was not visible by Benner who was standing just within the doorway to the foreman's office. Finally, I see no basis upon which to conclude that Summers was a biased witness. Neither the record nor Summers' demeanor revealed any animosity toward the Respondent. There is no evidence that he maintained any personal or business relationship with Allen nor that he was even his friend. The Respondent argues that because Summers circulated a collection in the plant on behalf of Allen shortly after Allen's discharge that Summers' testi- mony must be therefore suspect because of some bias. However, Summers testified without controversion that as a sweeper in the plant it is part of his duties to move throughout the plant while performing his duties. Ac- cordingly, he has on several occasions taken up collec- tions on behalf of other employees. With respect to the discharge of Allen, Summers testified again without con- troversion that he was requested by Allen's alternate committeeman, Bob Emery, to take up a collection on behalf of Allen which he did. The Respondent further argues that the circumstances whereunder Summers testified on behalf of the General Counsel are suspect. This contention rests upon the fact that Summers executed an affidavit at the request of the Board agent approximately 3 weeks prior to the hearing. Summers, however, testified convincingly and credibiy that the day after Allen's discharge when he became aware of Allen's predicament he advised the committee- men of what he had heard on January 16, at the time Allen and Goebel were engaged in a conversation. Sum- mers testified that he did not speak to Allen directly until after he executed an affidavit on July 19 at the re- quest of the Board agent. On these sparse facts I cannot conclude that there is sufficient basis upon which to raise an inference that there was some conspiracy between Allen and Summers with respect to the submission by Summers of an affidavit on July 19. Had there been such conspiracy it would have seemed more likely that Allen would have identified Summers as one of the employees at the assembly line rather than candidly admit that he could not recall the identity of all employees present on January 16. Furthermore, had there been some conspir- acy it would have been more likely that Summers would have testified to more of the conversation between Allen 956 GENERAL MOTORS CORPORAIOI)N and Goebel, at least to the extent of definitely affixing the critical request for a union representative at the be- ginning of the conversation. Accordingly, I conclude that Summers who was em- ployed by the Respondent at the time of the hearing was an unbiased witness who had nothing to gain by testify- ing, pursuant to a subpena, for the General Counsel, and who testified at the risk of incurring the enmity of the Respondent or at least its supervisors. Furthermore, Summers' demeanor revealed that he was assured, cer- tain, spontaneous, responsive, and a candid witness. Goebel, however, did not testify with the same assurance as he exhibited with respect to the earlier interviews. I therefore conclude that during the January 16 conversa- tion between Allen and Goebel that Allen did indeed make a request for union representation. Inasmuch as Goebel testified that Allen made absolutely no request for representation, I not only credit the testimony of Allen that such request was made but I also further credit him that the request was made at the commence- ment of the interview. Analysis and Conclusions It is undisputed that the interviews to which Allen was subjected constituted investigative interviews that were held under such circumstances that, in the absence of any negating statements by the Respondent's agents, the employee would reasonably have feared that he was sub- ject to potential disciplinary action. Further, there is no dispute as to the applicability to this factual situation of the principles set forth in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), i.e., that the employee is entitled to have a union representative present, if requested. The Board has held that "once such a valid request is made, the burden is on the employer to either (I) grant the request (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all." General Electric Company, 240 NLRB 479, 481 (1979). The principal issue raised by the parties in this case is a factual issue as to whether or not Allen made such valid request. It is conceded that a request by an employ- ee for his "lawyer" constitutes a request for union repre- sentation in the Respondent's plant. As set forth above, I have found that on January 16 after three prior inter- views Allen did make a request for a union representa- tive at a meeting with Labor Relations Manager Goebel prior to Goebel's further investigation of Allen's suspect- ed timecard fraud of January 5, 1979. As indicated by the facts above, three prior meetings were conducted by Goebel and by General Foreman Speed. Because of the Respondent's reluctance to conclude that the discrimina- tee had not presented an accurate representation of the facts, a final decision by the Respondent as to potential discipline for Allen was postponed. Thus, Goebel fol- lowed Speed's recommendation of January 15 to "check out" the matter further. Goebel decided to do this and again sought to obtain further information from Allen. This time, however, Allen was impressed with the criti- cal nature of his position and he demanded union repre- sentation prior to any further investigatory interview and interrogation. I credit Allen's testiniony that at that point Goebel persisted in the interview by stating that he wanted to "clear up a few simple matters" and that Allen did not need union representation. Goebel then proceeded to interrogate Allen and Allen responded. Thereafter. as a consequence of Goebel's January 16 in- vestigation as to the purported timecard fraud of January 5, Allen was discharged. The Respondent argues that Allen did not refuse to answer questions nor did he personally attempt to obtain a union representative, and that no misrepresentations were made by Goebel. Within the context of the conversation betoween Goebel and Allen on January 16 1 cannot conclude that Goebel's statement to Allen to the effect that he did not need a union representative amounted to a misrepresenta- tion to Allen that he was not in jeopardy of discipline. The January 1 confrontation was a continuation of a persistent series of interrogatories directed to a matter of possible timecard fraud. It is undisputed that timecard fraud normally subjects an employee to discipline. Clear- ly the persistent interrogation as to Allen's whereabouts indicated that the nature of his response was critical. Thus, the manifest significance of the January 16 conver- sation against the background of prior interrogations was that Allen was in jeopardy of some adverse consequence. For the foregoing reasons I credit Allen that Goebel did in fact fail and refuse to respond to Allen's request for his "lawyer," and did make the statement that he did not need one and that he wanted to ask a few more ques- tions. Although I conclude that such a response by Goebel did not amount to a statement that could be rea- sonably construed by Allen as a representation that no discipline would ensue in consequence of his answers, I do conclude that it amounted to a denial of representa- tion by the Union to him without offering him an option to remain silent without a further investigator>y iterroga- tion or to participate without union representation. I conclude under the circumstances of the interview that an option was exercised but it was not exercised by Allen but rather was exercised by Goebel who proceed- ed to direct questions to Allen. Under such circumstance I conclude that Allen was thereby constrained to re- spond to Goebel's inquiries, and did not voluntarily waive his Weingarten rights by so responding. Super V'alu Xenia, a Division of Super Valu Stores, Inc., 236 NLRB 1581 (1978) As the Board has stated, "Under no circumstances may the employer continue the interview without grant- ing the employee union representation, unless the em- ployee voluntarily agrees to remain unrepresented after having been presented by the employer with the choices mentioned in option (3) above, or if the employee is oth- erwise aware of those choices [an interview without rep- resentation or no interview at all]." United States Povtal Service, 241 NLRB 141 (1979). The Respondent argues in its brief that Allen was aware of his right to refuse to continue with the interview. The Respondent bases this conclusion on Allen's extensive experience as a commit- teeman. However, there is no evidence that Allen as actually aware that he possessed the option to discontin- S 5 858 DECISI()NS OF NATIONAL LABOR RELATIONS O()ARD ue the interview or to proceed with the interview with- out a union representative. I cannot infer that because of Allen's experience in presenting grievances he was aware of or should have been aware of those options. There is no evidence that he at any time participated in any disci- plinary interviews or investigatory interviews leading to discipline, or that he had processed any grievances con- cerning the failure of the Respondent to provide repre- sentation during an investigatory-disciplinary interview. Indeed, Goebel testified that prior to the January 5 inci- dent he had never been accused of failing to provide a union representative upon request during an investiga- tory-disciplinary interview. For the foregoing reasons I conclude that the Re- spondent violated Section 8(a)(1) of the Act by failing to provide Allen with union representation during the in- vestigatory interview of January 16, 1979. CONCI.USIONS OF LAW I. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(l) of the Act on January 16, 1979, by requiring employee Jerry Allen to submit to an interview with the Respondent's labor re- lations manager, which resulted in his discharge, while denying his request for union representation at the inter- view. THE REME)Y Having found that the Respondent has violated the Act, 'I shall recommend that it be required to cease and desist therefrom and from like and related conduct, and to post appropriate notices. Having concluded that the unfair labor practices of the Respondent led directly to the discharge of Jerry Allen, it is my conclusion that an appropriate and meaningful remedy must provide for affirmative relief in the form of a restoration of the status quo ante, i.e., reinstatement, re- imbursement of lost wages, and an expurgation of Allen's personnel records. United States Postal Service, supra: Super Valu Xenia. a Division of Super Valu Stores, Inc.. supra. Accordingly, it shall be recommended that the Re- spondent be ordered to offer Jerry Allen immediate and full reinstatement to his former or substantially equiva- lent position without prejudice to his seniority or other rights and privileges and shall make him whole for any loss of earnings he may have suffered as a result of the discharge which resulted from the investigatory inter- view of January 16, 1979, in which he was denied his right to union representation. Any backpay found to be due shall be computed in accordance with the formula as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).e It shall be further recommended that the Re- spondent be ordered to expunge from its personnel re- cords any reference to the discharge of Jerry Allen on January 17, 1979. 'See, generally. Iir Plumbing d Iteatig Co.. 138 NLRB 716 (1962} Upon the basis of the entire record, the findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, General Motors Corporation, De- troit, Michigan, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Requiring any employee to take part in an inter- view, meeting, or conference, where the employee has reasonable grounds to believe that the matters to be dis- cussed may result in the employee's being the subject of disciplinary action, and where it has refused that employ- ee's request to be represented at such interview, meeting, or conference by a labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under the National Labor Relations Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Jerry Allen immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position without prejudice to his se- niority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discharge which resulted from the January 16, 1979, investigatory interview in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its personnel records any reference to the discharge of Jerry Allen on January 17, 1979. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other docu- ments necessary and relevant to analyze and compute the amount of backpay due under this Order. (d) Post at its truck and Coach Plant in Pontiac, Michigan, copies of the attached notice marked "Appen- dix."8 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 'In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions. and recommended Order herein shall, as prosided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions and Order, and all objections theretlo shall be deemed waived for all purposes. " In the event that this Order is enfoirced by a Judgment of a United States Court of Appeals, the words in the nolice reading "Posted by Order of the National Labor Relations Board" shall read "'Posted Pursu- ant to a Judgment of the United States Court of Appealk Enforcing an Order of the National Labor Relations Board" GENERAL. MOTORS CORPORAIION (e) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed as to any alleged violations of the Act not found herein. 859