Bethel Home, Inc.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bethel Home, Inc. and United Food and Commercial Workers Union, Local No. 214, affiliated with the United Food and Commercial Workers International Union, AFL-CIO. Case 30-CA- 8511 15 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 January 1985 Administrative Law Judge William A. Pope II issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. - The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. - ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepied to the judge's treatment of certain credibility issues. The Board's established policy is not to overrule an ad- ministrative law judge's credibility resolutions unless the clear preponder- ance 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 See also Casa Grande Cotton Oil Mill, 110 NLRB 1834 (1954) DECISION WILLIAM A. POPE II, Administrative Law Judge. In a complaint issued on October 5, 1984, the Acting Region- al Director for Region 30 of the National Labor Rela- tions Board, Milwaukee, Wisconsin alleged that the Re- spondent, Bethel Home, Inc., engaged in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act by discharging its employ- ee, Elizabeth Ann Beck, because of her refusal to attend an interview with supervisors of the Respondent, under circumstances which gave her reasonable cause to be- lieve that disciplinary action would result, without repre- sentation by the Charging Party, United Food and Com- mercial Workers Union, Local No. 214 (the Union or Local Union 214). The charge in this case was filed by Local Union 214 on September 11, 1984. Trial was held on November 15, 1984, in Oshkosh, Wisconsin, before Administrative Law Judge William A. Pope II. I. BACKGROUND The Respondent, Bethel Home, Inc., employed Eliza- beth Ann Beck as a nursing assistant from 1976 until she was discharged on September 7, 1984. The Respondent's director of nursing since January 2, 1984, is Eileen Lein- weber. The assistant director of nursing is Dolores Wass- man. The parties stipulated that Local Union 214 has been the collective-bargaining representative of all Re- spondent's full-time and regular part-time service and maintenance employees since June 22, 1984. Elizabeth Ann Beck was a member of the bargaining unit. It is undisputed that Beck was discharged by order of Leinweber on September 7, 1984,1 for insubordination al- leged to have taken place the preceding day during a meeting in Leinweber's office at Bethel Home participat- ed in by Leinweber, Wassman, and Beck. The Respond- ent's progressive discipline system provides for the dis- missal or suspension of an employee who has accumulat- ed three or more written warnings during a 12-month period. It is not disputed that Beck received written warnings on June 19, 1983, and August 10, 1984. A third written warning concerning an offense alleged to have occurred on August 24, 1984, had. been prepared 'for by delivery to Beck on September 6, but was not delivered to her prior to her discharge. That written warning con- tains an admonition that if another incident occurred, she would be discharged. - I It is undisputed that Beck was summoned-by Wassman to an interview with Leinweber in the latter's -office on the afternoon of September 6,.1984, and that Beck subse- quently left the interview without Leinweber's permis- sion, after being warned twice by Leinweber that if she left .she would be dealing with charges of insubordina- tion. It is also undisputed that Beck's departure from the interview of September 6, 1984; was the final step in the Respondent's progressive discipline system, and led di- rectly to her discharge. II. ISSUE The issue in this case is whether the Respondent vio- lated Section 8(a)(1) of the Act by denying Beck's re- quest for union representation during the interview of September 6, 1984, and discharging her because of her refusal to continue attending the interview without union representation. The General Counsel contends that at the interview of September 6, 1984, Beck was faced with the prospect of an investigation, which she reasonably feared would lead to discipline, and requested union representation. At no time during the interview, asserts the General Counsel, was Beck told that discipline had already been deter- mined. Under NLRB v. Weingarten, 420 U.S. 251 (1975), says the General Counsel, in such circumstances, an em- ployee may insist on the presence of a union representa- tive, and the employer may not continue the interview in the absence of a union representative over the employ- ee's objection. The General Counsel concludes that Re- spondent violated Beck's rights protected by Section 7 of the Act by discharging her for her refusal to continue the interview of September 6, 1984, without union repre- sentation, and leaving the interview without permission to get a union representative. ' Oral notice of termination of her employment was given to Beck during the morning of September 7, 1984, by Wassman 275 NLRB No. 20 BETHEL HOME, INC The Charging Party also argues that the facts establish that Beck made a valid request for union representation, and that when she attempted to assert her right, she was discharged for insubordination, in violation of the Act. The Respondent argues that the only question here is one of credibility, and that the General Counsel, which has the burden of establishing by a preponderance of the evidence that Beck's Weingarten rights were violated, has failed to meet her burden of proof in that regard. Beck established through her own testimony, Respondent as- serts, that she was confused and upset, and, Respondent concludes, does not really remember what was said. Its witnesses, on the other hand, argues Respondent, were calm, clearly remembered the events, and have not been impeached as to any material or substantive facts. Fur- ther, according to the Respondent, the General Counsel has not produced any evidence that the alleged violation of Beck's Weingarten rights was followed by any act of discipline in connection with the denial. The General Counsel, having failed to meet her burden of proof, the Respondent concludes, the complaint should be dis- missed III. FINDINGS AND CONCLUSIONS In its landmark decision, NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme Court upheld the "right of an employee to refuse to submit without union represen- tation to an interview [by his employer] which he rea- sonably fears may result in his discipline." The Supreme Court went on to say that the right arises only in situa- tions where the employee requests representation, and is limited to situations where he reasonably believes the in- vestigation will result in disciplinary action. The employ- er has no obligation to justify its refusal to allow union representation and, despite its refusal, "the employer is free to carry on its inquiry without interviewing the em- ployee, and thus leave to the employee the choice be- tween having an interview unaccompanied by his repre- sentative, or having no interview and foregoing any ben- efits that might be derived from one." The threshold question in this case is whether Eliza- beth Ann Beck ever requested union representation during the interview with her supervisors on September 6, 1984. The Supreme Court, itself, expressly stated in its Weingarten decision that the right to union representation arises only if the employee requests representation. That the request must come from the employee was again reaffirmed by the Board recently in Montgomery Ward & Co., 269 NLRB 598 (1984), a case in which the Board said that an employer is under no duty to volunteer to provide a representative and has no obligation to provide a representative absent a valid request by the employee. If Beck did not request a union representative during the interview, there was no violation of her Section 7 right to representation, and it is unnecessary to consider such issues as whether or not the protections accorded to em- ployees under Weingarten were otherwise applicable in this case,2 or whether Beck was discharged for asserting her right to representation. 2 The Respondent suggests that Beck may have had no Sec 7 right to the presence of a union representative because the disciplinary decision 155 The burden is on the General Counsel to show by a preponderance of the testimony that Beck did request the presence of a union representative during the inter- view on September 6, 1984.3 The General Counsel's case consisted of the testimony of Eileen Leinweber, Elizabeth Ann Beck, and David Tesch, an employee of Local Union 214 (who was in- volved in the organizing campaign and election at Re- spondent's facility, and was at the time involved in nego- tiations with the Respondent) Eileen Leinweber testified that she met in her office with Beck on September 6, 1984, in the presence of Do- lores Wassman, the assistant director of nursing, for the purpose of issuing a written reprimand to Beck for vio- lating Respondent's voluntary time off policy on August 24, 1984. Leinweber acknowledged that she did not tell Beck she was going to receive a reprimand, nor did she, on that day, show the written reprimand to her. During the interview, according to Leinweber, she questioned Beck concerning the latter's knowledge of the Respond- ent's voluntary time off policy Leinweber agreed that she would not have fired Beck had not the latter left the interview on September 6 Elizabeth Ann Beck testified that she had a conversa- tion with David Tesch on September 5, during which she expressed her fear that she was going to be disci- plined for excessive absences. He replied that if she felt she was going to be disciplined, to call him and he would come to the meeting. According to Beck, on Sep- tember 6, she was summoned to Wassman's office, where the latter informed her that they had to go see Lein- weber, the "boss." During an interview which subse- quently took place in Leinweber's office, she was asked if she knew the policy for voluntary time off and was shown a copy of the policy in writing. According to Beck, as the exchange continued, she asked Leinweber, "Why are you harassing me like this?" After further dis- cussion with both Leinweber and Wassman concerning the procedures which she had followed on August 24 to get approval for voluntary time off on that day, Beck, according to her own testimony, told Leinweber that she "wanted union representation," and that she "wanted to go call my union representative." As she was getting up, Beck testified, Leinweber told her that "if you leave you had been made before the interview, and the interview was solely for the purpose of informing her of the disciplinary decision As noted, it is un- necessary to decide this issue unless Ms Beck made a request for the presence of a union representative during the interview, however, under the Board' s decision in Baton Rouge Water Works Co, 246 NLRB 995 (1979), the argument would seem to have little validity, inasmuch as the Respondent's representatives clearly went beyond merely informing Beck of the disciplinary action (indeed, by their own admission, they never in- formed Beck at all on September 6, 1984, that she was gourd to be disci- plined), and sought admissions from her which would support the intend- ed disciplinary measures Under such circumstances, an employee is enti- tled to the full panoply of protections and Weingarten 3 Sec 10(c) of the Act See Kraft Foods, 251 NLRB 598 (1980), in which the Board made clear that the General Counsel has the burden of proving that a Weingarten violation occurred Although Kraft Foods was recently overruled, in part, by the Board in Taracorp Industries, 273 NLRB 221 (1984), its holding in Taracorp was concerned with the appro- priateness of a make-whole remedy to redress a Weingarten violation, and did not address the question of the General Counsel's burden in proving that a violation occurred 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are insubordinate." Beck did not leave at that time, ac- cording to her testimony, and further conversation, which possibly can best be described as somewhat heated, took place. After some period of further conver- sation, according to Beck, she again said she was being harassed and wanted to go call her union representative. She was again told "if you leave you are insubordinate," but, she testified, she left anyway According to Beck, she went to a nearby pay telephone, where she made an attempt to call Tesch, but gave up when Leinweber came out of her office and "glared at me and didn't say a word." Beck admitted on cross-examination that she had said in her affidavit that after the meeting she was upset to the point of being hysterical, but she insisted that, while she was crying and upset, she was not hysterical during the meeting and had been composed enough to remem- ber what was going on . Beck said on cross-examination that she knew when the meeting started that she could have a union representative, but she did not know the meeting was going to be a disciplinary meeting. Beck ac- knowledged that she left the meeting because she was confused and harassed, and could no longer express her- self. David Tesch testified as a witness for the General Counsel, and essentially corroborated Beck's testimony concerning her conversation with him on September 5. He said that he told her that if she ended up "getting called on the carpet for" her absences, she had a "right to union representation providing she asked for it." The Respondent called two witnesses on its behalf: Eileen Leinweber and Dolores Wassman. While their testimony agreed in some respects with that of Beck, it differed on one fundamental point. Both of these wit- nesses stated that at no time during the meeting of Sep- tember 6 did Beck ask for a union representative. Leinweber stated that she has known of the "Weingar- ten Law" for 10 years. She testified that the purpose of the September 6 interview was to give Beck a written reprimand, which had been prepared before the meeting. According to Leinweber, the purpose of the discussion was to establish an understanding on the employee's part as to why she was being reprimanded, but that the repri- mand would have been issued regardless of what she said. During the ensuing conversation, according to Leinweber, Beck became upset, started crying, and at- tempted to leave. Leinweber said she told Beck, "Please sit down. I need to talk with you." Leinweber said that initially Beck complied, but she made "allegations that I was picking on her and harassing her," and that she was upset and her voice "was not in a normal tone of voice." According to Leinweber, Beck "got up and proceeded to'leave the room in a very arbupt, upsetting manner and I told her on two occasions before her leaving that if she would leave that she would be dealing with insubordina- tion, and the second time I made the statement she was flying out the door and yelling `I am going to tell my Union."' Leinweber testified that Beck did not ask for union representation during the meeting. Leinweber repeated on cross-examination that she did not tell Beck during the meeting that she was going to be reprimanded, and never showed her the written repri- mand. Leinweber agreed that "evidently" at an unem- ployment compensation hearing of Beck, she testified that Beck's words (as she was leaving the meeting) were "I am going to see my Union." Leinweber also made mention only once during her testimony at the unem- ployment compensation hearing of having warned Beck that if she left she would be dealing with insubordina- tion. Dolores Wassman, the Respondent's assistant director of nursing, testifying as a witness for the Respondent, said that Beck did not ask for a union representative to be present during the meeting of September 6, nor did she even mention the word "union" during the meeting. Her first mention of the word "union" was as she was leaving rapidly, when she was crying and said, "I am going to tell my Union." Wassman described Beck's de- meanor during the meeting as, "she was very upset, and emotional, crying at several points." Wassman said that Beck was warned twice that if she left she would be dealing with insubordination, the last time being as she was leaving. Wassman acknowledged on cross-examina- tion that she works on a daily basis with Leinweber, and that they had had occasion to discuss whether there had been a request for union representation. The divergence between the various versions of the events of September 6 offered by the witnesses for the General Counsel and the Respondent is too great, at least with regard to the question of whether or not Beck requested the presence of a union representative during the interview, to permit any form of reconciliation. It is plain for all to see that Beck, on the one hand, and Lein- weber and Wassman, on the other, cannot all be telling the truth about what was said, or not said, by Beck during the interview. I reject as unsupported by the evi- dence the Respondent's suggestion that Beck might have been too hysterical at the time to now be able to recall what she said. Beck emphatically denied that was the case, and adamantly maintained that she did recall what she had said, and that what she had said on two occa- sions during the interview was that she wanted a union representative to be present. The unpleasant truth is that either Beck or Leinweber and Wassman gave false testi- mony. The problem, thus, is how to determine, if that is possible, who is telling the truth. I find the testimony of David Tesch to the effect that on September 5 he told Beck that if she was "called on the carpet" for her absences, she had a "right to union representation providing she asked for it," to be entirely credible. I further find that it would have been reasona- ble for Beck to conclude very early in the September 6 interview that her conduct was being called into ques- tion, and that disciplinary action against her was a dis- tinct possibility. Under those conditions, it is quite plausi- ble that Beck would have wanted, and voiced her desire for, a union representative to be present to advise her. While Beck did give the appearance on the witness stand of being a somewhat emotional, and excitable, person, I find no basis for concluding that even in a very stressful moment she is prone to so lose control of herself that she is unable to comprehend, and later recall, her actions Fi- nally, I find that her credibility was not impeached to BETHEL HOME, INC any significant degree by Respondent during cross-exam- ination. But offsetting, to some degree, the positive credibility findings is the fact that Beck is hardly a disinterested witness. She, of course, as the alleged discriminatee, has a great deal at stake in the outcome of this litigation, in which the General Counsel seeks for her reinstatement to her previous employment and backpay4 and, thus, there is an obvious motive for her to give testimony fa- vorable to her cause, without regard to the truth, if nec- essary Much the same kind of analysis may be made of the testimony of Respondent's witnesses Eileen Lemweber and Dolores Wassman. I find that Leinweber was gener- ally aware of an employee's rights under Weingarten. Crediting her testimony that the discipline to be adminis- tered to Beck on September 6 had already been deter- mined before the interview began, and that it consisted of a written reprimand, and not discharge, there would appear to have been little to gain by denying any request by Beck for union representation, other than to exacer- bate the situation. Reflecting favorably on the credibility of Leinweber and Wassman, they are both professional women, apparently in good standing in their profession, and their credibility was not impeached to any signifi- cant degree on cross-examination.5 But, as is the case with Beck, neither Leinweber nor Wassman are disinterested witnesses. While there is no evidence that their jobs are at risk as a result of this inci- dent, neither can it be expected that either of them would want to have to admit to their employer that Beck is telling the truth concerning the events at the 4 Beck was terminated, as the final step under the Respondent's pro- gressive discipline system, for insubordination in the form of leaving the interview of September 6 without permission If, as she testified, she left the meeting to get a union representative, after twice asking for and being refused one, it is clear that she was discharged for asserting her right to representation Under the Board's recent decision in Taracorp In- dustries, supra, a make-whole remedy is appropriate if an employee is dis- charged or disciplined for asserting the right to representation 5 I do not find it significant that Lemweber testified that as Beck was leaving the interview of September 6, she said, "I am going to tell my Union," but that in "grievious testimony" in the course of an unemploy- ment compensation proceeding involving Beck , she said that Beck's words were, "I am going to see my Union " In context, the difference in meaning appears slight and, in any event, neither expression constituted a request for the presence at the interview of a union representative Nei- ther do I find it significant that Leinweber may have related during the unemployment compensation hearing only one occasion of having warned Beck that if she left Lemweber would be dealing with insubordi- nation The testimony by Lemweber is ambiguous and does not preclude that she may have given the same warning more than once 157 September 6 interview and they are not. Both Leinweber and Wassman have had ample opportunity to discuss their testimony with each other and eliminate any poten- tial conflicts, and both have a natural motive to want to present their behavior to their employer in the light most favorable to them. On balance, I find no reason of record, or, for that matter, based on the demeanor of the witnesses, to con- clude that Beck is a more, or less, credible witness than Leinweber and Wassman. The fact that the Respondent has presented two witnesses who were present during the interview of September 6 to the one presented by the General Counsel is a matter of no significance. It is the quality of testimony, not the quantity of witnesses, which is determinative. Here, the only witnesses to what tran- spired were interested parties to the events; there were no unbiased, disinterested witnesses, whose testimony might be given greater weight because as witnesses, they lack any reason to give false testimony. Only by giving the witnesses for one side or the other in this case the benefit of the doubt can it be said that there is a prepon- derance of evidence in favor of either side. A determina- tion of credibility must be based on objective, articulata- ble facts and observations; mere speculation and conjec- ture are insufficient. Under the circumstances, where the General Counsel's witness is not significantly or appreciably more credible than the Respondent's witnesses, and there is no other convincing direct or indirect evidence concerning the disputed facts, I conclude that the General Counsel has failed to sustain her burden of proof in establishing by a preponderence of the evidence that Beck's Weingarten rights were violated on September 6, 1984, by Respond- ent. Therefore, the complaint must be dismissed. CONCLUSION OF LAW The Respondent did not violate the Act in the manner alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The complaint is dismissed in its entirety. 8 If no exceptions are filed as provided by Sec 102 46 of the Board's 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