Consolidated Freightways Corporation of Delaware

CONSOLIDATED FREIGHTWAYS CORPORATION Consolidated Freightways Corporation of Delaware and Dean K. Buckley. Cases 32-CA-2141 and 32-CA-2213 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND JENKINS On July 16, 1980, Administrative Law Judge David P. McDonald issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs. The Respondent filed an answering 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 briefs' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded, inter alia, that the Respondent did not violate Section 8(a)(1) of the Act by interviewing employee Buck- ley without his requested union representative when he had reasonable cause to believe that the interview would result in disciplinary action. For the reasons set forth below, we disagree with that finding. The facts, as found by the Administrative Law Judge and as more fully set forth in his Decision, are as follows: Buckley, the Charging Party, is em- ployed by the Respondent as a long-line truck- driver. On September 19, 1979, at approximately 7 p.m., Buckley arrived at the Respondent's Hayward, California, terminal. He saw Dills, the Respondent's safety supervisor, also arriving. Dills was at the terminal to investigate the destruction of a timeclock and the writing on the wall at one of the Respondent's way stations: DILLS YOU PHONY YOU BEEN TALKING BEHIND MY BACK AGAIN The Charging Party has moved that the hearing be reopened and that this case be consolidated with Case 32-CA-2767. The General Counsel and the Respondent have filed memorandums in opposition. The Charging Party has offered no new evidence nor any reason why the cases should be consolidated. Accordingly, the motion is hereby denied. 2 The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod. ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his finding. 264 NLRB No. 76 I'M LAYING IN THE WEEDS FOR YOU TURKEY Buckley The word "Buckley" appeared as a signature. Buckley reported to the dispatch room and awaited his orders. Shortly thereafter, he was ap- proached by Supervisor Conover and told that the Respondent's operations manager, Leash, wanted to see him in his office. Buckley replied that he had seen Dills arriving and that he knew that Dills and Leash were trying to set him up. He told Conover he was not going into the office without a union representative. Approximately 2 hours later Super- visor Kerby told Buckley that Leash wanted him. Buckley again refused. Also at this time, Supervi- sor Davis talked to Buckley. Buckley again stated that he was not going into the office without a union representative. Buckley then made threats against Dills. Davis went to Leash's office where he told Leash and Dills that Buckley was angry and that he would not come to the office without a union representative. He also told them of the threats. Leash left his office and approached Buckley. He said that since Buckley would not come to his office he would talk to Buckley in the dispatch room. He then asked Buckley why he had written on the wall at the way station. Buckley replied that it was the only way he could communicate with Dills. They then entered Leash's office. Dills en- tered and began interrogating Buckley about the timeclock. Buckley, who was known by the Re- spondent to be an excitable individual with a pro- pensity for vulgarity, became loud and vulgar and rushed from the office. Eventually, an ambulance was summoned because Buckley believed he was having a heart attack. On September 24, Buckley was issued three rep- rimands. One was for his threats made against Dills to Davis. The Administrative Law Judge recom- mended dismissal of the complaint allegation in- volving this reprimand and, for the reason set forth by him, we adopt this recommendation. In so doing, we note that this reprimand was not a result of the interview found herein to have been unlaw- ful. However, we do not agree with the Adminis- trative Law Judge's dismissal of the complaint alle- gations involving the other two reprimands: (I) for the destruction of company property-the writing on the wall; and (2) for using abusive language to a supervisor. The Administrative Law Judge correctly found that it was reasonable for Buckley to believe that the request to go to Leash's office would result in an investigatory interview and possible disciplinary 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action. He also found that Buckley's refusal to attend the meeting without union representation was conveyed to Leash by Davis, and that it was unnecessary for him to repeat the request at the in- terview. We agree; contrary to the dissent, the law is clear that once a request for representation is made it need not be reiterated during the inter- view.3 Moreover, a reading of Weingarten4 and its progeny does not disclose that it is significant, as contended by the dissent, that Buckley was an "active, aggressive steward." Weingarten rights are not hinged on an employee's personality; nor may a steward, regardless of his knowledge of labor law and participation in the grievance procedure, be compelled to forgo Section 7's guarantee of the right to the mutual aid of other employees. However, the Administrative Law Judge errone- ously concluded that Buckley did not make a valid request for representation, and that Respondent did not, therefore, violate Buckley's Weingarten rights. 5 In reaching this result, the Administrative Law Judge relied, in part, upon his finding that Buckley asked for representation only in an attempt to post- pone the interview. Additionally, the Administra- tive Law Judge found this case similar to Coca- Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977),6 wherein the employee requested that a specific steward represent him at a meeting which he had reasonable cause to believe would result in disciplinary action. The employee knew that the steward was on vacation and that an alternate rep- resentative was available. The employer refused to postpone the interview until the steward returned. The interview occurred and the employee was dis- ciplined. The Board majority held that Weingarten does not require that an employer postpone an in- terview because a particular union representative is unavailable, through no fault of the employer, where another representative is available. At the outset, we note, as did the Administrative Law Judge, that Buckley, unlike the employee in Coca-Cola, did not insist on being represented by a specific individual that he knew was unavailable. Also, unlike the situation in Coca-Cola, there was s Lennox Industries, Inc., 244 NLRB 607, 608 (1979) (then Chairman Fanning and Member Jenkins dissenting in part on other grounds); Super Valu Xenia, a Division of Super Valu Stores, Inc., 236 NLRB 1581, 1590- 91 (1978). 4 N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), in which the Supreme Court held, inter alia, that Sec. 7 of the Act gives an employee the right to insist on the presence of a representative at an investigatory interview that could, or which the employee reasonably believes would, result in disciplinary action s The Administrative Law Judge indicated that, because Buckley testi- fied derogatorily about the Union, it was unlikely he was sincere in his request for representation. We find that an employee's beliefs as to the quality of the union representation are irrelevant to the validity of a re- quest for representation. 6 Members Fanning and Jenkins adhere to their dissenting position in Coca-Cola. However, they acknowledge that it is current Board law. no other representative readily available. Buckley was the only steward for Local 468 at the Hayward terminal. The two other stewards lived in Modesto, California, and Carson City, Nevada. While the union business agent maintained an office in Oakland, California, which is in the same gener- al geographic area as the Hayward terminal, the office was closed at the time the events herein oc- curred, and Buckley testified that he did not know where the business agent could be reached. While acknowledging these facts, the Administrative Law Judge concluded that, because Buckley made no attempt to contact these representatives, his request was a hollow gesture. Once an employee makes a valid request for a union representative, the burden is on the employer to (1) grant the request, (2) discontinue the inter- view, or (3) offer the employee the choice of a meeting without a representative or of no meeting at all. United States Postal Service, 241 NLRB 141 (1979). Here, unlike the situation in Coca-Cola, supra, after Buckley made his request, the Re- spondent did nothing to indicate that it was pro- ceeding with the interview. Buckley continued to wait for his dispatch orders and it was not until Leash began the interrogation that Buckley knew that the interview would be held. As found by the Administrative Law Judge, the hour was late and there was no evidence that the Respondent had ever before conducted an investigatory interview in the absence of requested representation. Under these circumstances, Buckley's actions-or his inac- tion with regard to contacting union representa- tives-fail to show a plot to subvert a management investigation. Consequently, there is no objective basis for concluding that Buckley's request for rep- resentation was not valid.7 The Respondent had an obligation-which it failed to meet-to stay the interview or to offer Buckley a meeting without a steward or no meet- ing at all. We therefore find that the investigatory interview which was conducted in the absence of a validly requested union representative violated Sec- tion 8(a)(l) of the Act. Additionally, Buckley's rep- rimand for using abusive language to a supervisor was a direct result of the Respondent's continu- ation of its unlawful interview. The Respondent was aware of Buckley's volatile temper and fre- quent use of profanity. Nevertheless, the Respond- ent continued its unlawful interview, thereby pro- ' The dissent fails to explain why Buckley should have attempted to contact a union representative in order to have him attend an investiga- tory interview which Buckley was unaware was going to take place. 542 CONSOLIDATED FREIGHTWAYS CORPORATION voking Buckley into his subsequent spontaneous outburst.8 We do not, contrary to the dissent, condone abu- sive language directed at a supervisor; at the very least this is made clear by our finding that on one occasion, when Buckley used such language and was reprimanded, it was not unlawful. However, we do find that, when an employee's verbal out- burst is a direct, and in this case foreseeable, conse- quence of the respondent's unlawful conduct, any resulting formal reprimand violates Section 8(a)(1) of the Act. Additionally, there is no merit to the dissent's ar- gument that, because Buckley admitted the writing, the reprimand should not be expunged. Such a finding would result in permitting a violation of the Act to go unremedied. The issue is not Buckley's guilt, but whether or not a make-whole remedy is proper for the Respondent's violation of the Act. Kraft Foods, Inc., 251 NLRB 598 (1980),9 cited by the dissent, stands for the proposition that, after the General Counsel has made a prima facie showing that, inter alia, expunction is an appropriate remedy, the burden shifts to the respondent to demonstrate that its decision to discipline was not based on information obtained at the unlawful in- terview. The record in this case is devoid of any evidence that the Respondent would have disci- plined Buckley absent the unlawful interview.1 0 Thus, it is not the public that is "left with a result rather than a rationale," but, rather, it is the dissent which fails to comprehend the rationale. Accordingly, we shall order that the reprimands issued for the destruction of company property and for using abusive language to a supervisor, both of which were issued as a direct result of the Re- spondent's unlawful conduct, be expunged from Buckley's personnel folder. CONCLUSIONS OF LAW 1. The Respondent, Consolidated Freightways Corporation of Delaware, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 468, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act on September 19, 1979, by conducting an in- 8 See Max Factor d Co.. 239 NL.RB 804, 817 (1978): .NL.RB vs Mueller Brass Co.. a subsidiary of U I'. Industries, Inc, 501 F.2d 680, 686 (5th Cir. 1974). 9 Member Jenkins dissented in Kraft, and in the situation here and in Kraft would find a make-whole remedy appropriate. 10 Moreover, there is no question but that the reprimand Buckle, re- ceived for his outburst at the unlawful interview was a direct result of that interview vestigatory interview with employee Dean K. Buckley, which resulted in two disciplinary repri- mands, while ignoring his request for union repre- sentation at the interview. 4. The Respondent has not otherwise violated the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent, Consolidated Freightways Corporation of Delaware, set forth above, occurring in connection with its business operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, we shall order it to cease and desist therefrom and to take certain af- firmative action which we find to be necessary to remedy the unfair labor practice and to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Consolidated Freightways Corporation of Dela- ware, Hayward, California, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interviewing any employee without union representation, if such representation has been re- quested by the employee, and if the employee has reasonable cause to believe that the matters to be discussed at the interview may result in the em- ployee being subject to disciplinary action. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is found to be necessary to effectuate the policies of the Act: (a) Expunge from its personnel records the two disciplinary reprimands issued to Dean K. Buckley as a result of the unlawful interview conducted on September 19, 1979. (b) Post at its terminal in Hayward, California, copies of the attached notice marked "Appen- 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dix."' I Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. CHAIRMAN VAN DE WATER, concurring and dis- senting: Contrary to my colleagues, I would find that all three written reprimands issued to Dean Buckley on September 24, 1979, were lawful. Accordingly, I would adopt the Administrative Law Judge's rec- ommendation that the complaint be dismissed in its entirety. 1 2 The two warning letters in question arose out of events that occurred on September 19, 1979. Brief- ly stated, the credited evidence reveals that Buck- ley, a union steward, arrived at the Respondent's terminal the evening of September 19. While await- ing orders, Buckley was told by Supervisor Con- over that the operations manager, Leash, wanted Buckley to come to his office. Leash wanted to speak to Buckley about the destruction of property and the writing of graffiti in one of the drivers' shacks. The graffiti contained a threat against Safety Supervisor Dills and was signed "Buckley." Buckley, who had seen Dills at the terminal al- ready, told Conover that he would not go to Leash's office without a union representative. It is clear, however, that no other union representative was present at the terminal other than Buckley himself. Having refused to go to Leash's office, Buckley continued to wait in the dispatch area. Approximately 2 hours later, Supervisor Kerby told Buckley that Leash wanted to see him. Again Buckley refused. Subsequently, Davis, another op- 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 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." 12 I join my colleagues in dismissing the complaint allegations concern- ing the warning letter involving Buckley's threats made against Dills to Davis and Buckley's suspension for abusive language and threats to a su- pervisor on October 21, 1979. erations manager, talked to Buckley. Buckley told Davis that "those guys" were trying to set him up but that he would not meet Leash without a union representative. 1 3 Davis informed Leash of Buck- ley's statements and Leash decided to go see Buck- ley himself. Leash approached Buckley and told him that, since Buckley would not come to the office, Leash had come to him. Leash then asked why Buckley had written on the wall in the drivers' shack and Buckley stated it was his only means of communi- cating with Dills. The meeting then shifted to Leash's office where the destruction of property was discussed. Buckley became abusive and stormed from the office. On September 24, 1979, Respondent issued three warning letters to Buckley. One dealt with the threat against Dills delivered to Davis. The second letter was for his abusive conduct during the Sep- tember 19 interview and the third warning was for the destruction of property in the drivers' shack. My colleagues conclude, contrary to the Admin- istrative Law Judge, that the second and third warning letters violated Section 8(a)(1) because Buckley was unlawfully denied a union representa- tive and the warning letters "were issued as a direct result of the Respondent's unlawful con- duct." I disagree. Initially, I would find, in agreement with the Administrative Law Judge, that the interview con- ducted by Leash did not violate the precepts of Weingarten inasmuch as Buckley did not make a valid request for representation. Thus, although Buckley did state that he would not attend an in- terview without a representative, the credited evi- dence plainly demonstrates that his request was aimed not at securing representation for "mutual aid or protection" but instead was an effort to thwart the Respondent's desire to discuss Buckley's blatant misconduct. This is amply demonstrated by Buckley's conception of Weingarten, i.e., that no action could be taken against him until he secured a representative, his total failure to make any effort to secure a representative despite the 2-hour wait he had prior to the interview,14 and, finally, his failure to express a desire for representation once the interview process began.15 In this regard, I agree with the Administrative Law Judge's reli- ance on Coca-Cola Bottling Co. of Los Angeles, 227 13 It was during this conversation that Buckley delivered the threat against Dills that caused the warning letter we have found to be lawful. See fn. 12, supra l4 The fact that Buckley knew no other stewards were available strengthens the conclusion that his objective was delay rather than repre- sentation. '6 Indeed, inasmuch as Buckley was an active, aggressive steward, one questions his need for representation to begin with 544 CONSOLIDATED FREIGHTWAYS CORPORATION NLRB 1276 (1977), for the proposition that an em- ployer does not run afoul of Weingarten when it conducts an interview with an employee whose in- sistence on representation is aimed at delay and ob- struction. A request with such an objective is simply not valid; and, absent a valid request, the protections of Weingarten do not attach. Even beyond the foregoing, however, I decline to join my colleagues in sanctioning an employee's use of profane and abusive language to his supervi- sors. Thus, even assuming, arguendo, that Buckley was entitled to a representative at the interview, the failure to provide one does not constitute a li- cense to Buckley to use vulgar and abusive lan- guage. While an employee may be protected in seeking a representative, the protection is not carte blanche to engage in any form of abusive and dis- ruptive conduct. This is especially true in view of the Administrative Law Judge's finding that the Respondent's representatives did nothing to pro- voke Buckley's improper actions. Finally, the majority concludes that the warning letter concerning the destruction of property also violated Section 8(a)(1) because it was "issued as a direct result of the Respondent's unlawful con- duct." In my view, the warning letter was a direct result of Buckley's destructive conduct. The inter- view itself in no way impacted upon Buckley's guilt. Indeed, he freely confessed to the miscon- duct. In any event, this issue is one of remedy and I do not believe that the warning itself can be deemed unlawful simply because the conduct un- derlying the warning was the subject matter of the interview. At the very least, the majority would seem compelled to apply the remedial test of Kraft Foods, Inc., 251 NLRB 598 (1980). Since the major- ity has failed to do so and I would not reach the remedy, it appears that the public will once again be left with a result rather than a rationale. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and to cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, as amended, and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT interview any employee without union representation, if such represen- tation has been requested by the employee, and if the employee has reasonable cause to believe that the matters to be discussed at the interview may result in the employee's being subject to disciplinary action. 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. WE WILL expunge from our personnel records the two disciplinary reprimands issued to Dean K. Buckley as a result of the unlawful interview conducted on September 19, 1979. CONSOLIDATED FREIGHTWAYS COR- PORATION OF DELAWARE DECISION STATEMENT OF THE CASE DAVID P. MCDONALD, Administrative Law Judge: These consolidated cases were heard before me on March 6 and 7, 1980, in Oakland, California.' The charge and amended charge in Case 32-CA-2141 were filed, respectively, on September 27 and October 30, 1979, by Dean K. Buckley, herein referred to as Buck- ley. On October 31, 1979, a complaint was issued there- on, alleging that Consolidated Freightways Corporation of Delaware,2 herein referred to as the Respondent or the Company, violated Section 8(aX1) and (3) of the Na- tional Labor Relations Act, as amended. The charge in Case 32-CA-2213 was filed by Buckley on Novemeber 21, 1979, and alleges the Company violat- ed Section 8(a)(l), (3), and (4) of the National Labor Re- lations Act, as amended. On February 12, 1980, the Re- gional Director for Region 32 issued an order consolidat- ing Cases 32-CA-2141 and 32-CA-2213. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Based upon the entire record, the briefs filed on behalf of the parties, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material herein, Consolidated Freightways Corporation of Delaware was a corporation duly orga- nized under and existing by virtue of the laws of the State of Delaware, with an office and place of business located in Hayward, California, where it engaged in the interstate operations of a trucking business. During the past 12 months, the Respondent, in the course and con- duct of its interestate trucking services, derived gross I Unless otherwise noted, all dates occurred in 1979. 2 At the hearing the complaint was amended by all parties to correct the name of the Respondent from Consolidated Freightways Corp. to Consolidated Freightways Corporation of Delaware The Respondent also orally amended its original answer by admitting the allegations to par. 5 and changing the name of Michael Davis to Steven Davis. 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revenues in excess of $50,000 for the transportation of freight from the State of California directly to points outside the State of California. Therefore, I find, as ad- mitted in the answer to the complaint, that at all times material the Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Teamsters Local 486 or Local 468, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Witnesses and Background Dean K. Buckley, the Charging Party, has been em- ployed as a long-line driver for the Respondent since August 12, 1972. His current run consists of the round trip from Hayward, California, to Winnemucca, Nevada. During his employment he has remained an active union supporter. The General Counsel aptly described him as a union activist, whose activities are well known to the Company and his fellow workers. As a member of Teamsters Local 468, he ran for president of the local and was narrowly defeated by a vote of 386 to 364. In an effort to fight what he perceived as corruption in the Teamsters union, and in general, the trucking industry, he joined PROD, which is a national organization com- prised of Teamsters members. During the last 6 to 9 months of 1979, he served as a union steward. Since he was never replaced, he felt he was still technically the steward at the time of the hear- ing. In this capacity, he experienced numerous confronta- tions with management. In fact, during the past 3 years, Buckley filed approximately 10-20 grievances, and 20 unfair labor practice charges. He also reported the Com- pany to the State of Nevada for utilizing underpowered tractors. These complaints dealt with a wide range of problems such as working conditions, falsified weight tickets, and equipment safety. In addition to his reputation as an active unionist, he is also known for his profuse use of profanity, which ranges from mild invectives to more colorful vulgarity such as "mother fucker." Buckley freely admitted the use of such language which he referred to as "Teamsters' jargon." His personality ranges from very mild and pleasant to loud, ranting, and raving. Dills testified that his reputa- tion among management for personality, disposition, and temper is that of a person who likes to perform before a crowd. When a group of men are present, he talks in loud tones and tends to be physically violent; however, he can be a very nice person when he is alone. At least on one occasion, he participated in a fist fight with a fellow worker, Witten. Buckley alleged that Witten un- successfully tried to get him to become a snitch in a dis- pute. When this attempt failed, Witten continued to "goad" him. As a result they stepped outside the compa- ny gate and engaged in a fist fight. Warren H. "Pete" Leash is employed by the Respond- ent as a dispatch operations manager. In this position he not only supervises the drivers but also dispatches per- sonnel. He has the authority to discipline, hire, and dis- charge employees. Beneath him is another layer of super- visors, consisting of dispatchers, terminal managers, and divisional managers, who have similar responsibilities and power. Buckley is one of many drivers under Leash's su- pervision. Norman Dills is employed by the Company as its safety supervisor for the western area. He lives in Win- nemucca, Nevada, and maintains an office in Reno. The safety supervisor is charged with safety service, cost, and the supervision of the men on the road. His territory in- cludes all the terminals and are a located between Port- land, Salt Lake, and Los Angeles, which includes High- way 80 from the Hayward terminal to Winnemucca. Michael Kerby, Michael Roby, and David Sutherland are employed by the Company as driver supervisors of the line haul at the Hayward terminal. They are under the supervision of Leash. Steven Davis is employed by the Company as a freight operations manager at its Hayward Terminal. He super- vises the dock foremen, dock workers, and office cleri- cals. Buckley was not under his supervision. Frank Hart was called as a witness on behalf of the Respondent. His present occupation is that of a ques- tioned documents examiner. From 1952 until 1974 he served in various capacities with the Reno Police De- partment in the Bureau of Identifications. In that position be became a recognized expert as a fingerprint technician and a ballistics, industrial markings, and questioned-docu- ments examiner. His testimony as a handwriting expert has been accepted before various state and Federal 6ourts of Nevada. He served as president of the State Di- vision International Association for Identification. B. September 19, 1979 Shortly after 7 p.m., Buckley arrived at the Company's Hayward terminal, where he was scheduled to pick up a truck for the round trip to Winnemucca, Nevada. He proceeded to the driver's dispatch room where he took a seat and waited for his dispatch orders. Buckley described the terminal as very large. There are two doors leading into the building. The first is a glass door with the words "LINE DRIVERS" and leads to the dispatch room which is approximately 4 by 15 feet. One wall contains a door leading outside and another door leading to the interoffices and downstairs to the coffeeshop and restrooms. On the other wall, there is a counter with four sliding glass windows above a bench. Dills had also arrived at the Hayward terminal where he met with Leash. They discussed several topics includ- ing the need for chains on trucks descending the Donner Pass, graffitti, and the destruction of a timeclock located in the drivers' shack at Boomtown.3 Some unknown in- dividual had destroyed the timeclock by beating it with a heavy object. The interior of the shack had recently 3 Throughout the hearing, Boomtown was also referred to as the driv- ers' shack at Verdi, or simply the shack. S46 CONSOLIDATED FREIGHTWAYS CORPORATION been cleaned and painted. Within 2 weeks a variety of new graffitti appeared on the walls including the follow- ing printed statement: DILLS YOU PHONY YOU BEEN TALKING BEHIND MY BACK AGAIN I'M LAYING IN THE WEEDS FOR YOU TURKEY Buckley The word "Buckley" appeared as a signature written in cursive. Leash instructed Jim Connover, a driver supervisor, to ask Buckley to come to his office. 4 Buckley claims Con- nover approached him and said, ". . . they want to talk to you in the back." Buckley understood this to mean in Leash's office and testified: I told him directly that I wasn't going back there. That, as I came to work that evening, I saw Dills coming in the gate just about the same time that I was reporting to work, and knowing their modus of operandi, I knew they were trying to set me up, that there was something in the wind, and that they were going-I told him I wouldn't go back there without my business agent being present. Although a steward from Teamsters Local 70 was present at the terminal, there were no Local 468 union officials other than Buckley. According to Leash, Con- nover did not return to his office since he was in the midst of the 8 p.m. shift change with Kerby; however, Buckely testified that he observed Connover going to the office. Buckely remained waiting in the dispatch office for approximately 2 hours. Kerby was then asked to re- quest Buckely's presence in Leash's office. Although Kerby was unable to recall Buckely's exact repsonse, he observed him become extremely agitated and his remarks were unresponsive and he went off on a tangent. Since Kerby did not know why Pete had requested Buckley to come to his office, he was unable to comprehend his re- sponse and attitude. Although he could not recall wheth- er Buckley insisted on his union business agent's pres- ence, he did remember a statement to the effect: "What do those son of a bitches got in mind for me now or what do the turkeys have in mind for me now?" Kerby was left with the impression that Buckley was not going back to Pete's office. Buckley's testimony is void of any reference to the conversation with Kerby. During the same time period, Steven Davis entered the dispatch area, leaned against the counter, and greeted Buckley. Buckley immediately responded by remarking "those guys" were trying to set him up and that he was not going to go in and talk to them without a union rep- resentative. The subject then shifted to his personal feel- ings concerning Dills. He felt that the Company was taking advantage of the drivers and that Dills was "bud- dies with people in Carson City." Apparently, this remark was in reference to Buckley's complaint he made to the Nevada state officials in regard to the Respond- ent's use of underpowered tractors. The random profan- ' Jim Connover retired prior to the hearing and was not called as a witness by either the Respondent or the General Counsel. ity increased as he continued to express his dislike for Dills. Then he stated that, "If he could ever catch Dills off duty, he'd plaster his ass." When Davis reminded him that he was a supervisor and warned him that he should not make threats, Buckely simply replied, "that it did not matter who heard his comments since he would tell anyone, even Dills." In his testimony, Buckely denied having this conversation with Davis. Davis then went to Leash's office where he told both Leash and Dills that Buckley was angry and would not come to the office without a union representative. He also informed Dills of the threat. Leash walked out of his office and as he approached Buckley he said, "You didn't want to come in the office so I came out here to talk to you. Dean, why in the world did you write on the wall at Verdi?" Buckley spontaneously answered. "That is the only way that I have to communicate with Dills because he's always sneaking around my back." Although Buckley denies that he made Ihis statement, Dills, Kerby, and Davis all verified its accuracy. Leash recalled that Buckley then said something to the effect that he wanted to see me in my office alone, but nothing concerning a request for the presence of a union representative. Buckley's recollection of this encounter differs from all of the other testimony that was presented. He claims that he told the approaching Leash, "If this is about disci- pline, I have nothing to say to you." When Leash alleg- edly said it was not about discipline, he answered, "If you assure me it's not about discipline, I'll go in your office alone with you, with no one else, with the doors closed, and that's what took place. That's what I acqui- esced to." Leash, Dills, Davis, Kerby, and four truck- drivers (Dillage, Munise, Leedman, and O'Connor) either heard or participated in this conversation. Leash, Dills, Davis, and Kerby all agree that Leash did not mention the subject of discipline; nor, do they recall a re- quest for union representation. Although Buckley in- structed the four drivers to listen carefully to this con- versation, the General Counsel did not call them as wit- nesses to verify his version of events. During the 2 hours Buckely waited for a dispatch he did not attempt to con- tact any union representative nor did he ask for assist- ance from his fellow drivers who were members of his union. Buckely claims that as they entered Leash's office, five or six supervisors converged on him, with Leash accus- ing him of beating and destroying a timeclock as well as writing graffitti on the walls of the shack in Verdi. His temper flared and he yelled that he thought that this was going to be a private conversation not pertaining to dis- cipline. At that point, he became ill and perspired pro- fusely. He announced he would not talk to them any fur- ther and shoved Dills out of the way as he went out the door. Since he thought he was experiencing a heart attack, he sought assistance of Local 70 shop steward, Mark Dilly. Leash called for an ambulance. A resuscita- tor squad arrived and rushed Buckley to a hospital where he remained a couple of hours. Again there is considerable variance between Buckley and management as to the details of this encounter. 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leash testified that when he and Buckley entered his office no one was present. Kerby was still in the dispatch room and Davis was standing around the corner from Leash's office. When Leash again raised the subject of the graffiti, Buckely denied writing on the wall. Dills en- tered the office and asked him, "Can you-can you give me some help on this; could you help me solve this prob- lem? The clock got beat up down there." His responses were very loud and heavily laced with profanity. When he asked if he had just threatened Dills in Davis' pres- ence, he quickly turned toward Davis and called him, "a rat fink and a double jointed lizard." He denied the threat, however, he expressed a willingness "to take any three of you guys out on the parking lot out there." Buckley readily admitted raising his voice and using a great deal of profanity during his conversations with management. On September 24, Leash issued three warning letters to Buckely. Leash explained the one letter pertained to the abusive language which was directed toward a super- visor. 5 In order to determine the extent and degree of the abusive language, Leash was asked to repeat the exact words which had been used by Buckley. He an- swered, "There were several words used; there was motherfucker and cocksucker and son-of-a-bitch, and words to that effect." The various witnesses confirmed Buckley's repeated used of this type of language which was neither limited nor isolated. Two additional warning letters were issued on Sep- tember 24 concerning the destruction of company prop- erty by writing on the walls of the shack at Verdi6 and s The letier read as follows: September 24, 1979 Mr. Dean Buckley 103 Metarie Place San Ramon, Ca. 94583 "WARNING LETTER" Dear Mr. Buckley: You are hereby issued this Warning Letter in accordance with West- ern States Area Over-the-Road Motor Freight Supplemental Agree- ment, Article 46, Section I and 2 for your abusive language to a Su- pervisor occurring on September 19, 1979. Future recurrences of said nature will result in further disciplinary action up to and including discharge. Sincerely, CONSOLIDATED FREIGHTWAYS Warren H. Leash Dispatch Operations Manager a The letter read as follows: September 24, 1979 Mr. Dean Buckley 103 Metarie Place San Ramon, Ca. 94583 "WARNING LETTER" Dear Mr. Buckley: You are hereby issued this Warning Letter in accordance with West- ern States Area Over-the-Road Motor Freight Supplemental Agree- ment, Article 46, Section I and 2 for your destruction of Company property occurring on September 15, 1979. threats made against Dills which were overheard by Davis. 7 Buckley testified that when he received these warning letters they were ambiguous and he did not un- derstand their full meaning. Later, Scotty Salsbury,8 his business agent, informed him that the destruction of property referred to the graffitti, the abusive language which took place in Leash's office, and the threat was against Dills. No further discipline was taken as the result of these three incidents. Dills retained Mr. Hart on September 26 to examine various writing on the walls of the driver's shack at Boomtown, which is located at Verdi, California, near the Nevada border. He took photographs of the various graffitti and compared them to exemplars of the Re- spondent's employees. A series of documents titled "Transport Operator's Time Card Consolidated Freightways," which contained known samples of Buck- ley's printing and handwriting, were turned over to Hart for examination. After completing the examination, he concluded that Buckley had, in fact, printed and then signed the following statement which was found on the walls on the Verdi Shack: DILLS YOU PHONY YOU HAVE BEEN TALKING BEHIND MY BACK AGAIN I'M LAYING IN THE WEEDS FOR YOU TURKEY Buckley C. October 21, 1979 The Respondent's established policy was to provide each driver with a 2-hour notice before each trip. In ad- dition, the Company would normally not call a driver during the first 8-hour period after the completion of a Future recurrences of said nature will result in further disciplinary action up to and including discharge Sincerely, CONSOLIDATED FREIGHTWAYS Warren H. Leash Dispatch Operations Manager The letter read as follows: September 24, 1979 Mr. Dean Buckley 103 Metarie Place San Ramon, Ca. 93483 "WARNING LETTER" Dear Mr. Buckley: You are hereby issued this Warning Letter in accordance with West- ern States Area Over-the-Road Motor Freight Supplemental Agree- ment, Article 46, Section 1 and 2 for threatening a Supervisor on September 19, 1979. Future recurrences of said nature will result in further disciplinary action up to and including discharge. Sincerely, CONSOLIDATED FREI3HTWAYS Warren H. Leash Dispatch Operations Manager a When the Respondent's attorney asked Buckley if Salsbury was an employee of the Respondent's Company, he first answered, "That's a hy- pothetical question." He then finally added, "I believe that my local, your company and organized crime are one in the same." 548 CONSOLIDATED FREIGHTWAYS CORPORATION trip. Apparently, this custom was based on the Depart- ment of Transportation Regulations, 49 C.R.S. § 395.3: . . . no motor carrier shall permit or require any driver used by it to drive nor shall any such driver drive more than 10 hours following 8 consecutive hours off duty or drive for any period after having been on duty 15 hours following 8 consecutive hours off duty. When there was a full complement of drivers, the Com- pany was fairly lenient in allowing a driver to pass a trip. However, due to a shortage of drivers from retirement and illness, Leash had written a memo to the dispatchers instructing them that no one should be passed unless ac- tually sick. On Sunday morning, October 21, at approximately 6:15, Buckley arrived at the Hayward Terminal having completed his round trip from Winnemucca. He com- pleted his DOT logs, signed the sign-in sheet, punched the timecard, attached the log to the timecard, and went home. Later that day, Roby called Buckley's home be- tween 1:30 and 1:45 p.m. to inform him to report for work. The variance in evidence allows one to conclude that this call was 26 to 45 minutes shy of allowing a full uninterrupted 8-hour rest. Such an interruption was re- ferred to as "breaking rest." Mrs. Buckley answered Roby's call and explained that her husband was in bed sleeping and wanted to pass the next trip. When Roby explained that under a new direc- tive no one was allowed to pass unless he was sick, she answered, "well then he is sick." Roby said that was the end of the conversation. However, both Mr. and Mrs. Buckley claim that she woke her husband and related the conversation to him. Buckley then took the extension and, after Roby repeated the information contained in the memo, said he would not argue with him, but would call Leash. After he hung up the phone he realized that Roby's call had broken his rest. He then called Roby back and demanded an answer as to why he had broken his rest. Initially, Roby responded it was not his intention to break his rest, that his time was not noted on the sheet in front of him, and he apologized. Buckley's voice grew louder and his profanity increased. The conversation ended when Buckley said he would call Leash. Buckley then called Leash at his home and related his conversation with Roby concerning the no-pass policy and the breaking of his 8-hour rest. He explained he had every intention of filing a complaint with the Depart- ment of Transportation. Leash apologized in a very soft tone and said he would have Roby call him and apolo- gize. The conversation only lasted a few minutes and ended with Buckley's admonition, "I don't want this to happen again." Mrs. Buckley testified that she was listen- ing to this conversation and verified her husband's recol- lection of the event. She added that he "whined" and said he was sick and tired of the harassment, however, he limited his profanity to "damn it" and neither raised his voice nor threatened violence. Leash agreed that this conversation was short. In fact, before he could respond, Buckley hung up. After Buck- ley related the fact that Roby had called him for dis- patch and had broken his rest, he stated in a boisterous manner: I'm tired of you and your fucking stooges, fucking with me. I've warned you and I've warned Mr. Banks not to fuck around with me. I'm warning you that any further messing with me that I not only have your telephone number, I know where you live in Sunnyvale and I'll be paying you and your family a visit.9 As a result of this conversation, Leash informed the Sunnyvale Police Department of the alleged threats. On October 24, Leash suspended Buckley for his abusive language and threats which were directed toward Leash in the telephone conversation of October 21.10 He was warned that future recurrences of this nature would result in more severe disciplinary action up to and in- cluding discharge. D. December 1, 1979 Dills was driving west on Interstate 80 between Love- lock and Winnemucca when he observed Buckley driv- ing a triple trailer in the opposite direction. A radar check indicated he was traveling 62 miles per hour. Dills pulled alongside and then in front of the truck, signaling with flashing lights for Buckley to pull over. Dills testi- fied he walked back to the truck and told him he was speeding. Buckley then stated, "no, you motherfucker, get that thing out of the road or I'll run over you and that station wagon." When Dills tried to speak, Buckley slammed and locked the door, rolled up the window, and raced the motor. Dills gave up and returned to his car where he wrote a traffic report citing him for speeding. Buckley's recollection differs in that he denies threat- ening Dills. In fact, he asserts they were standing be- tween the truck and station wagon when he simply said he would not talk to him. Dills responded with the 9 Within 15 minutes after this conversation, Leash prepared a report concerning Buckley's comments which was introduced without objection as Resp. Exh. 5. The memo does not contain a reference to Banks but states ". . just like I warned Banks." 'O The letter reads as follows: October 24. 1979 Mr. Dean Buckley 103 Metarie Place San Ramon, Ca 94583 "L'ErTER Ot SUSPENSION" Dear Mr. Buckley: This letter of suspension is being issued in accordance with Article 46, Sections I and 2 of the Western Area Over-the-Road Motor Freight Supplemental Agreement for your abusive language and threats to a supervisor occurring October 21, 1979. Your suspension will begin October 24, 1979 and will end November 6. 1979. You are notified that future recurrences of this nature will result in more severe disciplinary action up to and including discharge. Sincerely, CONSOLIDATEI) FREIGHrWAYS Warren H. Leash Dispatch Operations Manager 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat, "If you don't quit stirring up all the trouble and especially . . . in Carson City, we're going to have you taken care of." As they parted, Buckley claims he saw a brown Plymouth or Dodge wagon parked behind him. As he proceeded toward Winnemucca this brown station wagon proceeded to harass him by flashing lights, driv- ing ahead of him, and stopping in the left lane and shut- ting off his lights. The car followed him into Winne- mucca where it disappeared in the outskirts of the city. Later Buckley claims to have found and chased the un- known driver. The driver eventually eluded him. The li- cense number was given to an individual who could de- termine ownership of the unknown car. The result, if any, of this investigation was not offered into evidence. IV. ANAYLSIS A. Credibility Resolution In order to fully resolve the various issues which are presented in this case, it is necessary to resolve the sub- stantial conflicts which exist in the testimony of the var- ious witnesses. In general, Buckley's version of crucial events is in direct conflict with the testimony of all wit- nesses, except his wife. With regard to the events that occurred during the last 4 months of 1979, and in particular September 19, Octo- ber 21, and December 1, I do not credit Buckley's testi- mony concerning the disputed facts. After observing his demeanor, reviewing his testimony and the exhibits, weighing the established facts, and considering the rea- sonable inference drawn from the record, I am con- vinced that Buckley has little or no regard for the truth. Therefore, I do not credit his testimony concerning the disputed facts. His demeanor was hostile, belligerent, evasive, and un- responsive. On occasion, his tone of voice was disre- spectful and sharp. When the Respondent's attorney handed him a deposition and asked, ". . . that deposition isn't completed yet, is it?", he responded, "You know it isn't." The counsel asked, "Is that a yes or no?" Buckley responded in a sarcastic manner, "I think it's very plain. Smell it." Earlier in the hearing the attorney asked, "Is Mr. Salsbury an employee of the Company?" Buckley answered, "1 believe that my Local Union, your Compa- ny, and organized crime are one in the same." His accounts of the successive events appeared to have been designed to strengthen his own position by embel- lishing events favorable to him and by attempting to deny or minimize those which were adverse to him. For example, he denies making threats towards Dills in Davis' presence and, in fact, he denies even talking to Davis. However, several witnesses verified he called Davis a rat fink and double jointed lizard when he was told Davis had informed Leash of this threat. When asked why he wrote on the walls in Verdi, he gave a spontaneous response which was a clear admission. Within a few minutes he denied writing the graffitti. The handwriting expert, Hart, verified that the threatening graffitti was indeed Buckley's handwritting. There were numerous occassions where his testimony stood alone against that of several witnesses. He claims Leash prom- ised that the meeting on September 19 would not involve discipline. Leash, Kerby, Dills, and Davis were present and none could recall even the mention of the word dis- cipline. It is true these men are all part of management; however, according to Buckley, there were four fellow union drivers also present. Not one of these drivers was called as a witness to verify Buckley's recollection of the facts. A review of his testimony reveals a propensity to twist and turn, shade his responses, and, if need be, lie to accomplish his immediate goal. In contrast, I found Leash, Dills, Kerby, and Davis candid and believable. Although cross-examined vigorously, their testimony re- mained largely consistent. Davis freely admitted that Buckley had mentioned in his presence that he wanted a union representative in any meeting with Leash. Even Leash, who had received the brunt of Buckley's wrath during the December I telephone call, stated Buckley could be extremely pleasant and was not always arguing and cursing management. Consequently, unless otherwise indicated, I credit Leash, Dills, Kerby, and Davis in regard to their testimony concerning threats, abusive lan- guage, and destruction of company property, which cul- minated in the issuance of three warning letters and letter of suspension. B. Weingarten 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 believed might result in disciplinary action. The Board concluded that the Supreme Court's decision in Weingarten applied to any interview, whether labled 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). As a shop steward and union activist, Buckley had participated in many grievances, and had filed numerous unfair labor practice charges against the Respondent, both on his own behalf and on the behalf of his fellow workers. He was not a stranger to investigatory inter- views, since he had represented several individuals at such meetings. There is no hint in the record that the Company ever denied anyone their rights to a union rep- resentative upon request. The General Counsel elicited testimony that Buckley was aware of the Weingarten decision in September 1979, and felt that it held: That, if an employer was about to discipline you, take disciplinary action and/or discharge you, that you have the right to be represented by your busi- ness agent, and that the Company could not take this action without your collective-bargaining repre- sentative. On cross-examination Buckley indicated it was his under- standing of Weingarten that if a shop steward or business agent were not present then the interview must be post- poned. 550 CONSOLIDATED FREIGHTWAYS CORPORATION On the evening of September 19, he had observed Dills arrive at the Hayward Terminal. He testified that when he saw Dills, "I knew that they were trying to set me up, that there was something in the wind." As the evidence unfolds, it is clear that this perception was not based on paranoia or mere speculation. He had, in fact, inscribed a threat directed to Dills on the freshly painted walls of the Verdi shack. When Dills arrived, it was rea- sonable for Buckley to assume that he would be ques- tioned concerning this threat and disciplined accordingly. In order to benefit from Weingarten, it is necessary to make a valid request for union representation. In the present case, Davis, a supervisor, informed Leash that he heard Buckley's remark that he would not meet with Leash unless he had a union representative with him. Once an employee has made a request for union repre- sentation on the plant floor, he need not repeat the re- quest at the interview, Lennox Industries, Inc., 244 NLRB 607 (1979). No other witness could recall Buck- ley ever requesting union assistance or stating he would not meet with Leash without such assistance. Although he claims he repeated this request several times, includ- ing directly to Leash, I find his sincerity in making such a request extremely doubtful. It is interesting to recall that Buckley testified that, "my local union, your compa- ny (Respondent) and organized crime are one in the same." Why would he seek the assistance of an organiza- tion which he perceived as not only criminal but work- ing in collusion with the very employer that is about to be begin an investigatory interview aimed at disciplining him? If he were sincere, why did he not seek assistance from union officials or at least from his fellow union drivers?' Approximately 2 hours passed from the time Leash first requested him to come to his office until they met near the dispatch area. During that 2 hours he had ample opportunity to request help. Buckley admits he did absolutely nothing to secure such assistance. On Sep- tember 19, Buckley was the only shop steward of Local 468 who was present at the Hayward Terminal. Kenneth Christopher and a third individual whose name Buckley could not recall also served as shop stewards for Local 468. Since Christopher lived in Modesto, California, and the third man lived in Carson City, Nevada, he did not attempt to call them. Salsbury was his business agent with an office in Oakland, California. Buckley did not call Salsbury for assistance, nor could he seek help from at least four union drivers who were present and could have served as witnesses. After his confrontation with Leash, he began sweating profusely and thought he was suffering a heart attack. At that point he sought medical help from Local 70 shop steward, Mark Dilly. I In Crown Zetlerbach. Inc., Flexible Packaging Division, 239 NL.RB 1124 (1978), the Administrative Law Judge stated: The United States Supreme Court did not define in Weingarten the characteristics that an employee representative must hase. However. the Board has made it clear that there is no magic word or words to described those characteristics. It is not necessary that the employer provide for the employee the best representative possible. Further. no particular title need be held by the representative; he may he no more than a witness. in a proper case Under Weingarten, once an employee makes a valid re- quest for union representation, the employer is permitted one of three options: 2 (I) Grant the request, (2) dis- countinue the interview,' 3 or (3) offer the employee the choice of continuing the interview unaccompanied by a union representative or having no interview at all. Nowhere in Weingarten does the court state or even suggest that an employee's interest can be only safe- guarded by the presence of a specific representative sought by the employee, as opposed to being accompa- nied by any union representative. 4 In the present case, after voicing a blanket assertion that he wanted union representation, he made no effort to contact his union. As a shop steward he certainly had the knowledge and ability to summon help, if, in fact, he ever really desired such assistance. In Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977), the Board was confronted with similar facts to those in the instance proceedings. In that case, an employee summoned to a meeting that he felt might lead to disciplinary action, requested that a partic- ular shop steward be present at the meeting. Both the employee and his supervisor were aware that the stew- ard was on vacation and was scheduled to return the fol- lowing week. The supervisor indicated that it was not necessary to postpone the meeting until the steward's return and proceeded to question the employee about his poor work attitude. At the close of the meeting, the em- ployee was handed a disciplinary notice which he re- fused to sign. The employee was aware of other availa- ble union representation but he did not ask for their as- sistance. The Board concluded that, where a particular representative requested by an employee, "is unavailable either for personal or other reasons for which the em- ployer is not responsible, [and] where another representa- tive is available whose presence could have been request- ed by the employee in the absent representative's place," an employer commits no violation in proceeding with the interview in the absence of the requested representa- tive. It is true that the employer has the burden of offer- ing the employee the choice of a meeting without his union steward or no meeting at all, United States Postal Service, supra, but that burden does not come into effect unless and until an employee makes a valid request for union representation. In Coca-Cola, the Board found that a request for union representative who would not be present for 3 days was not a valid request. The present case differs from Coca-Cola in that Buckley did not ask for a specific representative. However, as a shop stew- ard, he was aware that the other stewards, who were in Modesto, California, and Carson City, Nevada, were not immediately available. He was also aware that the office of Salsbury, his business agent, is located in Oakland, which is in the same general geographical area as the Hayward Terminal. Not once during the 2 hours he sat idle in the dispatch office did he attempt to contact any of these men. Why would a union shop steward. who has requested the presence of a union representative in an investigatory interview, fail to make even the slightest U2 United States Postal Service, 241 NLRB 141 (1979). 4 Amoco Oil Company, 238 NLRB 551 (1978). 4 Roadway Express. Inc., 246 NLRB 1127 (1979). 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempt to contact his fellow union officials? The answer lies in Buckley's explanation of his understanding of the Weingarten decision and his apparent lack of knowledge of the subsequent Coca-Cola decision. He testified that based on his knowledge of Weingarten he believed that an investigatory interview would be postponed in the ab- sence of a union representative. Obviously, his request for a union representative was a hollow gesture, de- signed to avoid the interview and thus the potential dis- ciplinary action. Under the circumstances, his request was not valid. He simply tried to abuse the protection and benefits of Weingarten by attempting to use it as a tool to subvert management prerogatives to investigate and discipline employees. Under such circumstances, the Company was not obligated to postpone the interview. Buckley was not denied his Weingarten rights. C. The Abusive Language and Threats Counsel for the General Counsel elicited extensive in- formation from the various witnesses that Buckley was known by the Company as a union activist. His reputa- tion was that of a man who could be pleasant when the conversation did not pertain to union-management prob- lems. However, when challenged or aroused in the slightest manner his personality quickly changed to anger. His volatile temper was expressed in loud coarse vulgarity, which was often accompanied by threats of physical violence. This "Jekyll and Hyde" response bor- dered on instability. When he was excited, his speech became inaudible and he would ramble off on different tangents. On numerous occasions he made statements which clearly indicated he did not trust anyone including his own Union. His responses were often paranoid, such as, "I know that they were trying to set me up." The General Counsel has convinced me that the slight- est confrontation with the Respondent acted as a catalyst which triggered Buckley's temper. The evidence is also convincing that management was aware of Buckley's his- tory for shouting and spewing profanity and threats in all directions. The General Counsel argues that based on their knowledge of Buckley's temperament, the Compa- ny deliberately provoked an outburst and then disci- plined him. If one were to accept this argument then it would be impossible to ever discipline, correct, or even offer the slightest suggestion to Buckley in regard to his work performance. For example, on December 1, Dills stopped Buckley on the highway where he was clocked by radar traveling 62 miles per hour.15 Dills is a safety manager charged with supervising the drivers on the road. When he attempted to confer with Buckley, he was confronted with a rather childish response. He slammed the door, rolled up the windows, and raced the motor. Certainly, management has the right to supervise, correct, and discipline all employees, even those with a well-established history for a volatile personality. If they were denied this right, an employee with a belligerent reputation would be untouchable. There is no evidence to substantiate the argument that the Respondent deliberately provoked Buckley into an outburst in order to provide a defense for the issuance of i' I credit Dills' testimony. three warning letters and one suspension letter. It should be kept in mind that I do not credit Buckley's denials nor his recollection of events pertaining to the facts which gave rise to the issuance of these letters. I find that Buckley did, in fact, threaten Dills, in Davis' presence, by stating that, ". .. if he could ever catch Dills off duty, he'd plaster his ass." Although he denied making this statement, it is interesting to note that when confronted with this threat he turned to Davis and called him "a rat fink and a double jointed lizard." Buckley admitted using profanity and speaking in a loud voice. All of the witnesses agreed that he directed vulgarities and shouts toward Leash when they met in his office on September 19. The only disagreement is as to the degree of the vulgarity and the volume of the shouting. I credit Leash, Dills, Davis, and Kerby's recol- lections as to the events which occurred in Leash's office. There was general agreement that Buckley became extremely loud and began using terms such as "motherfucker," "cocksucker," and "son-of-a-bitch" when referring to Leash. Kerby recalled that Buckley in- vited anyone in the area to step outside, using foul and abusive language. With the exception of Buckley's repu- tation for the extensive use of profanity, there was no evidence introduced that such language was part of the normal shop talk. In fact, Leash denied that he used such language. In general, the Board has held that discipline is unlaw- ful where the use of profanity or abusive language is seized upon as justification to punish, when the real reason is to interfere with the employee's union activity. Publishers Printing Co., Inc., 246 NLRB 206 (1979). Thus. the question which must be answered is whether the is- suance of the warning letters and suspension letter were pretextual. There is no question that Buckley has been a thorn in the Respondent's side. He has filed numerous grievances and unfair labor practice charges. His argu- mentative and belligerent personality and profane vo- cabulary certainly would not endear him to any employ- er. However, there is no evidence which would substan- tiate the claim in the present case that the discipline was pretextual. The fact that Buckley was a union activist does not give him a license to threaten supervisors, use abusive lanaguge, or destroy company property. He is not immune to discipline so long as the discipline is not based on his union activities. The May Department Stores Company, d/b/a The May Company, 220 NL.RB 1096 (1975).18 In the present case, the credible evidence indi- cated the sole reason for the issuance of the warning let- ters and his suspension was his gross insubordination and destruction of property. In Armour-Dial Inc., 245 NLRB 959 (1979), the suspension of the union president for 90 days did not violate the Act since it was based on his in- ducing workers to engage in an unlawful work stoppage. 16 Swank Construction Company, 239 NLRB 844 (1978); Jos. Schlitz Brewing Company, 240 NLRB 710 (1979); Uniworld General. Inc., d/b/a Circle Import Export Company/Kelvin Internationale, 244 NLRB 255 (1979). 552 CONSOLIDATED FREIGHTWAYS CORPORATION I also credit Leash's recollection of his telephone con- versation with Buckley on October 21. 7 Although Leash had an unlisted number, Buckley called him at his home and not only used abusive language but threatened the safety of both Leash and members of his family. Such threats and abusive language under the circum- stances of this case do not come within the purview of protected concerted activity. Therefore, I find and conclude from the credible evi- dence that the issuance of the three warning letters and the letter of suspension was wholly unrelated to his pro- tected concerted activities and was based solely on Buck- ley's destruction of property, excessive use of abusive language, and the threats he made toward Dills, Leash, "7I am aware that Mrs. Buckley testified she listened to this conversa- tion and substantiated her husband's version. I am also aware that in an earlier conversation on the same day she lied when she told Roby that her husband was sick and therefore he could not take the dispatch to Winnemucca. I do not credit Mrs Buckley's testimony where it conflicts with Leash in regard to the October 21 conversation and Leash's family and not in violation of Section 8(a)(1), (3), and (4) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Consolidated Freightways Corpo- ration of Delaware, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 468, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent's suspension of Dean K. Buckley from October 24 to November 6, 1979, and the issuance of three warning letters on September 24, 1979, did not constitute an unfair labor practice in violation of Section 8(a)(1), (3), and (4) of the Act. 4. The Respondent has not otherwise violated the Act. [Recommended Order for dismissal omitted from pub- lication.] 553