Detroit Edison Co.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Edison Company andLocal 223, Utility Work- ers Union of America, AFL-CIO. Case 7-CA-10761 April 30, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 21, 1974, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a sup- porting brief. On February 26, 1975, following the Supreme Court's decision in N.L.R.B. v. J. Weingarten, Inc., and International Ladies' Garment Workers' Union, Upper South Department AFL-CIO v. Quality Manufacturing Company,' the parties were advised that statements of position could be filed with the Board with respect to the impact of the Supreme Court's decisions, supra, on the instant case. On March 17, 1975, Respondent filed a statement of position. Pursuant to the provisions of Section 3(b) of the National Labor Ralations 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 the Respondent's statement of position and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, the Detroit Edison Company, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' 420 U.S 251, and 420 U S. 276, respectively, decided February 19, 1975 DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on March 29, 1974, in Detroit, Michigan, pursuant to a charge duly filed and served,' and a complaint issued on February 13, 1974. The complaint alleges that the Re- spondent violated Section 8(a)(1) of the Act in refusing to permit a union representative to be present while an employee was being interrogated by'company security personnel. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allega- tions that it had committed any unfair labor practices. At the trial, the General Counsel and the Respondent were represented by counsel. All parties were given full oppor- tunity to examine and cross-examine witnesses, and to file briefs. The parties waived oral argument. A brief was submit- ted by the General Counsel on April 29, 1974, and by the Respondent on May 2, 1974. Upon the entire record in the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent corporation, organized under, and exist- ing by virtue of, the laws of Michigan and New York, has its principal office and place of business in Detroit, Michigan, where it is engaged, as a public utility, in the production, sale, and distribution of electrical power, steam, and related prod- ucts. During the calendar year 1973, a representative period, the Respondent purchased from outside the State of Michi- gan and had shipped directly to its Michigan facilities sup- plies and equipment valued in excess of $5 million. During the same period, the Respondent sold electrical energy valued in excess of $250 million to customers within the Detroit metropolitan area, including the Ford Motor Company, Chrysler Corporation, and General Motors Corporation. An- nual gross revenue from these last described services ex- ceeded 350,000. Upon the foregoing facts, the Respondent concedes, and I find, that The Detroit Edison Company is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED Local 223, Utility Workers Union of America, AFL-CIO, herein called Union, is, and has been, at all times material a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent and the Union have had collective-bar- gaming relations for many years. The current agreement, which has a maintenance of membership provision, is effec- tive until June 9, 1975. It also has a conventional automatic renewal clause. In late October 1973,2 the Respondent initiated an inves- tigation of a travel reimbursement claim submitted by em- ployee Richard D. Logan On November 5, the Respondent notified Logan that he was being suspended for 3 days, al- legedly for having submitted an altered meal check receipt to defraud the Company. Prior to November 5, various supervi- sory and investigatory personnel met with Logan on the mat- ter of the altered meal check. It was not until November 5, however, when Logan was summoned to a conference at ' The charge was filed on November 28, 1973 2 All dates hereinafter are for the year 1973 unless otherwise indicated 217 NLRB No. 96 DETROIT EDISON COMPANY which he was informed of his suspension, that he was permit- ted to have a union representative present when he met with management. The General Counsel contends, and the Re- spondent denies, that by this course of action the Respondent violated Section 8(a)(1) of the Act. B. The Facts - The facts herein are largely undisputed. At the time in question, Logan was a steam meter inspector at the Respon- dent's Warren Service Center. On that job he spent from 75 to 80 percent of his working time away from the branch headquarters. During the week of October 22, Logan and one Newton, a coworker, were engaged on a project that was generally referred to in the record as "the Vassar job."3 On October 29, the following Monday morning, Almont P. Palmer, supervisor of the steam meter division, and Logan's immediate supervisor, asked that Logan submit his time slips for the preceding week. When he did so, Logan also submit- ted a claim for reimbursement as to a restaurant meal that he claimed he had paid for while on the Vassar job. Shortly before closing time that afternoon, Palmer summoned Logan to his office. After Logan arrived, Palmer told him that they would proceed to a conference room in an adjoining building. On the way to the conference room, the pair encountered Robert Jackson, union steward for the division. Logan testi- fied that when this occurred he asked Jackson to accompany him to the meeting. Jackson testified that after he indicated that he would accede to this request, Palmer prevented him from doing so by ordering that Jackson return to his work for the remainder of the shift. Although Palmer testified that neither he nor Logan engaged in any conversation with Jack- son, I conclude that as to this conflict in the testimony Jack- son and Logan were the more credible. During the conference, Palmer questioned Logan as to why his time slips reflected an extra 30 minutes of work as com- pared with the record of his colleague Newton. Logan ex- plained that it was because he had worked through his lunch hour and thereby qualified for an extra 30 minutes pay pursu- ant to a provision in the collective-bargaining agreement. According to Logan, his supervisor accepted this explana- tion. Palmer acknowledged having done so and that at the time he told Logan "Fine, that explains it,",after which he went on to the other topic that he wanted to discuss with the employee. The latter subject involved Logan's claim for reimburse- ment for a meal at the Golden Lion, a restaurant at Seven Mile Road and Mack, on October,24.4 Palmer testified that after Logan submitted the meal check that morning he became suspicious of the documentation because the date of October 24 was written over a figure 27. According to Palmer on telephoning the restaurant to ascertain when the meal had been purchased, the cashier there told him that the serial number of the check indicated that it was for a meal that had been served on October 27, a Saturday. Palmer testified that he thereupon went to the restaurant where he secured the The record is silent as to whether this project was located in Vassar, Michigan, or only in that general vicinity The town of Vassar is approxi- mately 75 miles from Detroit. " This restaurant was about 2-1/2 to 3 hours driving time away from Vassar where Logan had worked on the day in question. 623 duplicate copy of the meal check which Logan had given him that morning and in so doing found that the copy supplied by the Golden Lion demonstrated that the meal had been bought on October 27 rather than the 24th. Palmer testified that he told Logan that he did not believe his story that the meal in question had been bought on Wednesday, October 24.5 Logan testified that when Palmer told him that it ap- peared that he had submitted a fraudulent ticket, he (Logan) concluded the meeting and left the room with the declaration "Hey, that's it. I'm getting out of here." On or about October 31, Palmer met with Charles Mills, his immediate superior, William Yelton, assistant superm- tendent of the meter department, William Lang, a representa- tive of the union relations department, and Donald Bluhm, administrator of the investigations division in the security department. Palmer testified that the meeting was called to determine whether the security department should check into possible fraud in connection with the meal ticket from the Golden Lion. According to Palmer, at this meeting it was decided that Bluhm's department should investigate the meal check in question. He further testified that this was the first such meeting that he had ever attended. According to Bluhm, there was no discussion of discipline at this conference.6 When Logan reported for work on the morning of Novem- ber 1, Palmer introduced him to James B. Taylor, a represen- tative of the security department, and told him that he would have to accompany Taylor "downtown to give a statement to straighten . . . out this thing in Vassar." Logan immediately told Palmer that he wanted union representation at any such meeting. Palmer told him that he could not have it and to emphasize the necessity that Logan accompany Taylor at once, Palmer told him that in the event Logan did not do so he could receive "very severe disciplinary action." Logan again asked for union representation and after Palmer once more told him that he did not need it, Taylor gave a similar answer and added that no union representation was required because the security department had no authority to disci- pline anyone. Logan finally said that he would go with Tay- lor, but added that at any meeting in the security department "I won't open my mouth."7 On arrival at the headquarters of the security department, located in the Respondent's general office building in down- town Detroit, Taylor introduced Logan to Bluhm. According to Logan, Bluhm stated that the meter department had asked that he secure a statement from him as to the Vassar incident. Logan testified that he told Bluhm that he had asked for union representation three times in connection with the inves- tigation. According to Logan, Bluhm thereupon stated, "[the contract] is very explicit. You do not get it [union representation] unless you are being disciplined . . . You are not being disciplined. We just want a statement from you."' Thereafter Logan discussed the matter of the meal 5 The claim was for $20 6 Palmer testified that this meeting was held on October 30, whereas Bluhm testified that the date was October 31 Bluhm, however, seemed to have a more accurate recollection of the time when it occurred. 7 The quotations in this paragraph are from Logan's testimony which was credible and substantially corroborated by that of Palmer and Taylor 8 Bluhm testified that prior to entering the conference room with him, Logan did not request union representation. On the other hand, he did not deny having made the above quoted comments which Logan, in his tes- timony, attributed to Bluhm. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticket with Bluhm and during the course of the conference told him that he and his wife had been to the Golden Lion for dinner on October 27. After their discussion had been under way for some while, Bluhm secured a stenographer who took a statement from Logan. After she had transcribed her notes, Logan was shown the statement. He did not sign it, but he initialled a number of corrections that he made on the finished product. Upon the conclusion of the meeting, Logan was given a ride back to the Warren Service Center where he resumed work. Late on the afternoon of November 5, Palmer told Logan he wanted him in the office and that, since disciplinary action was contemplated, Logan could have union representation. Union Steward Jackson was then summoned and the three thereupon went to the office of Charles Mills, supervisor of the meter standards, materials, and steam division. At the outset of the meeting Mills handed Jackson a notice of disci- plinary action pursuant to which Logan was being suspended for 3 days, effective on November 6, allegedly for having submitted an altered meal receipt in support of a reimburse- ment claim .9 Logan testified that when he was handed the disciplinary notice he protested that it was inaccurate and left the room, without any discussion of the matter. Jackson re- mained to protest the basis for the action being taken against Logan, but without effect. Palmer testified that when Logan was called to the meeting that day the decision had already been made to discipline the employee.10 CONCLUSIONS OF LAW In Quality Manufacturing Co., 195 NLRB 197 (1972), en- forcement denied 481 F.2d 1018 (C.A. 4, 1973), the Boarct held that an employee ordered to meet with her employer under circumstances that caused her to have reasonable grounds to fear that her job was in jeopardy had a right to have a union representative present and that for an employer to deny her request was a violation of Section 8(a)(1) of the Act. In Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce- ment denied 482 F.2d 842 (C A. 7, 1973), employees were questioned as to their suspected role in a company theft. When the objective of the interview became apparent they requested union representation but it was denied. In keeping with its decision in Quality, supra, the Board held that by this action the employer violated Section 8(a)(1). In a later case, J Weingarten, Inc., 202 NLRB 446 (1972), enforcement de- nied 485 F.2d 1135 (C.A. 5, 1973), an employee was ques- tioned by an employer's security agent as to a theft of com- 9 In the notice of this action, Logan was charged with having submitted a $20 claim for reimbursement that was supported by a meal ticket from the Golden Lion Restaurant which was originally dated October 27, a Saturday, but on which the date of October 24, a Wednesday, had been superimposed. i0 The parties stipulated that Logan subsequently filed a grievance pro- testing the disciplinary action which was taken against Logan This was still pending at the time of the hearing in the instant case. However, no grievance was filed to protest the denial of the union representation to Logan The time for filing such a grievance, pursuant to the provisions of the contract, expired without the Union, or Logan, having taken any action Counsel for the Respondent stated at the hearing that in the event the Union subsequently sought to file a grievance on the latter issue, the Company could, and would, object to such action for failure to comply with the contractual requirement on timeliness. Consequently, there is no Collyer issue here The Detroit Edison Company, 206 NLRB 898, 899-900 (1973) pany property. A request by the employee'-for union representation was denied by the security agent. The Board held that the employee had reasonable grounds to fear that her job was endangered soon after the security agent began questioning her about possible dishonesty and that the action of the security-agent in denying her request for union repre- sentation constituted a violation of Section 8(a)(1). The Board further held that it was immaterial that the security agent himself did not have the power to discipline the employee." On October 29, Supervisor Palmer told Logan that he did not believe Logan's explanation regarding the apparent alter- ation of a meal ticket which the latter submitted for reim- bursement. On November 1, Palmer notified Logan that the employee was to report to the downtown headquarters for an interview with the head of the Respondent's security depart- ment "to give a statement to straighten . . out this thing in Vassar V a s s a r . Logan, whose request that the union steward accompany him on his first meeting with Palmer on October 29 had been denied, again requested union representation of both Palmer and Security Agent Taylor, the latter being the one who was to accompany Logan to the Respondent's down- town headquarters. In each instance, Logan's request was denied, first by Palmer and then by Taylor. When Logan reached the office of Bluhm, head of the investigation divi- sion, he renewed his request for union representation and Bluhm likewise denied it on the ground that he had no au- thority to discipline Logan. Nevertheless, at the outset of the conference with Bluhm the latter told Logan that the meter department wanted him to secure a statement from Logan as to the Vassar incident. Consequently, it was apparent to Lo- gan that although Bluhm might have no power to discipline him, Bluhm's report of the interview was destined for Logan's superiors in the meter department who clearly had such au - thority. On November 5, when Logan was summoned to a meeting with his superiors and the union steward was permitted to be present, the decision to discipline the employee was a fait accompli. At that point the presence of the steward could be of little, if any, assistance. It was as if counsel for the accused, instead of being allowed at the arraignment and throughout the trial of a case, was permitted to be in the courtroom only after the jury had brought in a verdict of guilty and to hear the court pronounce the sentence. In its brief, the Respondent has relied upon the opinions of the circuit courts which have disagreed with the Board's doctrine on the issue here involved. N.L.R.B. v. Quality Manufacturing Co., supra; N.L.R.B. v. Mobil Oil Corporation, supra; and N.LR.B. v. J Weingarten, Inc., supra. Insofar as these latter opinions conflict with the Board's position, the Administrative Law Judge is bound to follow the Board. In an earlier day the Board reminded the trier of the facts, at times sharply, that "it is not for a Trial Examiner to speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views." Insurance Agents' International Union, AFL-CIO, 119 NLRB 768, I' "To Collins [the employee], the possibility of discipline was just as real whether the discipline that might be visited upon her was imposed immedi- ately by Hardy [the security officer] and/or York [the store manager], or at some future time by the president of the Company." Weingarten at p 449, JD. DETROIT EDISON COMPANY 772-773 (1957), reversed on other grounds 361 U.S. 477 (1960). Novak Logging Company, 119 NLRB 1573, 1575-76 (1958). Consequently, and in accordance with the Board's decisions cited above, it is my conclusion that on November 1, 1973, the Respondent violated Section 8(a)(1) of the Act by the refusal of its agents to permit employee Logan to have union representation when he was interviewed by Bluhm, the Respondent's security officer. THE REMEDY Having found that the Respondent engaged in unfair labor practices it will be recommended that it be required to cease and desist therefrom, and take certain affirmative action de- signed and found necessary to effectuate the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDER12 The Respondent, The Detroit Edison Company, its offic- ers, agents, successors and assigns, shall: 1. Cease and desist from: (I) Requiring any employee to take part in an interview or meeting without union representation, if such representation has been requested by the employee and if the employee has reasonable grounds to believe that the matters to be discussed may result in his being subject to disciplinary action. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Section 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. 625 (a) Post at its facilities in the Detroit, Michigan, metropoli- tan area, copies of the attached notice marked "Appendix."13 Copies of said notice, to be furnished by the Regional Director of the Board for Region 7, after being signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, delfaced, or covered by any other material. (b) Notify the aforesaid Regional Director,' in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 13 In the event the Board's Order is enforced by a Judgement of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT require that any employee take part in an interview or meeting without union rep- resentation if the employee requests such represen- tation and if the employee has reasonable grounds to believe that the matter to be discussed at such interview or meeting may result in his being sub- ject to disciplinary action. THE DETROIT EDISON COMPANY