New York Telephone Co.

NEW YORK TELEPHONE COMPANY 679 New York Telephone Company and Michael Mark- son. Case 2-CA-12757 July 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On July 16, 1973, Administrative Law Judge Jo- seph I. Nachman issued the attached Decision in this proceeding. Respondent filed exceptions to the Ad- ministrative Law Judge's Decision and a brief in sup- port of its exceptions.' Communications Workers of America, AFL-CIO, the Intervenor, filed an answer- ing brief to Respondent's exceptions, and the Gener- al Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Thereafter, on February 27, 1975, the parties were advised that, in view of the decisions of the United States Supreme Court in Weingarten, Inc.2 and Qual- ity Manufacturing Company,' the Board would accept statements of position with respect to the impact of the Supreme Court decisions on this case. On April 4, 1975, the General Counsel and Intervenor each filed a separate statement of position. On April 8, 1975, Respondent filed a letter statement of position. 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, briefs, and statements of position and has decided to affirm the rulings, findings, conclusions and recommendations of the Administrative Law Judge with the following additions, and to adopt his recommended Order. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act by deny- ing employee Michael Markson's request, on Sep- tember 14, 1972, to have a union representative present at a meeting called by Respondent to investi- gate charges of alleged fighting between Markson i Respondent also filed a motion for consideration by the full Board and a request for oral argument on the ground that the Board had not definitive- ly interpreted the issues. In view of the United States Supreme Court deci- sions disposing of the major issues and our disposition of other issues on factual grounds, we deny the motion for full Board consideration . We are of the opinion that the record , exceptions, briefs, and statements of position filed by the parties adequately present the issues, and we therefore deny the request for oral argument. N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), reversing 485 F.2d 1135 (C.A. 5, 1973). 3 International Ladies Garment Workers Union, Upper South Department, AFL-CIO v. Quality Manufacturing Company, 420 U.S. 276 ( 1975), reversing and remanding 481 F.2d 1018 (C.A. 4, 1973). and another employee. He held that Markson might reasonably believe that Respondent's interrogation of him under the circumstances might result in disci- plinary action and therefore the employee had a stat- utory right to representation at the time. The Admin- istrative Law Judge relied on the Board's opinions in Quality Manufacturing Company,4 J. Weingarten, Inc.,5 and Mobil Oil Corporation.6 The Board's posi- tion in those cases has been sustained by the United States Supreme Court. See footnotes 2 and 3, supra. The Administrative Law Judge further found that the Union, during bargaining negotiations to renew the collective-bargaining agreement, had not waived the employees' statutorily protected right to repre- sentation if requested at an investigatory meeting called by Respondent. Respondent argues to the con- trary that the facts demonstrate that the Union had given up whatever right to representation Markson had. Our review of the record convinces us that the Administrative Law Judge's conclusion is correct and that Respondent's argument is not supported by the evidence.' The Union has been the collective-bargaining rep- resentative of Respondent's employees in an appro- priate unit for some years, and it has entered into successive collective-bargaining agreements with Re- spondent. The last agreement, which was in effect at the time of the hearing, was executed by the parties on February 17, 1972.8 It contained no provision for employee representation at investigative interviews called by Respondent. From the beginning of negotiations on July 6, 1971, the Union proposed to add a written provision to an article dealing with grievance procedure that would have given an employee union representation at any time he requested it, whether before or after a grievance had been initiated? Respondent's unwrit- ten practice at the time was to deny union represen- tation to employees when it interviewed them, except in the following circumstances: where the matter in- vestigated might result in criminal prosecution; whenever discipline was to be announced at that spe- cific meeting; when the employee being interrogated was currently under discipline; and if a grievance was being processed. Respondent's consistent posi- tion was that employee representation was unneces- 4195 NLRB 197 (1972). '202 NLRB 446 (1973). 6 196 NLRB 1052 (1972). 7 The Administrative Law Judge found that there was no waiver. He did not pass on the question whether an employee's right to'representation may be waived We also find it unnecessary to decide that question. - 8 The agreement, executed in February 1972, was made effective frQm July 18, 1971, until July 18, 1974, and thereafter from year to year unless terminated by the required notice. 9 The grievance procedure which the Union was seeking to amend is found in the parties' collective-bargaining agreement expiring in July 1971. Resp. Exh. 2. New York Telephone Company, 203 NLRB 1153 (1973). 219 NLRB No. 136 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary at investigative interviews, and it rejected the Union's proposal. On July 17 or 18, 1971, as the par- ties were approaching agreement , Respondent's notes reflect that the Union withdrew - demands for revisions of the grievance procedure . The parties reached agreement on July 18, 1971, subject to ratifi- cation by the Union's membership. Thereafter the membership rejected the agreement. After the parties resumed negotiations on August 31, 1971, the Union renewed its proposal for union representation whenever requested by an employee. At the several meetings when the parties discussed the Union's demand for representation, Respondent rejected it. In January 1972, the parties met with the chairman of the Federal Mediation and Conciliation Service. The Union adhered to its proposal. The conciliator later presented Respondent's contract proposals to the Union. The Union rejected them without singling out any specific item. On February 3, 1972, the con- ciliator submitted contract proposals intended to set- tle an ongoing strike . It contained essentially Respondent's position respecting union representa- tion, requiring it when requested by an employee at meetings between Company and employee , but only when "a final warning, suspension, demotion or dis- charge for cause is to be announced ...." 10 The Union did not endorse the settlement propos- als but agreed to submit them to its membership. The membership voted to ratify the proposals, and a con- tract embodying them was signed by union repre- sentatives on February 17, 1972. Respondent argues that the Union relinquished its demand for union representation at investigatory in- terviews with employees on October 20, 1971, and the question of union representation was no longer an issue after that date. This argument is not borne out by the record. According to Respondent's incom- plete notes of negotiations held on that date, the Union was pressing for representation not only at company meetings held with an employee when dis- ciplinary action was going to be taken, but also when Respondent intended to interrogate an employee where discipline might thereafter be imposed. After October 20, Respondent's notes of the November 4, 1971, meeting show that the Union reiterated its de- mand for a provision which "permits a Union mem- ber representation at any time upon request. This provision to apply before and after a grievance has been instituted." The Union repeated its demand to the Federal conciliator in January, 1972. There is no showing that this demand was withdrawn. The Union's eventual execution of an agreement with Re- spondent in settlement of the strike did not constitute a waiver of the employees' rights in the circum- stances. 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 , New York Telephone Company, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. tO Resp. Exh. I DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This pro- ceeding heard before me at New York, New York, on May 22, 1973, with all parties present and represented by coun- sel, involves a complaint pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges that New York Telephone Company (herein Respondent or Company) violated Section 8(a)(1) of the Act by denying the request of Michael Markson, a member of the bargaining unit for which Communications Workers of America, AFL-CIO 2 (herein the Union), is the bargaining representative, for union representation while being interrogated by Respondent concerning an alleged fight with a fellow employee. The basic issue to be decided is whether Respondent's admitted refusal to grant Markson's request for union representation during its in- vestigation of the above-mentioned incident is removed from the ambit of the Board's holding in Mobil Oil Corpo- ration, 196 NLRB 1052 (1972), and related cases, because of a provision in the contract between the parties which Respondent interprets as permitting it to refuse union rep- resentation, except in those cases where the employee is called in for the imposition of "a final warning, suspension, demotion or discharge for cause." For reasons hereafter more fully detailed, I find and -conclude that Respondent violated Section 8(a)(1) of the Act, as alleged in the com- plaint, and recommend an appropriate remedial order. At the hearing all parties were permitted to introduce evidence relevant and material to the issue , to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived . Briefs submit- ted by the General Counsel, Respondent, and Intervenor, respectively, have been duly considered. Upon the plead- ings, stipulations of counsel, the evidence including my ob- servation of the demeanor of the witnesses while testifying, 1 Issued March 13, 1973, on a charge filed and served September 26, 1972. 2 At the hearing, Communications Workers of America , the collective- bargaining representative of the employees involved , moved to intervene in the proceeding. There being no objection , the motion was granted. NEW YORK TELEPHONE COMPANY 681 and the entire record in the case,3 I make the following: FINDINGS OF FACT 4 Background For some years the Company has recognized the Union as the collective-bargaining representative of the employ- ees in an appropriate unit, and successive contracts were entered into providing for the wages, hours, and terms and conditions of employment of the unit employees. The last such contract, which is currently in effect, was executed February 17, 1972, retroactive to July 18, 1971, effective until July 18, 1974, and thereafter from year to year unless terminated by prescribed notices Article 10, of the current contract entitled "Discharges , Suspensions and Termina- tions for cause," has a subsection designated as 10.05, which reads: At any meeting between a representative of the Com- pany and an employee in which a final warning, sus- pension, demotion or discharge for cause is to be an- nounced, a union representative may be present if the employee so requests. [Emphasis supplied.] 6 Prior to the current contract, the collective-bargaining agreement contained no provision comparable to article 10.05. As the case turns on the application of that provi- sion, something of its genesis is in order . Bargaining for the current contract began on July 6, 1971, and by July 18 agreement was reached subject to ratification by the union membership. However, the membership rejected the agree- ment, and on August 31, 1971, bargaining was resumed. By January 1972, no agreement having been reached, the Fed- eral Mediation and Conciliation Service joined the negotia- tions. After a prior meeting with the parties, the conciliator on February 3, 1972, submitted a proposal dealing with a number of items designed to produce an agreement. Al- though the Union did not accept that proposal, it agreed to and did submit it for ratification by the membership. After the membership approved the proposal, the portion thereof dealing with union representation was revised to put it into contract language , and it became article 10.05 of the con- tract. Prior to the current contract the Company apparently followed the policy of denying union representation ex- cept, if (1) the investigation involved matters which might constitute a criminal offense ; (2). the meeting was to im- pose discipline, or to determine the discipline to be im- posed; (3) the employee being interrogated was then under discipline; or (4) a grievance was pending. The record 3 Errors in the transcript have been noted and corrected. ° No issue of commerce or labor organization is presented . The complaint alleges, and the answer admits, facts which establish these jurisdictional elements. I find those facts to be as pleaded. Additionally, the Board has heretofore asserted jurisdiction over Respondent . See, i.e., New York Tele- phone Company 203 NLRB 1153 (1973). 5 Although the contracting parties were always the Company and Com- munication Workers of America, the latter designated its Local 1101 to administer each contract during its effective period. 6 The contract also provides for settlement of disputes through a griev- ance procedure detailed in art. 11, culminating in arbitration as provided in art. 12. shows that during this period a number of grievances were filed relating to the refusal of the Company to provide union representation on request, which were denied be- cause the interrogation was not for the purpose of impos- ing final discipline. The evidence is silent, however, on whether these grievances went to arbitration as provided in the contract, and, if they did, the results of such arbitra- tion. Additionally, the evidence shows that, during the origi- nal and resumed bargaining in 1971-72, the Union made, and from time to time modified, proposals designed to as- sure union representation at any employee interrogation by management, but all such proposals were rejected by the Company. Even at the final meeting with the conciliator, at which both union and company representatives were pre- sent, Union Representative Bahr, in explaining the Union's position on the issue of union representation, referred to it as a "protective provision" which the Union had to have to protect employees from roving company investigators it re- ferred to as "gumshoes." And when the conciliator at his final meeting with the parties made proposals for settle- ment of the contract dispute, which included inter alia the proposal that is now article 10.05 of the contract, the Union rejected the entire proposal. THE UNFAIR LABOR PRACTICES ALLEGED While at work during the evening of September 13,7 Mi- chael Markson, a unit employee, was told by Santoro, his first-line foreman, that he (Markson), was wanted in man- agements office on the 10th floor. While waiting for the elevator, Markson asked Santoro what the problem was, and was informed that his fellow employee Malkowski complained he had been assaulted by Markson. Reaching the office, Markson was asked by Santoro to write out a statement explaining where he was, whom he saw, and what he did at approximately 6 p.m. that day, and Mark- son did so. In the statement he prepared, Markson men- tioned the name of fellow employee Joseph Taylor. Upon completion of his statement Markson was directed to re- turn to work. At approximately 9 p.m., Santoro told Mark- son to report to the office of Michael J. Donohue, an ad- mitted-supervisor, at 4 p.m. the following day. Donohue admittedly had authority to discipline employees, and had on prior occasions disciplined Markson. When Markson reported as directed, he found Donohue and Foreman Ja- mison present. Shortly thereafter Malkowski entered the room, and Donohue directed Jamison to get Taylor. While Jamison was thus absent, Markson asked Donohue for a union steward, but Donohue asked that Markson wait un- til Taylor arrived. When Jamison returned to the room with Taylor, Markson again asked Donohue for a steward, but Donohue admittedly refused the request because, un- der article 10.05 of the contract, an employee was entitled to union representation only iffinal warnintor other disci- pline was to be imposed at that meeting, and he had no intention of imposing discipline at the time. After some discussion of the various statements Donohue had before him, the latter announced that he was unable to reach a 7 This and all dates hereafter mentioned are 1972, unless otherwise stated. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision and would forward the material before him to higher authority for action by the latter. In the course of the discussion, Markson asked Donohue whether the latter would impose discipline if he (Markson) were to admit he struck Malkowski. Donohue replied that he would, and that such discipline would take the form of suspension or discharge. Donohue testified that in such event it would have been necessary for him to call Markson to another meeting, and at that time it would have been incumbent on him to honor any request by Markson for union represen- tation. Markson testified that since September 14 he has heard nothing further about the matter; that no discipline has been imposed upon him for this incident, nor has he filed any grievance concerning the matters involved. CONTENTIONS AND CONCLUSIONS Respondent argues that because in the 1971-72 bargain- ing the Union sought and failed to obtain a provision giv- ing employees the right to union representation at employ- ee interrogation and thereafter agreed to a provision limiting union representation to those situations in which final warning or other discipline is to be announced, the Union waived its rights to union representation except in those instances specified in the contract . On the other hand, the General Counsel and the Intervenor argue that on the facts of the instant case the Union did not waive the statutorily protected right of employees to have union rep- resentation at any employee interview from which the em- ployee might reasonably conclude that his job security might be in jeopardy. The Board has often said that waivers of statutory rights are not to be lightly or readily inferred, and that a waiver will not be found: Mobil Oil Corporation, 196 NLRB 1052 (1972), makes it clear that, if an employee is being interrogated by his em- ployer under circumstances from which the employee might reasonably believe that his job security may be in jeopardy, the denial of the employee's request for union representation at such interrogation is an invasion of his Section 7 rights, and hence a violation of Section 8(a)(1) of the Act. To the same effect Quality Manufacturing Compa- ny, 195 NLRB 197 (1972); J. Weingarten, Inc., 202 NLRB 446 (1973); New York Telephone Company, 203 NLRB 1153 (1973).8 There can be no doubt-leaving to one side the legal effect of article 10.05 of the contract-that the facts of this case fall squarely within the rule of Mobil Oil and related cases. Markson was called in for interrogation con- cerning a charge that he had assaulted a fellow employee. Management Representative Donohue admitted that, un- der company policy, such a charge, if proved, calls for dis- cipline in the form of suspension or discharge , although another meeting would have been necessary for that pur- pose, and Markson knew that Donohue had the authority to impose discipline . Because Donohue felt unable to make a decision on the facts before him, he decided, to use his words, to pass the information on to higher authority for appropriate action. It is quite true Markson heard nothing further about the matter, and that no discipline was in fact imposed upon him, but on the facts of this case I must and do find and conclude that in the position Markson found himself he could reasonably anticipate that action might be taken against him which would put his job security in jeop- ardy. J. Weingarten, Inc., 202 NLRB 466 (1973). Whether Markson in fact thought that his job security might be in jeopardy is beside the point, for the reasonable basis for such belief is to be measured by objective standards in light of the circumstances of the particular case , and the facts of the instant case satisfy that standard . (J Weingarten, Inc., supra, and the cases there cited.) Accordingly, were it not for article 10.05 of the contract, the facts before me would establish a clear violation of Section 8(a)(1) of the Act. I turn now to consider whether a contrary result is dictated by the aforesaid contractual provision. 9 New York Telephone Company, supra, is not diapositive of the issue here because the events there involved occurred in 1971, and before article 10.05 became a part of the contract. ... unless it can be said from an evaluation of the prior negotiations that the matter was "fully dis- cussed" or "consciously explored" and the union "consciously yielded" or clearly and unmistakably waived its interest in the matter. [The Press Company, Incorporated, 121 NLRB 976 (1958).] To the same effect see The Timken Roller Bearing Compa- ny, 138 NLRB 15, 16 (1962); Gulf Atlantic Warehouse Co., 129 NLRB 42, 43-44 (1960); Proctor Manufacturing Corpo- ration, 131 NLRB 1166, 1169-70 (1961). Applying the foregoing rule to the facts of the instant case, I find and conclude that the record fails to establish that, by agreeing to what is now article 10.05 of the con- tract, the Union "consciously yielded," or "clearly and un- mistakably waived," its position taken throughout the bar- gaining. To construe the aforesaid contract provision as limiting the right to union representation only to those cases wherefinal discipline is to be imposed raises the ques- tion whether it was the intent of the parties that such right should not exist in other situations, or was it the intent of the parties that in other situations Board law; namely, the rule of Mobil Oil, supra, should prevail. The answer to this question is by no means clear from the contract language itself. The most that can be said for Respondent's position is that when the conciliator advanced the proposal which is now article 10.05, the Union remained silent and accepted the package proposal. But silence gives consent only in those situations where there is duty to speak, and in the circumstances here no such duty rested upon the Union. It could very properly proceed on the theory that it would take what the provision gave , and rely on general Board law to take care of those situations to which the contract provision did not apply. This, I find and conclude, is quite different from "consciously yield[ing] or clearly and unmis- takably waiv[ing]" its position taken during bargaining .9 9 Having reached this conclusion, it is immaterial and therefore unneces- sory to decide whether an employee's right to union representation under the circumstances here involved is a right which a union may lawfully waive. Cf. Armco Steel Corporation, 148 NLRB 1179 (1964), enforcement denied 344 F.2d 621 (C.A. 6, 1966), and International Association of Machin- ists and Aerospace Workers, District No 9, (McDonnell Douglas) 171 NLRB 234 (1968), enfd. 415 F.2d 113 (C.A. 8, 1969). To the extent that the Board has spoken to this issue, the indication is that it would answer that the right referred to is waivable by a union. See Western Electric Company, Haw- NEW YORK TELEPHONE COMPANY 683 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972), on which Respondent relies so strongly, I find inapposite here. In the first place, the decision there is by a Board panel; Members Kennedy and Penello voting to dis- miss the complaint on the theory of Member Kennedy's dissent in Quality Manufacturing, supra, and Mobil Oil Cor- poration, supra, while Chairman Miller joined in the result, but for a different reason. The basis for his conclusion was that the contractual provision in that case had been inter- preted by arbitrators, and its meaning definitely estab- lished. Here, although the contract provision is apparently the same or very similar to that in Western Electric, supra, no arbitrator or other forum has interpreted this provision which, as I have found, is by no means clear and unambig- uous. Accordingly, and for reasons stated, I find and conclude that, by denying Markson's request for union representa- tion under the circumstances herein found , Respondent violated Section 8(a)(1) of the Act.10 Upon the foregoing findings of fact, and the entire re- cord in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce with the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By denying Markson's request for union representa- tion at an interview conducted by Respondent under cir- cumstances from which Markson could reasonably con- clude that his job security was in jeopardy, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor thorne Works, 198 NLRB 623 (1972). 10 By its answer filed herein, Respondent advanced the contention that this dispute should be referred for resolution under the grievance and arbi- tration provisions of the contract , in accordance with Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). The General Coun- sel and the Intervenor argue that under the facts of this case deferral to arbitration is inappropriate . However, in its brief to me Respondent with- drew its request for deferral to arbitration and requested a decision on the merits. It is doing so, Respondent says , "because of a commitment to seek a speedy resolution of the issues in this case, which we gave in a motion to the Board in another case, New York Telephone Co.," 203 NLRB 1153 (1973), pending before the Board on a motion to reconsider and modify order. As no party now seeks deferral to arbitration , it is unnecessary to consider whether such deferral is appropriate . Salt River Valley Water Users' Associa- tion, 204 NLRB 83 (1973), In. I. practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed and found necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER II The Respondent, New York Telephone Company, New York, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from requiring any employee to take part in an interview or meeting without union representa- tion, if such representation has been requested by the em- ployee and if the employee has reasonable grounds to be- lieve that the matters to be discussed at such interview 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. (a) Post at each of its establishments copies of the at- tached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 2 (New York, New York), after being duly signed by an au- thorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 11 In the event no exceptions are filed as provided by Sec. 10246 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. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, New York Telephone Company, violated the National Labor Relations Act, and ordered us to post this notice. We will carry out the order of the Board, and comply with the following: WE WILL NOT require that any employee take part in an interview or meeting with us without union repre- sentation if the employee requests such representation 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 subject to disciplinary action. NEW YORK TELEPHONE COMPANY