Tcc Center Cos., Inc.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TCC Center Companies, Inc. and Jimmie Handley- and Rickey A. Carr, Sr. Cases 7-CA-20487 and 7-CA-20321 31^ May 1985 DECISION AND ORDER, By CHAIRMAN DOTSON AND, MEMBERS HUNTER AND DENNIS . On 27 July 1983 Administrative Law Judge Frank H. Itkin issued the attached decision. The General Counsel filed exceptions and a supporting brief on behalf- of 'Charging Party Carr, , and the Respondent filed 'an answering brief. Charging Party - Handley filed exceptions on his own behalf, and the Respondent filed a motion in opposition to those exceptions. i - The Board hash considered the decision and - the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings-,,and conclusions2 and to adopt the -recommended Order. - - ORDER .. The recommended Order of the administrative law judge is adopted, and the complaint is dis- missed. In view of our decision to adopt the judge's conclusions regarding Charging Party Handley's discharge, we -find it unnecessary, to rule on the Respondent's motion 2 The judge reasoned that, under the 'circum'stances, 'Charging Party Carr's request that his attorney be present during an investigatory , inter- view 'was not protected concerted activity and therefore the Respondent did not violate any Sec 7, rights by refusing the request -For the reasbns articulated in-Sears, Roebuck & Co, 274 NLRB 230.(1985), we agree that the Respondent did not violate the Act by refusing Carr ' s request FINDINGS OF FACT I., THE EMPLOYER'S. DENIAL OF EMPLOYEE CARR'S REQUEST TO HAVE AN -ATTORNEY PRESENT AT HIS INVESTIGATORY INTERVIEW Respondent Employer operates and manages the Gen- esee Valley Shopping Center in Flint, Michigan It is ad- mittedly an employer engaged in commerce, as alleged. Employee Carr testified that at 5 a.m. on January 30, 1982, he was telephoned by' his Employer, Respondent, and asked: "Would you. like to come in for snow remov- al?" He replied: "No, I wouldn't." He was not scheduled to work that day: Later, on February 2,_ Carr had the following telephone conversation with Gary Hawes, the% Employer's facility manager: [Hawes] said, "I want you [Carr] to know that you are on a phone amplifying system and I am sitting here with Jim Henderson, and you are hereby sus- .pended until February 4. at 11 -o'clock, so we °can conduct an investigation to see how come you didn't come to work on the 30th." Carr, as he further testified, then telephoned his personal. attorney, Philip Dulmage. Carr_ explained: "I telephoned the attorney that's handling a Workmen's Comp case for- me to explain what, happened." Dulmage,agreed that ."he would accompany [Carr] to that investigation." • , . . Thereafter, on February 4„ 1982, Carr and Dulmage- went to Respondent's facility. Carr recalled: [W]ell, at 11 o'clock Lorraine Latour [the personnel manager],came out to ask me if I -was' ready for my investigation and . . Mr. Dulmage said, "Would it be possible for me to come in with Ricky for this investigation?" And Lorraine, Latour said, "No, it won't. This is dust an investigation, it's not posse- - ble." • • 'r,t DECISION FRANK H. ITKIN, Administrative Law Judge. ;Unfair : , t labor practice charges were-filediin the'above cases--on February 17 'and April 1, and an amended consolidated complaint issued on June 3, 1982. The General Counsel alleges that Respondent Employer' violated Section 8(a)(1) of the National Labor Relations Act by denying'-:' the request of employee Rickey A. Carr Sr. that his at- torney be permitted to attend an, investigatory interview which the employee reasonably believed ' might result in discipline; The. General Counselfurther alleges that Re- spondent Employer also violated Section 8(a)(1) and (3) of the Act by'discharg'ing employee JimmieHandleyrbe- cause of his union and protected concerted' activities. Re- spondent Employer denies, inter. alia, violating the' Act as alleged. A hearing was, conducted 'in Burton,, Michi- gan,, on April 27 and. 28, ,19,83. •Ori the entir .,record, in- cluding my observation of the demeanor of the wit- nesses, and after due consideration of the briefs filed by counsel, I. make the following, Carr-was advised by Dulmage to go in' alone, because "you're going to get fired if you don't." Carr went into the conference room where he "was asked, a lot of ;ques- tions on how come [he] didn't come to work on the 30th for snow removal." Carr was then told "they would con- duct an investigation and would be getting back with" him. Later that same day, Supervisor Robert Kleinbrobk telephoned Carr and instructed him to return to the facil- ity.-There; Carr was notified that lie 'had been tehninated 'for failure 'to carry out a reasonable order by a manage ment representative during. an emergency ; , . (See' . G.C. Exh. 2.) i . Lorraine' Latour, Respondent's personnel' director `and manager and'later_vice president of pe'rsonnel'operations, testified that on -February' 4, 1982 , 'she walked out to, the "waiting area" to get, employee Carr for„_his meeting; Carr introduced his _ attorney • Dulmage - to her;" and .Du1= ' . mage •asked'for "a- few minutes' to talk [ta her] about the problem 'we're` having "with' the' Workmen's-' Comp. check " She responded: "Yes, when I get done with'Mr Carr . . . ." Later, she did meet with-Dulmage and Carr about the check. . _ . • - -. . 275 NLRB No. 85 TCC CENTER COS ' Philip Dulmage, an. attorney, testified on rebuttal that his client, Carr, requested that he appear with him at the meeting with Respondent on or about February 4, 1982. Dulmage explained ,that the "purpose" of his .'going over there" with Carr was to sit in on the nieeting with regard to inquiries which were being 'made about him not appearing for an emergency . . . and also to discuss a pension problem whatever it was. Dulmage, prior to the meeting, ' assertedly informed' Latour "that. I wanted to sit in , on the meeting that she' was going to have with Mr. Carr, and she said that I ab- solutely_ could not attend the meeting . . ." Dulmage later met with Latour pertaining to the pending "Work- men's Comp." proceeding.' II. THE DISCHARGE OF EMPLOYEE HANDLEY Employee Handley- testified that he started working at Genesee Valley Shopping Center' in April 1973,. when the facility was operated and- managed by Dayton Hudson Properties. Respondent Employer took over op- erations at the facility about October •1980. Handley was classified as a "ground - and building 'maintenance and heavy equipment operator." On November 20, 1980, shortly after Respondent took over operations of the facility, Handley, as-he testified, gave a memorandum to Personnel Director or Manager Lorraine Latour requesting•"permission to speak'with Re' spondent's regional vice' president Robert Jenkins. (See G.C. Exh. 3) Later, about December 8, 1980, Handley again "turned a document into the" -Employee's- facility manager, stating, inter aha. . .' . " I'Jimmie L. Handley would like to talk with -you [Robert' Jenkins] abut the following subjects: A. Miss-use of authority by a supervisor and per- sonnel director. B. Company benefits being" with-held from an' employee. - , C. On-the-job discrimination. - ' See General Counsel's Exhibit 4.2 - Gary _ Hawes, !he -facility manager,- called as a surrebuttal -witness, claimed that . on February - 4, "I„did not hear him " [Dulmage] say- he, wanted to"'sit in on the discipline part -of the meeting Hawes was' present in the lobby reception room phor,to' the meeting=- I credit the testimony of Carr and Dulmage as summanzed ' above Their testimony is in'pertinent -part -mutual ly , corroborative Hawes' testis mony is incomplete and unclear Inlshort, ' I am persuaded here , that Dul; mage, as he testified , requested an ,opportunity' to be,present at his client's investigatory inter'vie'w and his request was aenied by Latour't Insofar as -' Latoiir's 'testimony'differs with the "above testimony of'Carr ahd pai=ticu=' larlylDulmage, I credit the,iatter as more ' reliable, c^niplet and' trust worthy I do;not believe Dulmage, an attorney , would ;go to such a meet ing or interview with his client and, as claimed, by Latour,,not request; to, be present . - , . 2 Handley explained that he had requested a meeting with Jenkins in November 1980, "I; didn't -get no response in November so I ,put [it] in • again in December t ' 605 Thereafter, about April 29, 1981, Handley, as he fur- ther testified, received a memorandum from manage- ment, reciting, inter alia: . This correspondence is in reference to the disci- plinary action where you received three days-with- out pay. It has been determined that you will , as compen- sation for this action, • receive three paid days off .. . Also be advised that your' file has been purged as of April 3, 1981, and that the record of the 1979 disciplinary action no longer exists. See General Counsel's Exhibit 5. Handley explained that "in November 1979," long before Respondent Employer took over operations of the facility, "I lost two days pay for sick days that they re- fused to pay me for, and then I was given three days off by my supervisor Bill Bushaw . . . and that's what this was about." The above memoranda or documents (G.C. Exhs. 3, 4, and 5) principally pertain to Handley's loss of a total of 5 days when Dayton Hudson operated the fa- cility in 1979. And, about April 29, 1981, Respondent Employer, following repeated complaints by and meet- ings with Handley, decided to give Handley "three paid days off.' and purge' his file of the 1979 disciplinary action. - However, Handley's complaints about the 1979 disci- plinary action against him by Dayton Hudson Properties did not end with the above determination by Respondent Employer in April 1981. Thus, about June 18, 1981,, Handley again transmitted a memorandum to Regional Vice President Jenkins pertaining to "mis-use of position and'wage increase." This memorandum states (G.C. Exh. 6): - „ I [Handley] would like to talk with you about a personnel director, center manager and maintenance supervisor misusing their position : I als'o would like to talk to you about merit raise and work out-put. Respondent Employer, -as a consequence of Handley's June - 18;-1981 memorandum, arranged a meeting on July 20 =between Handley and Regional Director of Oper- ations' John Eisele.. Handley was given time off with pay and :mileage expenses so that he could meet with Eisele at his ;office inlDetroit . Handley recalled the meeting; as follows: ",' Well, I. [Handley], went over to see him [Eisele], ,,and ,he asked ' me- .what ; the problems were, and I told him .that I had• already been straightened out `for the time I , had missed , but I felt that'I had [to] tell somebody _over Lorraine Latour about` her misusing her position and so I showed him some uh-a'copy of the Flint Journal where the company attorney and Lorraine Latour made' a statement 'about ' firing' people '"for'' no reason at all. And -I "show'ed liini some ' paperwork 'where they gave me time off and refused me sick days and um-we sat there and ; talked awhile and he told me that this shouldn't happen. I also told him-',about Lorraine 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making a statement about wringing my neck . . . . And he said there none of that should have hap- pened and so anyway when it was over with, he told me she was wrong and that he could fire her but he wouldn't, that 'he was gonna give her an- other chance. So, um, he told me to, um, you know, that he thought she deserved another chance and I -agreed with him. But I just said, you know, I felt that somebody should know what she's doing. So anyway when I left I left the Journal over in his office and I guess that was' part of the reason he sent me the memo, because I left the Journal over at his office. - See General Counsel's Exhibit 7.3 Subsequently, during the summer of 1981, as Handley further testified, Assistant Manager James Henderson told us that we all had the opportunity to go into the office one-on-one and ask any question you want, and they would [type or] get the letters, to John Eisele, and then he would respond to them. Handley went to the office conference room to discuss his complaints in this "one-on-one" meeting. There, Handley mentioned to management, inter alia, the "new credit union deal" concerning interest on loans; the "pen- sion plan"; and "the lead man's job." Supervisor Robert Kleinbrook, present at this meeting, later called Handley "`into the office" on September 16, 1981, and offered Handley a "typed letter" to sign. This letter purportedly contained Handley's complaints related at the above meeting. Handley, according to :his testimony,-then told Kleinbrook that the "letter ... wasn't- proper," and he was then instructed to return to work.- . Thereafter, on the same day, September 16, Assistant Manager Henderson summoned Handley to -the main office. Supervisor Kleinbrook was also present. Handley recalled: Henderson "asked me, if I called Bob - Klein- brook `Bill Bushaw,' and I said no.'-'. Handley explained that Bill Bushaw was-the supervisor who in 1979 denied him 2 sick days "and gave [him] three days off on- a phoney charge." In short, Handley was being accused of calling Kleinbrook a "liar," like Bushaw; and, conse- quently, Kleinbrook wanted Handley "terminated." Handley was sent home that day.. Handley was later given- a 5-day suspension because of his insubordination, a "final warning," and placed on probation. (See G.C. Exhs, 8 and 9:)4,'- Handley apparently continued to press management for-the 2 sick days which he hid been' denied in 1979.by Dayton Hudson, Properties. Consequently,"on October 19, 1981, Manager Hawes gave Handley 'the following' memorandum '(G.C. Exh. 10): " The purpose of this memo' is for management to collectively agree on Jimmie Handley's request for, sick days supposedly lost while he was under the direct supervision of Bill Bushaw. - ' As can be noted by the attached back up memos, Jimmie Handley had surfaced a problem with Jim Henderson relative to lost time. It was collectively agreed by myself and Jim Henderson that because of the lack of back up detail available' to us it ap- peared Jimmie Handley was eligible for three paid days off which apparently had been taken from him years ago. Based on this decision, Jimmie Handley was awarded three days with pay and as far as the Center was concerned the issue was finally closed. As you will note on the attached message form dated 9-21-81, Mr. Handley'is now stating that in conversations with Jim Henderson and Bob Klein- brook he was promised. five days off and not three. At no time, through my involvement, do I remem- .ber hearing Jim or Bob talk about anything other than the three days.- that were awarded to Mr. Handley. . As far as I am concerned, additional days off are unwarranted and I am prepared to pass this message on to Mr. Handley. Those executives listed on this report, by virtue of their signature, are in agreement with the deci- sion previously detailed. Thereafter, about November 12, 1981, Manager Hawes issued to Handley the following memorandum pertaining to Handley's poor attendance record (G.C. Exh. 11); Recently the supervisor of Ground Maintenance, Bob Kleinbrook, was asked to compile data relative to the attendance records of all of the Ground Maintenance employees -At-this-time, it was discov- ered there exists an attendance problem in your par- ticular. case. It was -disclosed that you have been tardy -fifteen times since January 1, :1981.• It is also noted, however, that in only.three of these instances you were in excess of seven minutes, and-therefore in these particular cases it cost you time lost. Although company policy states an employee will only be docked for tardiness in excess of seven ,minutes, that is not to say that employees are not expected to be at their work place punched-in on time and ready -to perform :the duties of :their pose- tion. ; This ' obviously has not been the case. fifteen times in 1981 . .: - • By :virtue of this correspondence, I, am. informing you, that this (performance is 'considered, to be •unac- ceptable and, therefore, I ask that you- rectify this situation. In. the event there isia future incident of this nature you should • be prepared -for. strong ;disci- plinary action up to and including possible'termina-' Elsewhere, Handley recalled mentioning to Eisele dung their meet- ing the "union movement" as well 'as "the pension deal " 4 Handley was formally advised by letter dated -September'23, _ 1981, that "you have been suspended without pay for five scheduled working days" as a result of the September 16 incident, and the "conditions of your return to work will mclud_ e,a probationary time penod,,mcludmg a final warning " (See G'C Exhs 8 and 9) - tion. t-a_ Employee Handley next testified that during' "early November" 1981, he became "interested" in the Union,, Local 3383, :Retail, Wholesale and- Department'-Store Union, AFL-CIO. He"discussed the Union with cowork` . TCC CENTER COS. ers; he attended meetings ; and he signed a union mem- bership card . He also solicited the union memberships of his coworkers. A representation petition was filed with the Board's Regional Director about November 9, 1981, and an election was held on January 7 , 1982, which the Union lost. Handley then served as the Union's observ- er.5 Following the representation election, about January 19, 1982; Handley prepared a "message " to Regional Vice President Jenkins concerning "on the job discrimi- nation and mis-use of positions," reciting therein: I [Handley] would like to prove to you the fol- lowing people are doing this. Lorraine Latour, Gary Hawes, Jim Henderson, and Bob Kleinbrook. (See G.C. Exh. 12.) This complaint assertedly pertained to Handley's shift assignment and "overtime." Thereaf- ter, on February 16, 1982, Handley received - the follow- ing memorandum from Jenkins (G.C. Exh. 13): Upon receipt of your memo ; I' have reviewed your record as an employee of our Company in order to try to understand your continual dissatis- faction and your - constant complaints about all the Supervisors you have come in contact with. Upon each complaint , .a careful review was con- ducted, and, in my opinion, every effort was made to correct your attitude :and • clear up, any misunder- standings,. so that we could get on with our business of running - shopping centers. Just look -how `many 'times your negative attitude and -attendance, : has been discussed with you. _ ! = In my opinion, the people you are now complain- ing about are not capable% of on-the job discrimina- tion or misuse - of their positions,' as evident by their records. However, on' the other hand, your record is an indication of the type'' of -employee - that you have been , and this -must ; be•'corrected'. =Your com- plaints are disruptive and are never -well-founded" or carefully thought out, but borderline on {harassment of • our efforts to have, good working conditions for all employees. - - • . We have high employee standards that we expect from all of our employees and will continue to demand that you meet these standards by being an employee capable • of performing to the satisfaction of management. I would also like to take this op- portunity to remind you of the fact , that -employees should' not make demands on ! the Company; but rather make requests. This -memo, should, clarify 'for you ,whavis:-expect- ed of, you as .an: employee • and jthat'you. will make 6 Management,' d'unng the preelection 'campaign,-stated its position to the -employees' on uniomzaation at 6ne or more meetingsE 'At one such meeting, when Manager ; Hawes was- explaining "how.-falr'management treated their employees," Handley asked him [Hawes] if Management treated their employees so fair why would they deny employees sick days and why would they give the employees -the time off when a supervisor' lied on him' '' - Hawes "didn't want to talk about it " At another such meeting, Handley also related other.complaints., pertaimng,,to , his . !'shift';, assignment,. and again complained about his 1979 denied "sick days "^. 607 every effort to correct your . consistent . bad habits which will not be tolerated any longer. Subsequently, on February 23, 1982, Handley failed to report "to work as scheduled at •6 a :m.- Instead, he. tele- phoned the facility about 5 minutes before his starting time, and "asked [Foreman Clayton MacDonald ] could I use a personal -day .- ..." Handley wanted the day off because' he" had to • commit his" brother that day to a mental institution., (See G.C. Exh. 17.) Handley asserted- ly told MacDonald "what [he] had to 'do, and [MacDon- ald] 'said he: couldn't okay . it." Later that day,' about noon, Handley again telephoned , the 'Employer and was then advised by Manager Hawes - ... that they had tried to get in touch with me all morning, that I was suspended pending an investiga- tion. Handley assertedly told • Hawes "the reason I hadn't come in .. • ." He was instructed to report to the facili- ty on February 25, 1982. Also see General Counsel's Ex- hibit . 14,, the -telegram sent to employee concerning his_absence from 'work: Handley, as he further testified, met, with Latour,. Hawes, Henderson, and Kleinbr6ok 'on February 25, 1982. Handley testified: Well,- Lorraine Latour•- asked me.why-I didn't come to' work on the 23rd,;and'I told her why. I told'her that'I had to go'to court with my-father in order to get a statement to have my brother lcom- r mitted without`-his signature. And then she ' asked • me how can' I. prove this, and I - told her. I 'could Iget 'a'statement from- the court , and a statement •froin, the mental - hospital . And she asked • me, did -I call Bob,' ;Mack or Ted at home' to. use - a' personal day or a 6,-i sick day, and.I'said, ''No;:the -company -procedure is 1, to' call - the- Center." So .then .: she = asked',:me,-• um, -:.i-°'t!What did: you and --Ted talk =about - on= the.: tele- phone?" ,Ted. is the lead man in • the maintenance' room, and I . told- her I didn't think that had nothing to-do' with - my-calling iii - and using a personal day. .-,.,,and : then ,she asked - me something about, "Why, don't .you just get up- and leave," and I said, "No, I ,can't- leave unless , you tell me to ." And she said; "Go- ahead; .and', leave • and come back, at • 10:00 'o'clock." .,,So,, I,come back. • She:,asked me .something about did I think <_ I-.wassmart pr, some- thing, and I said,, "No," but I think that's= about; it. Handley 'was later' advisedto- report on: March d. ,(See, G-C. Exh. 18'.);'Manager ''-Hawes then: notified-Handley that he` was terrninated:" "for repeated tardiness ; and/or absenteeism . (See G.C. Exh. 19.) Handley , took an "appeal" from this determination to Richard Mun'son,•'a representative of upper management . (See G.C. •Exh.- 21.) Munson,' --after " 'reviewingHandle record" 'rejected Iasi. Handley's request to. reverse 'his fining; (See R . Exh. "2.) John Eisele, a regional director of operations for Re- spondent, recalled his meeting with Handley during July 1981' The meeting lasted , about .2'houis and -the'subjects 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of discussion were principally of an "individual nature," i.e., Handley's complaints about "past management prac- tices; his sick days; certain probations that he had been on relative to losing time; and some of the benefit con- cerns that- he had." Eisele also recalled that Handley mentioned the "Union movement " at this meeting in connection with "a newspaper story." Eisele denied, inter alia, various statements attributed to him by Hand- ley in his testimony, as recited supra. Eisele further ' testified -that he was later made aware by Facility Manager Hawes "about Mr. Handley's at- tendance and tardiness record." Eisele - explained: "They [the facility] had- completed a review of all employees absenteeism and tardiness, and his [Handley's] stuck out ... ." Eisele reviewed Handley 's file and then asked - Assistant Manager Henderson for a "report." See Re- spondent's Exhibit 7, the report dated November 19, 1981. (Also see R. Exhs. 8, 9, and 10.) Eisele, after re- viewing this report, ... went and talked with Lorraine Latour . . . and asked her why we had placed Jimmy Handley. on probation, why after all of this activity had we just not faced the music . . . I wanted to terminate his employment because of the results of his record Latour explained to Eisele that Handley 's cited activity had been, "somewhat tolerated in the past" and, there- fore, Handley was, at this time; only being placed on probation-' • Lorraine Latour, personnel director and manager and later vice president of personnel operations , recalled the February 25, 1982 investigatory meeting with, Handley. Also present- for management were Hawes , Klembrook, and-.Henderson. Handley,told -Latour that his "brother had 'gone nuts :.. tried to attack his father, and . they had to call the police . . . and this was supposed to have taken place the-,night before the 23rd .. :." Latour asked Handley why, he did not "call in", earlier, and Latour "asked him if he could please verify what had taken place the night before." According to Latour, "at that point, he became very :hostile and said no,- I was delving into his personal business." Latour "asked Hapd- ley, if he had known- ... about it the night before why didn't he call someone, and he said he just didn't call anyone . . . he was going to call in the morning .. " Management, shortly. thereafter, determined to recom- mend that Handley be fired. ' Clayton MacDonald, -employed as 'a ',`work leader" and foreman bye Respondent, testified that he was a fore- man during the above sequence involving Handley. Mac- Donald recalled that Handley had telephoned him about 10 minutes before . his 6 a:m. starting time on February 23, and said: ."Mack,* I have. got to _have a personal day " MacDonald explained to Handley : • "I can't au thorize it .. ':." Handley did not show up. As 'a conse- 6 Eisele also recalled that he met with the Center employees about late December 1981 ,At the time, Handley "brought -up again personal prob- lems with his sick days - He said that he was mistreated with refer- ence to them . " Eisele informed Handley that the "decision" per- taimng 'to these matters "had been made " ' • ' ' quence, MacDonald was short of working personnel that day. (See R. Exh. 11, MacDonald's memorandum of this conversation.)' On cross-examination , MacDonald was asked if Handley, during their . telephone conversation, mentioned "his brother," "the police department," or "going to ' court." MacDonald testified that Handley did not mention the above subjects. Robert Kleinbrook, supervisor for Respondent, testi- fied that about August 1981, "I received a direct order to have all my employees come in and write down what their problems may be with the pension plan or the credit union ....".Consequently, Kleinbrook met with all of the employees, including Handley, in separate meetings. During Handley's meeting, about August 6, 1981, Handley mentioned "problems with - the pension plan." Later, about September 16, 1981, Kleinbrook again met with Handley . Kleinbrook then showed-Hand- ley a letter of his complaints or problems which would be transmitted to Eisele. Handley read the letter and re- peatedly said: "[I]t was all a lie, just as I was s -a liar about his two sick days." Handley was ultimately sent back to work. -Kleinbrook apprised his superiors that "I had been called a liar and that it was over his [Handley's] sick days once again." (See R. Exhs. 12, and 13.) Handley was given a 5-day' suspension' and put - on probation for 6 months because of insubordination. Kleinbrook also attended Handley's investigatory interview on February 25, 1982. He corroborated in sig- nificant part Latour's testimony to the effect that Hand- ley, when questioned "where -he went during that time," "refused to answer any of the questions saying it' was none of our business ...' :" On ' cross-examination, Kleinbrook explained: ' Latour asked Handley . for "proof," and "he didn't feel it-was any of'our business Gary Hawes, the facility manager, 'explained • that he met with employee "Handley about September- 23, 1981, and then gave him, a 5=day 'suspension and a - 6-m6nth probation and a "final warning" because -of his insubordi- nation. (See G .C. Exhs . 8 and 9.)- Hawes also explained that later, about October' 19, 1981, he prepared 'General Counsel's Exhibit 10, concerning Handley's "lost time" in 1979. Hawes had agreed to give Handley "three paid days off '; Handley, however,, was still unsatisfied;, and "additional days [were] unwarranted .l.. ,"' .(Ibid.) Handley was apprised that Hawes "had gone . as far as [he] -was going to go." Handley 'nevertheless' still, persist- ed in his complaint "on a regular basis." H_ awes also identified General Counsel's Exhibit 11, dated November 12, -1981, pertaining to Handley's' poor attendance record. Handley was then warned : "In the event there is a future incident of this nature you should be prepared for strong disciplinary: action up to, and including possible- termina- tion." Finally,' Hawes recalled that! at the' February 25, 1982 investigatory interview of Handley, Latour-asked Handley: to, explain or, verify the details of his version of what had transpired and _ kept him, from reporting, for work.. Handley replied: "You're getting into my 'personal ° R . Exh 10 is also MacDonald's memorandum- of an ,earlier incident in October 1980 involving Handley's tardiness. TCC CENTER COS 609 life." Hawes later recommended termination . Later, on March 4, Hawes apprised Handley that he was fired. (See G.C. Exh. 19.)8 III. DISCUSSION A. The Weingarten Contention. _ Section 7 of the National Labor Relations Act guaran- tees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ... ." Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, re- strain, or coerce'employees in the exercise of" their Sec- tion 7 rights. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Su- preme Court affirmed the determination of the Board that an employer violated Section 8(a)(1) of the Act' by denying an employee's request that.his or her union rep- resentative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action. Later, in Anchortank, Inc., 239 NLRB 430 (1978), enfd. in part 618 F.2d 1153 (5th Cir. 1980), the Board explained that this Section 7 right is also appli- cable "when the union has been selected by a majority of employees in a Board-conducted election, but had not yet been certified as bargaining representative .. . . The Board noted: "Their request was an exercise of the right guaranteed to them in Section 7 ,to act in concert for mutual aid and protection. In these circumstances, the status of the requested representative, whether it be that,of union not yet certified, or simply that of fellow employee, does not operate to deprive the employees" of their Section 7 right. Subsequently, in Materials Research Corp., 262 NLRB 1010 (1982), a divided Board (former Member Fanning and Members Jenkins and Zimmerman, with former Chairman Van de Water,and Member Hunter concurring and dissenting) held that the Weingarten principle -is ap- plicable where an employee requests that a coworker be present at such an investigatory or disciplinary interview even though the employees involved are not represented by a union. The Board majority explained that-the "right to request the presence of a representative at an investi- gatory interview flows from the Section 7 right of em- ployees to engage in concerted activity, for mutual aid or protection and does not1depend upon' the' representation- al status of a particular group of employees.. . ." The Board majority stated: [A] request for the assistance of a` fellow ' employee is also concerted activity-int its most basic- and ob- 8 1 credit the testimony of John Eisele, Lorraine-Latour, Clayton Mac- Donald, Robert Kleinbrook, and 'Gary Hawes as detailed in this section. Their testimony is in large part mutually corroborative and substantiated by uncontroverted documentary evidence On the other hand, the testi- mony of Jimmie Handley was at times incomplete , vague, evasive, and unclear. Insofar as the testimony of Eisele, Latour, MacDonald, Klein- brook, and Hawes differs with the testimony 'of Handley' I• am persuaded here that the testimony of the former witnesses is more reliable ' ' vious form-since employees are seeking- to act to- gether . . . . Compare E. I. du Pont & Co. v. NLRB, 707 F.2d 1076 (9th Cir. 1983), and cases cited. However, in McLean Hospital, 264 NLRB 459 (1982), the administrative law judge held, inter alia, that "em- ployees have no statutorily protected right to be repre- sented at investigatory, and/or disciplinary interviews by their private counsel from the outside. Representation by private counsel is not tantamount to union representation within the rule of Weingarten, nor does representation of an employee by private counsel constitute concerted, ac- tivities within the purview of the Act as construed in Glomac Plastics, Inc., 234 NLRB 1309 (1978)." The Board, in sustaining the administrative law judge's dis- missal of the complaint in that case, did not reach or dis- cuss this specific question. In my -view, a request by an employee, under the cir- cumstances present here, that his or her private attorney be present at an investigatory and/or disciplinary inter- view is not protected concerted activity. The employee, Carr, was not acting together with other employees in this respect for their mutual aid or protection. He was, instead, seeking the personal and private assistance of his own attorney when faced with possible loss of employ- ment. I therefore would dismiss this allegation because employee Carr was in fact not deprived of any Section 7 rights. See Teamsters Local 14 (Consolidated Casinos), 266 NLRB 988 at 1002 (1983). B. The Firing of Employee Handley The credited evidence of record, as detailed supra, es- tablishes here that Respondent Employer, in terminating employee 'Handley about March 4, 1982, was not moti- vated by the employee's earlier union or other protected concerted activities as alleged in the complaint. Instead, the Employer, in taking this final action, was motivated solely by the employee's repeated and well documented acts of insubordination, poor attendance, and, finally, his unwillingness to cooperate with management in the in- vestigation of his last failure to report for work as sched- uled. Employee Handley had been warned repeatedly about his attendance record and his insubordination and harassment of his superiors. He ignored management's ef- forts to work with him in an attempt to improve his at- tendance and attitude. He was placed on probation and issued final warnings by management. Finally, when he failed to show up for work as scheduled on February 23, 1982, following an investigation in which- the employee failed to cooperate, he was fired. It is true, as the General Counsel argues, employee Handley was an active union supporter and served as an observer in the prior. election. It is also true that during his ' many complaints to management over the years, sub- jects pertaining to employee terms and conditions of em- ployment were mentioned. However, the credible evi- dence of record here 'persuades me that Handley's union activities played no role in his firing. Likewise, Hand- ley's alleged "concerted activities" were not a reason for this ultimate disciplinary action. There is no evidence of 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD animus here.' Indeed,' Handley -was apparently active in a prior attempt to unionize the facility. Further, his repeat- ed complaints over the years to 'management by and large pertain to his loss of 2' sick days and 3 days'. of sus- pension -in 1979 when, the' facility was - operated by Dayton Hudson. And, later, when Respondent Employer attempted to resolve and finally put to rest this old dis- pute by compromising Handley's claim, Handley re- newed his complaints,', harassment, and insubordination with greater intensity. Handley's conduct; in this respect, was related to 'purely personal complaints and cannot, on this record, be reasonably regarded as union or concert- ed activities protected' by Section '7 of the Act. I there- CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as alleged. 2. Local 383, Retail, Wholesale and Department Store Union, AFL-CIO is a labor organization as alleged. 3. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent Employer has violated-the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I .issue the following recommend- edt,° - fore would dismiss this 'allegation 'of the complaint .9 - ORDER 9 In any event, assuming that Handley's union or other alleged "con- certed activities" were a reason for his termination , I,would • find on this record that Handley would have been fired about March 4, 1982 , for le- gitimate or.lawful reasons (his acts of insubordination and unsatisfactory attendance) in the absence of such alleged protected activities See Wright Line, 251 NLRB 1083 (1980), enfd. 602 , F 2d 899 (1st. Cir 1981), cert denied 455 US 989 (1982), and NLRB v Transportation Management Corp', 462 U S 393'(1983). ; • ' > ^ ' - , 'f I recommend that the consolidated complaint herein be dismissed in its entirety. _ r 10 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.