Texaco, Inc.

TEXACO. INC. Texaco, Inc. and Local 14, Office & Professional Em- ployees International Union, AFL-CIO, CLC. Case 4-CA 9140 May 16, 1979 DECISION AND ORDER BY MEMNIURS JENKINS, MURPIY. ANI) TRtI:SI)AI1F On March 6. 1979, Administrative Law Judge John P. von Rohr issued the attached Decision in this pro- ceeding. Thereafter. the General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in response to 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, findings, and conclusions of the Administrative L.aw Judge and to adopt his recommended Order. ORDER Pursuant to Section 101c) of the National Labor Relations Act, as amended. the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative .aw Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION SIAI1 MEN I o() Itl CASI- JOHN P. ON ROIR, Administrative Law Judge: Upon a charge filed on January 5, 1978. the General Counsel of the National Labor Relations Board. by the Regional Director for Region 4 (Philadelphia, Pennsylvania). issued a com- plaint on February 24. 1978. against Texaco, Inc., herein called Respondent or the Company. alleging that it had engaged in certain unfair labor practices violalive of Sec- tion 8(a)(I ) and (3) of the National Labor Relations Act. as amended, herein called the Act. Respondent filed an ans er denying the allegations of unlawful conduct in the com- plaint. Pursuant to notice, a hearing was held before me in Philadelphia, Pennsylvania, on July 28, 1978. Briefs were received from the General Counsel and Respondent on September 28. 1978, and they have been carefully consid- ered.' Upon the entire record in this case and from my observa- tion of the witnesses, I hereby make the fillowing: I Thereafter the Respondent filed a supplemental memorandum to which the General Counsel filed a reply. FINDINGS ()F FA( I I. Tll BtH SINISS ()1 RFSFP(NIt)NI Respondent is a Delaware corporation engaged, inter alia, in the refining of petroleum and petroleum related products. The onl facilitN involved in this proceeding is that known as the Eagle Point facility in Westville. Nevs Jersey. )uring the last year Respondent had gross revenues in excess of $500,000 and purchased goods valued in excess of $50.000 from suppliers located outside the State of New Jersey. It is conceded. and I find. that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. 11i 11 AIIO()R )R(iANIA AII()N 1NS()l Il) Local 14, Offlice & Professional tmploces International Union, AFI. C10. ('1C'. herein called the Utnion. is a labhor organization iththin the meaning of Section 2) o the Act. 111. ilt t N[AIR I lB)R I' RA( Ill IS .A. 71The tlw. There are two issues in this case. The first is whether. as alleged in the complaint, Respondent suspended emploee Gary Renzi on December 21. 1977. in violation of Section 8(a)( ) and (3) of the Act. he second is whether Rcspon- dent unlawfully refused to permit Renzi to have it union representative present during an alleged disciplinar inter- view which took place on the same date. [3. 7he' kF t The ;acts in this case are not in material dispute. .m- plovd with Respondent since 1970(. Ciar Renzi held the job of cashier since about 1975. Apart from the incident which prompted his receiving a 3-day suspension in the lat- ter part of l)ecemher 1977. the (ieneral Counsel has a the- orv which relates to a certain background incident. the facts of which I preliminaril, set forth as follows: On October 14. 1977. Renzi suffered an injury in an auto accident while engaged in coipann business. Shortl after the accident. Renzi contacted certain other compan} emploees and sought to obtain fronm them the name of Respondent's auto- mobile insurer. Unl successful in this effort. he enlisted the services of his unioi steward. John Ballistreri. emplo ed be Respondent as a file clerk.' Ballistreri made the rounds and finally was able to obtain the information rom a Mr. Chiaradonna in the engineering department. s ho gave him the name of the insurer. Chiaradonna mentioned the inci- dent to James Van Natta. Respondent's assistant chief ac- countant. Van Natta thereupon broached Ballistreri. the steward. and told him that the matter was none of his busi- ness, that he had a chip on his shoulder. and that he should 2 It appears that Renzi had some problem ailh the companl, do.lor hotlt the paymeni of hills and i shed i. consult ith Respondenl's insurer di- rectly. The tinion herein has been the bargaining representlle o! Rspon- dent's clerical emploees since 1952 242 NLRB No. 60 291 D)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD leave the matter alone. However, he never took up the mat- ter with Renzi and the incident was never mentioned again. Turning to the incident leading to the instant dispute, it was about 10 a.m. on December 21. 1977, when Van Natta received a call from one Howard Morrissey, a retired em- ployee, who informed him that although he had sent in a check covering Blue Cross premiums for the months of No- vember and December, he nevertheless had received a letter from Renzi stating that his Blue Cross payments were 2 months in arrears. Since Renzi's duties included the pro- cessing of Blue Cross premium payments, Van Natta went to Renzi to inquire about the matter. Upon being apprised by Van Natta of Morrissey's call. Renzi first looked at the entries in his cash book. He then went to look in a vault which was behind his desk. When he returned to his desk and opened the bottom desk drawer, Van Natta, who was standing by, observed a number of uncashed Blue Cross premium checks in the drawer. (These were later counted and found to be 37 in number and were dated as far back as December 7, 1977.) In any event, when Van Natta spoke to Renzi about the matter, Renzi only replied, "Well, they're there." When Van Natta stated that this was a very serious matter and that he could be in trouble. Renzi responded. "Bull." Van Natta testified that he resented Renzi saying "bull" to him in front of other employees. Within a few minutes he summoned Renzi into his office where, he said, he pro- ceeded to give him a "real lecture." Van Natta testified "I told him that I talked to him like a gentleman, I expected to be treated like a gentleman, I was not going to take that sort of thing from him." Concerning the foregoing, Renzi agreed that Van Natta "lectured" him for the reason testi- fied to by Van Natta, but testified that Van Natta "also mentioned about the checks, that I should have known bet- ter to keep checks longer than three days." I have no doubt that Van Natta did make a remark to this effect at that time.4 At some point during the same day, December 21, Van Natta reported the check incident to his supervisor, the chief accountant, Thomas Mahoney.5 Mahoney thereupon arranged a management meeting that was held later that day, about 4 p.m., to determine what action, if any, should be taken.6 In addition to Mahoney and Van Natta, also present were R. R. Dickinson, the plant manager; Mr. Brakke, a maintenance and construction supervisor; and Mr. Ellenberg, supervisor of employee relations. At this meeting the facts of the case were discussed. Van Natta recommended that Renzi be given a 3-day suspension. The plant manager called for a vote of all those present, where- upon a vote was taken with the resultant decision that Van Natta's recommendation be adopted. Van Natta was there- upon instructed to implement the group's decision. In the meantime Renzi sought out Ballistreri and related the incident of his having been called into Van Natta's of- fice. Ballistreri told Renzi that if he were to be called in ' When asked if the checks were mentioned during this meeting. Van Nat- ta simply testified, "I had already talked to him about the checks before. I don't recall at that meeting talking to him about the checks." I This was after Van Natta had determined the number and dates of the checks that were discovered in Renzi's desk. s Van Natta testified that it was company practice to hold management meetings of this type for the purpose of determining disciplinary action. again he had a right to have a union representative present. In any event, following the meeting of management offi- cials, Van Natta broached Renzi in the hallway and asked him to come into his office. Renzi did not follow Van Natta into the office, however, but instead went down the hall to summon Ballistreri. Returning with Ballistreri, Renzi asked Van Natta that the steward be permitted to accompany him in the office. Van Natta refused, saying that he did not want the steward in his office. According to Ballistreri, he there- upon asked if this was going to concern discipline. Ballis- treri said that when Van Natta replied in the affirmative, he responded that it was the Union's position that "legally Gary is entitled to request that a shop steward be present for this meeting." When Van Natta nevertheless declined Ballistreri to be present, Ballistreri told Renzi. as Renzi tes- tified, to "go into the office and see what he wants." Once inside the office, Van Natta simply told Renzi that he was being given a 3-day suspension for not handling the Blue Cross checks for 3 days, and that a formal letter of reprimand had been placed in his folder. Van Natta then asked it' he had anything to say, to which Renzi replied, "Not at this time." With this Renzi left the office and stood suspended for the next 3 workdays. C. ('otltc/u.iotns a to Alleged Discrimination Against Renzi With respect to the alleged discrimination against Renzi, it is the General Counsel's contention that this employee was laid off because of certain concerted, protected activi- ties: namely. that he and Ballistreri undertook to ascertain the name of' Respondent's insurer for the reason previously indicated. Assuming that this activity was protected under Section 8(a)( I) of the Act, I nevertheless find no merit to the General Counsel's contention. In the first place, while it is true that at the time Van Natta did express some irritation to Ballistreri for having looked into the matter, I think it would be extremely far fetched for me to infer that Van Natta harbored such resentment over the incident that he would be motivated to retaliate against Renzi some 2 months later. The General Counsel, however, contends that Renzi was harassed during the interim for the same reason and that the December 21 suspension was a culmination of this harassment. Again, I find the evidence entirely lacking to support this contention. The only specific evidence intro- duced in this regard was a memorandum by Van Natta dated December 9, 1977, addressed "To all concerned." This memorandum was in response to a letter from Blue Cross concerning the fact that Respondent had not paid a recent invoice on time and dealt with the prompt payment of the Blue Cross invoice by the cashier. It did not mention Renzi by name nor was it critical of the cashier's job in general. The memorandum, which was also given to the relief cashier, was merely placed in the cashier's file folder and became part of the permanent instructions pertaining to that job. Whatever the General Counsel's suspicions con- cerning this memo, the proffered evidence is not supportive of a finding of harassment. Other than the foregoing, the other testimony relative to alleged harassment was entirely speculative and conclusionary and does not warrant discus- sion herein. In addition to the fact that the evidence does not show Respondent to have harbored animosity toward Renzi for 292 sor thereupon terminated the conversation by advising the employee that he would make it short and simple, that he was being suspended then and there. The Board held on these facts that the employee had no statutory right of rep- resentation inasmuch as the supervisor confined himself to a single sentence informing the employee of his suspension and because the supervisor made no attempt "to question [the employee], engaged in any manner of dialogue, or par- ticipate in any other interchange which could be character- ized as an interview." In addition, the Board noted that the announcement to the employee of his suspension was in accord with a management decision reached prior to his demand for representation. This fact, it pointed out, estab- lished that the suspension was not brought about because the employee sought union representation. As in Amoco. Respondent's managerial decision that Renzi be given a 3-day suspension was afait accompli at the time that Renzi was summoned to Van Natta's office. At the short meeting inside the office Van Natta merely in- formed Renzi of the action taken and of the reason therefor. The fact that Van Natta terminated the meeting by asking Renzi if he had anything to say does not, in m view, change the character of this meeting into that of a disciplin- ar) interview. Indeed. I am persuaded that this was not the intent of Van Natta. for there is nothing in the record to indicate that he held any authority to change or to revoke the prior managerial decision. If anything. I regard Van Natta's closing statement as but a polite or expedient wa, of ending the meeting. No further dialogue followed. In view of the foregoing. and upon the entire record in this case. I find that Respondent's denial of Renzi's request for representation, under the circumstances noted, was not violative of Section 8(a)( I of the Act. Accordingly, it is recommended that this allegation he dismissed. ('N( I Sl)NS I.Ai 1. Texaco Inc.. is an cemploer engaged in commerce within the meanini oft Section 2(6) and (7) of the Act. 2. ILocal 14. Office & Professional Employees Interna- tional Union. AFl. ('IO. CC. is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a}(1) and (3) of the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law. and on the entire record in this case, and pursuant to Sec- tion 10(c) of the Act. I hereby issue the following recom- mended: ORDER S The complaint is dismissed in its entirety. In the eent no exceptions are filed as provided h) Sec. 102.46 o the Rules and Regulations of the National Labor Relaionns Board. the findings, conclusions. and recommended Order herein shall, as provided b Sec 102 48 of,1 the Rules and Regulations, be adopted h the Board and become its findings. cnclusions. and Order, and all obJections theretlo hall he deemed alved I;r all purposes the reason claimed, in mv view the evidence is amply de- monstrative that Respondent's suspension of Renzi was for good cause shown. Thus, the record reflects that Respon- dent has a rule that incoming checks are to be promptly deposited and that "in no case should checks received be held more than three days." Although Renzi testified that he did not recall reading this rule. Van Natta testified with- out contradiction that it was retained and found. together with other instructions, in a tolder in Renzi's desk. More- over, although Renzi conceded that it was his practice to take the checks to the bank twice weekly, he attempted to explain his failure to deposit the checks in question by tes- tifying that toward the end of the year he had "a backlog of things to do." and that he therefore became behind on the checks. Although he testified that in the preceding 2 years he had similarly deferred cashing Blue Cross checks, the fact is that there is no evidence to show that Respondent had knowledge of this or that it condoned an! such prac- tice. Moreover, there is no showing for comparative pur- poses that in the past years Renzi kept as man\ as 37 un- cashed checks in his desk or that theN dated as far back as December 7. By reason of all the tbregoing, and aside from the fact that Renzi's holding such a large number of uncashed checks for such a long period would appear to he negligent on its face. I find that Respondent's 3-da suspension ot Renzi was entirely for the reason asserted and not for rea- sons proscribed by Section 8(a)( I) or (3) of the Act. Accord- ingly, it is recommended that this allegation in the coim- plaint be dismissed. D. Conclusions s to the Right to Union Representation Issue As previously indicated, the complaint alleges and the General Counsel contends that Respondent violated Sec- tion 8(a)( I) of the Act by denying Renzi's request that a union steward be present during the late afternoon meeting to which he was summoned with company official Van Nat- ta in Van Natta's office. In defense of this allegation. Re- spondent principally relies upon the Board's recent decision in Amoco Oil Company., 238 NLRB 551 (1978). The General Counsel would distinguish this case from .4mloco on its facts and instead relies on Certified Grocers of Calfornla, Ltd.. 227 NLRB 1211 (1977). Upon all the facts in the instant case. I agree with Respondent that .4moco is controlling here.' The Amoco case involved the following: Three employees were first interviewed by a company official concerning charges that they had violated a plant rule. There was no request that a union representative be present during this interview. Three days later. after the employer had decided upon certain disciplinary action. one of the employees was directed to proceed to the supervisor's office. At this point the employee requested union representation. The supervi- 7 The decision in the Amoco case Issued subsequent to the complaint in the instant case. TEXACO. INC. 293