Houston Coca Cola Bottling Co.

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Western Coca Cola Bottling Company, d/b/a Houston Coca Cola Bottling Company and Sales Drivers, Deliverymen, Warehousemen, and Helpers, Local Union 949, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 23- CA-7242-2 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESIAIE On July 3, 1979, Administrative Law Judge James T. Barker 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 only to the extent consistent herewith. The General Counsel alleged that on two sepa- rate occasions Respondent violated Section 8(a)(l) of the Act by interfering with employee Bobby Joe Pryor's right to a representative, a right accorded him under N.L.R.B. v. J. Weingarten, Inc.l Thus, the General Counsel argued that, although Re- spondent had provided a representative for Pryor at two interviews Respondent had conducted with him, Respondent nevertheless violated Section 8(a)( ) by refusing to permit Pryor's representative to actively participate in the interview. The Ad- ministrative Law Judge agreed with the General Counsel that Pryor had a Section 7 right to a rep- resentative under Wtingarten at each of the inter- views in question and that the representative could participate in the interview. The Administrative Law Judge dismissed one complaint allegation, however, as he found that in the first interview Pryor's representative did not request an opportu- nity to participate, hence he was not denied such an opportunity. With respect to the second inter- view, the Administrative Law Judge found an 8(a)(1) violation since he found that, while Pryor's representative attempted to participate, Respondent refused to permit him to do so. We agree with the Administrative Law Judge, but for different rea- sons, that Respondent committed no 8(a)(1) viola- tion at the first interview. And, contrary to the Ad- ministrative Law Judge, we find no 8(a)(1) viola- 420) L1 S 251 (1975) 251 NLRB No. 122 tion in the second interview either. Because of our disposition of this case, we set out a short summary of the factual findings of the Administrative Law Judge, all of which we have adopted, in the course of dismissing the complaint's allegations. The two interviews alleged to be unlawful oc- curred in September 1978,2 within approximately 2 weeks of each other. The sequence of events was as follows: On August 28 and 29, Pryor was tardy.3 Thereafter, Respondent's production super- visor, John Kersten, talked individually with Pro- duction Superintendent Roy Handy and Director of Personnel Max Ferguson about what discipline, if any, Pryor should receive for the tardiness. Be- cause of his previous disciplinary record, a decision was reached to suspend Pryor for a 3-day period. To this end, Kersten completed portions of the em- ployee's counseling report form, and checked the box indicating "disciplinary suspension" as the type of action taken. The form was then placed on Handy's desk in Handy's office where the first in- terview occurred. At the outset, Pryor was asked if he would like a representative. Pryor said yes, and employee Ken- neth Gatson was asked to sit in. When Gatson ar- rived, Kersten told him that he was there as a wit- ness and that "[b]ecause of excessive tardiness in the past, and it's all written up here, we're forced to give Bobby three days." Kersten then began to add: "Bobby the first thing we want you to under- stand is ... ," but Pryor interrupted Kersten and said, "Just give me three days, man, I don't want to hear this they got me, they got me. I've been tardy and I can't say nothin' about it." A conversa- tion then ensued in which Kersten explained the reasons for the discipline; Pryor explained why he was tardy on the most recent occasion; and they discussed his overall record of tardiness. At the end of the interview, Pryor was told to report back in 3 days. Approximately 2 weeks later: the second incident occurred. This time, Kersten found that Pryor had been absent from the work area in the plant for an excessive length of time and that during that ab- sence he had left the production building. Both ac- tions violated company rules. Kersten reported these events to Handy who then talked to Fergu- son. Handy and Ferguson decided that the next step in the disciplinary process was termination. Kersten prepared an employee counseling form which gave "excessive tardinesss" and "a violation of Company policy" as the reasons for the counsel- 2 Unless othcrwiwc noted. all latc hcrein i fr o 1978 ' From I)cccmbcr 1)77 Io ALigu 24, 19)7. I'ryr rccicdl cighl w.arnlilgs for x ioIltIioIn (If Rpondent ' , ruilcs TI1 sl III t l i " rllllIgs were r1 iJ C . HOUSTON COCA COLA BOTTI.IN( C()MPANY 861 ing, and "discharge" as the nature of the action taken. The form was dated September 15. On September 16, a counseling session was con- ducted in Handy's office. Handy, Kersten, and Pryor were present. 4 As before, Handy asked Pryor if he wanted a representative. Pryor said yes, and Kenneth Gatson was summoned to the inter- view. While waiting for Gatson, Kersten gave Pryor the notice of discharge. After Gatson ar- rived, a lengthy dialogue took place, in which Ker- sten told Pryor that he had observed Pryor's ab- sences. Pryor disputed Kersten's observation and offered his own explanation of events. The session ended with Pryor's termination. As a threshold matter, the Administrative Law Judge first considered whether an employee has a right to representation at a counseling session con- vened by management for the express purpose of announcing and implementing a predetermined dis- ciplinary decision reached pursuant to an estab- lished disciplinary procedure. He then considered whether an employee has a right to a representa- tive other than a union-appointed representative at such a meeting, and, if such a right existed, the extent to which, if at all, the representative might participate in the interview. As explained below, we find it necessary to pass only on the first issue discussed by the Administrative Law Judge. The Administrative Law Judge concluded, on the basis of Certified Grocers of California, 227 NLRB 1211 (1977), enforcement denied 587 F.2d 449 (9th Cir. 1978), that an employee has a right to representation at an interview where discipline is announced and implemented. Since the Administra- tive Law Judge issued his Decision, however, the Board has had occasion to reconsider the rationale of Certified Grocers. In Baton Rouge Water Works,s for the reasons fully set forth therein, we overruled Certified Grocers and held that an employee has no Section 7 right to the presence of a representative at a meeting with his employer held for the pur- pose of informing the employee of a previously made disciplinary decision. Accordingly, we re- verse the finding of the Administrative Law Judge that Pryor had a right to a representative at the two meetings at which management announced and imposed on Pryor its predetermined disciplinary action. In so concluding, we find that the purpose of the interviews in issue here was to announce and implement previously determined disciplinary action. Indeed, Respondent decided respectively to suspend and to discharge Pryor before the meet- ings on the basis of facts which it had obtained I This session, like the pre',ious one, was tape-recorded, and the tape and transcript were entered as exhibits at the hearing herein ' 246 NLRB No 161 (1979) without talking to Pryor. To this end, Respondent prepared the disciplinary notices effectuating the discipline and gave them to Pryor as soon as it commenced the meetings. Accordingly, under Baton Rouge, no Section 7 right to representation existed at these interviews. In so finding, we are aware that Respondent also engaged in some discussion with Pryor during each interview after informing him of the discipline to be imposed. At the first interview, the discussion was brief because Pryor accepted the suspension, and was not interested in hearing Respondent's ex- planation of why the discipline was being imposed. At the second interview, the discussion was much longer because Pryor refused to accept Respond- ent's reasons for discharging him, and continued to argue with Respondent about the validity of his discharge. In Baton Rouge, the parties also dis- cussed the discipline. There, we recognized that the mere fact that the parties discuss the reasons for discipline after it is imposed does not create a Section 7 right to a representative. Rather, in Baton Rouge, because the decision to discharge was made prior to the interview, and that decision was, for all practical purposes, irrevocable, the Board found that the discussion which followed was not part of an ongoing investigation. It was merely an ex- change during which the employee expressed his disagreement with, and the employer explained his reasons for, the disciplinary action. Here, as noted earlier, both the decision to disci- pline and the necessary disciplinary forms were completed before the meetings with Pryor. More- over, each decision was announced before the par- ties engaged in any discussion. From this it is clear that the decision to discipline Pryor in each case was final, and, as in Baton Rouge, the purpose of the discussion which followed was only to explain the reasons for the discipline, and to allow the em- ployee to disagree. 6 Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. s The Administrative Law Judge noted that, according to one witness, it was conceisahle that as a result of the discussion management might have reversed its decision to discipline Pryor since in the indefinite past reversals had occurred Another witness, who also participated in the de- CiSioni to discipline Pryor and who interviewed Pryor, denied that such a turnabout %sas possible In an 5 eent. it seems that such a result was ex- tremely unlhkely, and that for all practical purposes the decsion, l were final. We do not think t4cingurhn rights attach simpl1 because there exists a remote possihilit) that management may change Its mind after it allnnounce, the dlscipline 862 DECISIONS OF NATIONAL. IABOR RELATIONS BO()ARI) CHAIRMAN FANNING, dissenting: For the reasons expressed in my dissent in Baton Rouge Water Works, 246 NLRB No. 161 (1979), I would affirm the Administrative Law Judge's find- ing of a violation of Section 8(a)(1) in this case. DECISION STArTEMINT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Houston, Texas, on April 4, 1979, pursuant to a complaint and notice of hearing issued on November 9, 1978, by the Regional Director of the National Labor Relations Board for Region 23.1 The complaint and notice of hearing is based upon a charge filed on September 19, by Sales Drivers, Deliverymen, Warehousemen, and Helpers, Local Union 949, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, herein called the Union, and alleges violations of Section 8(a)(l) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties were provided full opportuni- ty to make opening statements, to examine and cross-ex- amine witnesses, to introduce relevant evidence, and to file briefs with me. Counsel timely filed briefs. Upon the basis of the entire record, my observation of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent has been a corporation organized under the laws of the State of Tennessee, and has been engaged in the business of bot- tling and distributing Coca Cola and other soft drinks. Respondent maintains its principal office and place of business at 2800 Bissonnet Street, Houston, Texas, and operates an additional facility known as the Gulfgate plant, located in Houston, Texas. During the 12-montlh period immediately preceding the issuance of the complaint herein, Respondent pur- chased goods valued in excess of $50,000 directly from firms located outside the State of Texas, which goods were shipped directly to it in Houston, Texas, from points located outside the State of Texas. Respondent admits, and I find upon the basis of the foregoing, that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED Respondent concedes, and I find, that all times materi- al herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. I Unless otherwise specified, all dates herein refer to the calendar year 1978. Ill. HI, AII I(;I-I) UNIAIR ABOR PRACTICIS A. he Is.ucs The principal issue in this proceeding is whether Re- spondent's agents effectively denied Bobby Joe Pryor representation during the course of two interviews by in- sisting that his chosen representative remain silent during the course of those interviews. This issue raises the threshold question of whether Pryor was actually entitled to representation at the inter- views conducted for the purpose of informing him of dis- ciplinary action already decided upon. This case raises the further issue of whether, given the prescription and limitation contained in Section 10(c) of the Act, Pryor, who was informed of his termination at the outset of the second inteview, is entitled to reinstatement and backpay should a violation of Section 8(a)(1) of the Act be found pursuant to an application in the Weingarten principle. Respondent denies the commission of any unfair labor practice and contends, in substance, that the interviews had no investigative purpose but were convened solely to inform Pryor of previously reached disciplinary deci- sions affecting him. Respondent further contends that, in the circumstance, the interviews were not the type enti- tling Pryor to representation as a matter of right. More- over, Respondent contends that, assuming Pryor had a right to representation at the meetings, management had no obligation to discuss the respective disciplinary deci- sions with Pryor's representative during the interviews, or to allow the representative any right of participation in the interview beyond that of a mere witness. A predi- cate to Respondent's contention in this latter regard is its averment to the effect that under Section 7 of the Act the only representative an employee is entitled to have present is a recognized collective-bargaining agent. 2 B. Pertinent Facts 1. Background facts a. The setting Bobby Joe Pryor was employed at Respondent's Gulf- gate plant until on or about September 16, when he was terminated. At the time of his termination, he had been in Respondent's employ for approximately 16 months. At relevant times, Pryor served in the capacity of a relief operator assigned to an area of the plant known as the depalletizing area. In Pryor's assigned area, machine op- erators on the production line are permitted two 15- minute breaks per shift. In normal circumstances, either three or four operators serve in the area of Pryor's as- signment. Pryor's principal duty was to substitute for and assume the duties of the machine operators during their respective break periods. When Pryor was not perform- 2 Respondent concedes that the Board has ruled in Anchortank. Inc.. 239 NLRB 430 (1978), that no distinction is to be made between a right to union representation and a right to representation by a fellow employ- ee. Nevertheless, Respondent contends that is an incorrect application of the Weingarten principle as enunciated in NVL.R B J Weingarten, Inc.. 420 U.S 251 (1975). and preserves its legal position while recognizing that Board precedent is hinding upon ils administrative law judges ItOL'StO()N C()CA C()I A 1IOF I IN(; CO()MPANY Sol ing those duties, he engaged in cleanup ork around the depalletizer and other nearby areas. Like other employ- ees, Pryor was accorded t o 15-minute break periods during his shift and was entitled to a 30-minute lunch break. 3 At pertinent times. Roy Handy was production super- intendent at the Gulfgate plant, Max Ferguson. Jr., was director of personnel, and John Kersten was production supervisor. Respondent employs approximately 1,5()0 rank-and-file employees, and some of them are represent- ed in a unit in which the Union is the certified bargain- ing representative. Although at the time of the hearing herein the Union had been certified and collective-bar- gaining negotiations were in progress, it appears that in August and September 1978 no union steward had yet been designated or selected to represent the employees in the bargaining unit. Under a policy in effect at all pertinent times, an em- ployee who is off the clock during his lunch period may leave plant premises, however, he may not leave the building in which he is working at any other time with- out the permission of his supervisor. Similarly, at perti- nent times, Respondent has maintained a four-step disci- plinary procedure as follows: Step I-oral warning; step 2-written warning; step 3-3-day suspension without pay; step 4- discharge. Under the procedure, a degree of discretion is lodged with management in invoking the discharge penalty, although in most cases termination would result. In connection with its disciplinary procedure, and in conjunction with employee counseling sessions, which are tape-recorded, Respondent maintains employee coun- seling records, which appear usually to be prepared in advance of the counseling session and which record the nature of the disciplinary action to be taken or contem- plated at the scheduled employee counseling session, the reason for the counseling, and a statement of facts sur- rounding the case reflecting the Company's version of the incident giving rise to counseling. The form has space for the employee to record his comments and re- marks regarding the alleged violation. At the end of the counseling session, the employee is requested to sign the counseling record, which is also signed by the counselor or counselors, and by the director of personnel, upon subsequent submission. Policy instructions from the plant manager to Roy Handy, in his position of production su- perintendent, provide that employees should be permit- ted to have a witness present during any counseling. b. The record of prior warnings Employee counseling records in Pryor's personnel file establish that the following disciplinary actions were taken by Respondent deriving from the conduct of Pryor: December 1, 1977: Verbal warning for taking a 66- minute lunch. December 16, 1977: Verbal warning for leaving build- ing at unauthorized time. Th foregoing i, bhise upon crnp.sitc f the crediteCd tcsilloT) of obbhh Joe Pr]or a.in Jhll Kcrstcl December 22, 1977: Verbal warning for persisting in throwing rejects or damaged products into dumpster dte- spite supervisory instructions to the contrary. February 8, 1978: Oral arining fir poor job perfoirm- ance arising from failure to follow instructions of super- visor to clean his work area during production shut- dow n. June 30, 1978: Verbal warning for poor job perform- ance arising from his failure to perform job duties result- ing in a loss of production. Warned that further action of this nature would result in disciplinary suspension. July 1, 1978: Verbal warning for poor job performance caused by tardiness in reporting to work on 9 days during a 2-week work period and failing to clock in from lunch on 1 day. Warned that next step would be written warning. July 8, 1978: Written warning for tardiness on 5 days in I week. Warned that next step would be disciplinary suspension. August 24, 1978: Written warning for excessive tardi- ness in returning from lunch break. (Pryor claimed he had combined break periods with lunch hour with super- visory permission and was approximately 9 minutes tardy in returning from lunch.) The personnel office receives in excess of 50 counsel- ing reports per week, and the reports of record pertain- ing to Pryor were maintained in the normal course of business. 4 The alleged unlawful conduct a. The 3-day suspension On August 28 and 29, Pryor was again tardy. Kersten consulted with Handy who, in turn, spoke with Fergu- son. Ferguson examined Pryor's personnel file. and a de- cision was reached to suspend Pryor for a period of 3 days. Thereafter. on September 2, Kersten completed pertinent portions of the employee counseling report form, checking the box reflecting disciplinary suspension as the type of action taken. The form was then placed on Handy's desk in Handy's office where an interview with Pryor transpired. Handy and Kersten participated in the interview on behalf of the Company. At the outset of the meeting on September 2. Pryor was called to Handy's office, and he was asked if he de- sired to have a representative attend. Pryor answered in the affirmative and stated that he wished to have Ken- neth Gatson present. Gatson was summoned over the loudspeaker and entered the office where he was greeted and invited by Handy to sit down. At this point in the interview, Kersten said. "Kenneth, you are here as a wit- ness. Bobby asked for a witness. Because of excessive tardiness in the past, and it's all written up here, we're The findings above made with respect to the term of emplosmenl of obhby Joe Pryor and his joh duties are hased on Pryor's testimon and thatl oIt John Kersten. Wshich are not disputed The other findings aire based upon a composite Iof the credited testimony of R\ Hands, Max Ferguson, Jr. Johni Kersten, and documenlar eidence of record The parties stipulated that the Companys, statement of facts surrounding the caise as set forth oni the enliploree ctlliiselilg rcord rccl ed in s detluc ill this proceeding i a rtuc and a.cur.tc dscripirpllOn iof 'rr's conllductl t u hlihi tle coun-ulillng si.latelilts ar ;ire drsd 8Xh4 DECISIONS OF NATIONAL LABOR REL.ATIONS I()ARI) forced to give Bobby three days off. Bobby, the first thing we want you to understand is . . . ." At this junc- ture, Pryor interjected, "Just give me three days, man, I don't want to hear this they got me, they got me. I've been tardy and I can't say nothin' about it." Kersten re- sponded, "T. J., because of what you've said to us in the past, I really do want a chance to explain myself." Pryor responded, in effect, that Kersten had nothing to explain in that he, Pryor, knew that he was tardy. However, Pryor went on to state that he had left home early enough but he could not control his own progress be- cause of traffic conditions on the freeway. He stated also that it had been necessary to wait for trains to pass at a railroad crossing. He added, in effect, that perhaps man- agement wished to be rid of him. In this connection he said, "I'm getting tired of it, man. Every time I look around I see dude coming in tardy everyday of the week and he haven't been up here. But it's cool with me. It's cool with me, if you want give me three days, give me three days. I ain't got nothin' else to say." Handy re- sponded that the suspension was being imposed because of Pryor's tardiness over the last several weeks, but Pryor denied that he had had "that many tardies" during that period of time. A brief exchange ensued between Pryor and Kersten concerning Pryor's record of tardi- ness during which Kersten assured Pryor that his serv- ices were needed in the plant and that management was not trying to "get" him. Nevertheless, Pryor insisted that management was "out to get" him and asserted that his record of attendance was superior to many employees in the operation, including many new employees. Kersten responded, in effect, that at the end of 90 days the new employees would be evaluated, and their record of at- tendance and punctuality would be taken into considera- tion. As the conversation evolved, Pryor stated, in effect, that he was going to discuss hi: personnel status with higher authority in the plant; Kersten interjected and in- vited Pryor to speak with the personnel director. The conference ended with Handy stating, "As of now, you are suspended for three days. That will be Tuesday, Wednesday, and Thursday, we are expecting you back at 4:30 Thursday-Friday. O.k., that's all." The conference ended on this note. Gaison who had been present during the entire meeting made no comment during the course of the meeting. No questions were directed to him.5 'I The foregoing is based upon a composite of the credited testimony of Roy Handy. Max Ferguson, Jr. John Kersten, and documentary evi- dence of record I have also considered the testimony of Bobby Joe Pryor and Kenneth Gatson and credit their testinmony only to the extent that it is consistent with the above findings. With respect to the discus- ,sin which transpired during the coulrse or the conference in Handy's office, I rely primarily upon the tape recording of the session and a Iran- script of the conference which was prepared from the tape which record- cd all that was said by the participant during the course of the meeting I am convinced from the stipulation of the parties, the colloquy, ad testi- mony of record that the transcript is, i all particulars, accurate and reli- able I do not credit the testimony of Gatson and Pryor t the effect that, as Gatlon was entering the office to attend the conference. Galson was told that he could not speak during the meeting. Neither the transcript of the neeting, the initial tape recording, nor Galson's pretrial affidavit con- lain any support fr this testimony. I reject it and find that no such in- ,tructi i was givenr. On the other hand I credit I'ryor's testimony to the effct that he was riot aware that the session was heing tape-recorded and heciarnc a are of this only after the interviex. was over b. The termination During the night shift on September 15, Kersten reached the conclusion that Pryor had been excessively absent from the work area of the plant, leaving the pro- duction building in the process. He reported this to Handy and described the basis for his conclusion. Handy expressed the opinion that the next step in the disciplin- ary process was termination, and consulted with Fergu- son. A decision was made to terminate Pryor. Kersten prepared an employee counseling form indicating "exces- sive tardiness and a violation of Company policy" as the reason for the counseling and "discharge" as the nature of the action "taken." In the space provided on the face of the form, Kersten also entered the following state- ment: Bobby Pryor was not in the plant facility from 1:45 a.m. when I started looking for him until 2:20 a.m. when he reported and was seen in his relief area. At 2:20 a.m. Bobby Pryor was seen leaving the build- ing again. At 2:50 a.m. Bobby was again seen re- turning to his work relief area. The form was dated September 15. On September 16 a counseling session was conducted in Handy's office. Handy, Kersten, and Pryor were in at- tendance. The meeting was tape-recorded. At the outset of the meeting, Kersten handed Pryor the employee counseling record which he had prepared. Thereupon, Handy asked, "Do you want someone with you, Bobby?" Pryor responded, "Yeah, what is this, man? I am fired or something? What is this?" Kersten in- terjected saying, "Would you like to have somebody in here with you?" Pryor responded, "Sure do man, they gonna definitely be here. You gonna fire me for this? Kenneth Gatson, anybody . . . This say I left the build- ing at 2:20. At 2:10 1 didn't go outdoors." Kenneth Gatson was summoned over the loudspeaker to come to the production office. Without waiting for Gatson to appear, Pryor interjected saying, "I didn't go outdoors at no 1:45." Kersten suggested that they await Gatson's ar- rival, but notwithstanding this suggestion, Pryor offered an explanation as to his whereabouts at the time in ques- tion. While he was doing so, Gatson arrived, and Handy said, "Have a seat, Kenneth. You are here as a witness for Bobby." Thereupon, Kersten addressed Pryor and summarized the events and the assumptions which had led to the formulation of the statement contained on the face of the employee counseling form which Kersten had presented to Pryor. Pryor responded, disputing the accu- racy of Kersten's observation and proffering an explana- tion as to why Kersten's assumptions had been incorrect. There followed a lengthy dialogue between Kersten and Pryor wherein Pryor offered a further explanation of his whereabouts during the disputed time period, while Ker- sten probed the accuracy of Pryor's explanation and ar- ticulated his own viewpoint. This aspect of the session was also punctuated by charges from Pryor that Kersten, specifically, and management, generally, were treating him in a disparate fashion with respect to other employ- ees, and was terminating him, in part, for his support of li()tSi()N CO()CA COLA OTTIL.IN(i (C)OlMPANY 8i5 the Union. As an extension of this concept, Pryor stated during the course of the session: I got permission to leave and I say I was right. Now, if there's anybodys case you should jump on about leaving this place, jump on Joe because he ga' e me permission to leave t here and that's w hy I went over there and talked to that man. Roy Hlandy have him call me up here, Joe haven't called me up here but I went to talk to him and he say y'all had called me up here to let me know something about this. Now you call me here today and you gonna come in here as soon as I get here and tell me I'm fired for some stuff I didn't do. I can't believe that. Ain't no way in the world you can tell me that. You gonna fire me for some stuff like that? Kersten responded, "Nobody's going to file you for nothing you didn't do." Pryor answered, "That's w hat you're doing man, that's what you doing" Kersten lodged a denial and Pryor responded. "Well, just go on man. I'm not gonna sign the thing. I'm not gonna sign." At this point Kenneth Gatson interjected asking, "Can I say something?" Handy responded "You're here as a witness." Gatson said, "I'm the itness." Kersten re- turned immediately to his discussion with Pryor, and Gatson made no further comment until, at a later point in the colloquy between Pryor and Kersten, Gatson en- deavored to interject a remark in context of a statement which Pryor was making. Speaking in unison with Pryor, Gatson said, "... time when John . . . . At the time . " Handy cut Gatson's comment short by saying, "You're still here as a witness," to which Gatson replied, "I still can't talk'?" landy commented, "You're here as a witness to what's taking place and that's hasi- cally it." Gatson said nothing further, and the next com- ment was Pryor's, who said, "Baically what they want to do to me is tryin' to fire me for some bullcorn. I hope you're feeling good about it, man, and I'm gonna fight the case, man, I'm gonna fight it." Kersten responded, "You read the slip of paper, right, B. J.? Is there some- thing that you want to . " Kersten's comments were cut short by Pryor who further pursued his thesis that he was being fired for reasons not valid. Although the ses- sion continued for some further period of time, Gatson made no further comments and no inquiries twere direct- ed to him. The meeting ended, and Pryor's termination was effec- tuated. Gatson testified that had he been permitted to speak he would have said something "helpful" to Pryor. Handy testified that, in the abstract, it was conceivable that during a counseling session the employee being couin- seled would be able to give a sufficient explanation of what had transpired to reverse a disciplinary action which had been decided upon by management in ad- vance of the session itself. In effect, he testified also that this had happened at least once.' II, lrcpg flg iillnllfg. irT hbased L 1 till .i Ctlllplfllt ki - fc ltl ttIlilell - n t III lohhN JOlt Prw ) r. Jiohn Kcrctl i , Ret l1i i.,llt lt'1 l (fif tt l l. ttil IL IIIlll Ir NC lt 1(1)1Ltt ' 0[ rlt Lrti I Jl.;I, Ilso 0111,dvLc th It' tl" 11 WlI\' O-f \I I ' c'rg I1 11 J I II} . IIt l 1 11 iT h Il -1/1111 III t l Ill lg I(lldlIl2 JiII dIIIllMOD Conclusions I find that Respondent denied Pryor his Section 7 rights, and thereby violated Section 8(a)(1) of the Acl. by depriving Pryor of participatory representation of a limited nature delineated below. by an emlploNee of his choice during the course of a disciplinar, inter, ie which Pryor reasonably believed would result i disci- plinary action, alnd which, in fact. accompanied his ter- mination. I find the deprivation arose as a consequence of management's insistence that Gatson, Pryor's repre- sentative. remain silent during tie entire interviewv, thus relegating Gatson to the role of an inert witness to the proceedings, empowered to act on behalf of Pryor, if at all, only il an adjunctive fashion after the purposes of the interview had been played out and the disciplinar action finally sealed I find no deprivation of Pr~ or's statutory rights arising from the earlier disciplinary inter- view, which had accompanied his 3-day suspension. The threshold issue in this case is whether an emplo,- ec has a right to representation in any form at a counsel- ing session convened by management for the expressed purpose of announcing and implementing predetermined disciplinary decisions reached pursuant to an established disciplinary procedure. In Certified Grocers of Culifriu. Ltd., 227 NLRB 1211 (1977), enforcement denied 587 F.2d 449 (9th Cir. 1978), the Board decided the question in the affirmative, holding applicable the principles of . :L.R.B. v J. W'eingurten. Inc., 420 U.S. 251 (1'75). See also Kc'wone Steel & Wire, Divrision o Ke'Vstoone ('onoli- dated Induslriev, Inc., 217 NI.RB 995 (1975). Ill Certiied Grocers, the Board observed: The Supreme Court, in noting and approving the historical development of the Board's finding that Section 7 creates a statutory right in an cmplo cc to refuse to submit without union representation to anll interview which he reasonably fears may result n his discipline, alluded to both "interviews" land "in- vestigatory interviews," without finding that an em- ployee's Section 7 right to union representation ex- isted only at "investigatory interviews." It is also clear, that the Board has never placed such limita- tion on the right to union representation, and the Supreme Court's decision in Weingarten followed the Board's decision without setting forth any spe- cific limitation. In the Mobil Oil decision [196 NLRB 1052 (1972)], the Board found that an employee's right to union representation upon request is based on the right of the employee to act in concert as guaran- teed by Section 7 and that it is a serious violation of the employee's individual right to engage in con- certed activity by seeking the assistance of his statu- to tirrililate l'rttr Finding, .ith recpect ti the diialogle Iand occur- rTlcill II th Scptember 16 CoLunltriIg sesilon are hal%ed principallx upon he tIr.llcrlpI ofit thai ,,ei.iit g sec rin. aind Ih tapr rectordiniu rolr Ichich thall rlltrlpl l: , prepared t1hc ieinwon of Prto'r. (snfi. taris. ;d t<.Kersltl tklth respect to lie altiri eler nts ilf h vs tl l ,t i 1t' l l r l T''IH11 ,lth h l trrlcrlpl and tvlC I apc recordinlg 1t c11' Ic tei'fliilt i tl rI Pttr r (GisiI to t the tnil t tl/lit it T;I a bhe itiier.rt Icd .lc ItIggettlJilg t lIi iila gt cIIIt mi ait t fto ri at tile Co i11t,cliJIg css1 lI toi s gtllC teL fct tai ht c t u i s tl hTl tirptP-fc tlIdcd 8Xh6 I)Ft'ISIO()NS ()OF NAII()NAI ILAB()R RELAlIONS BOARI) tory representative if the employer denies the em- ployee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy . [227 NLRB at 1214.] IIt is cogent here to note that the meeting in Certfied Grocers w as called for the purpose of accomplishing de- livery of a warning notice to an employee pursuant to a management decision which was subject to neither reces- sion nor modification by the company representative charged with delivering the notice. In this connection, the Board majority noted: It is clear that Weingarten set forth the Section 7 right of the employee to seek the presence of his union representative at a meeting with an employer, and that the role of the union representative is to assist the employee and to observe what, if any, bearing any such meeting might have on the interests of the other employees in the unit .... [Ibid., emphasis supplied.] Moreover, in Certified Grocers the Board found that something more than a ministerial act of notice delivery was involved, for during the interview the employee was drawn into a discussion of his work, and the agent of management conducting the interview did not sign the disciplinary notice until the completion of the inter- view.' In this latter respect the instant case is distin- guishable in that all entries signficant to the effectuation of the disciplinary action, including the verifying signa- tures of the management counselors, had been completed prior to the commencement of the counseling session. but in other respects the analogy of the instant record to that evalauted by the Board in Certified Grocers is both compelling and determinative of the central issue. Thus, Roy Handy, Respondent's plant superintendent, and a participant in both disciplinary interviews here under scrutiny, conceded, in effect, that it was conceivable that a counseling session could result in a reversal of planned disciplinary action and that, in fact, such reversals had in the past taken place as a consequence of contributions made by the employee during the course of a counseling session. Further, the record clearly establishes that both disciplinary sessions significant to the instant inquiry in- volved extensive dialogue and colloquy between the management counselor and Pryor concerning his work conduct, and the procedures which governed the coun- seling sessions mandated that the counseled employee be given an opportunity to enter written comments and re- marks concerning the charged violation, and by affixing his signature to the counseling form indicate his under- standing of the nature of the proceeding and the content of the counseling form itself. In my view, these consider- ations strongly rebut the assumption that the counseling sessions were ministerial in form and provided a mere forum for a fait accompli.8 7i l dnring ienforcement to te Board's rderl i ('rtificd (roer. the S Courl of Appeals foir the Ninth Circuit fould nothing decisirtiall slgnllicatll irl Ihes facltors Respondent's reliance upon P'ar, C'ovokwi., Int 237 NRB hi12 (1c978): 4rmlo od (C'onpuanv 238 NL.RS 551 (1978); uld rlireld Srat", (prstu (repuny. 2(X) NLRH 3)5. 30X 309 (1q72) is misplaccd becaulse Moreover, the right of an employee to representation during the course of a disciplinary interview exists wvhether or not the employee is a member of a bargain- ing unit represented by a union Ainchortank. Inc., 239 NLRB 43) (1978); Glomac Plastics. Inc., 234 NLRB 1309 (1978). In Anchortank, the Board reasoned as follows: The central issue of the Weingarten decision vwas whether the employee's Section 7 right to engage in concerted activity extended to the encounter be- tween employee and employer in an interview which could reasonably be expected to result in dis- ciplinary action. In that case, the concerted activity took the specific form of a request for assistance from a statutory representative. However, the Court and the Board placed the emphasis upon the em- ployee's right to act concertedly for protection in the face of a threat to job security, and not upon the right to be represented by a duly designated collective-bargaining representative. This is evi- denced by the Court's holding that the employer has no duty to bargain with a union representative who attends the interview. Indeed, the union repre- sentative s role is limited to assisting the employee and possibly attempting to clarify the facts or suggest other employees who may have knowledge of them. Thus. the union representative is not permitted to use the powers conferred upon the Union by its designation as collec- tive-bargaining agent, and, in essence, may do no more during the course of the interview than could a fellow emnplovee. For these reasons we are persuaded that, in Wein- gartcn, the Court's primary concern was with the right of employees to have some measure of protec- tion when faced with a confrontation with the em- ployecr which might result in adverse action against the employee. These employee concerns remain whether or not the employees are represented by a union. Here, employees Charles and Kittley request- ed union representation at a time hen the Union had been selected by a majority of employees in a Board-conducted election, but had not yet been cer- tified as bargaining representative. Their request was an exercise of the right guaranteed to them by Section 7 to act in concert for mutual aid and pro- tection. In these circumstances, the status of the re- quested representative, whether it be that of Union not yet certified or simply that of fellowv employee, does not operate to deprive the employees of the rights which they enjoy by virtue of the plain man- date in Section 7. [Emphasis supplied.] Thus it is clear from .4nchortank that where, as was here the case at times pertinent, a union had been newly certi- fied, no union stewards had yet been designated, and bar- gaining towards a initial collective-bargaining agree- ment was still in progress, an employee is entitled to be represented at his disciplinary interview by a fellow em- ployee of his choice, even though the employee chosen Ihere Irtr sgificill factual ditlil()lills bhlet IcCn tIhleC cases ald (ie case at bar HO()ST()N CO)CA COLA I()TTILINGi COM()MPANY 8Xh7 has no official or agency position with the certified bar- gaining agent. Finally, from lnchortank and from Certified Grocers it is to be inferred that the role of the chosen representa- five during a course of a disciplinary interview is viewed by the Board as participatory in nature to the extent of vesting the representative with the right, in aid of the employee who selects him. of endeavoring to clarify and elucidate facts, information, and occurrences relevant and material to the disciplinary action contemplated. Clearly, the right of participation is limited in nature and may not be indulged to the extent of intruding into the area of legitimate management prerogatives so as to dis- tort the balance between the right of employees to exer- cise their Section 7 rights and of management to manage. The precise extent to which a representative may partici- pate in a disciplinary interview need not be here defined. However. Anchortank and Certified Grocers suggest that, contrary to Respondent, the role of the representative at a disciplinary interview is not limited to that of a silent observer or confidential advisor to the employee at whose behest he serves. ' These considerations analyzed in terms of Board pre- cedent which is binding upon me lead to the conclusion that, by effectively imposing a prohibition upon Gatson's verbal participation in the counseling session which ac- companied Pryor's discharge, Respondent deprived Pryor of his right to representation of a variety falling reasonably within the parameters of the Board precedent above cited. Twice during the course of that counseling session, Gatson endeavored to interject comments and was informed, in effect, that he was present only as a witness. The attempted interjections came at significant junctures during the course of Pryor's efforts to buttress his contention of disparate treatment at the hands of management. and in context of a lengthy dialogue be- tween Pryor and Kersten concerning Pryor's where- abouts during a time period singularly critical under Ker- sten's explication of the factors contributing to the deci- sion of management to terminate Pryor. Gatson's en- forced silence takes on added irony in light of the record evidence revealing that Gatson had not only been in- volved in an indirect fashion in the episode which led to management's decision to terminate Pryor, but also that Kersten knew that Gatson had been in a position at the time of Pryor's alleged disappearance from the produc- tion floor to have made possibly cogent. relevant, and material observations. The net effect was a deprivation of Pryor's right to effective representation during the course of a disciplinary interview, in derogation of his Section 7 rights and in violation of Section 8(a)(1) of the Act.1 " Contrary to he contciltion f counel for Rspontlelit ll his bhriet' Pryor's requct uas lnot for "u itTrWis " Rather that \,as the role arlgried Giatson by Kerstlen at the outset (If each of the ctllelinig siS,.is " his firlding., hased upon nl percrtepli I t l ti equittlllIiiti, ,f Heoard precedenlt, infetrs ll oul-t-hl.llid r -cli tl ti uuu t (llmltltr.lilllnt tl tinetl] hb couill'c or Rvspilldel iII IIs bitl ,. hi% h illtilte Iglls tilte ,ailditf of n Flli ug J i 1 I Tlir .- Il Ir.lil .Athloulgh tu l t prl\1',dt 1 I fr.lli. vsh.rk againsIt ir. ll i .ird 11rcl l.cer h a heiti .n l1.1se./1d h lits trier ot fact, hc'sc ttit'ltll, i ll crt illr, f pul d.e i11 1 iietri.le allull ¥hir hi are the prl ilc of t he tItilri il p(rilltcilt plrt, Rt'epoid ntill cll llt',u On the other hand, I find no violation arising from conduct of Respondent during the course of the earlier interview hicl coincided with Pryor's 3-day suspen- sioi. The record evidence contains no shosaing of any effort on the part of Pryor's chosen representative, Gatson, to participa3te verbally in the discussions which transpired during the course of the session, nor did Pryor seek to achieve a contribution front Gatson beyond his presence during the course of the counseling session. The fact that Gatson may have known by reason of his fre- quent participation in other employee counseling sessions tha nlanagemenllt did not generally countenance interrup- tionts onl the part of the employee represenltalie is not alone sufficient to sustain the burden imposed upon the General Counsel ,vith respect to the particular counsel- ing interlude involving Pryor on or about September 2. It is noteworthy that at the September 16 session GCatson was not deterred by this asserted notion from attempting to participate. I shall recommend dismissal of this allega- tion of the complaint. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONC( USIONS OF LAW 1 Respondent Great Western Coca Cola HBoltling Company, d/b/a Houston Coca Cola Bottling Company, is, and at all times material herein has been. an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, 2. Sales drivers, Deliveryimen, Warehousemein, and Helpers, Local Union 949, a/u International Brother- hood of Teanmsters. Chauffeurs, Warehousemen & Help- ers of America, is a labor organization within the meani- ing of Sectiol 2(5) of the Act. 3. 13y requiring its emlployee to participate in a disci- plinarN counseling session at which the cinplocce's chosenl represenltative ..as denied the right to reasoinable participation in the counseling session, il a circumstanice whereit the employee has reasonable grounds to believe that tile matters being discussed may result in his beinig subject to disciplinary action. Respondent engaged in conduct in violation of Section 8(a)( I ) of the Act. 4. By effeclua ting the terminatoion of Bobby Joe Pr,or during the course of an employee counseling session wherein Pryor Uas unlIaw-fully deprived of effectie c rep- resentationl by a representative of his choice, Respondlcilt Rcspoll(icritll suhnli, hit .xtelittlig It) ;1ll plloSec rtpreelltlllLe thte ahibolte right o cxpot1l1d hi s Cs to thee lllplosr rirdelis of · ht her inim gtIIItellilt ushe',e t har thcern ,sould inlltrferc st "lt glitit Illntiigteil rilt prcruigillxs e ls tll l r t, crN ulliC Illttllig uill a dehate r trial It 1, iriluc ihl Il t'l i e the (Collpany sealt h.n11 d the' dl 1i.ltL of fliiglruren f}5 ai-firllla.tlstl offerIg a11 lllpI set . 1 111cs itt 's Ill I at d ll t h lgilll Ti o , t.. . hcauCse ltr . 1. io ll . t' i ldt ni" t'itplie,-e rtqulstl ipT rlrire llltlll I th (I1 ti, r1l (C 11tllls Lit .t'e s III plO\, lilg I\'r .tll J!l},Ce 1 1C~."I S " 1 pldltlIl. I (..11 h. (.\ 1t'l , hCIII pi l IIt u r.I ls r 11ti t'tlil, 'llFlg t 'S1ts.11 S It<llll l t 11tl, ktsli1d le rICI UII lrltO i the ' l. l h ic, l ll" 1 TI )llpl [c\ 11111itIJllkl 1J1LI.1 .I1 Illk i,lp' I 11 % psl ti\t ti \c. h',.tI <rdilllg , t ' JudIge,s Slrit t l .let ItIg ' thoulld et'u l c rllldt' hL n I ' -qitI ,'ii CII CCui tI ,111 t N lApproilal .,I (i,' ,tl (1itiel dtslt. h 1 I" pXrtil hi l i tl, irldroi tl ll' 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawfully terminated Pryor within the meaning of Sec- tion 8(a)(l) of the Act. 5. Respondent's unlawful deprivation of Pryor's right to effective representation during the course of the em- ployee counseling session in which his termination was effectuated rendered unlawful what was an otherwise lawful termination for cause. 6. Except as specifically found herein, Respondent en- gaged in no other unlawful conduct. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has unlawfully de- prived Bobby Joe Pryor of his right to effective repre- sentation during the course of a disciplinary counseling session, and having further found that this deprivation has rendered unlawful the otherwise lawful termination for cause of this employee, I shall order Respondent to offer Bobby Joe Pryor immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. Anchortank, Inc., supra, Potter Electric Signal Company, 237 NLRB 1289 (1978), enforcement denied in pertinent part 600 F.2d 120 (8th Cir. 1979). This remedy is fashioned in ac- cordance with what I perceive to be controlling Board precedent and in full cognizance of the provision Section 10(c) of the Act declaring, "No order of the Board shall require the reinstatement of any individual as an employ- ee who has been suspended or discharged, or the pay- ment to him of any back pay, if such individual was sus- pended or discharged for cause."l I apply this remedy in deference to my obligation to follow Board precedent, although I discern no causal relationship between the protected activity found here to exist and the effectu- ation of Pryor's termination for cause. E,g., N.L.R.B. v. Local Union No. 1229, International Brotherhood of Elec- trical Workers, 346 U.S. 464 (1953): cf. Newton Sheet Metal, Inc. v. N.L.R.B., 598 F.2d 478 (8th Cir. 1979), enfg. 238 NLRB 970 (1978). Pryor's backpay shall be computed in the manner prescribed in F: W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon in accordance with the policy of the Board set forth in Florida Steel Corporation, 231 NLRB 651 (1977). The General Counsel's request that interest on backpay be computed at an interest rate of 9 percent per annum is not adopted, for the interest rate question is a policy de- termination for the Board. See Hansen Cakes, Inc., 242 NLRB 472 (1979); Neely's Car Clinic, 242 NLRB 335 (1979); W. Carter Maxwell, d/b/a Pioneer Concrete Co., 241 NLRB 264 (1979). In addition I shall order Respondent to expunge and physically remove from its records and files any dis- charge notices and any reference thereto relating to the discharge of Bobby Joe Pryor on or about September 16, 1978. [Recommended Order omitted from publication.] i' he complaint cntains ile, 8(a)(31 allegation, and the evidence or record contains no foudilalioll supporting a contentlont that Pr}yors termi. nation ",,as discriminatorily motivalcd because of his iolvemcnnt in tilliOll scparat ad apalrt fron his pursuil of his Sec 7 rights toi cffc cisc rcpreselialln by a rcprcscnlaiti , of his choice during the cirsc of tr5% specific ernplye coiulrsclilg on, siils defined hb he cinplaiiit 1. . On