New England Telephone Co.

196 309 NLRB No. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 We shall modify the judge’s recommended Order to correct cer- tain inadvertent errors. New England Telephone Company and Local 2322, International Brotherhood of Electrical Work- ers, AFL–CIO. Case 1–CA–27520 September 30, 1992 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On April 8, 1991, Administrative Law Judge Thom- as A. Ricci issued the attached decision. The Respond- ent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the admin- istrative law judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.1 The judge found, and we agree, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with the following information that is relevant and necessary for the Union to perform its function of processing the grievance of Kenneth Seropian concerning his discharge: the written security report, the invoice records, and the names of two wit- nesses. In adopting the judge’s finding that the Respondent violated the Act by refusing to furnish the Union with the names of two of the witnesses named in the secu- rity report, we rely on Transport of New Jersey, 233 NLRB 694 (1977), in which the Board held that an employer has a duty to furnish a union, on request, the names of witnesses to an incident for which an em- ployee has been disciplined. The Respondent claims that the names of these two witnesses should not be disclosed to the Union because there is evidence of actual harassment of the two other witnesses whose names were provided. In this regard, the Respondent asserts that Seropian’s fiancee is in- volved in litigation with those individuals. Not only did the Respondent fail to present evidence as to the subject of the lawsuit, but also it has failed to show that the litigation is in any way related to or instigated by the witnesses’ participation in the investigation of Seropian’s activities. We therefore find that the Re- spondent has not shown that there has been actual har- assment of the witnesses whose names have already been provided to the Union and find that any potential danger of harassment remains speculative. The Respondent further claims that the security re- port is not subject to disclosure because it was pre- pared in anticipation of litigation. In support of this de- fense the Respondent alleges that it was alerted to Seropian’s alleged misconduct only when Hyannis Telephone Answering Service (HTAS) notified the Re- spondent about possible sabotage of HTAS equipment by Seropian and that the local police were investigat- ing the matter. However, even if the Respondent first learned of the alleged misconduct in this way, this evi- dence does not establish that the Respondent prepared the report because of anticipated litigation. Rather, the Respondent has made this assertion without any sup- porting evidence beyond mere suspicion and specula- tion. We therefore find this defense also without merit. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, New England Telephone Company, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified. 1. Letter the first paragraph in section 1 as ‘‘(a),’’ and reletter the next two paragraphs as ‘‘(b)’’ and ‘‘(c),’’ respectively. 2. Substitute the following for paragraph 2(c). ‘‘(c) Notify the Regional Director in writing within 20 days from the date of this order what steps the Re- spondent has taken to comply.’’ MEMBER OVIATT, concurring. I join in my colleagues’ disposition of this case. I write separately, however, to explore more fully the factual underpinnings for the Respondent’s defenses to the Union’s request for certain information the Union contended was necessary to its processing of a griev- ance challenging the discharge of Kenneth Seropian, a splice service technician. Seropian was fired by David Magnant, director of operations, on the basis of information obtained by the Respondent’s security department. So far as the record shows, the security department’s operations are not separated by a wall of secrecy from the Respondent’s other operational units, and there is no evidence that security works autonomously. Indeed, the security de- partment’s investigation of Seropian’s activities was instituted at Magnant’s direction. Security had uncov- ered evidence allegedly showing that Seropian had worked for another company, Hyannis Telephone An- swering Service, while simultaneously being paid by the Respondent. Pursuant to its investigation, security prepared a written report. The Union’s information re- quest asked, among other things, for that written re- port. As I understand it, the Respondent does not dispute that the information in the written security report was 197 NEW ENGLAND TELEPHONE CO. 1 The parties stipulated that the report contained information ‘‘rel- ative to the reasons for . . . [Seropian’s] termination.’’ 2 The Respondent has not excepted to this finding of fact. 3 The Respondent does not contend that the report contained wit- ness’ statements that might be privileged against disclosure. In fact, the Respondent specifically acknowledged in its brief that the report did not contain such statements. (R. Br. 12.) 4 I need not and do not reach the question whether, even if Magnant had testified as to the complete contents of the oral report and had orally made that available to the Union, the Union was nonetheless entitled to the written report, on which security based its oral report: (1) to test Magnant’s recollection of what he had been told by security; or (2) to determine whether security, which had made its investigation at Magnant’s direction, had nonetheless with- held from its oral report information in the written report that was pertinent to the resolution of the grievance. 5 This was not the reason the Respondent gave the Union for re- fusing to turn over the report. At the time, the Respondent’s man- agers told the Union only that they did not have the report; it had been retained by security. relevant to Seropian’s discharge.1 Instead, the Re- spondent contends that it did not have to disclose the security report because Magnant gave the Union suffi- cient information apart from the report to process the grievance. Thus, the Respondent argues that Magnant, who never saw the security report, transmitted to the Union ‘‘the same information’’ he received orally from security, information on which Magnant decided to discharge Seropian. On this basis, the Respondent con- tends that the Union had no need for the actual written report. The judge found that after the security department had completed its investigation, ‘‘they met with Magnant with a complete written report in their hands, and explained it all to the director.’’2 Magnant testified that he gave to the Union certain information from two invoices that security had shown to Magnant when se- curity made its oral report, and gave the Union the names of two witnesses interviewed by security, as well.3 He also testified that at the time of its oral re- port security showed him Seropian’s business card and a canceled check, told Magnant that Seropian had acted as a telecommunications vendor in his dealings with HTAS, and mentioned the names of two wit- nesses to whom security had spoken. Significantly, however, Magnant never testified that this was all the information Magnant had received from security’s oral report or even that when he dis- charged Seropian he relied only on the information that he gave to the Union, and nothing else. For all we know, security gave Magnant a great deal of additional information in its oral report, including information that might suggest mitigating circumstances or that was exculpatory. Because the Respondent did not es- tablish on the record exactly what else was in the oral report, or that Magnant’s recounting of the oral re- port’s contents was in fact a complete statement of what he had been told by security, the Respondent’s defense must fail.4 The Respondent also defends on the ground that the written security report is privileged against disclosure because it was prepared in anticipation of litigation.5 Magnant testified that one of his subordinates, Area Operations Manager Charles Coleman, informed Magnant that Hyannis Telephone Answering Service had complained to Coleman that some of HTAS’ equipment had been sabotaged. HTAS suspected that Seropian was responsible. Magnant testified that he turned the matter over to the security department on the basis that ‘‘there was potential litigation against the company because of the sabotage issue.’’ The record does not reveal, however, that the security depart- ment’s written report, sought by the Union, contained any information about the sabotage that, according to Magnant, might have resulted in litigation and that was, according to Magnant, the basis for bringing in security in the first place. What record evidence there is on this point is to the contrary. Thus, Magnant testi- fied that when security made its oral report to him se- curity did not ‘‘make any report . . . with respect to the allegation that there had been a sabotage of equip- ment done by Mr. Seropian.’’ The Respondent does not now contend that it antici- pated litigation over what appears to be the actual sub- ject matter of the written report—Seropian’s work for HTAS at the same time he was being paid by the Re- spondent. This information was plainly compiled in the ordinary course of the Respondent’s business to deter- mine whether Seropian should be disciplined or dis- charged. See Atlanta Coca-Cola Bottling Co. v. Trans- america Insurance Co., 61 F.R.D 115, 118 (D.Ga. 1972). In the absence of a showing—or even an asser- tion—that the report actually contained information on sabotage (which the Respondent contends was its basis for anticipating litigation)—the report cannot now be shielded from discovery on that basis. See Sham v. Hyannis Heritage House Hotel, 118 F.R.D. 24 (D.Mass. 1987). As the Respondent’s defenses to the disclosure of the security department’s written report are without merit, I agree with my colleagues that the report had to be turned over to the Union, and that the Respond- ent’s refusal to do so violated Section 8(a)(5) of the Act. Gerald Wolper, Esq., for the General Counsel. Pamela A. Smith, Esq., of Boston, Massachusetts, for the Re- spondent. Harold Lichten, Esq. and Warren Pyle, Esq. (Angoff, Gold- man, Manning, Pyle, Wanger & Hiatt), of Boston, Massa- chusetts, for the Charging Party. 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge. A hearing in this proceeding was held in Boston, Massachusetts, on February 11, 1991, on complaint of the General Counsel against New England Telephone Company (the Respondent). The complaint issued on September 20, 1990, on a charge filed on August 3, 1990, by Local 2322, International Broth- erhood of Electrical Workers, AFL–CIO (the Union or the Charging Party). The sole issue presented is whether the Re- spondent violated Section 8(a)(1) and (5) of the statute when it refused to produce, at the Union’s request, the recorded documents in its possession which the Company said were the basis for the discharge of an employee regularly rep- resented by the Union. Briefs were filed by the General Counsel and the Respondent. On the entire record and from my observation of the wit- nesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY New England Telephone Company, with a place of busi- ness in Boston, Massachusetts, is engaged in the furnishing of telephone communications service. During the calendar year ending December 31, 1989, in the course of its business it derived gross revenues in excess of $50,000. During the same period in the course of its business, it purchased and received at its Massachusetts facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. I find that the Respondent is an employer engaged in commerce within the meaning of the statutes. II. THE LABOR ORGANIZATION INVOLVED I find that Local 2322, International Brotherhood of Elec- trical Workers, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE This is a very simple case and the answer could not be clearer. On July 6, l990, the Company fired a man, Kenneth Seropian, on the ground that on certain days, while being paid full time by this Company, he in fact worked for an- other company, called Hyannis Answering Service, and was paid by that company for such work. Seropian filed a griev- ance and the Union is now processing it according to the contract in effect between the Company and the Union. During the first two steps of the grievance procedure, and also by direct mail, the Union asked management to be shown whatever documents it had relied on for the decision to discharge the man. The Respondent refused to produce them. The refusal to produce those documents—precisely itemized here below—is called a violation of Section 8(a)(5) of the Act. If the complaint is good, the Respondent must be ordered to produce them now. Admittedly the decision to discharge Seropian was made by David Magnant, director of operations, and Charles Cole- man, an area manager. When these supervisors learned that the employee had misconducted himself, they ask their secu- rity department to investigate the matter and report to them. When security had done that, they met with Magnant with a complete written report in their hands, and explained it all to the director. They said, as is also admitted by the Re- spondent’s witness, that Seropian had done work for the Hyannis Company while simultaneously being paid by the Respondent, that they had two invoices, bills Seropian had given to Hyannis to be paid for time worked for it, copies of the checks he had received from that company, the names of four witnesses they had spoken to about the matter, etc. On the basis of that information and documents, Seropian was discharged. At the second grievance step, before deciding to go to ar- bitration, Richard Cappiello, the business manager of the local union, asked management to show him the written se- curity report, and especially the invoices Seropian was said to have given to Hyannis for his money, and the names of the four persons whose stories were in the security report. In response to this request, the Company gave Cappiello the names of two of the witnesses, with several of what are called timesheets from Seropian’s personnel record. Time- sheets are records of the Respondent Company which show what days, what hours, and precisely when the employee was paid or on a certain day. The Company refused to produce any other documents. More precisely, as alleged in the com- plaint and as also admitted by the Respondent, it refused to produce the invoices, the written report prepared by the secu- rity employees, and the names of the of other witnesses they had interviewed. Cappiello’s explanation at the hearing of why the Union had to have all of these documents in order to decide wheth- er to bring the grievance to arbitration precisely sums up the case: I know that I said: ‘‘How could you expect us to represent and determine whether we’re going to go for- ward with a grievance? And how would we ever inves- tigate it if you tell us you have witnesses and won’t give us their names? You tell us you have time sheets, you won’t give us the times of what he actually did on those dates. How could we possibly represent the griev- ant under those conditions? Question: Was the Respondent obligated to give the duly recognize representative of its employees the two documents in question and the names of those two additional witnesses? I find that by its refusal to produce for the Union the secu- rity report and the invoices Cappiello gave to Hyannis, and by its refusal to give the Union the names of the two added witnesses, the Respondent violated Section 8(a)(5) of the Act. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Magnant came up with several defenses at the hearing, none of them having any meaning at all. He started by say- ing he did not have access to the documents, either at the grievance sessions or in August l990 at the time of the hear- ing. Can there be any doubt that the Respondent is in posses- sion of those documents? I am sure. Magnan does not stand apart from the Company, as though he were a completely separate entity. That argument merits no more comment. Magnant also said that the decision to discharge Seropian was based on what he and Coleman were told orally by the security officers, and not on the written security report. Ac- 199 NEW ENGLAND TELEPHONE CO. 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 2 If 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ cording to him, the total report prepared by the company in- vestigators had nothing to do with the discharge—simply be- cause he, Magnant, did not have it in his hand while the se- curity people read it and explained it all to him. It is not a defense that deserves any consideration here. See New Jersey Bell Telephone Co., 300 NLRB 42 (1990). As to his refusal to produce the ‘‘invoices,’’ i.e., the docu- ments which proved Seropian worked for another company while being paid by the Respondent, Magnant argued it was enough to have given the Union the man’s timesheets. All the timesheets show is what day and what hours Seropian was paid for during these days by the Respondent. On their face they show nothing wrong. Without the invoices—to be considered together with the timesheets, they are meaning- less. Again this too is only a twisted idea that is best left alone. That it was the ‘‘invoices’’ and not the Company or the Respondent’s own records, that formed the basis for the deci- sion to fire the man, could not be clearer. From Magnant’s testimony: Q. Have you ever had an opportunity to read or re- view any written security report prepared by security? A. No, I have not. Q. Let me as you this [sic], what information did they give you? A. They gave me a verbal report of their investiga- tion. . . . They indicated to that they had two invoices indicating Mr. Seropian had performed the work on given dates, had put in a certain number of hours on given dates, and that these dates were also dates that we, as New England Telephone, had employed and paid Mr. Seropian to work for New England Telephone. Enough about this so-called defense. The names of the two persons that the Respondent refused to give the Union were persons whom the security investiga- tors had questioned in the study of the situation. These two names must also be given to the Union now. Transport of New Jersey, 233 NLRB 694 (1977). Those names are also surely in the written report which the Respondent must give to the Union in full. In order to be sure, however, I must order the production of those two names also. THE REMEDY It having been found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it must be ordered to cease and desist therefrom. It must also be ordered, on re- quest, to furnish the Union, as the exclusive representative for employees in its bargaining unit, the written security re- port, the invoices described above, and the names of the two witnesses which the Respondent has refused in the past to furnish to the Union. In sum, the Respondent must be or- dered to bargain with the Union in good faith which rep- resents its employees on any matters that would relate to conditions of employment in the future. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities that the Respondent set forth in section III, above, occurring in connection with the operations of the Re- spondent described in section I, above, have 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. CONCLUSIONS OF LAW 1. By refusing during the grievance procedure to furnish to the Union the written security report, the invoice records, and the names of two witnesses, all of which information formed the basis of the discharge of one of the employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, New England Telephone Company, Bos- ton, Massachusetts, its officers, agents, successors, and as- signs, shall l. Cease and desist from Refusing to bargain in good faith with Local 2322, Inter- national Brotherhood of Electrical Workers, AFL–CIO as the exclusive bargaining representative of the employees in its appropriate bargaining unit. (a) Refusing to furnish to the Union on request the written security report, the invoices, and the names of two witnesses, all of which information formed the basis for the discharge of an employee, for the Union’s use in the proper processing of the grievance in its representative capacity of the employ- ees in question. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) On request give to the Union the security investigation report, the invoices, and the name of the two witnesses, all of which information formed the basis for the discharge of an employee for the Union’s use in its proper functioning as representative of the employees. (b) Post at its place of business in South Yarmouth, Mas- sachusetts, copies of the attached notice marked ‘‘Appen- dix.’’2 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 28 days after the receipt of this decision, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a hearing that we violated the law by refusing to furnish Local 2322, International Brotherhood of Electrical Workers, AFL– CIO certain documents and information necessary for the Union’s function as representative of their employees: WE WILL NOT refuse to bargain in good faith with the Union as the representative of our employees. WE WILL NOT refuse to furnish the Union, on request, any information which is necessary and relevant for the Union to perform its function as the collective-bargaining representa- tive of our employees in processing grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL, on request, give to the Union copies of the in- voices discussed at the August 15, 1990 meeting, the names of witnesses from whom we obtained information which, in part, formed the basis of the decision to terminate employee Seropian, and the written security report prepared by our se- curity department which contained the information relied on in reaching the decision to discharge that man. NEW ENGLAND TELEPHONE COMPANY