Montgomery Ward & Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO. Cases 7-CA-16075(1) and 7-CA- 16075(2) January 16, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 26, 1979, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. In agreement with the Administrative Law Judge, we find that the Respondent violated the Weingarten' rights of Richard Lafferty and Mi- chael Poupard by compelling them to submit to "protective" interviews without the benefit of the representation they had requested, and that no vio- lation occurred in connection with the interview of Keith Kamin, as the latter had not requested repre- sentation before or during the interview to which he submitted. Further, based on the standards set forth in our Decision in Kraft Foods2 we agree that an order requiring the Respondent to reinstate Laf- ferty with backpay is appropriate in the circum- stances of this case. Moreover, in order to effectuate the policies of the Act, we shall require that the Respondent ex- punge and physically remove from its records and files any reference to the interview with Lafferty, herein found unlawful, and we shall modify the Administrative Law Judge's recommended Order accordingly. Further, on the facts and for the reasons set forth below, we shall modify the Administrative Law Judge's recommended Order by requiring that the Respondent make Michael Poupard whole for any loss of pay he may have suffered, from the date of his termination until the date of the hearing l N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). 2 Kraft Foods, Inc., 251 NLRB 598 (1980) 254 NLRB No. 102 held in this case, because of the unlawful conduct herein found.3 In this respect, the record shows and the Admin- istrative Law Judge found that, during the Respon- dent's "protective" interview with Keith Kamin, the latter confessed to having stolen merchandise and cash belonging to the Respondent and there- after signed a statement to that effect. After signing the aforesaid statement, Kamin was asked if he knew of other employees who had engaged in thefts at the Respondent's facility. Kamin identified Poupard as an accomplice, further stating that Pou- pard had informed him "of such thefts as cash." Having been thus implicated, the Respondent sum- moned Poupard to the interview herein found un- lawful, during which Poupard signed a confession. He was thereupon terminated. Nevertheless, the Administrative Law Judge concluded that it would be inappropriate to order affirmative relief to remedy the Respondent's un- lawful interview of Poupard, because Poupard sub- sequently admitted his guilt at the hearing held herein. We disagree. In determining whether such relief is appropri- ate, we stated in Kraft Food, supra, that a prima facie case therefor can be made by proving that a respondent conducted an investigatory interview in violation of Weingarten and that the employee whose rights were violated was subsequently disci- plined for the conduct which was the subject of the unlawful interview. This, clearly, the General Counsel has done. Under Kraft, the burden, then shifts to the respondent to negate the prima facie showing by demonstrating that its decision to disci- pline the employee in question was not based on in- formation obtained at the unlawful interview. Where the respondent meets this burden, a make- whole remedy is not deemed to be appropriate. In this case we find that the Respondent has failed to demonstrate that its decision to discipline Poupard was based solely on the information ob- tained during the interview with Kamin, whose in- criminating statement was otherwise uncorroborat- ed, and not on the confession obtained from Pou- pard during his subsequent unlawful interview. However, in view of the fact that, during the hear- ing herein, Poupard freely admitted to having en- gaged in the thefts for which he stood accused, we find that as of that date he forfeited his right to re- instatement and further backpay. Accordingly, in fashioning an appropriate remedy we shall require only that Poupard be made whole for any loss of : Member Truesdale dissents from this part of the Decision, and would, for the reasons stated hby the Administrative Law Judge, deny backpa to Poupard 826 MONTGOMERY WARD & CO., INCORPORATED pay he may have suffered from the date of his ter- mination until the date of the hearing herein.4 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, as modi- fied below, and hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Southgate and Allen Park, Michigan, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly: "(a) Expunge and physically remove from its re- cords and files any reference to the unlawful inter- view with Richard Lafferty. "(b) Make Michael Poupard whole for any loss of earnings he may have suffered from the date of his termination until August i, 1979, as a result of the unlawful interview to which he was required to submit, backpay to be computed in the manner set forth in the section of the Administrative Law Judge's Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint in this case be, and it hereby is, dismissed insofar as it alleges violations of the Act not herein found. MEMBER JENKINS, concurring: I concur in the remedy, for the reasons expressed in my dissent in Kraft Foods, Inc., 251 NLRB 598 (1980). ' Contrary to the Administrative L.aw Judge, who viewed such a remedy as rewarding Poupard for wrongdoing, the withholding of back- pay in the circumstances of this case would permit the Respondent to benefit directly from the commission of proscribed conduct; namely, forcing Poupard to submit to the unlawful interview, during which infor- mation was obtained concerning the subject matter for which he was dis- ciplined. Kraft Focds, supra. APPENDIX NoiICI. To ENlP OY:IIS POSIF 1i B ORI.ER 01 I I! NA I IONAI LABOR RE.I A IONS 13OARI) An Agency of the United States Government WE WILL NOT require any employee to par- ticipate in an interview without union repre- sentation by threatening such employee with arrest and/or prosecution in order to force the employee to forgo union representation at the interview where such representation has been requested by the employee and he reasonably fears that the interview will lead to disciplin- ary action against him. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act. It has been found that we discharged em- ployee Richard Lafferty and Michael Poupard as a consequence of requiring them to submit to interviews as set forth above: WE WILL therefore offer Richard Lafferty immediate and full reinstatement to his former position at our Southgate store, or, if such position no longer exists, to a substantially equivalent posi- tion without loss of seniority or other rights and privileges; WE WILL expunge and phys- ically remove from our records and files any reference to the unlawful interview with Rich- ard Lafferty; and WE WILL make both Richard Lafferty and Michael Poupard whole for any loss of earnings they may have suffered by reason of our forcing them to submit to the aforesaid interviews. MONTGOMERY WARD & CO., INCOR- PORATED DECISION STATEMENT OF TIlE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard before me in Detroit, Michigan, on August 1, 1979, on the complaint of the General Counsel issued March 23, 1979, which complaint is based on an original charge filed February 15, 1979 in Case 7-CA- 16075(1) by Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO,' herein called the Charging Party or the Union, and an original charge filed by the said Union on February 15, 1979, in Case 7-CA-16075(2). The com- plaint alleges, in substance, that Montgomery Ward & Co., Incorporated, herein called Respondent, by various agents, at separate interviews, interrogated three of its employees concerning alleged thefts of Respondent's merchandise. During the said questioning, Respondent's agents threatened the employees with arrest and prosecu- tion if the employees persisted in requesting the presence of a union representative at such questioning. The com- plaint concludes that the threats and the refusals to permit union representation at the interviews regarding the alleged thefts constituted violations of Section 8(a)(l) of the Act. I The name of the Charging Party appears as requested by unopposed motion of counsel for the General Counsel to reflect the recent merger of the Retail Clerks International Union with the Amalgamated Meatcutters and Butcher Workmen of North America into the new union with the name "United Food and Commercial Workers International Union. AFL-CIO" 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, in its duly filed answer, while admitting jurisdiction and the agency of the various individuals who interviewed the said employees, denies the commis- sion of any unfair labor practices. Respondent's answer alleges affirmatively that the said employees were neither coerced in any manner, nor prevented from having union representation. Respondent further contends that the said employees voluntarily withdrew their request for union representation at the interviews during which they were interrogated. At the hearing, all parties were given full opportunity to be heard, to present evidence, and to make oral argu- ment. Oral argument was waived. Thereafter, the coun- sel for the General Counsel and for Respondent filed briefs. Upon consideration of the record as a whole, and upon due consideration being given to the briefs and the contentions and arguments contained therein, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, with its principal office and place of business in Chicago, Illinois, main- tains retail stores in numerous cities in Michigan, as well as other States of the United States, where it is engaged in the retail sale and distribution of hard and soft goods and related products. Respondent's retail stores located in Allen Park and Southgate, Michigan, are the only fa- cilities involved in this proceeding. During the year ending December 31, 1978, a representative period, Re- spondent had a gross volume of business in excess of $500,000. During the same period, Respondent purchased and caused to be transported to its Michigan stores goods and materials valued in excess of $500,000 of which goods and materials valued in excess of $100,000 were transported directly to its Michigan stores from points located outside the State of Michigan. It is admitted, and I find, that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES A. Background and Issues At its retail stores located at Southgate and Allen Park, Michigan, Respondent maintains auto service cen- ters. Richard Lafferty was employed at the Allen Park store and Keith M. Kamin and Michael S. Poupard were employed at the Southgate store. In the period preceding the allegedly improper interviews, merchandise and cash were found to be missing from the auto centers at both of these stores. Through investigation of various security personnel, suspicion, at least with regard to knowledge of these thefts, was centered on the three individuals named above. As a result, they were summoned to what Respondent calls "protection interviews," in which secu- rity personnel sought to obtain information with regard to the disappearance of inventory and cash. The complaint alleges that when Lafferty, Kamin, and Poupard were required by the security people to submit to such interviews, they were not accorded the protec- tion to which counsel for the General Counsel claims they were entitled pursuant to the case of N.L.R.B. v. J. Weingarten, Inc.,2 In effect, the cited case holds that an employer violates the Act when it denies an employee's request for union representation and compels the em- ployee's unassisted presence at an interview which the employee reasonably believes may result in disciplinary action being taken against him. Counsel for the General Counsel contends and argues that by the acts of Respondent's various security agents, the above-named individuals were deprived of their rights pursuant to Weingarten and its progeny. Respon- dent, on the other hand, contends that the individuals were given full opportunity to request union representa- tion at the said interviews and that the employees not only waived such representation in writing, but also orally withdrew such request voluntarily and without any coercion on the part of Respondent. B. The Events As noted, at the auto service centers at both the Allen Park and Southgate stores, Respondent was having prob- lems with missing inventory, and the security people at both stores were, therefore, assigned to make investiga- tions. As a result of information he received, Larry Mahlow, the security and safety manager at Respon- dent's Allen Park store, summoned mechanic Richard Lafferty to the security office for a protection interview, on November 20, 1978. The interview was the result, as noted, of an investigation in which it was reported that Lafferty had performed work on his brother-in-law's automobile without a work order, and that when the job was finished and the auto removed, tools belonging to Respondent were missing. When Lafferty entered the room for the interview with Mahlow, the interview began by Mahlow asking Lafferty to sign an interview waiver. The form of this waiver reads as follows: I agree that representatives of Montgomery Ward & Co., Inc., may interview me, commencing from the time designated below, on matters relating to com- pany business. It is fully understood that I am free to leave this in- terview at any time I so desire. After Lafferty signed the so-called waiver, Mahlow told Lafferty that he knew everything about Lafferty even to the make of the car Lafferty drove. Lafferty then asked the purpose of the interview. Mahlow stated that he wanted to talk "about stealing stuff." Lafferty denied that he had taken anything. In response, Mahlow accused Lafferty of taking about $2,000 worth of mer- 2 420 U.S. 251 (1975). 828 MONTGOMERY WARD & CO., INCORPORATED chandise. Again Lafferty denied having stolen anything, whereupon he asked if he could leave. Mahlow an- swered, "Sure, you can leave but I'm not guaranteeing you by the time you get home that Allen Park police aren't going to be waiting for you." As a result, Lafferty remained in the room. As Lafferty sat there, Mahlow asked him whether he would cooperate with Mahlow because the longer Laf- ferty took the longer he would remain in the room. On this statement, Lafferty asked, "Well, could I have my union representative?" To this request, Mahlow respond- ed, "Sure, you can have anybody you want. But by the time they get there you'll be in Allen Park jail." At this point, Lafferty being somewhat frightened, a bargaining period ensued in which Mahlow asked Laf- ferty to write out a statement to the effect that Lafferty took $800 worth of merchandise. Lafferty refused. The bargaining continued. Mahlow asked Lafferty to sign a statement that Lafferty had taken $500 worth of goods. Lafferty remained adamant and again refused. Finally, Lafferty, tiring, consented to admit to Mahlow's offer of $350. Thereupon, Mahlow handed Lafferty a blank piece of paper on which Lafferty placed his name and address and admitted that he took $350 worth of merchandise. Lafferty signed at the bottom of this statement and dated it. After Lafferty signed the statement, Mahlow instruct- ed Lafferty to remain in the room. Mahlow then left the room, returning a few minutes later with Store Manager John Lew. Lew read the statement, and told Lafferty that the latter was suspended until further notice. Laf- ferty was instructed to report to personnel the next day, but was not permitted to go over to lock up his own toolbox. Lafferty was then ordered to give Mahlow his toolbox keys, after which the box was locked and Laf- ferty left for home. On leaving, Lafferty reported the matter to his union steward, Dan Flint. Shortly there- after, Lafferty was given notice of discharge. 3 It should be noted, with regard to the foregoing state- ment of facts relating to the interview, that Lafferty at no time, after requesting that his union representative be present, withdrew such request in any manner, either orally or in writing. 3 The foregoing is based, for the most part, on credited testimony of Lafferty. Lafferty and the other two employees who were discharged, as hereinafter noted, all signed written confessions of theft However. Laf- ferty maintained, even under incisive and forceful cross-examination, that he never voluntarily withdrew his request for a union representative, and that he continued with the interview and wrote the confession under threat by Mahlow of immediate arrest as noted above. While Mahlosw specifically denied such threats, on cross-examination he admitted that at one point during the interview, he might have referred to "higher author- ity." Other matters to which Lafferty testified were not denied by Mahlow. Considering Lafferty's detailed recitation of the facts of the in- terview, which had the ring of truth, and Mahlow's rather hesitant and reluctant admission to having possibly mentioned "higher authority.' and, from my observation of these individuals, it is concluded that Laffer- ty's version of the interview is the more complete and accurate. In arriv- ing at this credibility determination, I have considered the apparent con- flict between Lafferty's written admission of theft given during the inter- view and his denial of guilt of theft while testifying. However. in arriving at this credibility conclusion. I make no determination as to the truth or falsity of Lafferty's written admission of theft because of the pressure placed on him before he wrote the same. Nor do I find that the conflict detracts from the finding that afferty's version of the interview' is the more accurate, and therefore the more credible While the investigation into missing merchandise was being conducted at Allen Park store, a similar investiga- tion was underway at Respondent's Southgate store. So far as the record shows, the investigation was being con- ducted by Cheryl Hellhake, the Southgate store security and safety manager, and Jack A. Legorreta, Respon- dent's regional field and safety supervisor. On November 13, 1978, Hellhake summoned tire in- staller Keith Kamin to the store security office for a "protection interview." Present with Hellhake at the time was Legorreta. At the outset of the interview and before any questioning occurred, Kamin was requested to sign a waiver in the exact form of the one signed by Lafferty. Kamin did so. After the signing of the so-called waiver, Hellhake ex- plained that her function was to conduct investigations in order to determine the reasons for losses sustained in the store, and that she and Legorreta were conducting an in- vestigation in the auto service center. Hellhake then asked Kamin if the latter had made any mistakes which would cause a loss of assets to Respondent. No specific item was mentioned by Hellhake at that point. However, immediately after Hellhake's question with regard to the loss of assets, Kamin volunteered that he had stolen a used battery. Kamin was then advised that Hellhake and Legorreta knew of other losses which were sustained. At this point, Hellhake placed a three-columned sheet of paper before Kamin on the table, asking Kamin, at the same time, to list merchandise and cash that Kamin was responsible for stealing. After the paper was placed in front of Kamin, Hell- hake and Legorreta left the room and remained outside for a period of approximately 10 minutes. When they re- turned, Kamin had listed cash and merchandise which he admitted he had stolen. Again, there was no specific ac- cusation by either of the interrogators as to individual items stolen at any time up to this point of the interview. Nevertheless, Kamin did list the merchandise and cash. Thereupon, a conversation between the three ensued in which it was attempted to determine the approximate value of merchandise and cash for which Kamin was re- sponsible. This came to approximately $1,300. Kamin thereupon agreed to write and sign a statement admitting the thefts and what he had taken. The only direction given to his at that point was that at the head of the statement he write his name, address, and the department in which he worked. Everything else in the statement which Kamin then wrote out was placed thereon with- out any specific direction from either Hellhake or Legor- reta. After Kamin had signed the statement, he was asked if he had any knowledge of any other employee engaging in theft at the auto center at Southgate, but neither of the two interrogators mentioned any specific names. Kamin then supplied the name of Michael S. Poupard as having helped Kamin steal some of the missing merchan- dise. Almost immediately thereafter, Kamin wrote out a second statement implicating Poupard, which stated that Kamin had received gasoline from Poupard, who evi- dently attended gasoline pumps at the center; that Kamin 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had taken a tire for Poupard and that Poupard had in- formed Kamin of cash thefts. In this statement, Kamin also implicated another employee not involved in this proceeding. Shortly thereafter, the interview was terminated, Kamin was notified thereafter of his suspension, and was eventually discharged for theft. 4 On Kamin's implicating Poupard, Legorreta and Hell- hake summoned Poupard for a protection interview on the following day, November 14, 1978. However, Pou- pard had been informed by Kamin of Kamin's interview and the fact that Kamin had implicated Poupard. Ac- cordingly, before Poupard went to the security office, Poupard stopped at the "back" (presumably of the facili- ty) and explained what he thought was about to occur to his union representative, Bruce McDaniel. In his conver- sation with McDaniel, Poupard told McDaniel that he would probably be needing the latter and that Poupard would call McDaniel when necessary. From there, Pou- pard proceeded to the place in the security office where the interview was to take place. As in the case of the other two dischargees, Poupard was asked to and did sign the so-called waiver in which he was informed that he was permitted to leave the room, or the interview, at any time. As in the case of Kamin, Poupard was interviewed by Hellhake and Legorreta. Either before or after the sign- ing of the waiver, Legorreta explained to Poupard what the duties of the security people were. Legorreta then told Poupard that he wanted to ask Poupard a few ques- tions. In reply, Poupard said he did not want to answer any questions and stated he wanted his union representa- tive. Legorreta rejoined, "You know, Mike, we don't have to carry on with this meeting if we have a third person in." Despite this information, Poupard insisted that he still wanted to talk to his union representative. Legorreta then asked Poupard if the latter's name was Michael Scott Poupard and Poupard answered by stating that he wanted to talk to his union representative. At this, Le- gorreta told Poupard, "If we do have a third person come in the room, the police will be notified." However, Poupard again insisted that he wanted his union repre- 4 All of the foregoing is from credited portions of the testimony of Hellhake and Legorreta. Kamin testified in much greater detail as to what occurred at the interview than did Legorreta or Hellhake. Kamin testified that he realized, after he was asked if he had made any mistakes with regard to Respondent's merchandise, that he was being coerced. He further testified that he asked for union representation and was told that he would go to jail if he continued to ask for the same. I am inclined by logic and from my observation of the witnesses that Hellhake's and Le- gorreta's versions of the interview were more accurate Hellhake was asked whether she had at any time threatened Kamin and she emphatical- ly denied any threats of the type to which testified. Nevertheless, both Hellhake and Legorreta readily admitted in the case of Poupard, as her- einafter set forth, that Poupard did ask for union representation on learn- ing of the nature of the protection interview to which he was subjected. This being so, there would seem to have been no reason, if Hellhake and Legorreta were untruthful, to have denied, or omitted from their testimo- ny, that Kamin asked for and then dropped his request for his union rep- resentative. Additionally. Kamin changed his testimony at least twice re- garding Poupard's involvement in the alleged threats. By reason of all of the foregoing, as stated above, I find and conclude that in this respect, with regard to the Kamin interview, the testimony of Hellhake and L.egorreta represents a more accurate description of what occurred than does the testimony of Kamin. sentative. In answer to this, Legorreta told Poupard, "I'm not gonna go call your union representative. I'm gonna go call the police." With that, Legorreta left the room. Hellhake remained in the room with Poupard and told Poupard that the latter was making a big mistake. Again, Poupard, instead of capitulating, stated that he still wanted his union representative. With this response from Poupard, Hellhake left the room. While alone in the room in which the interview was taking place, Poupard noticed a telephone at the far end of the office on another desk. He arose, proceeded to the telephone, and dialed the number of his union representa- tive, Bruce McDaniel. However, the telephone which Poupard was using was an extension of a telephone out- side the room. The telephone outside the room was close to the place where Hellhake was waiting. Hellhake no- ticed the light of the outside telephone come on and im- mediately returned to the security room. She ordered Poupard to put down the telephone. At this point, Pou- pard had not put through his call. Poupard did as he was requested, placed the telephone in its cradle, and sat down. When this was done, Hell- hake again left the room. As soon as she did so, howev- er, Poupard again went to the telephone and dialed McDaniel again. However, outside the security room where Poupard was located, Hellhake again noticed the extension telephone light up. She, thereupon, returned immediately to the security room and repeated her order to Poupard to hang up. Again, Poupard was unsuccessful in reaching McDaniel. He hung up after Hellhake's order and obeyed her further command to sit down. Hellhake then left the room for the third time but re- turned a short time later. She told Poupard that the police were waiting outside, but if Poupard would sign a statement, Hellhake would send the police away. With this carrot and stick threat by Hellhake, Poupard capitu- lated and voiced his consent to sign the statement. With that, again Hellhake left the room, returning approxi- mately 2 minutes later with Legorreta. Poupard was sup- plied with paper and a writing instrument. He proceeded to write out a statement to the effect that he and Kamin had taken merchandise and cash in the sum of approxi- mately $100. However, while the statement was being written, there came a knock at the door to which Hellhake stated "Whoever it is just don't let 'em in." So the knocking fi- nally stopped. There was another door to the same room, and the knocking began at the other door with the same result. Legorreta ordered Poupard to continue writing. After Poupard had signed the so-called confession statement, he was informed that he was suspended and was asked when Respondent could be reimbursed for the money which Poupard had allegedly taken. Poupard an- swered he would probably repay on the next payday. At that point, they also took from him his discount card. Poupard, thereupon, left the room and went down- stairs where he related his experience to Bruce McDan- iel. According to Poupard's testimony, he told McDaniel 830 MONTGOMERY WARD & CO., INCORPORATED he had heard a knocking on the door. McDaniel said that he, McDaniel, had done the knocking. s C. Discussion and Concluding Findings Both the General Counsel and Respondent agree that pursuant to the Supreme Court's decision in ANL.R.B. v. J. Weingarten, Inc., and its progeny, when an employee is required by an employer to submit to an interview, which the employee reasonably believes could result in disciplinary action, the employee has the right to request union representation at such interview. Upon a valid em- ployee request being made, the employer is permitted one of three options: (1) Grant the request; (2) discontin- ue the interview; 7 or (3) offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all.8 The parties' point of departure from the above-agreed upon statement of the law arises from the General Coun- sel's contention that Respondent failed to adhere to the principles set forth whereas Respondent maintains that its representatives, during the interviews of the three named employees, adhered to the Weingarten options and the said employees' rights, thereunder were fully pre- served. Respondent contends that the signing by the three em- ployees at the outset of the interviews of the so-called waivers, before any interrogation or discussion of possi- ble thefts was made by any of the individuals conducting the interviews, constituted waivers by the three employ- ees of their rights to have union representation at the in- terviews. However, it becomes unnecessary to decide whether by signing the so-called waivers, the individuals involved relinquished their rights to have union represen- s From credited portions of the testimony (of Poupard HBoth Hellhake and Legorreta gave different ersions of the interview than did Poupard However, in this instance I as more favorabhl impressed ith 'Pou- pard's demeanor than with that of Hellhake and I. egorreta Moreover. al- though in the main, Legorreta's testimony was supported to an extlenl by the testimony given by Hellhake. there is in their tstimon a connflict which bolsters my conclusion that Poupard's ersion is the more accurate one. Thus, Legorreta testified that at the time Potupard began to write his statement or immediately before he began Iegorreta asked Poupard i' he still wanted his union representative and Poupard answered in the nega- tive. On the other hand, Hellhake when asked the same question, an- swered that Poupard merely consented to write ult and sign the state- ment. There were further discrepancies between the testimony of I.egor reta and Hellhake. According to Hellhake. she as in the room alone when Poupard stated that he would write a statement of the alleged thefts. However, Legorreta stated that he asked Poupard before the latter consented to write the statement whether Pouprd still wanted his union representative. Furthermore, on cross-examination, Hellhake admitted that she told Poupard that one of the options Respondent had if the inter- view was terminated by Poupard's insistence on having a union represen- tative was to "go outside the Company." This, logically, bolsters Pou- pard's testimony that either Hellhake or Legorreta told htim the would go to the police Upon the basis of all of the foregoing, I ind. and con- clude from my observation of the witnesses, that Poupard's testimony with regard to the interview and the circumstances surrounding the same, is the more accurate. In coming to this conclusion, I note that to the extent that I credit a witness only in part as I have Legorreta and Hellhlke, I do s on the evidentiary rule that it is not uncommon rto believe some and not all of a witness' testimony " N L.R. B v Unieriul (Camera (orporatun, 179 : 2d 749. 754 (2d Cir. 1950) s 420 U.S 251 (1975) ? See .4moco Oil (Company, 218 NLRRH 551 (1978) See Meharrn Medical Colfge, 236 NLRB 139h (1978) tation because, in the cases of Lafferty and Poupard, the requests for union representation were made subsequent to the signing of the so-called waivers. Moreover, in the case of Kamin, it has already been decided heretofore in this Decision that Kamin made no request for representation whatsoever. Furthermore, even assuming that the so-called waivers had been made subsequent to a request by each of the accused individ- uals that they desired union representation, there is noth- ing in the waivers which specifically states that the indi- vidual involved in each case waived his Weingarten rights. Although the employer in such a case may not be required to inform an employee what the employee's Weingarten rights are, nevertheless, when a request to sign a waiver is made and such alleged waiver does not specifically mention that the individual waives his right to union representation, such waiver lacks the specificity to render it effective. Therefore, when Lafferty and Poupard requested union representation as heretofore found, their requests were not nullified by their earlier act of signing the so- called waivers. Although each ultimately submitted to in- terrogation and signed admissions of theft, the continu- ation of the interviews, the subjecting of the individuals to interrogation, and the signing of the confessions were, in each case, the result of Respondent's representatives' threats of dire consequences if the individuals insisted upon union representation, thereby terminating the inter- views pursuant to Respondent's policy. The mere fact that Lafferty and Poupard consented under such conditions did not constitute a waiver of their previously requested representation rights. In South- vwestern Bell Telephone Company, 9 the Board stated as fol- lows: Before inferring that a waiver has occurred . . . the Board must assure itself that the employee acted knowingly and voluntarily. The right being waived is designed to prevent intimidation by the employer. It would be incongruous to infer a waiver without a clear indication that the very tactics the right is meant to prevent were not used to coerce a surren- der of protection. ' In Weingarten, the Supreme Court stated: "A single employee confronted by an employer investigating whether certain conduct deserves discipline maybe too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors."' ' The Board has held further that to conclude that an employer may play on such fears to dissuade an employ- ee from remaining firm in his request for union represen- tation at such an interview would defeat the right Wein- garrten protects. 2 Respondent's claim that Lafferty and Poupard with- drew their requests for union representation must be re- viewed in the light of the foregoing principles of law es- " 227 NI R 1223 1977) "' Ihd, cliallton oniled IJ irigarten In upra at 22 2 3 So2 Soahoellrn Bl// ltlphoex (Cmpunlr upra at 1221 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tablished by the Board and the courts. However, before disposing of this issue in these two instances in the light of the foregoing, I find and conclude that nowhere in the record is there a showing that either Lafferty or Pou- pard specifically, at any point, withdrew their request for representation. Otherwise put, neither of them, in so many words, stated that they were giving up their rights to have union representation at the interviews. They merely proceeded, under coercive circumstances, to write confessions of theft. Accordingly, I cannot find that there was in the case of either Lafferty or Poupard, a specific waiver in view of the facts hereinabove recit- ed. However, even assuming, arguendo, that each of these individuals specifically told the interviewers that they were positively, affirmatively, withdrawing his request for union representation, under the above-cited authori- ties, it would still be necessary to find that such with- drawal was without effect and cannot now be utilized by Respondent in order to justify, legally, the actions of Re- spondent's agents. This is so because, in the case of Laf- ferty, he was threatened by Mahlow that Mahlow would call Lafferty's union representative, but by the time the representative got there, Lafferty would be in jail. Cer- tainly, this would not constitute a withdrawal by reason of the coercive effect which the above-cited cases con- demn. Accordingly, I find and conclude that in the case of Lafferty, Respondent violated the principles set forth in Weingarten and its progeny, and, accordingly, thereby violated Section 8(a)(1) of the Act. With regard to the interview conducted by Legorreta and Hellhake of employee Michael S. Poupard, I have heretofore found that Poupard consistently and contin- ually insisted on having his union representative at the interview. However, I have further found that Legorreta told Poupard "If we do have a third person come in the room, the police will be notified." I additionally have found that Legorreta followed that statement up with "I'm not gonna go call your union representative. I'm gonna go call the police," at which point he left the room. Then, after Hellhake left the interview room, Pou- pard's attempts to call his union representative were thwarted by Hellhake. Finally, after Poupard's attempts to make contact with his union representative were thwarted, Hellhake capped the situation with the state- ment, as she returned to the room, to the effect that the police were waiting outside but that if Poupard signed a statement, she would call off the police. Here again, we have a coercive attempt by Respon- dent's agents to force an employee, who reasonably be- lieved the interview could lead to disciplinary action, to forgo his right to have a union representative, and there- by forced a waiver "without a clear indication that the very tactics the right is meant to prevent were not used to coerce a surrender of protection." 3 Accordingly, I find and conclude that Respondent deprived Poupard of the right afforded him under the principles of the Wein- garten case. Therefore, I further find and conclude that Respondent thereby violated Section 8(a)(l) of the Act. '" Southwestern Bell 7elephone Company, supra at 1223. With regard to employee Kamin, however, it is con- cluded that since he made no request whatsoever during the entire interview with Legorreta and Hellhake, there can be no violation of the type heretofore found in the instances of the interviews of Lafferty and Poupard. Ac- cordingly, I shall recommend dismissal of that portion of the complaint which alleges that Respondent violated the Act with regard to Kamin. IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 11I, above, occurring in connection with the operations of Respondent herein, described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Counsel for the General Counsel maintains that the Weingarten violation should be remedied by ordering re- instatement and backpay to the employees involved. Re- spondent argues that the employees involved in this case were discharged not for demanding union representation, but for cause, the cause being stealing from Respondent. Therefore, Respondent contends reinstatement and back- pay in this case, even if Respondent is found to have vio- lated the Weingarten principles, is not a proper remedy and would be tantamount to penalizing Respondent in a manner not provided by the Act. Because Kamin did not ask for union representation, I shall recommend dismissal of those allegations of the complaint applicable to him. However, with regard to Lafferty and Poupard, there arises serious questions of whether reinstatement and backpay would be a proper remedy. Hereinabove, I have found that both of these employees were coerced into continuing their respective interviews without union representation and were not given the choices provided them pursuant to Weingarten. Nevertheless, there exist areas of distinction between the interviews and ultimate discharges of Lafferty and Pou- pard. True, both were coerced, and the coercion that caused them to proceed with their respective protection interviews without their requested union representatives could well have tainted the validity of their written, signed statements of admission of theft. Otherwise put, it may well have been that they signed their respective statements as a result of threat of prosecution tied to a promise by Respondent's representatives of no prosecu- tion if they gave the requested written statements. The distinction between the giving of the two state- ments, however, lies in the fact that Lafferty credibly denied, in his testimony, that he stole the merchandise listed in his interview statement. I have, heretofore, not 832 MONTGOMERY WARD & CO., INCORPORATED found it necessary, therefore, to decide whether Lafferty did actually engage in theft. In contrast, in the case of Poupard, on cross-examination, he admitted that he did commit theft as described in his interview statement. Accordingly, it will be ordered that Respondent rein- state Richard Lafferty to his former or equivalent posi- tion, and make him whole by paying to him a sum of money equal to that which he would have earned but for the refusal of Respondent to grant him his Section 7 rights pursuant to Weingarten. Backpay shall be comput- ed with interest thereon in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).'4 However, as to Poupard, I will not order reinstate- ment because he was definitely discharged for cause. 5 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees Lafferty and Poupard with arrest and prosecution if they persisted in their re- quest for union representation, at interviews where these employees reasonably believed the interviews could result in disciplinary action, and insisting on continuing the interrogation of these employees even after the re- quests were made for the presence of union representa- tives, Respondent interfered with, restrained, and co- erced its employees, and is interfering with, restraining, and coercing its employees in the exercise of rights guar- anteed them by Section 7 of the Act, and thereby has en- gaged in, and is engaging in unfair labor practices affect- ing commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. By interviewing and interrogating employee Keith Kamin, Respondent has not violated any section of the National Labor Relations Act. Upon the basis of the foregoing findings of fact, and conclusions of law, and upon the entire record, and pur- suant to Section 10(c) of the Act, I hereby issue the fol- lowing: ORDER'" The Respondent, Montgomery Ward & Co., Incorpo- rated, Southgate and Allen Park, Michigan, its agents, officers, representatives, and assigns, shall: " See, generally, Isis Plumhing & earring C., 138 NLRH 716 (1962) JS It may he argued that because the Poupard statement was coerced, the theft was not proven until the hearing of this case, and. therefore. Respondent should be ordered to make him whole for loss of earninigs from the date of his suspension or discharge until the hearing herein in order to fully remedy the Wingarrten siolation as to him Howeser, since Poupard was discharged for cause. even though the coerced admission of theft as riot proven to he accurate until the date of the hearing. and even though the purpose of the remedy would he to right a public and not a private wrong, if backpay is ordered. 'oupard wsoild therch be rewarded fior wrongdoing 'R In the event no exceptions are filed as prol ided h Sec It)2 4h of the Rules and Regulations of the National lhaboir Relations Board, the 1. Cease and desist from: (a) Requiring any employee to participate in an inter- view without union representation by threatening such employee with arrest and/or prosecution in order to coerce the employee to forgo union representation at such interview, if such union representation has been re- quested by the employee and he reasonably fears that the interview could lead to disciplinary action against him. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the National Labor Re- lations Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer to Richard Lafferty immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out loss of seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his discharge as a result of an inter- view of the type prohibited in paragraph l(a) of this Order, backpay to be computed in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and re- ports, and all other records and reports necessary to ana- lyze the amount of backpay due employees under this Order. (c) Post at its facilities in Southgate and Allen Park, Michigan, copies of the notice attached hereto marked, "Appendix."'7 Copies of said notice, on forms provided by the Regional Director for Region 7, of the National Labor Relations Board, after being duly signed by Re- spondent's representative, shall be posted by 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 customarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is 1FURT'lR ORI)l-RtI) that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. findings. conclusion,,. and recommended Order hereil shall, a pros ided in Sec 102 48 of the Rules and Regulations, h adoipted h tihe lBoard and become its findings, conclusions, and ()rder. arid all obectionl thereto shall hb drlemed warised ir all purposes t i the cent this thai Order is enforced h ai Judgiment it ai Unilvd Stairs t tart of Appea. Ihe ssords ill the iotice ralding "i'osted b3 Order of the National abor Relations Board" shall read "'oslied Purul- lt ti a Jilglllt t I- L'rlUlicd St.ae, (',ltrl of Appt ,al, l.lrcirlg ai O)rderl ( tl NaillA,iil I ahor Relations oard' 833