Price Pfister, A Div. Of Norris Industries

PRICE PFISTER, A DIVISION OF NORRIS INDUSTRIES 87 Price Pfister, a Division of Norris Industries and Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 31-CA-9805 May 20, 1981 DECISION AND ORDER On November 13, 1980, Administrative Law Judge David P. McDonald issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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. 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, Price Pfister, a division of Norris Industries, Pacoima, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: For the reasons fully explicated in my dissenting opinion in Kraft Foods, Inc., 2 I would provide a "make whole" remedy for employee Duncan, the object of Respondent's unfair labor practice. i In the absence of exceptions thereto, we adopt proforma. the Admin- istrative Law Judge's discussion and finding that Respondent violated Sec. 8(a)(1) (of the Act by refusing employee Marie Duncan's request for a union representative at a meeting between Duncan and officials of Re- spondent 2 251 NLRB 598 (1980) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT require any employee to take part in an investigatory interview where the employee has reasonable grounds to believe that the matter to be discussed may result in his or her being the subject of disciplinary action and where we have ignored, denied, or refused any request by him or her to have union representation. 256 NLRB No. 21 WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. PRICE PFISTER, A DIVISION OF NORRIS INDUSTRIES DECISION STATEMENT OF THE CASE DAVID P. McDONALD, Administrative Law Judge: This case was heard before me in Los Angeles, Califor- nia, on September 15, 1980,1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 31 on April 18, 1980, which is based upon a charge filed by Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called the Union), on February 20, 1980. The complaint alleges that Price Pfister, a Division of Norris Industries (herein called Respondent), has engaged in certain violations of Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act). Issues The primary issue herein is whether or not Respond- ent violated Section 8(a)(1) of the Act by conducting an interview with Marie Duncan after Respondent had denied Duncan's request to have her union representative present. This meeting resulted in a disciplinary suspen- sion of Duncan. Although Respondent admits the suspension of Duncan and the exclusion of the requested union repre- sentative from the disciplinary meeting, it denies that its actions were in violation of the Act. Respondent argues that the final meeting was held to advise Duncan of its decision to suspend her and not to interrogate or inter- view her. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the parties. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS Or: FACT I. RESPONI)ENT'S BUSINESS Respondent admits that it is a California corporation engaged in the manufacture of brass plumbing fixtures with an office and principal place of business located in Pacoima, California. It further admits that during the past calendar year, in the course and conduct of its busi- I All dates herein refer to 1980 unless otherwise indicated 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness operations, it has sold and shipped goods and mate- rials valued in excess of $50,000 to customers outside the State of California. Accordingly, it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that Van Storage Driv- ers, Packers, Warehousemen & Helpers Local 389, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES In the process of manufacturing plumbing fixtures, Re- spondent utilizes expeditors to place racks on one of four conveyor lines. These racks weigh 40 to 50 pounds each. As the racks progress down the line, production opera- tors install various parts before the rack enters a plating tank. Marie Duncan was employed as one of the production operators. On February 19, Javier Godinez, the plating leadman, observed her remove a rack from the plating line. At 11:15 a.m., he reported this incident to Thomas Evans, the acting supervisor. Evans instructed Godinez to tell Duncan not to remove these racks again. As Go- dinez spoke to her she became very loud and screamed that he did not know what he was talking about. At this point, Evans invited them both into his office for a con- ference. Ed Krib, a management trainee, was also pres- ent. As she entered the office, Evans asked her if she had removed the rack. Again she became excited and com- plained she had been unfairly treated by the expeditors. Marie was convinced that the expeditors were deliberate- ly adding more racks to her line to force her to work more than the other employees. She had previously voiced this same complaint and Evans had investigated. He explained to her that he had carefully watched the expeditors and was convinced that they were distributing the work fairly. By removing a rack from the production line, she was able to avoid the additional work of install- ing parts on that particular rack. Evans then explained to her that he even found the racks to be very heavy (40 to 50 pounds) and that he was concerned that she would injure herself or her fellow employees by lifting them off the production line. Their recollection of the conversation which followed differed slightly. Duncan recalled that she answered, "I am just as strong as you is." She then suggested that Respondent question Raymond, an expeditor. Evans indicated that Respondent was going to call Raymond in later. Duncan then looked at him and said, "All you son-of-a-bitches is full of shit." She walked out of the office and then re- turned a minute later, pointing her finger at Evans and remarking, "Don't ever call me in any more unless you know what you are talking about." Evans testified that, after Duncan told him she was a lot stronger than he, he replied, "Well, regardless, if it continues, I am going to have to take some sort of action." She became very upset and yelled, "You guys don't know what in the fuck you are doing! You guys don't know what you are doing. You don't watch those guys closely enough. They are a lot smarter than you think. They know when you are watching them and trying to catch them cheating." She walked out of the office but returned immediately and stated, "I know you don't like me, and don't ever call me into this office again. You guys don't know what you are talking about." At the conclusion of this conversation, Evans immedi- ately looked for Paul Williams, Respondent's personnel service manager. After listening to Evans relate the inci- dent, Williams said, "Well, we are going to have to sus- pend her." The two men then found Norbert Toby, Re- spondent's superintendent of the processing department. After listening to the facts surrounding Duncan's con- duct, Toby decided that she should be suspended. He testified that his decision was based on very firm compa- ny policy which required automatic suspension for disre- garding safety rules and regulations. The racks weighed between 40 and 70 pounds, depending on the number of parts that had been attached. Toby instructed Evans to bring Duncan to his office in order to inform her of the suspension. When Evans and Duncan arrived in Toby's office, no one else was present. She ignored Evans' order to remain in the office. A short time later, she returned with her union steward, Sophia Hernandez. Hernandez left when she was told by Williams that it was not neces- sary for her to be present at this particular meeting. Duncan complained that she felt she had a right to have to steward present at the meeting. Williams then said, "Marie, I understand that you have had some trouble in the department this morning." Duncan was still angry and she began to relate the prob- lems she had experienced with the expeditor. She was convinced they were discriminating against her by plac- ing more work on her plating line. As a consequence, she took it upon herself to remove a rack and lessen her workload. When she calmed down, Williams attempted to ask her if she recognized Evans as her supervisor. She seemed to ignore or evade the question and continued to state that Evans did not know what he was doing. Then she responded, "I don't know what Tom is." Williams testified that he asked the question concern- ing her recognition of Evans as a supervisor in order to lay the groundwork for the suspension by showing that Evans had given her an order that she had refused to obey. He did not ask her whether she was guilty of any violation of the plant rules. Williams then informed her that she was suspended and directed Evans to escort her from the plant. She became incensed and stated that she did not need an escort. It was explained to her that she had a choice between Evans as an escort or a security guard. Duncan's recollection of the event was substantially similar to Williams' testimony except she felt he had also asked her what type of profane language she had used in reference to Evans. Duncan also recalled Williams's --- PRICE PFISTER, A DIVISION OF NORRIS INDUSTRIES 89 asking her if she had removed the rack from the produc- tion line. The suspension was for 2 days, February 20 and 21. She was recalled and returned to work on Friday, Feb- ruary 22. IV. ANALYSIS In N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court held that an employer violated Section 8(a)(l) of the Act by denying an em- ployee's request that a union representative be present at an investigatory interview which the employee reason- ably believes might result in disciplinary action. The Board concluded that the Supreme Court's decision in Weingarten applied to any interview, whether labeled in- vestigatory or disciplinary, so long as the employee rea- sonably believes the interview may result in disciplinary action. Certified Grocers of California, Ltd., 227 NLRB 1211 (1977), enforcement denied 587 F.2d 449 (9th Cir. 1978). Subsequently, the Board overruled, in part, its Certified Grocers decision in Baton Rouge Water Works Company, 246 NLRB 995 (1979), Thus, the Board held that the right to representation under Weingarten does not extend to those employer-employee meetings where the sole purpose is the imposition of predetermined disci- pline 246 NLRB at 997: [A]s long as the employer has reached a final, bind- ing decision to impose certain discipline on the em- ployee prior to the interview, based on facts and evidence obtained prior to the interview, no Section 7 right to union representation exists under Weingar- ten when the employer meets with the employee simply to inform him of, or impose, that previously determined discipline. Respondent contends that the decision to suspend Duncan was made prior to the meeting in which she re- quested the assistance of a union representative, and that the sole purpose of the meeting was to inform her of that decision. Thus, it argues that the interview was not an investigatory meeting involving possible disciplinary action since the disciplinary action had been predeter- mined and was merely being carried out. The credible testimony supports Respondent's contention that Wil- liams and Toby had arrived at their decision to suspend Duncan before they met with her. The meeting was called for the sole purpose of informing her of their deci- sion and not to continue the investigation. If Respondent had limited its comments to simply informing Duncan of its decision to suspend her, then there would not be a violation of the Act. However, Williams' initial comment that he understood she had some trouble in the depart- ment quickly transformed the session into an investiga- tory interview. This broad general comment elicited a response from her which further confirmed that she had, in fact, removed the racks and disobeyed a supervisor's order. Under these circumstances, I find that her request for union representation during the interview was an ex- ercise of her Section 7 rights as enunciated by the Su- preme Court in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251. When Respondent denied her request it violated Section 8(a)(1) of the Act. In a recent case, Kraft Foods, Inc., 251 NLRB 598 (1980), the Board held that, where an investigatory inter- view in violation of Weingarten, supra, has occurred and the General Counsel shows that an employee was disci- plined or discharged for conduct which was the subject of the interview, then a reinstatement and backpay order is appropriate unless Respondent can sustain its burden of showing that its decision to discipline or discharge that employee was not based on information which it ob- tained during the interview. In the present case, the facts clearly show that Re- spondent relied solely on information obtained prior to the unlawful interview rather than anything obtained at the meeting. Therefore, for the above-stated reasons, I shall not recommend that Respondent be required to give Duncan backpay for the period of her suspension, but, to remedy the 8(a)(l) violation, I shall order it to cease and desist from engaging in the unfair labor prac- tice found herein and to post the appropriate notice. CONCLUSIONS OF LAW 1. Price Pfister, a Division of Norris Industries, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting com- merce 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 ignoring Marie Duncan's request to have union representation in an investigatory interview which she reasonably believed might result in disciplinary action against her, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, Price Pfister, a Division of Norris In- dustries, Pacoima, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Requiring any employee to take part in an investi- gatory interview where the employee has reasonable 2 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, 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 aived for all purposes 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grounds to believe that the matter to be discussed may result in his or her being the subject of disciplinary action and where Respondent has ignored, denied, or re- fused any request by him or her to have union represen- tation. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at Respondent's principal place of business in Pacoima, California, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by provided by the Regional Director for Region 31, after being duly signed by Respondent'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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."