Southwestern Bell Telephone Company

SOUTHWESTERN BELL TELEPHONE COMPANY Southwestern Bell Telephone Company and Commu- nications Workers of America, Local 12222, AFL-CIO. Case 23-CA-7684 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On September 17, 1980, Administrative Law Judge James M. Kennedy issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 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 complaint be, and it hereby is, dismissed in its entirety. MlEMBER JENKINS, dissenting: Contrary to my colleagues, I would not affirm the Administrative Law Judge's finding that Re- spondent did not unlawfully deny employee James Robinson his right to consult with his union repre- sentative prior to his attendance at an investigatory interview. Rather, I would remand this proceeding to the Administrative Law Judge for credibility resolutions of conflicting testimony. Member Hunter agrees that the complaint should be dismissed in its entirety. On the issue of Robinson's right to consult with his steward prior to the investigatory interview in question, however, Member Hunter would dismiss the complaint for the reasons set forth in his dis- seiltinlg opinion in Pacific Telephone and Telegraph Company, 262 NLRB 127 (1982). Contrary to his dissenting colleague, Chairman Van de Water finds that no useful purpose would be served by remanding this case to the Administrative Law Judge because, in his view, it is implicit in the deci- sion that Respondent did not prohibit Robinson from consulting with his steward prior to the commencement of the interview. Thus, to engage in the delay and expense of a remand only to have the Administrative Law Judge make his implicit findings explicit is unwarranted. 264 NL.RB No. 67 The relevant evidence concerning this allega- tion2 is as follows. On July 10, 1979, 3 Robinson was involved in a minor traffic accident while driv- ing a company-owned vehicle. Robinson recorded the incident in his "accident book" and, the follow- ing day, submitted an accident report to his super- visor, Perry Curry. Sometime thereafter, on either the same day or on July 12, Robinson was asked to report to Charles Steubing, Respondent's district manager for installation and repair. At the same time, Steubing advised chief union steward John Forbes and district steward Stanley Millican that he (Steubing) needed them for a meeting. Robin- son, Forbes, and Millican testified that they had no opportunity to confer prior to the commencement of the meeting and did not do so. Respondent's in- stallation manager, Robert Grenwelge, Steubing, and Curry testified that Robinson conferred with his stewards for approximately 30 minutes prior to the meeting. The Administrative Law Judge did not resolve this credibility conflict. In any event, the meeting began by Steubing announcing that the purpose of the meeting was to investigate Robin- son's accident. Millican immediately asked Steub- ing for a few minutes to talk to Robinson about the incident. Steubing's response was the subject of conflicting testimony. Robinson testified that Steubing said it was his meeting, he wanted to pro- ceed, he had better things to do, and "let's get on with the meeting." Millican and Forbes corroborat- ed Robinson's testimony, and stated that Robinson assented to Steubing's statement by nodding his head. Steubing testified that he responded to Milli- can's request by stating, "Stan, unless it is impor- tant, let's get started. You are already 15 minutes late.... Let's get started unless it is something important." Steubing further testified that Millican replied, "Okay." Grenwelge and Curry corroborat- ed Steubing's version of the events. Based on the foregoing, the Administrative Law Judge dismissed the complaint without resolving the conflicting testimony. In doing so, he found that, even under the Union's version of events, Steubing did not refuse the stewards a preinterview conference with Robinson. The Administrative Law Judge reasoned that "Steubing never said 'no,"' and Millican, rather than insisting on the prior consultation, acceded to Steubing's "request" to proceed. I disagree. In order to find a violation, the Administrative Law Judge apparently would require either that 2 No exceptions were filed to the Administrative Law Judge's dismiss- al of the allegation that Respondent unlawfully deprived Robinson of union representation by telling his steward to cease participating in the interview. 3 Unless otherwise noted, all dates are in 1979. 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steubing answer with a flat "no" or that the Union insist on its right to prior consultation over Steub- ing's objections. I believe that the latter require- ment ignores the realities of industrial life, while the first simply is preposterous. Under the Union's version of events, Respondent answered the re- quest for prior consultation by expressing a desire to proceed without delay and citing other matters requiring attention. In my opinion, this is equiva- lent to a flat "no." While the Union could have in- sisted on a prior consultation, to do so in the face of Steubing's expressed desire would have annoyed the very management representative who was to judge the employee and determine his discipline. I would not require a union or employee to so preju- dice its presentation. However, without credibility findings resolving just what was stated at the meeting concerning the Union's request for prior consultation and further resolving whether the Union in fact did have an opportunity for prior consultation before the meet- ing commenced, I am unable to render an informed decision in this matter.4 Accordingly, I would remand the proceeding to the Administrative Law Judge for the above-mentioned credibility resolu- tions and such supplementary findings and recom- mendations as are appropriate. 4 I am bamed by the Chairman's finding in fn. I of the majority opill- ion that it is "implicit" in the Administrative Law Judge's Decision that Respondent did not deny Robinson his right of prior consultation with his steward. This is the central issue in the instant case, and one which cannot be avoided through use of a legal fiction. Assuming that the Union's version of events on July 12 was fully credited, there can be no doubt but that the General Counsel fulfilled his obligation to establish a prima facie case. And, in the posture of this case, we must operate under that assumption-as did the Administrative Law Judge by stating, in the second paragraph of the section of his Decision entitled "Analysis and Conclusions," "Yet, even under Millican's version . .. Thus, it is ap- parent that the Chairman's position constitutes nothing more than a thinly veiled attempt to negate Robinson's right of prior consultation under the guise of avoiding the delay and expense a remand might entail. I cannot abdicate our responsibilities on these grounds. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me in Houston, Texas, on May 22, 1980, pursuant to a complaint issued by the Regional Di- rector for the National Labor Relations Board for Region 231 and which is based upon a charge filed by Communications Workers of America, Local 12222, AFL-CIO (herein called the Union), on October 1. The complaint alleges that Southwestern Bell Telephone Company (herein called Respondent) has engaged in cer- tain violations of Section 8(a)(I) of the National Labor Relations Act, as amended (herein called the Act). All dates herein refer to 1979 unless otherwise indicated. ISSUES (I) Whether or not Respondent failed to give its em- ployee James Robinson the opportunity to consult with his union representative prior to conducting an investiga- tion into an accident which had occurred while Robin- son was driving a company vehicle; (2) whether Re- spondent during the course of the interview unlawfully deprived Robinson of representation by telling his stew- ard to cease participating. 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 both the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent admits it is a Missouri corporation which operates an interstate telephone and telecommunication service in Texas, Arkansas, Oklahoma, Kansas, and Mis- souri. It further admits that during the past year, in the course and conduct of its business, its gross revenues ex- ceeded $100,000. Accordingly it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE L.ABOR ORGANIZATION INVOI.VED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. IIn. THE ALLEGED UNFAIR LABOR PRACTICES The incident to be related here occurred at Respond- ent's Houston, Texas, Baneway Center and involves the procedure by which Respondent decided to discharge one of its telephone installers, James Robinson. On July 10 Robinson had been working at a construction site to install a business telephone line. While there he obtained a piece of scrap insulation from a construction worker which Robinson intended to use for his personal pur- poses. He put it in the back of his company truck and went to another job. The second job took him near his home and he deviated a short way to his home to drop off the insulation. When he exited through the back way his vehicle collided with a 14-year-old girl. This record is not clear whether she was on foot or riding a bicycle but it appears she was not injured. Robinson telephoned the police who refused to investigate the incident be- cause it had occurred on private property. Robinson also believed the accident was the young lady's fault, not his. He recorded the incident in his accident book and the next day, acting on instructions from his immediate su- pervisor, Perry Curry, filled out an accident report. Robinson says that after he filled out the report and gave it to Curry he went to work. He says a few hours 330 SOUTHWESTERN BELL TELEPHONF COMPANY later he was asked to report to the Baneway garage for a meeting with Charles Steubing, Respondent's district manager for installation and repair. Robinson and the union officials assert that the meeting occurred on July II; Steubing and the other members of Respondent's management assert that it occurred on July 12.2 On the morning in question Robinson says he arrived at Baneway at approximately II a.m. Already present were district steward Millican and the Baneway garage chief steward, John Forbes. Millican said he had been at his work center at Holly Springs and at approximately 10:30 his supervisor had told him to call Steubing at Baneway. When he did so Steubing said he needed him at Baneway for a meeting "right away." Millican says he promptly finished what he had been working on, left Holly Springs at approximately 10:45, and traveled Ihe 7 miles to Baneway fairly quickly, arriving shortly before II a.m. On his arrival he saw Forbes standing in the garage and a few minutes later Robinson appeared. Forbes said he learned of the meeting through his first- level supervisor who had been paged and s ho had told him to attend a meeting at Baneway at II a.m. He says he arrived at Baneway from a wvorksite at approximately 10:55. He saw Millican dri'ing in and about at that moment Robinson also appeared. The three of them say Millican asked Robinson if he knew what was going on and Robinson replied, "It could have something to do with the wreck I had yester- day." At that point Forbes saw Curry open his office door, apparently beckoning them inside. As they ap- proached the door Millican told Forbes that it would be best if Forbes represented Robinson as Forbes knew him better than did Millican. District Manager Steubing and Installation Manager Robert Grenwelge, corroborated to some extent by Curry, testified that they arrived at Baneway from their office at approximately 10:40 a.m. On their arrival they observed Robinson speaking to Millican and Forbes on the garage floor. Grenwelge went inside Curry's office while Steubing spent a few minutes on the floor greeting employees. All three testified that Robinson and the two stewards spoke together for at least 15 minutes before the meeting was to begin at II a.m. They also testified that Robinson and the two stewards did not enter Curry's office until nearly 11:15 a.m. Curry says he called them inside at that time. Thus, there is a factual dispute with respect to wheth- er or not Robinson had conferred with or had the oppor- tunity to confer with his union stewards before the meet- 2 It is more probable that it occurred on July 12 as there is documnie tary evidence to that effect including Steubing's calendar and union stew- ard Stanley Millican's worksheet for that date on which he recorded time spent on union-management business during the hours in question. Be that as it may, the dispute over whether the meeting occurred on July II or 12 is of little moment here Respondent argues that, since the meeting oc- curred on July 12, Robinson and the union stewards had all of July 11 to discuss the accident and therefore Robinson was not deprived of the op- portunity to discuss his plight with them. That extra day, it argues, satis- fled any obligation it had to Robinson with respect to his obtaining effec- tive representation at the meeting I do not concur and reject the argu- ment. Assuming Rolbinson had the extra day, it does not follow that he was required to use it to inform his union representatives that his job was endangered, for it may not have been. No, one had been hurt in the acci- dent and damage was negligible. Management nlight swell hac ignored it ing began. Robinson and the stewards contend they did not have such an opportunity and did not do so; Steub- ing and his associates contend that not only did the stew- ards have 15 minutes before the meeting was scheduled to start, but also the atmosphere was so relaxed that the stewards took an additional 15 minutes after the meeting was supposed to start before they came in. Upon the entry of Robinson and the stewards into Curry's office it appears that Steubing advised that the meeting was to investigate Robinson's accident and Milli- can immediately asked Steubing for a few minutes to talk to Robinson about it. Robinson characterized it as a re- quest for "prior consultation" and testified Steubing said it was his meeting, he wanted to proceed, he had better things to do and "let's get on with the meeting." Both stewards say that, when Millican asked for the "prior conference" with Robinson, Steubing asked if it was just Millican and Robinson, but Millican replied that it would be all three. Millican says Steubing then "denied me the meeting saying he wanted to start at II o'clock. It was late. lie had other things he wanted to do and for us to proceed on." He says it was then a few minutes after 11 a.m. Fhe two stewards testified Robinson asserted his assent to the request by nodding his head. The management version of the beginning of the meet- ing differs and is consistent with their testimony that Robinson had already conferred with the stewards for half an hour. Steubing says that when the three came into Curry's office Millican said, "Charley, may we have a few more minutes to talk about this?" Steubing replied, "Stan. unless it is important, let's get started. You are al- ready 15 minutes late . . . let's get started unless it is something important." Steubing says Millican replied, "Okay," and all came in and sat down. There was no further objection. Both Grenwelge and Curry corrobo- rate Steubing's recollection. Steubing then asked Robinson to explain his version of the accident and Robinson proceeded to do so, even complying with Steubing's request to draw a picture on the blackboard. Both Millican and Forbes participated in developing facts respecting the accident. After Robinson completed his description of the acci- dent, Steubing then began asking him questions regard- ing his production for the day of the accident. It appears that Robinson had recently been removed from a period of suspension on an unrelated matter. There was a ques- tion about authorized overtime and whether or not Rob- inson was required to get prior authorization. At that point Forbes interjected. According to him he said he was going to answer for Robinson but Steubing said he "didn't want me to comment in the meeting." Forbes re- sponded saying he was Robinson's union representative and he recalls Steubing repeated, "You can't comment in this meeting. I am directing questions to Stan [Millican] and to James [Robinson]." Forbes says Millican then explained to Steubing that Forbes was Robinson's representative and would be al- lowed to talk in any meeting he attended. Forbes says Steubing replied, "I am directing questions to you, Mr. Millican, and to James, and Mr. Forbes cannot comment 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this meeting." As a result Forbes said he participated no further. Robinson and Millican tend to corroborate Forbes here, although neither describes Steubing's interdiction quite as strongly. Robinson remembers Steubing telling Forbes, "I am not talking to you. I am talking to James," later adding that he was also speaking to Millican. Milli- can stated that after telling Steubing that Forbes was Robinson's union representative and could talk at any meeting Steubing replied, "No, [I am] directing [my] questions to Millican and Robinson only." Millican testi- fied, apparently as a descriptive conclusion, "John [Forbes] was not to answer the questions." I infer both from Millican's answer here as well as Forbes' remark that Forbes was indeed attempting to answer questions Steubing was posing to Robinson. It is clear that, although Millican had told Forbes to take the lead in representing Robinson, neither Millican nor Forbes had ever advised Steubing of their decision. That appears to have been a deviation from a protocol which the parties commonly used in dealing with such matters. The protocol was that both union and manage- ment had counterparts who spoke to each other on a peer-like level. Thus, the crew steward dealt with the immediate foreman such as Curry; the chief steward's peer was the installation manager's counterpart (i.e., Forbes v. Grenwelge); and the district steward's counter- part was the district manager (i.e., Millican v. Steubing). It was for this reason that Steubing had called for Milli- can's presence in the meeting and indeed Steubing had every right to think that he was dealing with Millican only. 3 Steubing, corroborated by Grenwelge and Curry, testi- fied both Millican and Forbes had participated in the meeting up to that point and that he had voiced no ob- jection. However, when the topic changed from the ac- cident to production, Steubing says Forbes interrupted on a number of occasions and would not permit Robin- son to answer the questions being put to him. When that occurred Steubing says he simply asked Forbes to stop interrupting and let Robinson speak. Forbes complied. All three management officials say this request did not stop Forbes from participating in the meeting later on, though his participation was lessened. Certainly Millican continued to participate fully; he was never barred. It also appears that the standard practice at such meet- ings, including grievance settlement discussions, is to permit all individuals present to freely contribute to the conversation, whether by presentation of factual material or by argument. Furthermore, it appears to have been the standard practice for Respondent to allow the Union any recess it wished to hold in order to caucus among themselves. It is clear that neither Millican nor Forbes ever asked for an additional recess and Millican was never deprived of the right to contribute as he saw fit nor to hold side discussions if he chose with either Rob- inson or Forbes. a In fact, Steubing testified credibly that he was surprised Forbes was present. Apparently Forbes had been invited by mistake, though that is not absolutely clear. Certainly no one had any objection to Forbes' pres- ence. At the conclusion of the meeting Steubing advised Robinson that he was suspended pending further review of his file. Millican asked Steubing to advise him of the results of that review and Steubing agreed to do so. Within the next several days Steubing and Grenwelge decided they would recommend Robinson's discharge based not simply on the accident alone but also upon a review of his entire work history including previous sus- pensions and production matters. He was ultimately dis- charged approximately 10 days later. IV. ANALYSIS AND CONCL.USIONS With respect to the factual dispute relating to the amount of time Millican and Forbes had to discuss the accident with Robinson prior to the start of the meeting in Curry's office, there is very little to assist me in re- solving that credibility dispute. The General Counsel points to purported inconsistencies in the pretrial affida- vits of Steubing and Grenwelge but an analysis of those does not convince me that they are sufficiently inconsist- ent to warrant discrediting their live testimony. To do so in my opinion would be unfair. I therefore find that each side's version is as probable as the other. 4 Nonetheless, it is clear that. when the two stewards and Robinson finally entered Curry's office and upon their officially learning from Steubing the purpose of the visit, Millican did ask for a few more minutes. Yet, even under Millican's version it does not appear that Steubing refused the stewards a preinterview conference with Robinson. No doubt Millican's request must be interpret- ed as a request for such a conference. But Steubing never said "no." He countered with a request to proceed which no witness described as a command. His statement was only a request that the meeting not be delayed. Mil- lican, rather than insisting on a preinterview conference, acceded. I am, therefore, unable to conclude that the General Counsel has proven by a preponderance of the evidence that Respondent denied Robinson the right to union representation by barring his representatives from meeting with him before the investigative interview began. 5 This allegation should be dismissed. Likewise, I am unpersuaded that Steubing unlawfully barred Forbes from representing Robinson during the in- terview. Forbes and Millican virtually admit Forbes at- tempted to answer factual questions addressed to Robin- son by Steubing. Aside from the question of improper disruption, which is neither argued nor warranted, their version simply leads me to the conclusion that Forbes was displaying bad manners by answering the questions 4 It is true that Millican's work record shows that he listed himself as being engaged in union business as of 10:45 a.m. that day, therefore creat- ing the likelihood that he left Holly Springs at that time and could not have arrived at Baneway until he said he did; i.e., 10:55, rather than the 10:45 attributed to him by Steubing. Nonetheless that does not negate the possibility that the three engaged in an at least 20-minute discussion thereafter. Therefore, I find Millican's work record to be of little assist- ance in resolving the dispute. 5 This right has been recognized by the Board in Climax Molybdenum Company, 227 NLRB 1189 (1977), enforcement denied 584 F.2d 360 (10th Cir. 1978), and is considered an integral part of the right to union repre- sentation during an employer's investigation into an employee's alleged misconduct set forth in N.L.R.B. v. J Weingarten, Inc., 420 U.S. 251 (1975). 332 SOUTHWESTERN BELL TELEPHONE COMPANY and Steubing asked him to stop. It is true that Forbes says Steubing told him to discontinue commenting fur- ther, but in view of Millican's and Robinson's versions Forbes must be discredited on the point. Thus, I con- clude that Steubing only told Forbes to stop attempting to answer questions directed to Robinson and that the di- rective was aimed only at maintaining sufficient order in the meeting so that it could proceed courteously and without chancing a disruption of its purpose. This allega- tion, too, is unproven. Compare Respondent's conduct in Southwestern Bell Telephone Company, 251 NLRB 612 (1980), where the evidence showed the steward was or- dered to keep silent. In any event Steubing never gave a similar admonition to Millican, Forbes' superior, and Mil- lican continued to participate freely. Based on the foregoing findings of fact and the record as a whole, I make the following: CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Sec- tion 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. Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 It is ordered that the complaint be, and it hereby is, dismissed in its entirety. * 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 waived for all purposes. 333