Penn-Dixie Steel Corp.

PLNN-)I XlF '1 il (')'()RA I'I()N Penn-Dixie Steel Corporation, Joliet Bar Mill Divi- sion and Andrew Kelly. Case 13-CA-19090 October 17 1 980 DECISION AND ORDER BY CIHAIRN1AN FANNIN(; ANI) MllVill.RS J:NKINS ANI) I'INI I O On July 10, 1980. Administrative Law Judge Jo- sephine H. Klein issued the attached Decision ir this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel 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 arid the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. Penn-Dixie Steel Corporation, Joliet Bar Mill Division, Joliet, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. i The Respondenl has excepted to certain redihilt) indings nmade hb the Administrative Laaw Judge Admilsitratlise I.la Judge C D)ale SotllI died after the hearing In the instalt icave had closed hefi re him. hu before issuance of a decisilin Thereafter. the General Cournlel and the Respondelt usaived a hearing de now and conenled Io have this case transferred itl alnother admiistrative law judge for the prtpalrltlon and issuance of a decisiin based upon the hearing record made before Admin- istrative Law Judge Stout On May 5, 1980. Acting Chief Administrative Law Judge Arthur I eff designated Admnistrative Law Judge Jsephine H Klein to prepare and issue a decision based on the hearing record I is the Board's established policy to attach great weight to a adrmiistratimc law judge's credibility indings insofar as they are hed on demeaniir However, in contested cases, the Act commits to the Htoard ielf the power and responsibility f determining the facts s resealed by a pre- ponderance of the evidence and the Board is not hbound h the adminnis- trative law judge's findings of facts, but bases its indilngs uplon 1t dl ,rov review of the entire record. Standard Dry Wall Preiduc-r, Irii-. I N RH 544 (195(). cnfd. 188 F 2d 32 (3d Cir 1951). Admilistrative Law Judge Klein's credihiliy findings are based on factors other than demneaiinor II consonance with the liard's policy set forth in Standard Drl WJll Prod- ucti. Inc.. upra,s we have ildependently examined the recolrd irl this cael. we find n basis on the recor d i this proceeding fr revrinlrig her crtil- bility determinaitlirls or her findings f faclt based thercon 253 NLRB No. 12 I)EC ISION SI AlI'I-M NI 1 It C \st Jost 'tttNti H. KI II.s Admninistrative l.as. Judge.: lur- suant to a charge tiled by Arldrewx Kell, onl Septemniber 10, 1979,' a complaint was issued gainsl l'enni-Dixie Steel Corporation. Joliet Bar Mill Divisionl hcereir called Respotdent) on October 19, alleging that on May 8 Re- sponidcnil violated Section 8(a)( ) of the Act h refusinig Kell)'s request for the presence of a uio rprcsctllatitc it a disciplina;ry intersiew in hich Kelly ss as coerced into resigniniig from his employment. Upon due notice, a hearing vas held in Chicago, lIlli- nois. before Admirlistrative law Judge C D)ale Stout. A the hearing, the Cieteral Counsel and Responidenit ere represenlted by counsel and were afforded full opportuni- ty to present written and oral testimony aid argument. Counsel for the General Counsel presentled oral argu- menit at the conclusion of the hearing aind has since filed a post-hearing brief. At the heariig, Respondent ai cd oral argumenit and then filed a post-hearing brief Adminiistraive L.aw Judge Stout died before the hrief- ing date set by him. After his death the parties vaiet Ia hearing d noeo arid cotlsented to ha lilg tihe ca;,e re- ferrcLd to aother administrati e law- udge fr decisioni on the record. ()n May 5, 1980, 1 was designated render the decision. Upon the entire record, together Sih conisideration of the briefs. I make the following: FINI)IN(GS 1 F ( I I. I'RVI IN\R IINlINt(S Responrdet, a Delaware corporalion. operatles a steel rolling miill in Joliet. Illinois. During the past year. a rep- resentative period, Respondent, in the course and con- duct of its business operations, directly sold and shipped from its mill goods valued in excess of 50,00(X) to points outside the State of Illinois. Respondent is now. and was at all times material herein, an employer engaged in cLorn- merce within the meaning of Section 2(2), (6), aid (7) of the Act. United Steelworkers of America, Local 2, is now, and was at all times material herein, a labor organli/ztion within the meaning of Section 2(5) of the Act. 11. -il A I. 'N IR I II N XR BOR PR ('TICS A The Ficts Early in 1979,3 after some of the senior employees in Joliet reported to Frank Connors, Respondent's manager of employee relations, that some of the younger employ- ees were smoking marijuana, using drugs, and drinking alcoholic beverages in the plant, Respondent engaged Pinkerton, Incorporated, to conduct an investigation. Re- I Excepl here lother ise specified, all dates tereill are In 1' N tiort l I lahor Rlatits Act, it, amenlded. 21) t S C §151. eq I h r.oid lo-, Ilit hli, l-e precels ht,i1 the il,-igutltlo b tga. h(oa.-ecr. i s. going otl for inine month,, before ltilerXitevsts it,, hker d ott Ma, 'I 91 DECISIONS OF NATIONAL IAIBOR RELATIONS BOARD spondent admits that the Pinkerton investigators are agents of Respondent. The only persons associated with Respondent who knew of the investigation were Connors and Respond- ent's president. In the investigation, evidence was gath- ered by a Pinkerton employee who posed as an employ- ee of Respondent. On the basis of reports by the under- cover agent, copies of which were given to Connors, Pinkerton agents decided to interview some 14 to 17 em- ployees. The agents informed only Connors of their desire to interview employees. On the evening of May 7, Connors telephoned Roger Osman, a Steelworkers representative, and the president and the chairman of the grievance committee of the Local Union. For the first time Connors informed the Union of the "investigation going on regarding the prob- lem with drug traffic and alcohol and drug usage." He also informed the union representatives that employees would be interviewed the next day. Although Connors had been kept informed of the course of the investiga- tion, including the fact that Kelly, among others, was im- plicated, Connors was not informed in advance, and thus did not tell the union representatives, who was to be in- terviewed on May 8. Nor did Connors advise the union representatives that any employees were in danger of losing their jobs. The Pinkerton investigators were not given authority to discharge any of Respondent's employees, but they were empowered to accept resignations by such employ- ees. However, Connors testified that it was not then con- templated that any employees would choose to resign. At 10 a.m. on May 8, employee Kelly was summoned in the office of his forman, Charles Lain. Kelly was not told the purpose of the visit. Three men were present when Kelly entered the office. Bernard Bonnem, Pinker- ton's supervisor of investigations, and one of the three men who interrogated Kelly, testified that they immedi- ately identified themselves as Pinkerton men. Kelly, on the other hand, said the men did not identify themselves but, rather, immediately proceeded to question him con- cerning the use of drugs and alcohol, and incidents of theft in the plant. The investigators soon said that they had Kelly "on film" in the acts of smoking marijuana and drinking in the plant, and asked if other employees did the same. Kelly denied that he had. Kelly testified that, when he realized that he personal- ly was being accused of misconduct, he immediately asked to have a union representative present. Although he repeated the request once or twice, the three interro- gators ignored it. The interrogation lasted for 45 minutes, at the end of which investigator Carter Robinson prepared and Kelly signed a written statement confessing that he had smoked marijuana and drunk alcoholic beverages in the plant, and resigning from his employment. The statement is re- produced in its entirety as Appendix A to this Decision. [Omitted from publication.] Bonnem's testimony concerning the preparation and execution of the statement is most revealing, as follows: THEI WlTrNSS: [Kelly] said that he did under- stand it. Q. (By Mr. Hellman) Did Mr. Kelly say at all that he did not read very well'? A. No, he did not. Q. You did ask him if he understood it'? A. Yes, I did. Q. He did answer that he did understand it'? A. I kept getting vague answers, affirmative nods of his head, but I assumed he said he did. At that point, I again asked him to read it. With the statement, we had deliberate errors made in the statement that we want the person that the state- ment is concerning to acknowledge that they're in there by initialing them. At that point, we would ask them to attest to the validity of the statement. He initialed the points where there [were] any cross-outs in the statement with his initials. Q. When you say he indicated to ou or you said that he understood, it wasn't clear to me whether you meant he indicated that by a nod of the head or by actually saying yes, he understood. A. He would, in this manner, he said, "Yes, yeah, yeah." My own personal opinion was that he had a speech impediment and that I was not reaching him even though he was saying. "yes," or nodding his head. As shown i Appendix A hereto, one of the interlinea- tions initialed by Kelly is: " smoke a marijuana cigarette every once and a while at (AK) work, ahout three (3) times u weeA (IAK) and occasionally take a drink from someone, but this is a rare occasion." (Underscoring indi- cates the interliication.) The signed statement contains the following: I want to cooperate with the company and make it a safe place to work and want to resign immediately to protect my fellow workers. This statement will serve as ly4 resignation. Bonnem testified that Kelly had not taken the initiative as to the matter just quoted. Rather, according to Bonnem, Kelly was asked "if he wanted to work in a safe place and he said he did. [The intervievers] asked him if he wanted to have a safe place for his fellow workers. He said that he did." Similarly, Bonnem ac- knowledged that the "resignation" was not Kelly's idea. Bonnem's testimony was: A. When we reached the end of the period, that we felt we would get no more information from Mr. Kelly, I asked him if he would like to resign In light of the information that we had devel- oped, in light of the information that Kelly had given us, I thought he might like to resign and have the matter ended at that point, rather than turning it over to the company and facing the consequences . . .At first [Kelly] did not want to [resign] and then we pointed out that he would be facing the consequences. 4 At the polin marked. one llcgiblc Ilter has bhccn cro s uId out aild Initaled b Klly 92 I|INN-I)1XIt SI Ill C()RPN)RA I I()N Q I)id vou specify at i11 \ll .ha 1llhose cols- qulcries were A. No, we did nolt * * * * A. We asked him, "L)o youll a;lnt to face the con- sequences? He did say that lie did not. I said. "It is either/or " Al thiat poilit, he said lie would like to resign . . . . He said. "I doli't w;allt to face the consequences.." I said, "l)o you atit to resign?" He said, at first. "No." Then I said, "W'hat is it, do you want to resign, or do you want to face the consequences?"' At that point he said, "What do you mean, conse- quences? I said, "that was not my decision." "That will be left to the company." It should be added that Respondent was given a copy of Kelly's statement. In addition. it does not appear that Kelly was given any assurance, by either Pinkerton's or Respondent's representatives. that he would not be pros- ecuted or suffer other "consequences" of his misconduct if he resigned.' In this connection, it should be noted that the signed statement begins: "I have been advised that I need make no statement unless I desire to do so and anything I say can be used against me in a criminal action." Bonnem testified that during the interview Kelly was not told that he could remain silent or that any statement he made could be used against him. However, Bonnem said that the provision was read to Kelly, who was then asked if he understood and replied in the af- firmative. Kelly testified that he told the interviewers that he could not read very well and that he did not understand the statement he was being asked to sign. However, he signed it when directed to do so. He did not know "what was happening" until he was told by the plant su- perintendent after he left the office. Bonnem testified that Kelly did not ask for a union representative. Also, Dennis Bukowski, one of the three Pinkerton investigators, testified briefly that he was pres- ent throughout the interview and did not hear Kelly ever use the word "union." 6 At the end of the interview, Mill Foreman Charles Lain, Kelly's supervisor, was called into the office to read the document to Kelly. Kelly testified that he told Lain that, he did not understand the statement. Lain tes- tified that he read the statement sentence by sentence and, after each sentence, he asked Kelly if he understood it. According to Lain, each time Kelly, said "yes." Lain said that, during the 10 minutes he was in the office, Kelly made no reference to the Union. Lain did not indicate that he was present when Kelly signed the statement. However, the attestation, signed by Lain, as well as by Bonnem and Robinson reads: "The foregoing was signed in our presence by ANDREW KELLY who declared that he had carefully read it, that s Kel,'s %Igntel %Uti inIn r sclte, "Thli adninloll I% mInll vIlnlilrl],. llhr ul rtr.atlll. . ,-t. rctln ir r h Irtuc of pronrlle o f'il! a klld " Rohionl, . ho w. rot t ',itlt'lTerel, , o ngzer cniplos,'d h I'm- kerion and did no tlli the coiteills Cere thloroiughly utildcrs(lod. arld that each slatlellnllt toaicd therein i as I rue .aill. who had supervised Kell for the 5 years of his enlployelnilt, further testified thal Kelly lever had occa- sioni to read anythiing while at work. Laill further ac- knoll dged that Kelly had difficultly understanding work orders: Q. Could lyou tell us what sort of problems n ou noticed that lie was havingl' A. Very hard to uiderstand arid ver hard for me to give him orders I do not reflect that he did not receive my orders and take them, but I had to tell him very slowly and very precisely After Lain read the statement to him. Kelly was sent home. !ionnem testified that each employee interviewed was sent home immediately because the interviewers "feared that he would go back in the plant and tell the other employees and at that point, [they would] refuse to make a statement." Kelly testified that upon arriving at his home after being dismissed on May 8, he tried, unsuccessfully, to reach Union Steward Reb Credit by telephone. both at work and at his home. The next day Kelly saw Credit by chance. Credit said that a grievance would be filed on Kelly's behalf. At Credit's suggestion, Kelly later saw Roger Osman a union representative. Osman said that because Kelly had signed the statement, nothing could be done on his behalf Connors testified that he had instructed the Pinkerton agents that if any employee requested union representa- tion, they should immediately stop the inter\ iew and Re- spondent would provide a union representative. Bonnem testified that such instructions were in accord with estab- lished Pinkerton policy. Bonnem testified that one em- ployee had broken off an interview. However, Bonnem further testified that he did not know if any of Respond- ent's employees had requested union representation in their iterviews. Lain testified that he had "talked to Mr. Kelly from time to time in [Lain's] office . . . about [a]bsenteeism" Administrative Law Judge Stout then asked whether on those occasions Kelly "ever [said] anything about want- ing a union representative." Lain replied. "Not to my knowledge." There was no further examination of Lain However, Kelly was then recalled and testified that on two occasions in the past he had had union representa- tion at disciplinary interviews with Lain. On one occa- sion he took a union representative with him to the inter- view; on the other occasion a union representative was already in the office when Kelly entered. The testimony of the two men is not inconsistent; Kelly would have had no occasion to "say anything about wanting a union representative," if, as he testified, he had representation without asking for it. B. Discurion and Cnclusion There can be no question that Kelly's interview was an "investigatory" interview at which he was entitled to union representation upon request, within the ruling in ")1 I)ECISIONS ()OF NATI()NAI lABOR RELATI()NS B()ARI) Weingarlen.7 I'here is no basis on which it could be found that Kelly waived his WCingarten rights by going to the foreman's office, as directed, and embarking on the itecrview without union represenltation, since Rc- spondecnt and the Pinkerton agents had gone to great lengths to maintain secrecy about the investigation and Kelly could have no inkling that he ,as being sum- moned for an inter'vilv which might result in discipline for hii. And he would have no reason to request union reprcsentation so long as he was being questioned con- cerning the activities of other employees, before it became apparent to him that he personally was a target of the investigation. In this connection it should be noted that the first substantie fact in the statement written by Pinkerton investigator Robinson and signed by Kclly reads: "I have never seen anyone steel [sic] anything." Since there is no suggestion that Kelly was suspected of theft, the beginninig of the interview was obviously con- cerned with the activities of employees other than Kelly. The major disputed question of fact concerns Kelly's testimony that, when he realized he personally was being accused of misconduct, he asked for union representa- tion, making the request two or three times and having it ignored by the three interrogators. Investigators Bonnemn and Bukowski testified that they did not hear Kelly make any such request or even use the word "union." Howev- er, Bonnem, as well as Foreman Lain, acknowledged that communication with Kelly was very difficult and the difficulties were bilateral; i.e., it was difficult to make Kelly understand what they said and for them to under- stand him. Although I have not had the benefit of seeing and hearing the witnesses, Kelly's problems in communica- tions are obvious from the black and white transcript. He repeatedly failed to understand or misconstrued simple questions put to him. Although he had worked for Re- spondent for about 5 years, presumably under a union contract throughout, at the hearing he was unable to identify his union. On these considerations it might he conjectured that he would hardly be fully aware of his right to representation, which is a somewhat sophisticat- ed concept. However, as set forth above, Kelly testified, without contradiction, that twice before he had had rep- resentation in disciplinary interviews. Thus, from his own experience, he would readily conclude that he was entitled to it when being accused of serious misconduct. His testimony gives the clear impression that he was trying valiantly to understand the questions put to him and then to answer them factually. Additionally, Kelly testified, without contradiction, to his attempts to speak to a union representative immedi- ately upon arriving home after being dismissed from the interview. Such conduct is indicative of an awareness that the Union played a role in disciplinary matters, which adds support for Kelly's testimony that he re- quested representation in the interview. 7 .L.R.B J Weingartlen Inc., 420 L'S 251 (1975) ' Whatever he stale of Kelly', knowledge, he could lnol refuse to g to the office when directed to Roadwa'v Expreo., Inc., 246 NRB No 18) (1979). ()n the other hand, it cannot be said that lonncnl was generally unreliable. His testimony concerining the method of conducting the inestigati ion and of oblaining Kelly's statement was uncommonly frank. Yet, as stated above, he testified that he did ot know whether any of the interviewees requested union representation. If, as Connors and Bonnem testified, when any employee re- quested union representation, his interview was to be stopped immediately and Connors vwould provide a union representative, one would normally expect that Bonnem., as the Pinkerton supervisor in charge of the investiga- tion, would immediately be informed of any such re- quest."' His testimony that he did not know if any such requests were made, casts some doubt on his testimonial reliability concerning Kelly's request. It appears that Bonnem may' well not have understood Kelly's request. In view of the difficulty in understand- ing Kelly, Bonnem undoubtedly would not expend the time and effort necessary to clarify every bit of the con- versation. Bonnem was clearly interested in obtaining all the substantive information he could, as well as a "col- fession" and "resignation," if possible. Because of the overreaching and the coercion exer- cised in obtaining Kelly's confession and resignation, as shown by Bonnem's testimony, the interrogators might reasonably infer that Kelly would docilely accept his fate without pursuing the matter. This inference finds consid- erable support in the portion of the statement in which Kelly purportedly says that he wants to resign in order to provide a safe work place for the other employees. Similarly, the statement signed by Kelly recites that it can he used against him in a criminal prosecution, yet, according to Bonnem, Kelly said he wanted to resign rather than face unspecified "consequences." It is impos- sible to conceive of "consequences" in addition to termi- nation of his employment and possible criminal prosecu- tion that Kelly might have been unwilling to face. On the basis of these considerations, it is reasonable to infer that the investigators would ignore a request for union representation, in the justifiable belief that anybody as malleable as Kelly would not pursue his rights. In sum, I credit Kelly's testimony that two or three times in the interview he requested union representation and his request was ignored. I further find that his re- quest was made promptly upon realizing that he person- ally was a target of the investigation. Finally, I find that, under the circumstances, Kelly cannot be held to have waived his Weingarten rights by not immediately ending the interview when his request was not met. A person with considerably more self-assurance than Kelly had would be hard put to assert himself against the massed authority of three Pinkerton security agents." Since, so ' Bukowski's testimony was limited II his saying hat he did rnot recall Kelly's having requested union representation and did rnot hear Kelly use Ihe word "union" during the lntervime It appears that Btukowski was probably a passive observer and did nsl actieely participate in he qucs- orning. His brief testimony has virtualy Ino probatise alue in deciding Ihe issues in this case "' Ihere were five insvesigalors, icludinig Supervisor BHonnem Since Ihey conducted interviews in two teams, It appears probhable that Bonnem persoially participated in most f the intersiess. See Southwestern Bell lelephone ('ompuniy, 227 NLRI 1223 (1977y) Continued 'FINN-IXIt s1 1-1i. C()RI'()RAII()N far as appears. Kclls had heen provided unlionI represenl- atianon in prior diseipliinar iilCeriexs. he would never have had occasion to learn that he had the right to alk out of such an interviev. To hold that he was required to do so inl order t preserve his rights would demand of him legal knowleldge and judgment swhich many experi- enced labor lawyers did not display until the Suprelme Court spoke definlitivel. Accordingly, on all the evidence, I find that, as tlhL General C('ousel contends Kelly xas tdenied his statu- tory right to union representation ill the inlervicie hb three Pinkerton investigltors on May 8. Such deli;al of representation wkas iolatie of Section 8(a)(1) of the Act, as construed in 14 'ingrl(,nr. ()N I L SIINS 1 XI i. The Respondent, Pennl-D)ixie Steel Corpora;ltioii. Joliet Bar Mill Division. is, and at all times naterial has been, anl employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America. I.ocal No 2, is now, and at all tinies material has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. 3 By requiring that employee Andre\& Kelly partici- pate i an employee interview ' ithout union reprcsenla- tion. where such employee's request for the presence of a union representative \wils not granted and the emlployee had reasonable ground to believe that the matters to he discussed might result in his being the subject of disci- plinary action, and the interview &without the presence of a union representative led to Kelly's signing a confession of misconduct and a resignation from his employment, Respondent has violated Section 8(a)( I) of the Act. 4. The aforesaid unfair labor practice is an unfaiir labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Tit RtmitN Having found that Respondent has committed an unfair labor practice, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action necessary to effectuate the policies of the Act. In Weingarten cases, the Board has generally ordered restoration of the status quo ante. Employers have been ordered to reinstate, with backpay, employees discharged upon interviews conducted in violation of the employees' WUingarten rights. E.g., Super Valu Xenia,. a Division of Super Vailu Stores, Inc., 236 NLRB 1581 1591--92 (1978): United States Postal Service, 237 NLRB 1104 (1978), en- forcement denied 614 F.2d 384 (4th Cir. 1980); Southwest Here iI I particularly mpolrtanl because of the "rischief Io be cllr- reced and the end to he allalned" IN.. 1 R . v tljar Pubhrin,u,on. /nc., 322 S t I11 ( 19441 hat we carefully scrulinize any lanim that cmph yee h.e u aivd their guaranteed right "'lefore intfer- rilng thait 1 asitlser has kcurred tihe Hoard must assiur Itself thai Ihe emphltcc acled noisgly and lunlarily. he rgh Bheing wal ed i, deigncd it prevenl itimidatl lni by the remplscr II o,uld be Ililcrigruious to Itlfr i wslicr itlhoul a clCilr indltiltllll Ihat Ihe crs actics Itle right is meant Ito precnt u ere lnot used Il Colerce a surrender o.f proll tit 1 lllt. 'nm lt, it (l ll CI'rtCLCC IIt PIst'iplhnars M , lneigs,' 41 UL ( I R .- s 32'. 35t ( 174) /Be/ I /etphon C oMpaltly. pra at 223 -thortrtanA. ia . 239 N'I RI 430( (1978). tt' r Ii'iri .Sinal (o;tpati, 237 NI.RB 128X (11978). Ihc cases just ciltd tiiar hbe etoi- cprtii;illy dstirlguislhable froim other cass I 1 i, hich it has 1tcCtl otillnd tithat Cilploycs ere disciplnitcd bCeilsC tl', vissc.I'lC Il hir 14'ingurin ig iIts S, c g Qu)llaI!lv .1-l li- /lcturinik (nompa.v. 195 NlRB 197, I9 (72), affd, stl tr.l. LI..(i 6 '. ' U. pper .South Dpartmen t . ua/ttfI MUt1/ilcturing (crmpoiny, 420 .S. 27 (175). i reject- ing the Board's order for reinstlatlelent ald hackpasy ii Potter i'/Vucrlw S;Siratl ulpra, the LUniteds Statcs (t Coit iof Appeals for the }Lighlh Circuit drcx such a dtistinctioii. h(A) 1 2d 120 (1979). hc ourt there quotl lthe pro`i- sion in Scclion 1(01c) of' the Act that: No order of the Board shall require the rinltllate- inte'1t of ainy individual as ani enplos(e ,s lo has bcen suspenided or discharged, or thc paytlcrcnl to him of any hackpay. if such idiiduial ra s susplt Cl- ed or discharged for cause . T'hc court then preceedd (6h() F. 2d at 124) While the B1oard has broad autthorit t restorc the stattls quo and mrake whole an losses suffcrecd h thte c nployees because of uftlir labor prlactce,, it does not have the poucr to order rciilstateienil or hackpay for employees discharged for obvhious personlial misconduct, because to do so suotild io- late Sectioi 10(c) as interpreted h thli Suprcntc Court in I'irehoc'rd. i 2 -Ilhe court distingtuished cases like Qualit Court, in which discipline &&as imposed "pursuanilt to a program which was in itself the product of an unfair labor prac- tice." '' I am. of course, bounid by the Board's decisioin rather than the court's. lossever . in the present case. for reasons hereafter discussed, it is inot necesars to choose between the t o approaches irl Potllter £Lc-ric. Ili the present case Kelly was not actually discharged To the contrary. h "resigned." but his "resignation" sas obtained in iolationl of his Weingarten rights. The Su- preme Court in UWeingarten accepted the Board's viewc that the employer is not required to bargaini with the union representative (unless so provided in a collective- bargaiining agreement), and the employer "is free to insist that lie is only interested, at that time, in hearing the m- ployee's account of the matter under investigati''n." However, as subsequently said by the Board in Certified Grocers of Catlifrnia. Ltd.. 227 NI.RB3 1211. 1215 (1977), 1 enforcement denied 587 F.2d 449 (9th Cir. The presence of [the employee's] union stexward might have resulted in his apprising [the employee] of his rights, and how much support he could I- lhrhoard P'ap r 'r,nJu ii (Corp %. I R t. .t ) l S 2i (16(41 [ N X F 2d il 124. (qultrig I/fred t l..i, I/ i X R t ' 1 2t 4(0, 412 (ili ( I 178t 14 AlthIIIO ghi ((rii/i ( l tq C' l'rtl hi, hoi-t oserrulucd 11 pirl hs PlOui ,l,,r, $utr H;,rik (iotpunrw. 246 Nt Rtt N I(,1 't70,. the IhccrN iti H,itn,l, r,-t righlis; i, s, tlirltirl/c'd h lit It1,rdI - , ( rilt/}i (,;t- ( t g'. ,( II l% fi11 , ', fu lk *Is DECISIONS ()1F NATIO()NAI. ABOR RAIO)NS B)ARI) expect from his representative. Also, the union rep- resentative might have elicited information that would be necessary for the protection of the inter- ests of the other employees in the unit, a concern expressed in the Weingarten decision. This case bears no factual resemblance to Pacific Southwest Airlines, Inc.. 242 NlRB 1169 (1979). cited by Respondent. There the Board deferred to an arbitral award upholding the suspension of employees who, de- spite having union representation, refused to be inter- viewed in preparation for arbitration of another employ- ee's discharge. The absence of representation i a tele- phone conversation was held immaterial to the result. The Board has ordered an offending employer to ex- punge from its records any reference to any disciplinary action taken on the basis of interviews conducted in vio- lation of employees' Weingarten rights. Cf. Poller Electric Signal Company, supra at 1289, fn. 2;5 Glonmac Plastics, Inc., 234 NLRB 130()9, 1323 (1978), enfd. (without consid- eration of the Weingarten issue) 592 F.2d 94 (2d Cir. 1979). Because Kelly's signed statement was obtained through violation of his statutorily guaranteed right to union representation at the Pinkerton interview on May 8, I shall order that the statement and all references thereto be expunged from Respondent's records. With the invalid resignation thus nullified, Kelly retains the status of an employee. Accordingly, he is entitled to re- instatement and backpay from May 8, 1979, the date the resignation was unlawfully obtained, until he is uncondi- tionally offered reinstatement. Backpay is to be comput- ed in the manner prescribed in E W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest computed in ac- cordance with Florida Steel Corporation, 231 NLRB 651 (1977). 6 It should be added, however, that Respondent is not precluded from discharging Kelly for cause. It is not the Board's function to determine whether Respondent has grounds for discharging Kelly, and that issue was not litigated in this proceeding. Should Respondent believe it has evidence of such just cause, without using Kelly's in- valid written statement or any oral statements he may have made in the May 8 interview, it may exercise its prerogative. Should Respondent decide to follow such course, the discharge will, of course, be subject to any applicable grievance procedure in the collective-bargain- ing agreement. See United States Postal Service, 241 NLRB 141, 156 (1979). 7 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Is I is not entirely clear from Its opinion whether the Eighth Circuit left intact that expunging provision ,of the order. /(X) F 2d at 124 'i See, generally, ims Plumbing & Iatling Co., 138 NI.RB 716 (192) Cf. Anchoriank Inc., uprau at 431, fn 9, in which an employer was ordered to reinstate an employee, with hackpay, for iolation of his Weingarten rights even though the Board recognized that, apart from the Weingarrten violatien, the discharge swas lawful ()ORDER ' The Respondent, enlii-Dixic Steel Corporation, Joliet Bliar Mill Divisionl. Joliet, Illinois, its officers, agentis, suc- cessors, and assigins, shall: 1. Cease and desist roinm: (a) Requiring that emnployees participate i itterviews or meetings with represeilal ives or agents of Respondent without unlion representtation,. when such representattion has been refused by Respondent or its agents. whenI the employees have reasonable grounds to belie e that the matters to be discussed may result in their being the sub- ject of disciplinary aclion, and actually imposing such discipline on the employees or obtaining resiginationis by the employes. (h) In any like or related manier interfering 'seith, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Andrew Kelly immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent job, and make him whole for any loss of earlings he may have suffered as a result of his unlawfully obtained resignation from his em- ployment on May 8, 1979, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Remove and expunge from its records the original and all copies of the signed and witnessed statement made by Andrewv Kelly, dated May 8, 1979. (d) Post at Respondent's place of business in Joliet. Il- linois, copies of the attached notice marked "Appendix B.""' Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it tkir 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. II tile evetl no etceptins aire filed as pro ided hy Sec 12 4h f the Rules ad Regulatiens o,f the Natitonal Labor Rlations IHard, the findings. conclusioms, and recommended Order herein shall. as provided in Sec. 1024X of the Rules and Regulations, he adopted hy the Board and heconme its indings, conclusiolls, and O(rder, and all obhjectlion theret shall he deemed waised for all purposes. " In the vel that his Order i, enforced by a Judgment iif a United States Court (lf Appeals. the words in the notice reading "Pslied h' Order of the Nati onal l.ahor Relationrs Board" shall read "Postldl ursu- ant to a Judgmenit iof the Unit'ed Sates Court If Appeals Enfiorcilng an Order of the Natilonal .abor Relanllo, Itoard" 96 IPENN.)IXI S Tl C()RP()RAI()N APPENDIX Noil i oi EMi'l ¢) Il Ss lPOS I 1) IY O)RII R (IO I Ill N\ I IONAI L HOR RlI \I i()NS j()XRIi) An Agency of the United States (Gos erlnment After a hearing at which all sides had an opportunity to present evidence and state their positions. the National Labor Relations Hoard found that we have violated the National Labor Relations Act, as amended. and has or- dered us to post this notice. Wl Wl I NOI require any employee to take part in a interview or meeting where the employee has reasonable grounds to believe that the matter or matters to be discussed may result in the employee's being the subject of disciplinary action, and where we have refused that employee's request to be rep- resented at such meeting or interview by a union representative. Wli Wi I NOI in any like or related manner in- terfere Wkith. restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the National Labor Relations Act, as amended. WVI wll offer Andrew Kelly immediate and full reinstatement to his former position. or, if that posi- lion no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges and wi Wlii. make him whole, with interest. for any loss of pay he suffered by reason of the termination of his employment on Mav 8, 179. Wt-. wv I expunge from our records and destroy the original and all copies we have of a statement signed by Andrew Kelly on May 8, 1979, and will remove from our records any reference therein to Andrew Kelly's having been interviewed by investi- gators of Pinkerton, Inc., on May 8. 1979. PENN-DIIIt S til CORPORA I ION, JOI 11 I BAR Mll I DIVISION 97