Diamond Reo Trucks, Inc.

DIAMOND REO TRUCKS, INC. Diamond Reo Trucks, Inc. and International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW). Case 7- CA-10706 July 30, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On April 18, 1974, Administrative Law Judge John P. von Rohr issued the attached Decision in this pro- ceeding. Thereafter, counsel for General Counsel filed exceptions and a supporting brief, and counsel for Respondent filed cross-exceptions and also filed a brief in answer to the exceptions taken by counsel for General Counsel and a request for oral argument.' 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 to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i We hereby deny the Respondent's request for oral argument. as the record including the briefs, adequately presents the issues and the positions of the parties - 2 Member Fanning notes that even if Perry's request for "some kind of representation" was in fact a request for union representation, Respondent terminated his interview when Perry refused to answer questions after asking for his representative. This was also true in Miller's case although Miller did specifically request that his union representative be present. In such circum- stances, and noting that neither employee was later disciplined for leaving the interview, Member Fanning agrees with the conclusions of the Adminis- trative Law Judge dismissing the complaint. See Western Electric Company, Inc.,' 205 NLRB 195 (1973). Member Kennedy also agrees with the conclusions of the Administrative Law Judge but for the reasons expressed in his dissents in Quality Manufac- turing Company, 195 NLRB 197 (1972), enforcement denied-481 F.2d 1018 (C.A. 4, 1973), and Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce- ment denied 482 F.2d 842 (CA 7, 1973), in which he has found that an employee has no statutory right to union representation when summoned to an interview with the employer or his representatives. Member Penello also agrees with the conclusions of the Administrative Law Judge since he finds that Respondent was merely conducting investiga- tive rather than disciplinary interviews. See Western Electric Company, Hawt- horne Works, 198 NLRB No 82 (1972). - ' DECISION STATEMENT OF THE CASE 651 JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on November 5, 1973, the General-Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 7 (Detroit, Michigan), issued a complaint on January 11, 1974, against Diamond Reo Trucks, Inc., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices violative of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act.' The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. -Pursuant to notice, a hearing was held before Administra- tive Law Judge John P. von Rohr in Mason, Michigan, on February 26, 1974. Briefs have been received from the Gen- eral Counsel, and the Respondent on March 22, 1974, and they have been carefully considered. Upon the entire record in this case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation with its prin- cipal office and place of business located in Lansing, Michi- gan, where it is engaged in the manufacture, sale, and distribution of truck and truck parts. During the calendar year ending December 31, 1973, Respondent sold and shipped products manufactured by it valued in excess of $50,000 to points and places located outside the State of Michigan. During the same period, it received goods and materials valued in excess of $50,000 from points and places located outside the State of Michigan. The Respondent concedes, and I find, that it is engaged in commerce within the meaning, of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue During the month of October 1973, Respondent engaged the Pinkerton Detective Agency to conduct an investigation concerning the theft of company property. The complaint alleges that Respondent violated Section 8(a)(1) of the Act by refusing employees' requests that a union representative be `permitted to attend interviews of them by Pinkerton detectives during this investigation. 212 NLRB No. 97 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts In about May 1973, Respondent engaged Pinkerton In- corporated, a detective agency, to conduct an investigation of theft at its Lansing plant. Particularly involved in sub- stantial stock shortages were radios and stereo systems which are utilized by Respondent in its business. The first phase of the Pinkerton investigation involved a period of undercover surveillance among employees in the areas of the plant that appeared most likely suspect. The second phase involved personal interviews of employees by Pinker- ton detectives. These took place between October 4 and 31, 1973, with a total of 18 employees being interviewed during this period. The Pinkerton agents conducting these inter- views were Robert Claus and Jerry', Lang. The interviews were held in an office in the personnel department, the employees usually having been instructed to go there by their respective foreman. Three of the 18 employees interviewed were called as witnesses by the General Counsel. One of them, employee Joe Bush, concededly did not request the presence of a union representative during his interview. Accordingly, the balance of his testimony is not relevant to the issue and need not be detailed here. However, the testimony of the other two witnesses was as follows. Employee Douglas Perry, who was interviewed about Oc- tober 18, testified that the investigators handed him their identification cards and introduced themselves as "Pinker- ton Agents." They informed him of the nature of the inter- view and indicated that he had been implicated in theft of company property by other individuals. Perry testified that after some further discussion the following took place: The conversation continued and seemed to get hotter and hotter between the individual on the left and my- self, to the point where I asked them if I wasn't entitled to some kind of representation. He told me the only representation that would do me any good was a law- yer, and he took the phone off the hook and shoved it in my face and said if you wanted one, you can have one you need it ... I told him I didn't believe I needed a lawyer, because I hadn't done anything wrong, and if they had any legal right to hold me there, and they said they were employed, hired by management and I had to stay there . . . Well, the conversation between us was getting worse and worse there was nothing being accomplished and just more hostility between us, and I asked them then if they were legally affiliated with the police department and if they could force me to stay, and they said no, and so I arose and told them I was leaving, and they told me if I left they would report it to the management of the factory, and didn't matter to them, they could have the State Police pick me up later I turned and left. [Emphasis supplied.] Employer Roger Miller testified concerning his interview with Claus and Lang which took place in about the middle of October. The investigators introduced themselves as in- dependent agents who were hired by the Company and advised Miller that they were conducting an investigation. Miller testified that he told the investigators that he was aware of the investigation but that he "did not appreciate the fact that his name had been mentioned in connection with it." Miller said that at this point he was asked to sit down, to which he said he responded, "I want my union representative right now." Continuing, Miller testified that one of the detectives replied, "We don't think you are enti- tled to union representation unless you have a grievance." Miller retorted that he "didn't get paid to think" and that in the past he had obtained union representation when he asked for it. Miller said that at this point one of the men told him that he was in trouble. However, Miller testified that this made him "kind of mad," whereupon the following ensued: I told them that I would give them five minutes to tell me what it is they wanted me in there for, and the man said then what, and I said I am walking out of here and punching out and going home. . . He told me to go on, if I didn't want to talk, to go on . . . Just told me to leave, if I didn't want to talk to them. I dust walked out, and punched out and went home. . . He said he would see me in court. It is undisputed that Respondent at no time took any action against Miller because he walked out of the interview in the manner reflected above. B. Conclusions As of this writing, and notwithstanding court decisions to the contrary, the Board adheres to the proposition that the rights guaranteed employees under Section 7 of the Act includes the right of an employee to insist on union repre- sentation at interviews which he is compelled by his employ- er to attend, where the employee has reasonable grounds to believe that the interview might result in action adversely affecting his employment) Thus, in the Mobil Oil case, su- pra, the Board stated, "such a dilution of the employees' right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action." Under the present posture of the Board not having ac- quiesced with the court decisions, and Supreme Court not having ruled on the matter, it is well settled that I am obliged to follow Board rather than court precedent. How- ever, under the facts of this case, I am persuaded that the General Counsel has not established that Respondent vio- lated Section 8(a)(1) of the Act, as alleged in the complaint. My reasons for so holding may be briefly stated as follows: Giving first consideration to the testimony of Douglas Perry, it will be recalled that the testimony of this employee was that during the interview he simply asked for "some kind of representation." The cases previously cited make it 1 Quality Manufacturing Company, 195 NLRB 197 ( 1972), enforcement denied 481 F 2d 1018 (C A 4, 1973), Mobil Oil Corporation, 196 NLRB 1052 (1972), enforcement denied 482 F 2d 842 (C A 7) J Weingarten, Inc, 202 NLRB 446, enforcement denied 485 F 2d 1135 (C A 5, 1973) DIAMOND REO TRUCKS, INC. clear that in order to invoke a statutory right the employee must request the presence or assistance of his statutory or bargaining representative, i.e., his union representative. It is my view that Perry's request for "some kind of representa- tion" was at best ambiguous and does not warrant the inter- pretation that he necessarily was requesting the presence of his statutory representative. Accordingly, in the absence of such a request, I find that Respondent was not put in the position of depriving this employee of any of his Section 7 rights. Insofar as Roger Miller is concerned , I find his case to parallel the situation in Western Electric Company, Inc., 205 NLRB 195, where the Board found no violation on the ground that the employee was permitted to leave the inter- view when.his request for union representation was denied. Miller also asserted his desire to terminate the interview on being told that he was not entitled to union representation, whereupon as he testified, he was "just told to leave if he didn't want to talk ..." Miller thereupon departed without being threatened that Respondent would take any discipli- nary action against him or that he would be deprived of any of his employment rights. Indeed , it is undisputed that Re- spondent in fact did not discipline Miller because of his leaving the interview when his request for union representa- tion was denied? Accordingly, I find that Respondent did not violate Section 8 (a)(1) of the Act by its conduct with respect to the aforesaid Miller incident. Finally, I have not overlooked a,stipulation between Re- spondent and the General Counsel to the effect "that the Union [in October 1973] demanded to be present at the investigation and that the Company consistently declined that they be present." However, I fail to see where the fact of Respondent's denial of the Union's request adds any merit to the General Counsel's complaint, for the cases previously cited indicate that the request for union represen- tation must be invoked by the employee. Thus, not only was the request in each of these cases invoked by the employee involved, but in Quality Manufacturing Co., supra, the Board further stated as follows: 2 In this request it is noteworthy that employee Douglas Perry also was never disciplined, even though he also left the interview at his own behest before it was completed 653 In Texaco, supra, when the employee asked to be repre- sented in the interview, the employer advised that it would not insist on the interview unless the employee was willing to enter the interview unaccompanied by his representative. This seems to us to be the only course consistent with all of the provisions of our Act. It permits the employer to reject a collective course in situations such as investigative interviews where a col- lective course is not required but protects the employee's right to protection by his chosen agents. Participation in the interview is then voluntary, and, if the employee has reasonable ground to fear that the inter- view will adversely affect his continued employment, or even his working conditions, he may choose to forego it unless he is afforded the safeguard of his representative's presence. He would then also forego whatever benefit might come from the interview. [Em- phasis supplied.] In short, and upon the basis of the cases cited, I do not believe that the Board intended to utilize a union 's blanket request that it be permitted to be present during employee interviews as a basis for finding an unlawful infringement of the employee's statutory rights in cases where the Union's request is denied .3 CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not committed unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER By reason of all the foregoing, it is recommended that the complaint be dismissed in its entirety. 3 The instant case does not involve any issue of an 8(a)(5) violation.