Illinois Bell Telephone Co.

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois Bell Telephone Company and Communica- tions Workers of America, AFL-CIO, Local No. 5008. Case 14-CA-11330 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 14, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the Gener- al Counsel and Respondent filed exceptions and supporting briefs, and Respondent filed an answer- ing brief to the General Counsel's exceptions. 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 briefs and has decided toaffirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, as modified herein. 2 In March 1978, Respondent began investigating a tip from authorities at the Vandalia Rehabilitation Center that Bell operators at its Centralia, Illinois, facility had improperly adjusted long-distance tele- phone bills for Vandalia prisoners. The investiga- tion, which centered on employees Cary Ann Hat- field, Rebecca Wimberly, and Cathy Belt, was con- ducted by Respondent's security representative, James Lawshe. Lawshe interviewed both Hatfield and Wimberly as part of his investigation, and these investigatory interviews, as found by the Ad- ministrative Law Judge, were ones which an em- ployee could reasonably believe would result in discipline. s The Administrative Law Judge found that em- ployee Hatfield requested a representative at the I Respondent has in effect excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law, judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Prod- ucts. Inc., 91 NLRB 544 11950). enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We have adopted the Administrative Law Judge's cotnclusions with respect Io Rebecca Wimberly in their entirety We therefore will set out the pertinent facts only with respect to Cary5 Ann itatfield, hose dis- charge is in issue :' hus. while Respondent argues that it has not admitted tiat the in- tcrviews were subject to the rights accorded employees under N I. RI v J. Weingarten, In , 4211 I S 251 (1475), it coincedes that thle mt cliviews wsere conductcd to iieigate improper adjustmncnts of hlIng-distanlec tlC- phone bills. and that. on the basis (of' infrmation obhtaied thcrTill Re- spoirldeit suspenlded alrd he discharged oine emploet (vs lIo llegedl admitted complicity) andl took nl actliol agail anollther ernpl,,t cs hoI denied iany wrlngdoitlig 251 NLRB No. 128 beginning of her interview. 4 The record shows that she told Lawshe, "O.K., I'm going to go get a rep- resentative," and he replied, "O.K., go get some- one." Hatfield then left the office, and went to the switchboard where she saw another employee, Cheryl Simonton. Hatfield told a supervisor, Nei- poetter, that she would like to have Simonton in the meeting with her. She then returned to the office and told Lawshe that Simonton was on her way to the office. When Lawshe learned that Si- monton was not currently a union steward, he told Hatfield, "Well, I can't talk to you with a union member but I will talk to you if you have your union steward present or you can talk to me alone." After a pause, the interview continued with no representative present for Hatfield. s During the interview, Hatfield admitted both orally and in writing that she had adjusted six prisoner calls, and had made five long-distance calls free of charge. Respondent immediately suspended Hatfield, and a few days later, on the basis of the information ob- tained at the interview, Respondent discharged Hatfield.6 The Administrative Law Judge concluded that, under J. Weingarten, Inc., supra, Respondent violat- ed Section 8(a)(1) of the Act when it denied em- ployee Hatfield's request that a fellow employee sit with her during a disciplinary interview. In so holding, the Administrative Law Judge relied on Glomac Plastics, Inc., in which the Board held that an employee in a plant where there was effectively no union representative at the time was entitled to have a representative present at an investigatory in- terview to the same extent that an employee in a location where the union was recognized had that right. 7 From that Decision, the Administrative Law Judge here concluded that employees at a unionized plant had a right to have the representa- tive of their choice-whether an individual em- ployee or a union-designated representative-since employee Hatfield "can hardly be deemed to enjoy 4 Several days prior to the interview, Hatfield learned of Respondent's investigation, and called her union steward to ask what she should do if she were interviewed by Respondent The union steward instructed Hat- field not to enter the interview alone, and that any union member could serve as her representative at such an interview ' The record reveals that Hatfield worked a split shift from 9 a.m to 2 p.m and froim 5 to 10 pm Since the union steward worked the day shift and the interview ith Hatfield was held on the night shift. the union steward was not aailable at the time of the interview However, Lawshe testified that he had no klnowledge as to whether or not the union ste- vard was available at the time Iof the intersiew I hus, Larry Spain, Respiondent's district manager, testified that he discharged Hatfield on the basis of her erbal admission to Lawshe that she hd adjcsted prisrier calls. 234 Nl.RB 13109 (1978) In Gi/o,,nac, the Hoard noted that the union had been certified, but that, at the time olf the disciplinary interview, the crnplioi hltad etigaged il ba rgaiinlg tactics W hich established that the clilpll C! l Ill igtr rLogillc ed tile ulnirl as the enlpll ec, ' represcnia- 11\1V ILI.INOIS BELL. TELEPHONE COMPANY 933 some lesser right [than the employee in Glomac whose union was effectively not able to represent her] because she is represented by a union, unless somehow the Union has waived this right by con- tract and has insisted that its officers and no one else be utilized at disciplinary interviews." The Ad- ministrative Law Judge found no such restriction by the Union in this case, and he further found that Hatfield had not waived her Weingarten rights by proceeding with the interview. He therefore found the 8(a)(l) violation. As a remedy for the denial of a representative, the Administrative Law Judge or- dered Hatfield's reinstatement in order "to restore the status quo ante." However, he did not pass on the 8(a)(1) allegation that Hatfield had been dis- charged because she insisted on union representa- tion at the interview. In its exceptions, Respondent argues, as a thresh- old matter, that the finding of an 8(a)(1) violation should be overturned because the complaint al- leged that Respondent had violated Section 8(a)(l) by denying an employee's request for union repre- sentation, while the evidence showed that Re- spondent had agreed to a union representative, but would not agree to meet with Hatfield in the pres- ence of another employee who had no official union status but was only a union member. We find no merit to this exception. Although the complaint alleged that Respondent had violated Section 8(a)(l) because it denied Hatfield union representa- tion, we are not precluded from finding a violation under an alternative theory. As we stated in C & E Stores, Inc., C & E Supervalue Division, 221 NLRB 1321, fn. 3 (1976): It is well established that where, as here, the facts underlying the violation are fully devel- oped at the hearing, an unfair labor practice finding can be based on the issues litigated as well as those specifically alleged in the com- plaint.8 Here, all the circumstances surrounding the Hat- field interview, including the facts relating to Si- monton's nonofficial union status, were fully litigat- ed at the hearing, and of necessity Respondent was aware of the General Counsel's theory that Simon- ton's lack of official status was no bar to the find- ing of a violation. Accordingly, Respondent cannot claim prejudice by the Administrative Law Judge's finding. Apart from its procedural concern, Respondent also excepts to the Administrative Law Judge's substantive finding that Respondent violated Sec- ' See also for this result Joint Industry Board of the Electrical Industry and Pension Committee, Joint Industry Board of the Electrical Industry, and Trustees of the Pension Hospitalization and Benefit Plan of the Electrical In- dustry. as named in Appendix .4. 238 NLRB 1398, fn. 8 (1978). tion 8(a)(1) of the Act by refusing Hatfield's re- quest that an employee, with no official union status, be present during the interview with Lawshe. Specifically, Respondent argues that union-represented employees have agreed to give up individual rights vis-a-vis their employer in ex- change for the collective strength of being repre- sented by a union.9 Accordingly, where a union represents them, the employees must rely on the union for representation at Weingarten interviews, at least where the employer so insists. We agree with Respondent that, in certain situations, there is a difference between the rights of represented and nonrepresented employees to interact with the em- ployer as individuals. Certainly an employee cannot act in derogation of the union majority rep- resentative.10 That does not mean, however, that an employee may not deal with the employer as an individual in certain situations. This case presents a situation in which individual interaction is permissi- ble, for there is nothing in the contract which re- quires the presence of a union representative at an investigatory interview, nor was there an oral un- derstanding between the Union and Respondent which established a procedure for representation at investigatory interviews. Moreover, it appears from the record that a union representative was not present at the Centralia facility when Hatfield re- quested a representative. Thus, the issue before us is a narrow one: Whether Hatfield, under the facts presented here, was entitled to have an employee who had no official union status present with her at the interview. We conclude that, under Weingar- ten, she was. We start from the premises that the right to a representative is one grounded in Section 7 of the Act without reference to whether the employees have a majority bargaining representative. Thus, in Weingarten, the Court found that "the right inheres in §7's guarantee of the right of employees to act in concert for mutual aid and protection,"' 2 and, as we found in Anchortank,'3 "[t]he Court and the Board [in Weingarten] placed the emphasis upon the employer's right to act concertedly for protec- tion in the face of a threat to job security, and not upon the right to be represented by a duly desig- nated collective-bargaining representative." Indeed, in Anchortank, the Board stated that the representa- 9 See, e.g., Emporium Capwell Co. v. Western Addition Community Or- ganization, et a., 420 U.S. 50 (1975). 10 Id. at 62-65. 1 Secs 3.07 and 3 10 of the collective-bargaining agreement do pro- vide, however, for the presence of union representation at all stages of the grievance procedure, and that the Union and Respondent will keep each other informed as to who their designated representative is. 12 420 US at 256, quoted in Anchortank, Inc. 239 NLRB 430 (1978) l 31bid 934 DECISIONS OF NATIONAL. LABOR RELATIONS BO)ARD tive's function at an investigatory interview was not that of a traditional bargaining representative, and, therefore, a fellow employee who had no offi- cial union status could serve as a representative as well as an official union representative. Specifical- ly, the Board noted there: Thus, the union representative is not permitted to use the powers conferred upon the union by its designation as collective-bargaining agent, and, in essence, may do no more during the course of the interview than could a fellow employee. 4 While we recognize that there may be times when an individual's Section 7 interests must yield to the collective decision of his fellow employees, as de- termined by the majority bargaining representative, the instant record presents no conflict between the employees' Section 7 right to a representative and the Union's status as the employees' exclusive bar- gaining representative, since: (1) no officially desig- nated union representative was available at the time of the interview; (2) Hatfield's union steward had instructed her several days before the interview that, if called into an investigatory interview, Hat- field could select any union member as her union representative; (3) after Lawshe stated that he would talk to Hatfield with her union steward but no one else, he made no attempt to locate a ste- ward, nor did he offer to delay the interview until a steward was available; and (4) the parties had not negotiated a conflicting procedure for investigatory interviews. Accordingly, we hold on the basis of these facts that Hatfield, upon request, had the right to the presence of a fellow employee at her interview, even though that employee had no offi- cial union status.'5 As noted previously herein, the Administrative Law Judge did not pass on the 8(a)(1) allegation that Hatfield was discharged because she requested representation at the investigatory interview. He found it unnecessary to pass on the allegation, since, in finding the Weingarten violation, he or- dered the same make-whole remedy which he would have ordered if the discharge itself were found to be unlawful. In our view, the Administra- tive Law Judge should not have refused to pass on the independent 8(a)(1) allegation simply because the remedy for it would be the same as the remedy for the violation he found. Our review of the evi- dence, however, leads us to conclude that the Gen- eral Counsel has not shown that Hatfield was dis- charged because she requested a representative. Rather, the evidence shows that her discharge was " Id. at 430-431. to See also Crown Zellerbach. Inc.. Flexible Packaging Division, 239 NLRB 1124 (1978). motivated by Respondent's belief that she had im- properly adjusted telephone calls. Accordingly, the complaint with respect to this allegation is dis- missed. Finally, Respondent and the General Counsel have both excepted to the Administrative Law Judge's recommended remedy wherein the Admin- istrative Law Judge ordered backpay and reinstate- ment for Hatfield. The General Counsel urges that the Administrative Law Judge should also have or- dered Respondent to strike and remove from its re- cords and files the statement given by Hatfield to Lawshe as well as all references to any disciplinary action arising out of the events of March 1, 1978. Respondent, on the other hand, argues that rein- statement and backpay are improper, since there is no finding that Hatfield was discharged for re- questing representation, or even that the discharge violated Section 8(a)(l) of the Act. We therefore reach the question of the proper remedy for Re- spondent's unlawful refusal of Hatfield's request for a representative at an investigatory interview. We think the answer to the question is a simple one. The Board has authority to restore the status quo ante where restoration is necessary to "undo the effects of violations of the Act,"' 6 and where the remedy is "well designed to promote the poli- cies of the Act."' 7 Here, Respondent's unlawful in- terview of Hatfield resulted in a confession which Respondent then used as the basis for discharging Hatfield. Accordingly, we think it appropriate, in order to rectify the harm which resulted from the unlawful interview, to grant the remedy of rein- statement and backpay. In so doing, we hold that, where the General Counsel shows that an unlawful investigatory interview has occurred and that the employee was disciplined or discharged for con- duct which was the subject of the interview, the burden then shifts to the employer to show that its decision to discipline or discharge was not based on information which it obtained at the inter- view. 8 In the instant case, the General Counsel showed that an unlawful interview had occurred, and that Hatfield was discharged for conduct which was the subject of the interview. Respondent in fact ad- mitted that it based its decision to discharge Hat- field on her oral admissions at the interview with Lawshe. Accordingly, it failed to meet its burden 6 Fibreboard Paper Products Corp. vs NL.R.R.. 379 US. 203, 216 (1964), quoting ,NL.R.B. v Seven-Up Bottling Company of Miami. Inc.. 344 U S. 344, 346 (1953) "' Fibreboard Corp.. 379 US. at 216. ' In Fibreboard. the respondent also had the burden of establishing that the remedy was unwarranted. Ibid. Member Jenkins regards this statement as too board, but otherwise concurs in the decision herein See his dissent in Kraft Foods. Inc., 251 NLRB 598 (1980). ILLINOIS BELL TELEPHONE COMPANY 935 of showing that the decision to discharge was not based upon information obtained at the unlawful in- terview.' 9 We therefore find that an order of rein- statement and backpay is the proper remedy in this proceeding. 20 Furthermore, we agree with the General Counsel that, as part of the make-whole remedy, Hatfield's statement at the interview, as well as any references to any disciplinary action arising out of the events of March 1, 1978, should be expunged from Respondent's files and records. 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, Illinois Bell Telephone Company, Centralia, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(a) and re- letter the subsequent paragraphs accordingly: "(a) Requiring that employees participate in in- terviews or meetings where the employees have reasonable grounds to believe that the matters to be discussed may result in their being disciplined and where representation at those interviews or meetings has been refused." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Expunge and remove from its records and files any and all references to the incident on March 1, 1978, in which Cary Ann Hartfield was wrongfully denied a representative, including any discharge notice or reference to the discharge." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, CONCURRING: I join the majority in ordering that Respondent reinstate Cary Ann Hatfield with backpay and ex- punge any records dealing with her discharge. I would, however, grant the requisite make-whole remedy for a Weingarten violation where the Gen- eral Counsel shows that an unlawful interview has occurred, and that the employee was disciplined or discharged for conduct which was the subject of 19 Because the circumstances of the interview and discharge were fully litigated, and because Respondent did come forward with the evidence as to the basis for its decision, we find it unnecessary to reopen and remand this case to the Administrative Law Judge for a hearing on this issue. a' That does not mean, however, that, if Hatfield accepts reinstate- ment, Respondent is forever foreclosed from discharging her for improp- erly adjusting the prisoners' calls It cannot, however, do so on the basis of any information obtained from the interview of March 1. This proce- dure remedies the unfair labor practice. while preserving Respondent's right to discipline and discharge its employees. so long as its actions do not contravene the Act the unlawful interview. Since such was the case here respecting Hatfield, the remedy provided in this Decision is the appropriate one. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAIl LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT require any employee to take part in an interview or meeting where the em- ployee has reasonable grounds to believe that the matters to be discussed may result in his or her being the subject of disciplinary action and where we have refused to permit him or her to be represented at such meeting by a repre- sentative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Cary Ann Hatfield immedi- ate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her se- niority or any other rights or privileges previ- ously enjoyed and WE WILL make her whole for any loss of pay or benefits which she may have suffered by reason of the discrimination practiced against her, with interest. WE WILL expunge and remove from our re- cords and files any and all references to the in- cident on March 1, 1978, in which Cary Ann Hatfield was wrongfully denied representation, including any discharge notice or references to discharge. ILLINOIS BELL TELEPHONE COMPANY DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at St. Louis, Missouri, on June 23, 1978, upon an unfair labor practice complaint,' issued by the Regional Director of the Board's Region 14, which alleges that the Respond- The principal docket entries in this case are as follows Charge filed herein on April 7, 1978, by Communications Workers of America. AFL-CIO, Local 5008 (herein called the Union); complaint issued by Regional Director, Region 14. on May 8. 1978; Respondent"s answer filed June 9, 1978; hearing held in St. Louis, Missouri on June 23, 1978: briefs filed by the General Counsel and the Respondent with me on or before Juls 24. 1978 A . . 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Illinois Bell Telephone Company 2 violated Section 8(a)(1) and (3) of the Act. More particularly, the com- plaint alleges that the Respondent unlawfully denied union representation to two of its employees during dis- ciplinary interviews, and that it suspended and then dis- charged Cary Hatfield because she insisted on union rep- resentation at a disciplinary interview. The Respondent contends that both employees waived their rights to rep- resentation at the interview in question and that Miss Hatfield was discharged for cause. Upon these conten- tions, the issues herein were drawn. I. THE UNFAIR LABOR PRACTICES ALLEGED The events in this case took place at the Respondent's Centralia, Illinois, telephone exchange. The switchboard operators and other employees at this location are repre- sented by the Union herein and are covered by a collec- tive-bargaining agreement, effective August 7, 1977, which expires on August 9, 1980. The employees in- volved herein, Cary Ann Hatfield and Rebecca Wimber- ly, are or were long-distance toll operators at the Centra- lia exchange. In March 1978, the Respondent, through its security representative, James Lawshe, initiated an investigation of suspected dishonesty in the computation of long-dis- tance telephone charges and the use of long-distance telephone facilities at the Centralia exchange. The inves- tigation focused on Hatfield, Wimberly, and Cathy Belt, all of whom were interrogated by Lawshe at interviews which the Respondent admits were disciplinary in char- acter. Hatfield, a 5-year employee at the Centralia ex- change, first learned that she was the subject of a compa- ny investigation on February 28. At Wimberly's request, she came to Wimberly's house and there, in the presence of Belt, was told of a telephone conversation which Wimberly had with William Fischer, an inmate of the nearby Vandalia Rehabilitation Center, a correctional in- stitution. It appears that prisoners of the Vandalia Center are permitted to place outside calls from a phone located in the recreation area of the Center. However, these calls must be reverse-charge toll calls which are paid for by the recipient of the call. Wimberly told Hatfield and Belt that Fischer had informed her in a hurried call that he and two other inmates, Robert Allen (known familiarly as Payday) and Rodney Feisel, were being sent to soli- tary confinement. However, he wanted to let her know that a Bell Telephone investigator from Chicago was coming to Centralia to talk to the three operators and that Cathy Belt and Cary Hatfield might lose their jobs. Hatfield immediately phoned her union steward, Jan 2 Respondent admits, and I find, that it is an Illinois corporation which maintains a place of business at Centralia, Illinois, where it operates an office and telephone exchange. Respondent is, and at all times material hereto has been, engaged in providing telephone communication and re- lated services as a regulated public utility. In the course and conduct of this business, it derived gross revenues in calendar year 1977 in excess of $100,000. or which sum more than 50,000 was derived by providing tele- phone service directly between points and places in the State of Illinois to points and places located outside the State of Illinois. Respondent is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5) of the Act. Kirwan, and relayed this information. Kirwan reportedly told Hatfield not to go into any investigative interview alone and also told her that any union member could represent her. Hatfield works a split shift. During the evening por- tion of her March I shift, she was asked by her supervi- sor, Nancy Neipoetter, to leave the switchboard and report to the chief operator's office, where Lawshe was waiting to speak to her. During the next 2 hours or more, Lawshe interviewed Hatfield alone in the office. As might be expected, their versions of the interview differ in some particulars. Both agree that Lawshe began by identifying himself and by telling Hatfield that he was investigating the manner in which toll calls were being placed by opera- tors at the Centralia exchange for inmates of the Vanda- lia Rehabilitation Center. He specifically asked her if she knew if any operators were making adjustments 3 on toll charges for outgoing calls placed by Vandalia inmates. Hatfield said that she had made no such adjustments and knew of none which were being made by other opera- tors. He also asked her if she had been making free calls for Vandalia inmates and she denied it. Both agree that, at some point in the 2-hour interview, Hatfield asked for union representation. She and Lawshe disagree on when this request occurred. Hatfield had been told a few days before that she had a right to union representation and had been further advised by her shop steward not to go into the meeting without someone with her. I think that Hatfield's version, namely, that she requested representation at or near the outset of the meeting, is more believable, and I credit it over Lawshe's version that she did not request representation until after she had made a number of damaging verbal admissions which he was proposing to put in writing. Regardless of the timing of her request, Lawshe and Hatfield agree that Hatfield not only requested union representation but also specifically requested the pres- ence and assistance of Cheryl Simonton, an employee who at one time had been an assistant shop steward at the Centralia exchange. Hatfield was allowed to leave the room and to seek out Simonton. She returned and told Lawshe that Simonton was on her way to the inter- view. Lawshe learned that Simonton was not currently a union steward and told Hatfield that he could not talk with her with merely another union member present. He said he would talk with her in the presence of a steward or would give her the option of talking to him alone. He did not say that she had the option of not talking with him at all or of postponing the interview until a union steward could be found. 4 After receiving from Hatfield initial denials of any wrongdoing, Lawshe began to talk to her concerning 3 An example of such an adjustment would be making a 3-minute entry on a toll stub for a call which in fact lasted 10 minutes. 4 The record indicates that there is no contractual requirement that a shop steward be present at the exchange whenever union members are working. In response to a question by me, Lawshe said he did not know if a formally designated union representative was in fact on the premises at the time of the Hatfield interview and could not state the identity of anyone present in the building at the time who could properly act, in his view, as Hatfield's representative ILLINOIS BEI.I. TELEPHONE COMPANY 937 herself and her personal life. He asked her how long she had been with the Company, what her job duties were, and where she lived. He asked her if there was a special way of identifying calls emanating from the Vandalia Rehabilitation Center, and she informed him that a spe- cial light came on at the switchboard to indicate such calls. Lawshe asked her if she associated with any of the prison inmates and specifically if she was acquainted with an inmate known as Payday. Hatfield stated that she knew Payday, that she had dated him on occasion, had visited him at the prison, and that she expected to see him after he was released. Lawshe asked her if she intended to marry Payday, if she was writing to any of the Vandalia prisoners, and if she knew inmates William Fischer and Rodney Feisel. Hatfield said that she knew them and had been writing to Feisel. Lawshe then asked her if she had mailed her work schedule to any of the prisoners. She denied doing so. While she maintained during the initial part of her inter- view that she did not place free calls or adjust calls for any prisoners, Lawshe persisted with questions such as "How long has this been going on?" with reference to her relationship with the prisoners in question. He told her that he had witnesses to the fact that she had been furnishing prisoners her work schedule. After repeated questioning, Hatfield then asked Lawshe what would happen if she admitted adjusting toll calls. He stated that he would turn the information into his Chicago headquarters and they would make a decision. She asked what he would do if she did not admit adjusting calls. I credit her statement and discredit Lawshe's denial that he then said he would prosecute, adding that he did not want to be hard on her and vol- unteering "you wouldn't go to jail. You wouldn't be wearing stripes." Lawshe suggested that Payday had pressured her into making toll adjustments for outgoing calls from the Center. At this point, Hatfield told Lawshe that he had not done so and that she had adjusted five or six calls for Vandalia prisoners. She also said she had called a girl friend, Daphna Sprehe, in California free of charge. 5 Lawshe asked her to make a written statement to the effect that she had adjusted toll charges and made free long-distance calls. He went back over these aspects of the interview, wrote out a statement in longhand, and gave it to her to sign. She signed it. The written state- ment, dated March 1, contained admissions that in the past 2 months she had handled an estimated six calls from the Vandalia Center for which she had adjusted the total timing on the bills. It also contained an estimate that she had made about five calls to Daphna Sprehe in Pomona, California, free of charge. Lawshe took the statement and showed it immediately to Neipoetter who, after reading it, informed Hatfield that she was being sus- pended. Hatfield left the premises. On the following morning, Lawshe interviewed Wim- berly in the chief operator's office. After Lawshe identi- fied himself and the nature of his business, Wimberly asked him: "Should I have someone in here with me, someone from the union?" Lawshe's reply was "No, it is : Sprche a , r frmrln ;an operator al t he Cctralia Fch;ange not necessary as long as you are honest with me," whereupon he immediately proceeded to conduct the in- terview. Among the statements made by Lawshe to Wimberly in the course of their 2-hour interview was "You know you don't have to take the rap for Cary." He also asked her about her association with various prisoners at Vandalia. When she acknowledged her ac- quaintance with some of them, he volunteered the remark that she would be judged by the company she kept. He asked her if she would take a polygraph exami- nation and she agreed to do so. Beyond these and a few other incidental remarks, the substance of this interview does not appear in the record. Apparently no adverse action was taken against Wimberly. After completing his interview with Wimberly, Lawshe then interviewed Belt. The substance of this interview also does not appear in the record, except for Lawshe's testimony that Belt sought and obtained union representation during her in- terview. There is no suggestion in the record that the Respondent took any disciplinary action against Belt. District Manager Larry Spain testified that he re- viewed the Hatfield case and, on March 7, informed Nei- poetter that she should discharge Hatfield. He stated that he did not review the written statement which Lawshe took but based his decision on other evidence, stating that his sole reason for discharging her was dishonesty on her part in adjusting toll calls to California, I inquired of Lawshe and of the Respondent's counsel if they had any independent evidence of the time, date, and destina- tion of the toll calls which Hatfield wrongfully made or adjusted. They responded in the negative. Hatfield denied that she had written any letters to Vandalia pris- oners informing them of her duty hours or that she had made free calls to California without getting caught. Lawshe said he saw such a letter, which had been pro- vided to him by prison authorities, but the letter was not produced at the hearing nor was the failure to produce it explained. On March 9, Neipoetter called Hatfield to the ex- change. A brief interview was held in the presence of Shop Steward Kirwan. Neipoetter told them that she was making the interview short and to the point, where- upon she discharged Hatfield and told her to turn in her identification card and her locker key. II. ANALYSIS AND CONCLUSIONS The Supreme Court held in the Weingarten and Quality Manufacturing cases6 that the right of an employee to union representation at a disciplinary interview is pro- tected by Section 7 of the Act. Of pertinence to this case are certain qualifications announced by the Court, namely, that the right must be invoked in a timely fash- ion, may be waived, and exists only in the case of disci- plinary as distinguished from investigatory interviews. In deciding these two controlling cases, the Supreme Court cleared up a dispute which can be found in prior Board cases over whether the right of representation at such in- terviews is grounded in statute or whether it exists only VL R B. v J. Weingarten Inc.. 420 L.S 251 11975). nternational LadwC Garment WHirker' nion Q Q)ualitv Manufacturing Compan. 420 lS 276 (9q7) 938 DECISIONS OF NATIONAL LABOR RELATIONS 3()ARD when it becomes a contractual undertaking between an employer and a union in a represented bargaining unit. The Supreme Court adopted the former view. At the outset of this discussion, it should be noted that the Respondent conceded that both interviews here in question were disciplinary in character. Section 7 of the Act makes no mention of union representation as a pre- requisite to its coverage. The scope of its protection ex- tends to unrepresented employees as well as to union members. Since the source of the right of representation was held by the Supreme Court to be statutory, not con- tractual, the Board thereafter took the logical, if not ines- capable, step in Glomnac Plastics, Inc., 234 NLRB 1309 (1978), by holding that an unrepresented employee in a nonunion setting was entitled to have another employee represent him at a disciplinary interview under the same circumstances that a union-represented employee is enti- tled to invoke this protection. To apply the thrust of the Glomac case to the Re- spondent's major contention herein, if Hatfield had been working in a nonunion plant and had made a timely re- quest to be represented by Simonton at her interview with Lawshe, it would be a violation of Section 8(a)(l) for the Respondent to have prevented Simonton from rendering the requested assistance. Hatfield can hardly be deemed to enjoy some lesser right because she is rep- resented by a union, unless somehow the Union has waived this right by contract and has insisted that its of- ficers and no one else be utilized at disciplinary inter- views. The Union has made no such contention in this case. Its shop steward informed Hatfield some days before her interview with Lawshe that any union member could serve as her representative. The contract between the parties contains only one reference to the entire question of representation at disciplinary inter- views. Section 27.04 provides: At any meeting between a representative of the Company and an employee in which discipline (in- cluding warnings which are to be recorded in the personnel file, suspension, demotion, or discharge for cause) is to be announced, a Union representa- tive may be present if the employee so requests. There is nothing at all in the paragraph which remote- ly trenches upon the statutory right of an employee at the Centralia bargaining unit to be represented at a disci- plinary interview by any other employee. Thus, when Lawshe denied Hatfield the right to be represented by Simonton, he was denying her the right to be assisted by a representative of her choice and was, without the slightest warrant in statute or contract, arrogating to himself a prerogative which was not his but which served his purpose of pursuing an investigation with a minimum of interference. At the moment Lawshe told Hatfield that she could not be represented by Simonton, the Respondent violated Section 8(a)(1) of the Act. Any- thing which occurred thereafter compounded rather than modified or remedied this violation. Respondent claims that Hatfield and Wimberly both waived their right of union representation by consenting, in each case, to go ahead with the interviews. In the case of Hatfield, the contention is particularly weak, inasmuch as the Respondent must perforce contend that an em- ployee had freely waived a right which the Respondent had already illegally invaded. In any event, a claim of waiver may not lightly be invoked and, when such a claim is made, the burden is upon the one asserting it to establish that a waiver has in fact occurred. It has been well established, in cases arising out of a host of different situations, that the waiver of a right protected by Section 7 of the Act must be clear and unequivocal. Sometimes the, Board uses the expression "clear and unambiguous." Gary Hobart Water Corporation, 189 NLRB 742 (1971); Nordstrom. Inc., 229 NLRB 601 (1977); Texaco Corpora- tion, 189 NLRB 343 (1971); Television Wisconsin, Inc., 224 NLRB 722 (1976); Sheet Metal Workers International As- sociation, Local Union No. 29 (Metal Fab Inc.), 222 NLRB 1156 (1976); Laconia Shoe Co., Inc., 215 NLRB 573 (1974). The requirement of a clear and unambiguous waiver has been held to apply specifically to the right of representation at disciplinary interviews. Southwestern Bell Telephone Company, 227 NLRB 1223 (1977). No such waiver occurred on March I at the Hatfield inter- view. Under the facts in the record, when Hatfield's selec- tion of a representative was refused, she was not in- formed that she might terminate the interview or sus- pend it until a union officer could be present. She was detained alone in the locus of managerial authority, pep- pered repeatedly with hostile questions, and threatened with criminal prosecution. The interrogator pried into the details of her personal life and her personal plans, hoping to find a pressure point which would give forth a damaging admission. Such elements in this interview do not support a contention of waiver. They smack of op- pression in the face of a studied reluctance to proceed. Accordingly, there is utterly no foundation for the Re- spondent's argument that Hatfield freely and voluntarily waived her right to representation by continuing to answer the questions which Lawshe posed to her. Lawshe was not quite so heavy-handed in dealing with Wimberly, so the question of a timely request for repre- sentation and a waiver of this right is much closer in her case. Both parties to this interview acknowledge that, at the outset of the conversation, Wimberly asked Lawshe if she should have someone present from the Union. I take this remark to be both a request for advice and the expression of a desire for union assistance. Her statement is not far removed from the statement made by the inter- rogated employee in Southwestern Bell, supra, a statement which the Board construed as a request for union repre- sentation ("I would like to have someone there to ex- plain to me what was happening"). Having concluded that the statement by Wimberly was a timely request for representation, I must also conclude that Lawshe was not at liberty to proceed until union representation was provided, or unless other and further statements or events evidenced a clear and unambiguous waiver on Wimberly's part to go it alone. The Board said in Southwestern Bell that "Weingarten does not require that having made his request, an em- ployee must remain adamant in the face of predictions of ILI.NOIS BELL TELEPHONE COMPANY 93( dire ultimate consequences." In the WVimberly interview, unlike the Hatfield interview, there were no predictions by Lawshe of dire ultimate consequences. However, Lawshe's remark that Wimberly did not need a repre- sentative if she was going to be honest with him carries the clear message that an adamant insistence on represen- tation on her part would be considered tantamount to dishonesty by an employee who was being called upon to respond to an investigation which was being undertak- en to probe into suspected dishonesty. The clear import of Lawshe's words on this occasion is that the only way that Wimberly could vindicate her honesty in the eyes of her employer was to proceed without union representa- tion. Her election to proceed under such circumstances was not a free and unfettered waiver of a statutory right but merely capitulation to a more subtle form of pressure than was used in the Hatfield case. Accordingly, I con- clude that, by conducting an interview of Wimberly in the absence of union representation when such represen- tation was requested, the Respondent herein violated Section 8(a)(l) of the Act. Section 6 of the complaint alleges that the Respondent discharged Cary Hatfield because she insisted on union representation at her disciplinary interview. The Re- spondent says that its sole and exclusive reason for dis- charging her was dishonesty in adjusting toll calls for Vandalia prisoners and making unauthorized long-dis- tance calls to a girl friend in California. In support of its contention, the Respondent introduced the testimony of its district manager, Larry Spain, who traced his thought processes in arriving at a decision to let Hatfield go. While this testimony is relevant to the complaint as drafted, both the allegation in paragraph 6 and the testi- mony directed to it are surplusage to the findings and remedy recommended in this case. For reasons herein- after discussed, such matters need not be addressed in this Decision in order to provide the General Counsel with the remedy which he has requested in this case.7 Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCL USIONS OF LAW 1. Illinois Bell Telephone Company is an employer en- gaged in commerce and in an industry affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL-CIO, Local 5008, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to permit Cary Hatfield and Rebecca Wimberly to have representation by employees of their selection at disciplinary interviews, the Respondent herein violated Section 8(a)(1) of the Act. 7 Throughout the hearing, the General Counsel repeatedly objected to evidence being offered concerning whether Halfield really was guilty of misconduct in the performance of her duties No finding is made herein as to hether or not she actually adjusted toll calls and made unauthor- ized long-distance calls from her suitchboard HowAeser, sincr the moll- vatlion for her discharge Was placed in issue h paragraph 6 of the com- plain, an) eidence hearing oln he Respondent's real reason fr lettlng her go is certainl)y material to the issue 'hich was framed '.henl h Re spondent denied paragraph 6 4. The unfair labor practices found herein affect com- merce among the several States within the meaning of Section 2(6) of the Act. THI RMHil)y, Having found that the Respondent has committed cer- tain unfair labor practices, will recommend that it be ordered to cease and desist therefrom and to take other affirmative actions designed to effectuate the purposes and policies of the Act. In the case of Hatfield, the record reflects that she was discharged shortly after her disciplinary interview ostensibly for reasons which were related to the matter which was the subject of the un- lawfully conducted interview. Fashioning a remedy for the unfair labor practice found I must take this fact into consideration. In recommending a remedial order to the Board, I deem it immaterial whether the information in Spain's possession when he decided to fire Hatfield in- cluded either written or oral admissions derived from Lawshe's interrogation of the employees. As far as I am concerned, whether or not Hatfield is really guilty of the misconduct alleged or whether her denials under oath on the record in this case are entitled to ultimate acceptance is immaterial to the remedy being recommended. The purpose of a Board remedy is to restore the status quo ante. To put it in simpler terms, our purpose is to turn the clock back to the point in time when the unfair labor practice occurred and to require the parties to go forward from that point, insofar as it is possible, as if the unfair labor practice had never occurred. In regard to Hatfield, the unfair labor practice principally at issue in this case occurred on the night of March I at the moment when she was prevented from having the assist- ance of Simonton as her representative. At that moment, she was an employee of the Respondent in good stand- ing, except that she was the subject of an investigation for job-related misconduct. Restoration of the status quo necessarily means restoring her to this status and paying her for wages and benefits lost in the interim. Here, as in conventional discharge cases, such backpay should be computed in accordance with the Woolworth formula," with interest thereon taxed in accordance with the ad- justed prime rate used by the U.S. Internal Revenue Service for computing interest on tax payments. Florida Steel Corporation. 231 NLRB 651 (1977); i1si Plumbing & Heaing Co., 138 NLRB 716 (1962). What is to become of the statement taken from Hat- field by Lawshe and where the Respondent can go from here need not be addressed in this Decision. Whether statements taken in violation of an employee's statutory rights become "fruit of a poisonous tree," to borrow a phrase from constitutional law relating to coerced con- fessions and illegal searches and seizures,9 or whether an employer may take a statement in violation of Section 7 of the Act and use its contents or information derived therefrom to effectuate a lawful discharge is a matter ' W1 H1r4iliorth C-(½npuanr. 9(1 NLRtB 284 (l950) ' See, for example, hfopt I tah, 11) S 574 (ISS4): H,A , I' ed Struts, 232 U S 8I (11914). In r .SVrthorln- 1 l.umhr ( renpont 21 ' S 385 1q20). Escobchdo n Slatc i/ l/tlh ,. 17X t S 478 6194. ,thranda. .4rizona. 3X4 1 S 436h (1966) 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which can be addressed by the Board, a court, or an ar- bitrator at a later time if the Respondent herein decides to press this matter further. The findings made above, limited though they may be, are sufficient to provide the General Counsel with the remedy he is now seeking. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER l ° The Respondent, Illinois Bell Telephone Company, Centralia, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Conducting disciplinary interviews of employment in the absence of an employee representative when the employees under investigation have requested to be rep- resented by other employees. (b) In any like or related manner interfering with, co- ercing, or restraining employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer to Cary Ann Hatfield full and immediate re- instatement to her former position or, in the event her '0 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 findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. former position no longer exists, to substantially equiva- lent employment, without prejudice to other rights which she formerly enjoyed, and make her whole for any loss of pay or benefits which she has suffered by reason of the unfair labor practice found herein, in the manner described above in the section entitled "The Remedy." (c) Post at its Centralia, Illinois, exchange copies of the attached notice marked "Appendix."'' Copies of said notice, provided by the Regional Director for Region 14, shall be duly signed by the Respondent's shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken to by the Respondent to insure that such notices are not altered, defaced, or cov- ered by any other material. (b) 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 re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent taken to comply herewith. I In the event that this Order is enforced by a Judgment of a United Slates Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."