Southwestern Bell Telephone Co.

SOUTHWESTERN BELL TELEPHONE CO , 663 Southwestern Bell Telephone Company and Commu- nications Workers of America, AFL-CIO, Local 6310. Case 14-CA-16558 14 .December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 September 1983 Administrative Law Judge Th6mas D. Johnston issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions 2 and to adopt the recommended Order as modified. The judge found, and we agree, that the Re- spondent violated Section 8(a)(1) of the Act under NLRB v. J. Weingarten, 420 U.S. 251 (1975), by de- nying employee Daniel Reed's requests for union representation at an investigatory interview Reed reasonably believed might result in disciplinary action against him. As a remedy for the violation, the judge, applying Kraft Foods, 251 NLRB 598 (1980), recommended that the Respondent be re- quired to make whole employee Reed for any loss of pay resulting from the Respondent's suspension of him for alleged misuse Of company property. However, in Our recent decision in Taracorp Indus- tries, 273 NLRB 354 (1984), we overruled Kraft Foods and held that Section 10(c) of the Act pre- cludes a make-whole remedy for Weingarten viola- tions where the discipline of an employee is for cause. 3 Accordingly, consistent with Taracorp, we The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility- resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge concluded that the Board will not defer a case to arbitra- tion which involves a violation of Sec 8(a)(1) At the time of his deci- sion, United Technologies Corp, 268 NLRB 557 (1984), which holds oth- erwise, had not yet Issued However, no exceptions were filed to this conclusion In addition, no exceptions were filed to the judge's conclu- sion that the Regional Director did not abuse his discretion by refusing to , approve A settlement agreement entered into by the parties 3 As further explained in Taracorp, discipline is "for cause" within the meaning of Sec 10(c) if it is Imposed for some reason other than an em- ployee's protected concerted activities Since it is clear in the present case that employee Reed was not disciplined for asserting his right to union representation in the investigatory interview, but for alleged misuse of company property, his discipline was "for cause" within the meaning of Sec 10(c) and a make-whole remedy is therefore precluded shall modify the judge's recommended Order to delete the make-whole and expunction remedies and shall order the Respondent to cease and desist from depriving any employee of his right to union representation at an investigatory interview which the employee reasonably believes might result in disciplinary action. We shall further order the Re- spondent to post an appropriate notice. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Southwestern Bell Telephone Company, Union, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraphs 2(a), (b), and (c) and relet- ter the subsequent paragraphs accordingly. 2. Substitute the attached notice for that of the administrative law judge. 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 has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT require our employees to partici- pate in employer interviews or meetings where they have reasonable grounds to believe that the matters to be discussed may result in their being the subject of disciplinary action and where we have refused to permit them to be represented at such interviews or meetings by their labor organi- zation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. SOUTHWESTERN BELL TELEPHONE COMPANY DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge This case was heard at St Louis, Missouri, on July 19, 1983,' pursuant to an amended charge filed on April 152 I All dates referred to are in 1983 unless otherwise stated 2 The original charge was filed on March 15 273 NLRB No. 95 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Communications Workers of America, AFL-CIO, Local 6310 (the Union), and a complaint issued on April 19. The complaint alleges that Southwestern Bell Tele- phone Company (the Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by denying employee Daniel 'Reed's request to be represent- ed by the Union during an interview which Reed had reasonable cause to believe might result in disciplinary action, and suspended Reed as a result of information re- ceived from him during the interview and after his re- quest for representation had been made, thereby interfer- ing with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. The Respondent in its answer, which was amended at the hearing, denies having violated the Act as alleged. While it admits it suspended Daniel Reed about January 18, it denies it suspended him as a result of information obtained from him during the interview or that Reed had requested representation or that such request had been denied. The issues involved are whether the Respondent vio- lated Section 8(a)(1) of the Act by discriminatorily deny- ing Reed's request for union representation during an interview which he had reasonable cause to believe might result in .disciplinary action and suspended him as a result of information received from him during the interview after he had requested such representation On the entire record in this case and from my observa- tions of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent,3 I hereby, make the following4 FINDINGS OF FACT •I THE BUSINESS OF THE RESPONDENT Respondent, a Missouri corporation with an office and place of business located at St. Louis, Missouri, and with other places of business located in the State of Missouri, including a facility located at Union, Missouri, which is the only facility involved in this proceeding, is engaged in the telephone communications industry. During the calendar year 1982, a representative period, the Respond- ent in the course of its operations received revenues in excess of $100,000, of which revenues excess of $100,000 were received for providing interstate telephon- ic communications to its customers Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, Local 6310 is a labor organization within the meaning of Section 2(5) of the Act. L 3 The Charging Party did not submit a brief 4 Unless otherwise indicated the findings are based on the pleadings, admissions, stipulations; and undisputed evidence contained in the record, which I credit III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is engaged in the telephone communi- cations industry and has a facility located at Union, Mis- souri. Included among its supervisory personnel are Dis- trict Manager of Outside Plant Construction Eugene En- right, Assistant Staff Manager of Security Francis Clark, and Network Service Supervisor Lawrence Pnchard.3 The employees of the Respondent employed at that fa- cility are represented by the Union. . Daniel Reed, the discriminatee, who has been em- ployed by the Respondent for ,approximately 14-1/2 years, works as a lineman at the Union, Missouri con- struction facility. From 1976 to February 1983 he worked under the direct supervision of Supervisor Pri- chard. His duties include placing and removing pole lines and cable drops and his work involves the use of a com- pany bucket truck which he uses daily. Reed is. also a member of the union and has served as a union steward at the Union, Missouri. facility for about 5 years repre- senting the linemen and splicers. B. Denial of Reed's Request for Union Representation and His Suspension- An anonymous unsigned letter purportedly from a telephone customer, dated July 9 and addressed to Dis- trict Manager Enright, was sent to the Respondent ac- cusing Reed, who it suggested be investigated, of ripping off the Company for years. It mentioned seeing him on numerous occasions using a company truck drilling post holes for his fencing, using the bucket fruck for trimming trees, and unloading and stacking telephone poles _ he would bnng in and later sell. The letter further stated Reed had a company ladder, leaning against a tree, a new pole with an CB antenna attached, and mentioned , that someone else believed Reed's electric - fence posts were also company equipment. The letter further related the customer's telephone bills 'had kept increasing and the Company had said it needed more money for increased costs and suggested if the labor force was better con- trolled costs should and could decrease and indicated the letter might help. District Manager Enright, who is a third-line supervi- sor and supervises approximately 223 employees includ- ing 36 first- and second-level managers, testified that on January 17 on receiving and reading this anonymous letter, which was postmarked January 13 but had been misdirected, he felt the allegations, if true (that Reed used Company trucks to dig post holes and to trim trees, and had obtained used poles to sell and had a company ladder and a new telephone pole for , a CB , antenna), would violate company rules. Under the Respondent's policies, as expressed in its booklet entitled "A Code of Business Conduct," and the section pertaining to "Company Property," which had been in effect for at least 4 years, company property is not to be used for personal benefit, or any other improp- er purpose and, except with proper authorization, it 5 These three individuals are supervisors under the Act • SOUTHWESTERN BELL TELEPHONE CO 665 should not be sold, loaned, given away, or otherwise dis- posed of regardless of condition or value The booklet also indicates -violations of such company policies can lead to disciplinary action, dismissal, and prosecution. The contents of this booklet are reviewed annually with the Respondent's employees and Reed, who admitted having read it, acknowledged in writing as required by Company policies that such review was last held with him on May 20, 1982. That same day Enright contacted Assistant Staff Man- ager of Security Clark and informed him about the letter and the following day, January 18, they together drove out to Reed's farm and made a visual inspection from the road. According to both Enright and Clark they ob- served various items of company property or what ap- peared to be former company property on the farm which , were items Reed would have had occasion to work with as a lineman-. These included two sheave block; a stack of 25 to 40 poles varying in length from 25 to 40 feet; a lubricating or vehicle ramp constructed out of telephone poles; what appeared to be a new tele- phone pole by the house with a CB antenna attached; rope similar to that used by the Respondent hanging from a tree limb; a stack of poles 8 to 10 feet in length; an electric fence for cattle constructed out of 40 or 50 ground rods; 6 a fence and a fenced in area constructed of about 80 to 100 'old used telephone poles; a - loading dock constructed out of fairly good size class stubs from poles; a'yellow fiberglass ladder with a stenciled-on crew number leaning against the house; and three dead-end arms7 which appeared to be new. Enright testified following-their visit to Reed's farm he contacted Reed's immediate supervisor, Supervisor Pri- chard, read him the anonymous letter, and questioned him about its contents. After Prichard denied any knowl- edge of the allegations contained in the letter, Prichard stated that Enright instructed him to have Reed report to the central office at Union, Missouri, which -he did. That same day, January 18, District Manager Enright, Assistant Staff Manager Clark, Supervisor Prichard, and Reed met in the basement meeting room at the central office, which Reed described as a room which was used for grievance and disciplinary meetings where he had previously represented other employees, as their union steward.• Reed testified Enright began the meeting by asking him if he had ever used company trucks to trim his trees at his house. According to Reed, having been asked this question, he thought he was in trouble because when he looked at Prichard, who he contends had given him per- mission to use the company truck to trim trees, 8 Pri- chard gave him a shrug like he did not know anything about it and he knew he was on his own, whereupon he then said he needed union representation. Enright re- sponded by telling Reed that he was the union steward and that should be good enough. Enright then continued to question him about whether he had trimmed trees on 6 Enright acknowledged the Respondent did not recover ground rods used in construction but instead drove them underground This is the arm thatdead ends the wire on the telephone pole 8 Pnchard denied at the heanng that he ever gave Reed permission to use company property or equipment for his personal benefit his property with the company vehicle whereupon he admitted he had used the bucket truck once to trim the trees on his lunch hour 2-1/2 years ago, but he said he had permission to do so. Enright, after questioning Reed's assertion about doing the work on his lunch hour, explained he had a letter and what it accused Reed of doing and said he and Clark had gone out to Reed's home that morning where they saw a large pile of used poles and crossarms, a lot of discarded company equip- ment, and an old company ladder , leaning against the house. Reed explained that equipment had all been given to him or he had taken it with permission and it was not stealing like Enright was trying to insinuate. On En- right's mentioning the ladder was worth over $150 and that constituted a felony, Reed explained he took it out of the junk pile at least 5 years ago and that the crew number stenciled on the ladder would verify how old it was. 8 After discussing the ladder, Reed stated he told them he thought they were headhunting and said he needed union representation Enright responded by asking Read was he not the union representative for Union, Missouri When Reed replied he was, Enright continued questioning him by asking him who authorized him to take the hugh pile of old poles which were stacked beside the road. His response was every first line foreman he had worked for let the linemen, telephone people, or the general public, take poles out of the pole yard" when they were brought in and he explained he probably had first crack at them because he pulled them and knew when they came in and that he had permission and could still get foremen to testify to that. During the meeting Reed also admitted about 8 to 10 years ago he used a company post hole digging truck to place two poles in a vehicle ramp he built on his property.71 Enright then -asked Reed for permission to seach his property and , said since he had admitted taking the ladder, which constituted a felony, if Reed would not give him permission he would go to the county judge and get a search warrant and search his property. Al- though Reed first refused permission after Enright told him if he did not he would have to press criminal charges against him to get the search warrant because that was the only way he could get it and Reed would be up for a felony. Reed stated he decided that his best defense was to let Enright come -down and see what was there because he did not have anything to hide. Before signing a statement given to him to sign author- izing Clark and Prichard to search his property and vehi- cles," Reed stated he again asked for union representa- 9 According to Reed, Clark later obtained the correct crew number on the ladder which venfied It belonged to a man who had been gone for 5 years '° Bill Konecnik, another employee, testified the past practice was that used telephone poles were up for grabs by anyone who wanted them and they would notify their supervisor, or the linemen would just take them home " According to Reed, his foreman at the time, John Palisch, who did not testify, had given him permission to use the truck on that occasion " The statement dated January 18, which was signed by Reed and witnessed by Enright, contained in pertinent part the following sentence "No threats or promises have been made to force me to submit to this search for property of Southwestern Bell Telephone Company" Reed Continued 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. When Enright replied that he would give him a minute to get his union representative there, Reed stated he went ahead and -signed to let them search because there was no telephone in the room and he did- not see any way he could get a representative there that fast. Reed, during the hearing, denied, except for the two occasions he admitted during the interview, using the company trucks for his personal use and specifically denied using the company truck to set his antenna pole. Reed testified the approximately 100 ground rods used in constructing his electric fence had been obtained from dismantling jobs. These rods had been junked by the Re- spondent and he had asked all of his foremen whether it was all right to take them. His foremen had also given him permission to take the old telephone poles which he had also obtained in the process of -wrecking out pole lines. Reed denied the antenna pole or any other poles or crossarms on his property were new and stated that the ladder was manufactured by the Louisiana Ladder Com- pany about 1973 and he had obtained it about 1977. Reed explained that as he wrecked cables or transferred poles he took the used bolts ,that held the cables on the tele- phone poles home or put them in the -trash at the Com- pany from which they were then -dumped and covered over with dirt by a trash hauler. District Manager Enright gave a different version of this meeting. According to him he began the meeting by telling'Reed what he had tO cover with him was difficult because he had difficulty in understanding anybody who would write a letter and not sign his or her name. How- ever, there were some allegations in the letter which bor- dered on company assets being so to speak manipulated and made inferences about Reed's conduct off the job and accused him of using company vehicles and having company property. He then, after also mentioning he had been out tO Reed's farm that day, said he would like to cover some of the pertinent questions and would like to have Reed answer them. After looking at both Clark and Prichard, Reed commented it looked to him like lie was in a little trouble whereupon he told Reed he did not regard it as trouble but said he needed answers to some questions. When Reed inferred that he would like to have some help he asked Reed was he not the union steward. On Reed replying he was the union steward but for construction he informed _Reed that it was a con- struction matter that he would like to discuss -with him. After Reed pondered awhile and shrugged his shoulders, he again asked Reed if he would answer the questions and Reed nodded affirmatively. Following this he men- tioned there was some serious allegations in the letter that Reed had used certain materials and vehicles to per- form work on his farm- and he mentioned the letter had said on numerous occasions he was observed using a company truck to dig holes and to set poles and asked Reed if he had done that. Reed replied he had but said it was on his lunch hour. After questioning Reed about doing it on his lunch hour, he told Reed it did not make explained at the heanlig he had no recourse but to sign the statement even though it said no threats had been made to force him to sign be- cause they had threatened to have him arrested for a felony or to be taken before the judge any difference whether it was on his lunch hour or not because it was unauthorized use of company property to perform work for his personal gain. However; on asking Reed whether he had permission Reed replied he had and looked at Prichard and said they knew about it. Pri- chard then denied he gave Reed or other employees per- mission to use company equipment Enright then mentioned the letter inferred Reed had used the bucket trucks to trim trees and asked Reed whether he had done that, whereupon Reed again admit: ted he had but said it was on his lunch hour. He again told Reed that he needed permission to do that and it was misuse of company property to perform work for his own benefit. According to Enright, he did not think they ever iden- tified when Reed said he used these vehicles. Reed was then questioned 'about the ladder which he said was a discarded ladder he had obtained from the junk bin. He informed Reed that it was his recollection that fiberglass ladders had only been approved by the Company for 8 to 10 years and asked Reed whether they were allowed to take ladders and fools from the junk bin home which Reed said they were. Reed also, pursuant to Enright's inquiry, said the ground rods and crossarmS were also obtained from the junk pile. Enright stated he then asked Reed whether there was anything else on the farm they ought. to know about. When Reed replied there might be some other articles out there, but nothing of any consequence, he asked Reed whether he minded if they went out and checked his farm to see whether there was anything else there that belonged to the Company. Reed, after hesitating and appearing reluctant, finally nodded affirmatively after Enright suggested that Clark and Prichard could accom- pany Reed and he would not accompany them. While Clark was preparing a statement for Reed to sign, En- right stated Clark was sitting there shaking his head and mentioning that only a few days .ago he was accused of poorly representing two other employees" and now here he was in trouble. According to Enright, when this occurred, he told Reed if he felt -he needed some addi- tional help, now would be the -time to get it. However, Reed's response was they had gone that far and for theta to proceed. Reed then read the search form and signed it. Enright denied threatening to have Reed arrested if he did not sign the search form. Enright denied recalling Reed saying he wanted union representation and stated he only made one request for help. Assistant Staff Manager Clark substantially corroborat- '-ed Enright's version of the meeting 'and denied that En- right threatened to press criminal charges against Reed to obtain a search warrant. While he also denied Reed asked for union representation, he stated that after En- right informed Reed there were allegations made against him in the letter which he wanted to discuss with him, Reed remarked it seemed like a pretty serious matter to him and maybe he needed some representation, where- " Reed had earlier represented two employees who were dismissed for misconduct SOUTHWESTERN BELL- TELEPHONE CO • 667 upon Enright then asked Reed was he not the union steward there. Under cross-examination Clark further stated that later in the meeting Reed again said he might need some representation, whereupon Enright told him he thought that had been settled and Reed was the union steward there, to which Reed agreed and consented to go on. According to Clark, Reed also informed them in ‘the meeting he had gotten the used telephone poles from the used • pole pile and denied the CB antenna pole was a new pole. Supervisor Prichard corroborated the testimony of both Enright and Clark in part. However, contrary to their testimony he testified that at the beginning of the meeting, after Enright had informed Reed that allega- tions had been made against him in an anonymous letter and what the letter said and asked him if any of it was true, Reed responded that it appeared to him that some serious allegations. had been made and he might be in some trouble and stated he thought maybe he ought to have union representation in the ,meeting with him. He then stated Enright asked Reed if he was not the steward for the union complex and when Reed replied he was for the construction work crew, Enright mentioned it was a construction .matter and he would like for him to re- spond to some questions he had pertaining to the letter. According to Prichard„ when Enright then asked Reed if he would respond to those questions, Reed said he would. Prichard further stated when Enright sought Reed's permission to - search his property Enright told Reed if he felt he needed union representation then would be the time to obtain it biri Reed remarked he had gone that far and would not need union representation. I credit the testimony of Reed concerning what tran7 spired at this meeting rather than that of District Manag-- er Enright, Assistant Staff: Manager Clark, and Supervi- sor Prichard. Apart from my observations of the wit- nesses, not only did Prichard contradict the testimony of both Enright and Clark about whether Reed specifically requested union representation, but his testimony in this respect supports Reed's version that he did so." More- over, even the versions of both , Enright and Clark that Reed had informed them he wanted some help. or needed some representation, to which Enright responded by questioning Reed about his being the union steward, shows they -would have been aware that he was seeking union representation. Following this meeting -Assistant Staff Manager Clark and Supervisor Prichard, accompanied by Reed, left the office and first searched Reed's company truck where, according to Clark, they found' three screwdrivers marked company property. Reed described them as being old, rusty, and bent., 14 The Respondent's counsel ;n a letter to a Board agent dated March 31, in which it provided a response to the charge in this case,--descnbed this interview and stated in pertinent part as follows . After the meeting had been in progress for some time, Mr Reed made a comment to the effect that the matter sounded pretty senous and that maybe he needed some union representation The letter further reflects that, after additional questions and answers, Reed also stated, "Maybe I better get some union representation" After searching Reed's cothpany truck they went to the farm where they searched Reed's farm including his home, outbuildings, and his personal vehicles. Clark described their search of the farm revealed the following: A voltage tester that Reed claimed' was obso- lete and had been discarded in the trash which Prichard confirmed; a set of hooks used by linemen to climb poles with the leather deteriorated which Reed said had been discarded and Prichard verified; 20 to -30 U-guards with the company emblem which Reed said had been sal- vaged and used by him to brace fence posts. which Clark later observed; a pile of bolts which Clark commented appeared to be good bolts but which Reed said he had gotten from jobs which Prichard confirmed were not used anymore; a vehicle ramp constructed of used tele- phones which Reed said he had used the truck to drill the holes for; a pile of long telephone poles about 10 feet high which Reed, pursuant to Clark's inquiry, said he had transported there with his boat trailer; and a pole with the antenna which Reed said was used and Prichard inspected and indicated it looked like the identifying re- marks had been removed. According to Reed, he explained to them before searching the 'farm that he had a lot of company-discard- ed material there which he had been carrying home for 14 years. He described the bolts and crossarms as being ones which had been used and discarded. Reed stated that, on earching his personal truck, they also found an Outdated first aid kit Prichard had given him a long time ago. Following the,search of Reed's property, Clark report- ed to Enright That ,,same day what they had found. En- right testified Clark showed him the three company screwdrivers which appeared to be good to him and the first aid kit and reported the piles of bolts and U-guards and the diScarded voltage tester. Although Reed stated Clark explained to Enright that it was nothing but a bunch of junk, Clark denied having made such statement. Enright testified that after receiving the report, he reiter- ated that under company policy the use of equipment for one's own personal use was not allowed and questioned Reed about how he had hauled the larger uncut poles and whether he had used the company truck which Reed denied, stating he hauled them on a boat trailer Enright, who alone made the decision, testified he then suspended Reed and informed him the reason was the unauthorized use of company vehicles to perform work on his farm, the digging of holes, the setting of poles, and the trimming of trees. Reed acknowledged that, following Clark's report, Enright, who also re- marked that the .three screwdrivers which had since gone bad but were good when Reed stole them, suspend- ed him indefinitely Enright, under cross-examination, testified he suspend- ed Reed for the unauthorized use of company vehicles and the evidence he had at the time consisted of Reed's admissions during the intervievi, about using the trucks and the anonymous letter. However, he also acknowl- edged he would not have suspended Reed solely on the basis of allegations contained in the anonymous letter. On redirect-examination Enright, on being asked what he 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered in suspending- Reed, stated it was Reed's ad- missions to .using a post hole digging truck one time and also his belief that the truck had been used on numerous times which was based on what was in existence on Reed's farm, including the fencing he had observed that would have been laborious work to' hand dig, and the statements contained in the letter about numerous occa- sions a truck was used. Reed's suspension on January 18 was without pay and lasted 2 weeks. According to Enright he had initially de- cided to suspend Reed for a week; . however, after being informed about January 19 or 20. by Donald Cook, who is now the manager of outside construction in Sikeston, Missouri, that Cook had previously suspended Reed for using a ,company vehicle on company time to go to his farm, he decided on a 2-week suspension-period. Cook, who previously held the position of supervisor of construction and cable splicing and who supervised Reed, testified. that in early 197 he had disciplined Reed and docked his pay for 2-1/2 hours because .he and em- ployee Tim Plank had used a company truck and trailer to haul some poles To Reed's house during working hours. He also-denied ever giving Reed permission to use company equipment and property to perform work on his farm. Reed, however, denied such an incident oc- curred involving him and Plank After the 2 weeks' suspension was up, Reed returned to work. His return to work was also conditioned on his returning' all of . the paraphernalia he had carted off which he 'did return including bolts, poles not in the ground, ground rods, U-guards, crossarms, and the ladder According to Enright, the ladder was then de- stroyed •in accordance with established company prac- tice. Reed filed a grievance over his suspension, which was later Withdrawn. Warren Stecker, who is the union presi- dent, and Bill Konecnik, who is the union chief steward, both testified during the grievance meetings held on' Ree'd's- suspension, which were held 'after he returned to work. Respondent's representatives, Division' Manager Dave Nylan and Ken Mayer, informed them Reed was suspended for misuse or unauthorized use of company vehicles which were the two incidents Reed had admit- ted and they denied that Reed's possession of other com- pany property was part of the suspension. Reed also tes- tified during the first grievance meeting Nylan stated he had been suspended for unauthorized use of company ve- hicles which involved the two incidents of Using compa- ny trucks to dig' holes and trim trees which he had previ- ously admitted,' 5 ,C. Analysts and Conclusions The General Counsel asserts the Respondent Violated Section 8(a)(1). of the Act by discriminatorily denying Reed's request for union representation during an inter- view in which lie had reasonable cause to believe might result in disciplinary action, and by suspending him as a , 15 Neither Nyian nor Mayer testified and I credit the undisputed , testi- mony of Stecker, Konecnik, and Reed concerning the reasons given to them for Reed's suspension which were also consistent with the reasons as testified to by Ennght result of information received from him during the inter- view after . he had requested union representation.' Con- trary to these assertions, the Respondent denied having violated the Act as alleged or that Reed • requested or was denied union representation or was ,sUspended as a result of information obtained from him during ,the inter- view. 'The Respondent further argues in its brief' that the Board Should defer to the parties' grievance and arbitra- tion procedures regarding Reed's suspension" and also that the Regional Director abused his discretion'by refus- ing to approve a settlement agreement entered intcilby the Respondent and the Union. Both positions . lack merit and are . hereby rejected. With respect to the deferral ar- gument, the Board's Collyer" doctrine 'is not applicable in cases involving violations of Section '8(a)(1) of the Act Loomis • Courier Service, 235 NLRB 534, 536 (1978), enf. denied on other grounds 595 -F.2d 491 -(9th Cir. 1979); and General American - Transportation Corp., 228 NLRB 808 (1977). Ins'ofar as the settlement agreement is concerned the rights guaranteed under the Act are in the public interest rather than private rights .and the 'Region- al Directbr's refusal to approve a private settlement agreement by two of the parties would not 'constitute an abuse of 'his discretion. Schuylkill Metals Corp., 218 NLRB 317, fn. 1(1975). Under Section 7- of the Act" an employee has the right to have union representation at an investigatory interview which the employee reiaonably believes Might result in disciplinary action.-NLRB v. J.:Weingarten, 420 U.S. 251 (1975). The protection accorded employees covers both "investigatory" and "disciplinary" inter- viewi except for those interviews, not applicable here, conducted for the exclusive purpose of notifying an em- ployee of previously _determined disciplinary action. Baton Rouge Water Works Co., 246 NLRB 995 (1979) The test for determining whether an employee ieasdn- ably believes the interview -might result in disciplinary action is measured by objective standards under all the circumstances of the case rather than an employee's sub- jective motivations. NLRB v. J. Weingarten; cited -supra at 257 fn 5. Further, to invoke this protection, the em- ployee must request union representation The disciplining of employees as a result of interviews where they are unlawfully prevented froth securing the assistance of their union representative is also unlawful. See AnchorTank, Inc., 239 NLRB 4,30, 431 (1978), enfd. in part' and denied in part, 618 F.2d 1153 (5th Cir. 1980). Where an employer conducts an investigatory interview in violation of an employee's Weingarten 'rights and that employee is disciplined for conduct which 'was the sub- ject of the unlawful interview, the appropriate remedy is a make-whole remedy unless the employer can demon- strate that its decision to discipline that employee was is Reed's gnevance regarding' his • suspension had previously been withdrawn " Collyer Insulated Wire, 192 NLRB 837 (1971) is Sec 7 of the Act guarantees to employees the nght to "engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection" SOUTHWESTERN BELL TELEPHONE CO 669 not based on information obtained at the unlawful inter- view Kraft Foods Inc., 251 NLRB 598 (1980). The findings supra establish that on January 18 Reed was notified to attend a meeting held at the Respondent's office by Respondent supervisory personnel District Manager Enright, Assistant Staff Manager of Security Clark, and his immediate supervisor, Supervisor Pri- chard. Enright began this meeting by questioning Reed 'whether he had ever used the company trucks to trim his trees at his house. When Reed responded by saying he thought he was in trouble- and he needed union represen- tation, Enright ignored his request by informing Reed that Reed was the union steward and that should be good enough and then continued to question Reed about whether he had trimmed his trees with company trucks; and used company trucks to dig holes on his property and other matters which Reed had been accused of doing in an anonymous letter regarding the misuse of company property and equipment by Reed. Later during the interview, when Reed repeated that he needed union representation, Enright again ignored his request by. indi- cating Reed was the union steward and continued with his questioning of Reed. After having questioned Reed about his use of company equipment and property during which Reed, after his initial request for union representa- tion had been denied, admitted having used a company basket truck on one occasion 2-1/2 years ago to trim trees on his property and using the company post hole digging truck on another occasion 8 to 10 years ago to place two posts in a vehicle ramp he built on his proper- ty, Enright attempted to have Reed sign a consent form to permit them to search Reed's vehicles and property. Although at that point, when Reed again renewed his re- quest for union representation, Enright said he would give him a minute to get his union representative there, Reed went ahead and signed the form because there was no telephone in the room and he did not see how he could get a representative there that fast. That same day, following a search of Reed's vehicles and property, he was suspended without pay and his sus- pension lasted 2 weeks. This suspension, according to Ennght's own testimony, as well as statements made by the Respondent's representatives to Reed and the Union's representatives during grievance meetings con- cerning Reed's suspension was based on Reed's admis- sions during the January 18 interview that he had used the company's trucks on the two occasions related by him to perform work on his property. These admissions occurred during the interview after he had first request- ed and been denied union representation The evidence further shows that Reed, at the time he requested union representation at the January 18 inter- view, he had more than reasonable cause to believe the interview might result in disciplinary action being taken against him. This was because under company policy, of which Reed had knowledge, the use of company proper- ty for personal benefit or improper purposes could lead to disciplinary action, dismissal, or prosecution. When Enright began the conversation by questioning him at the office, where disciplinary meetings had been held, in the presence of two supervisors about whether he had ever used company trucks to trim his trees at his house, his supervisor, Prichard, who he said had given him per- mission, gave him a shrug like he did not know anything about it, which led Reed to , believe he was, in trouble and he so expressed himself during the interview at the time he made the request. Based on this evidence, and for those reasons discussed and applying the applicable law, I am persuaded and find that the Respondent violated Section 8(a)(1) of the Act by denying Reed's request for union representation at an investigatory interview he reasonably believed might result in disciplinary action against him and by suspend- ing Reed for 2 weeks without pay which -resulted from this unlawful interview. • IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities ,of the Respondent set forth in section III, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to, lead to labor disputes, burdening and obstructing commeree and the free flow thereof. CONCLUSIONS OF LAW 1. Southwestern Bell .Telephone Company is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Communications Workers of America, AFL-CIO, Local 6310 is a labor organization within the meaning of Section 2(5) of the Act. - 3. By requiring that Daniel Reed participate' in em- ployer investigatory interviews without union representa- tion, which had been requested by Reed and had been refused by the Respondent, when Reed had reasonable grounds to believe that the matters to be discussed might result in their being the subject of disciplinary action and actually imposing such disciplinary action on Reed by suspending him on January 18, 1983, for 2 weeks, with- out pay, Respondent has violated Section 8(a)(1) of the Act. 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. Accordingly, having found that the Respondent after denying Reed his Weingarten rights, suspended him for 2 weeks, without pay, based on information obtained from him at the unlawful interview itself, I shall order that the unlawful suspension be rescinded and all references to the suspension be expunged from his records and that he be so notified and that he be made whole for any loss of pay he suffered as a result of this unlawful suspension, with the payment of interest. Interest shall be computed 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the manner prescribed by Florida Steel Corp, 231 NLRB 651 (1977)." On these findings of fact and conclusions 'of law and on the entire record, I issue the following recommend- ed20 ORDER The Respondent, Southwestern Bell Telephone Com- pany, Union, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and 'desist from (a) Requiring its employees to participate in employer interviews or meetings without union representation where such representation has been requested and re- fused by the Respondent, when the employees have rea- sonable grounds to believe that the matters to be dis- cussed may result in their being the 'subject of discipli- nary action and actually suspend or impose such discipli nary action on its employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act; 2. Take .the following affiimative action necessary to effectuate the policies of the Act. (a) Rescind the January 18, , 1983 2-week suspension, without pay, of Daniel Reed and make him whole for any loss of earnings he may have suffered as a result of the suspension with the payment of interest in the '9 See generally Ins Plumbing Go, 138 NLRB 716 (1962) 20 If no exceptions are filed as provided by Sec 102 46 of the Board'i Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses manner set' forth in the section of this decision entitled "The Remedy." (b) Expunge from its files all references to the suspen- sion of Daniel Reed on January 18, 1983, and notify him in writing that this has been done and that evidence of this unlawful suspension will not be used as the basis for future peisonnel actions against him. (c) Preserve and, on reqUest, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post'at its Union, Missouri facility copies of the at- tached notice marked "Appendix." 21 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall, be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are .not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to ,comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges unfair labor practices not spe- cifically found herein. ." 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"