L. E. Solomon, Inc.

L. E SOLOMON. INC L. E. Solomon, Inc. and Jerry T. Grant. Case 22- CA-9445 November 28, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN On August 18, 1980, Administrative Law Judge Raymond P. Green issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings,' findings,2 and con- clusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, L. E. Solomon, Inc., Hightstown, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall P-od- ucrrt Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record (continued) and find no basis for re- versing his findings. We also find totally without merit the Charging Party's allegations of incompetence and misconduct on the part of the Administrative Law Judge, nor do we perceive any evidence that the Administrative Law Judge exhibited misconduct, made erroneous rulings, or demonstrated a bias against the Charging Party at the hearing or in his analysis or discussion of the evidence Moreover, we note that the Charg- ing Party failed to present any evidence in support of his allegations 2 In the absence of exceptions to the Administrative Law Judge's sub- stantive findings, we find it unnecessary to pass on his discussion of the s(a)l) allegation pertaining to Respondent's denial of employee Grant's request for a union representative during the August 22, 1980, meeting DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge: This case was heard before me on April 28 and May 2, 1980. The charge in this proceeding was filed by Jerry T. Grant on August 22, 1979,1 and first and second amend- ed charges were filed by him on September 13 and Octo- I Unless otherwise indicated all dates are in 1979. her 5, respectively. On October 22, the Regional Direc- tor for Region 22 of the National Labor Relations Board, herein called the Board, issued the instant complaint. In substance, the issues presented were: (1) whether on August 22, Respondent threatened Grant with discipline if he maintained on Respondent's premises a notebook which he used for union business; (2) whether Respond- ent, on August 22, denied Grant's request to be repre- sented by the Union during an interview in which Grant had reasonable cause to believe would result in disciplin- ary action and; (3) whether Respondent, on August 30 discharged Grant in violation of Section 8(a)(4) of the Act because Grant had filed the initial unfair labor prac- tice charge on August 22. Based on the entire record, including my observation of the demeanor of the witnesses and the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS L. E. Solomon, Inc., is a New Jersey corporation en- gaged in the retail sale of automobiles. The complaint al- leges, the answer admits, and I find that Respondent has gross revenues annually in excess of $500,000 and that it receives goods valued in excess of $50,000 which are transported to it directly from outside the State of New Jersey. I therefore find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Based on the complaint and the answer, I find that United Food and Commercial Workers, AFL-CIO, Local 1371, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES 1. Background and events up to August 22, 1979 By way of background, the Company recognized the Union after a Board- conducted election in 1978. There- after, the Company and the Union entered into a collec- tive-bargaining agreement effective by its terms from Oc- tober 31, 1978, to October 1, 1981. The agreement con- tains, inter alia, provisions for the processing of griev- ances, including a provision for final and binding arbitra- tion. In this respect, it is noted that a grievance has been filed by the Union concerning Grant's discharge but that it has been held in abeyance pending the outcome of this case. 2 I also note that since October 31, 1978, Grant has been the shop steward for the Union in a unit generally consisting of four salesmen. However, at the time many of the incidents involved in this proceeding occurred, 2 It appears from the record that during the term of the collective- bargaining agreement, a number of grievances have arisen, most of which were settled before arbitration. The only issue that did go to arbitration was one dealing with the use of demonstrator cars and in that instance the company prevailed 253 NLRB No. 63 499 DECISIONS ()F NATI()NAL LABO()R RELATIONS BOARD Grant was the only salesman employed as the others had been laid off for ecoitomic considerations.:' On April 12. 1979, a meeting was held betwcen Re- spondent and the Union concerning a number of gries- ances. Among the issues discussed was Grant's complaint that the company as charging excessively high prices for accessories such as radios. It was Grant's contention at this meeting that the cost of these accessories made their sale difficult. Grant testified that he told the Com- pany that he was not going to sell the accessories if it meant that the sale of a car would be jeopardized. Ac- cording to Eric Solomon, Respondent's president. Grant stated that because he felt the accessories cost too much he was not going to sell them and that he intended to refer customers elsewhere for such accessories. Eric Sol- omon testified that when Grant made this statement, he told Grant that if he did such a thing, he would be fired. Solomon also testified that the union representatives told Grant that if he was caught referring customers else- where for accessories he could not expect help from the Union. On June 25, 1979, an incident occurred between Jerry Grant, Tim Proctor, and another salesman, James Wil- lingham. The testimony revealed that on that day Proc- tor left a note for Grant telling him to call a customer who had placed an order for a Datsun automobile. Be- cause the vehicle was somewhat more expensive than the order placed by customer, Grant was notified to give the customer "first refusal" on the car. (According to the credible testimony of Proctor and Eric Solomon, Solo- mon Leasing Inc., another company owned by Eric Sol- omon, had placed an order for the same car but it was decided to give the retail customer first priority for its sale.) The evidence reveals that Grant did call the cus- tomer who refused the vehicle. Upon the refusal, Grant told the other salesman, Willingham, that the car was available, whereupon Willingham took an order and de- posit from a retail customer. When Proctor returned and found out that an order had been accepted he became upset and ordered Willingham to cancel the sale and tell his customer that the car had previously been sold. Wil- lingham attempted to argue against this, but ultimately complied. In this respect, Willingham testified that he was not aware that there was a prior commitment for the car and that Grant had not told him that Grant's instruc- tion was to offer the car on a first refusal basis to his own prospective customer.4 During the argument between Willingham and Proc- tor, Grant intervened taking Willingham's side. Accord- ing to Grant, Proctor became so angry that at one point he pushed Grant. Proctor asserts he merely placed his hand on Grant's back in order to lead him out of the showroom. In any event, Grant filed an assault charge against Proctor which was heard in a New Jersey Magis- trate's Court on August 20, 1979. That charge was ulti- mately dismissed. Regarding the above incident, it is clear to me that Grant mishandled the sale of the vehicle inasmuch as he I In July 1979. the Company decided to terminate its Dodge franchise and commit itself to selling Datsuns. Although the sale of )atsuns vwias profitable, these cars were in short supply A a result of this incident, Willingham received a suspension. specifically was directed by his supervisor to give his customer first refusal, a term which means, according to all the other witnesses, and in common business parlance, that a second customer has expressed and made a specific commitment for the car. Thus, when Grant told Wil- lingham that the car was available to the latter's custom- er, the fact remains that it was not available and that Grant was acting contrary to his instructions. As such, I do not credit Grant's explanation of the incident where he claims that when his customer refused the car it was therefore available to anyone else. As such, I can only conclude that, at best, his actions were negligent, and at worst they were insubordinate. As to whether Proctor pushed Grant, it is not necessary to resolve that question although on demeanor grounds I must say that I was not particularly impressed with Grant's credibility and would accept Proctor's version of this event. In July, Tom Solomon, was instructed by his father, Eric Solomon, to make a survey of vehicles sold by the various salesmen to determine to what extent radios were sold with the vehicles. The survey revealed that for cars delivered to customers in April, May, and June 1979, those cars sold by Grant had the least number of radios sold with them. It must be said, however, that as the survey was based on cars delivered in those months, the survey does not define in what period the cars were ac- tually sold because there was a substantial hiatus between the time of sale and the time of delivery. The evidence also reveals that there had been an unau- thorized practice amongst the salesmen to refer custom- ers to an insurance agent named Norman, whose last name is unknown. It was established that the salesmen received from this agent gratuities for the referral of cus- tomers and that the salesmen continued to make such re- ferrals after they had been instructed that Norman would not be allowed on the premises. According to Respond- ent's witnesses, about I or 2 weeks prior to August 22, two customers had registered complaints regarding mis- representations made by Norman concerning the cost of insurance. 5 According to Eric Solomon, based on these complaints he decided to tell the salesmen, through Grant, that they were not to refer customers to any in- surance agents. On August 20, the criminal charge filed by Grant against Proctor was heard by the Magistrate's Court. Ac- cording to Grant, Proctor's lawyer asked him to drop the charge prior to the hearing. Grant stated, in essence, that he told the lawyer that he was not going to drop the charge, that there had been "many grievances and many hassles" between himself and Solomon that he (Grant) had given in before and that Solomon had burned the employees. On the morning of August 22, Grant went out to the car lot where he wrote out an inventory of the vehicles on the premises and, where cars had been sold, the name of the person who had made the sale. According to Grant, he did this because he wanted to see if there were sufficient cars available to justify the recall of the laid-off ' Apparently, in ne instance, Norman had advised a customer to lie about her marital status and hen the insurrance company discovered that she .as silgle, her premium as raised 5(X) I ti S()OL ()OM()N, IN(. salesmen and because it was his opinion that the manag- ers were making sales.' According to Grant, about 9:1() a.m., Proctor came out to the lot and asked him what he was doing. Grant stated he told Proctor he was making an inventory and that Proctor asked him "for what.' Grant stated he told Proctor that there were men on layoff and that man age- ment was selling cars. Grant testified that Eric Solomon then came out to the lot, told him to get his ass into the showroom and when Grant asked if this was going to be a reprimand, Solomon stated "its going to be a lot more than a reprimand." According to Grant. he told Solomon that he wanted to call Bordentown ' to have his union representative present, which request was denied by Sol- omon. Grant stated he told Solomon that he would go to the meeting under protest. At the meeting on August 22, the people present were Grant, Eric Solomon, Tom Solomon. Proctor, and George Howarth, the service manager. Although there is some agreement as to what took place at the meeting, there also is significant dispute on a number of points. According to Grant. Eric Solomon started out by mnien- tioning the remarks in court on August 2(), stating that Grant had said that he was going to burn the Company. Grant stated that Solomon then said, "Well, I'm going to burn you," to which Grant responded that he did not want to get into this as he had no one to represent him. According to Grant. Solomon said "You will never again go to any court, police officer, or any place else and make a complaint, or say anything had about any of the company managers .. ." Grant also stated, in this regard, that Solomon said, "You will never again give testimony out in the open, public court, or any place else." Grant stated that at this point he said that his stomach hurt, that he wanted to leave and that he told Solomon that he did not want to go on with the inter- view without a witness. According to Grant, Solomon told him, "I'm going to tell you what you're going to do. Now you can make your future brief stay with us as pleasant or as difficult as you like." According to Grant, Solomon stated that he could not leave until he (Solo- mon) was finished and that he continued by saying, "I'll tell you what you're going to do. You're going to sell a hundred percent of all the accessories on a hundred per- cent of all your cars." When Grant said that this was im- possible, he stated that Solomon said. "Well, its going to be at least seventy five percent." In addition to the above. Grant testified that at this meeting he was told that he no longer was to use his business cards,' that the customers were not his, but the Company's, and that the notebooks he kept were to be taken off the premises. 9 He stated that he told Solomon I The cotllecive-bargaining agreements set forth at art XVII conllain limitations on the retail sale of vehicles by management 7 The Union's office is at ordentown, New Jersey, which is about a 10-minute drive from Respondent's premises 8 Grant had business cards printed for hi, own use at his ovn expense These cards prominently stated that the Company was a union shop 9 Grant kept two notebooks at work Both notehxks were used record any events that occurred at work .hach iln olved himself, the other employees, the Company, or the l'nilt Grant testified that the reason he kept these hboks was to protei himself in the erent he hld remember any incident hat occurred al ork According ti (tir.in. he that he would keep the notebooks in his car to which Solormon said that he did not want them on the property and that he would fite ( rant for inlsubordination if they ,were on the properrty Gratil further testified that al- though he did not recall the subject of insurance being raised at the meeting, it is possible that on this occasion he was told that he was not to refer customers to nlsur- ance agents Itinally, Grant testified that he was not asked any questions at an, time during this meeting. According to ric Solomont he decided to have this meeting with Grant for sometime based on the insuranlce complaints described above and based oni more recent in- formation he had that Grant had referred a customer, Joseph Mazotas, to another cornpanN to buy a radio for a car sold to him by Grant. (This latter event will he dis- cussed more fully beloe.) Solomnn's version of the meet- rig is as followvs: "Well, as I said, (Granl as out in the lot with a pad and penicil and I don't recall .. . I heard testi- ony that lin I Plioctor wrcnt o(ut to tell Grant to come to the rtletiltg aind that nial hm\c beent. I don't remnethber. I said to (iraii .. I understand that you made a statement ill court that they have burned us long enough, noa it's our turn to burn them. I said \with this sort of attitude. I said. Jerry, there's no way that anything is e\,er going to work out. I sltated that atl customer who conies in our showroom i, my customler ad that I hire people to take care of my customers as I decide they will be taken care of, ad that is his job to take care of my customers the ay I decide they should be taken care of I told hinm that it is his job to sell accesso- ries and other after-sale items such as ruslproofing or polyglycoat or fabric protection or side moldings or undercoating or whatever, whatever the compa- ny offers It is his job and his obligation to sell these and I also said that I hoped he hadn't been doing anything that he hadn't ought to be doing. I said that he was not to use any forms other than those forms which were authorized by the management of the company . . . I think the way I put it was, anything on which the company name appears must be approved by the management of the company. At some point, ad it was fairly early in the meeting, he said something about, I think I want to have somebody from the Union here. I said, Jerry, I said. we are not discussing union business, this is not a disciplinary hearing. I'm tell- ing you what company policy is and I'm telling you what you're going to do if you're going to work here. At several times he tried to interrupt me and as if' he were trying to explain, and I said do not interrupt me I said, I am going to tell you what our policy is. I you have comments when I am fin- kep th e,e bWks , l hi, It-esk tIJ ritn , er li,.i',d heir contents witl a} of he 'omrpan's rInlalilgers 501 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD ished, then please tell me what your comments are, but do not interrupt me. According to Solomon, the meeting ended when Grant reiterated his statement that he was not feeling well and Grant was allowed to leave. Solomon also testi- fied that Grant had kept a log on the top of his desk, that he did not want Grant working on the log during company hours and that it was to be removed from the Company's premises. In this connection, he testified that the book he saw was the one with a cartoon picture of Snoopy on the cover, that he was not aware that there was another log, that he did not know what was in the book, and that he felt that Grant was spending too much of his time working on the book which could have been spent on his job duties. Solomon also testified that he did not threaten Grant with discipline concerning the log. In relation to the meeting of August 22, Proctor testi- fied, in substance, that Solomon said something about Grant's attitude in relation to a statement by Grant to the lawyer that "we had burned them so many times, now they're going to burn us." Proctor further testified that Solomon "went on to explain the work rules that we were to live by, namely about insurance, about not pro- curing insurance for anybody." Additionally, Proctor testified that Grant was told that anything with the com- pany name required approval by management, that Grant was to remove a notebook he kept because he spent too much time on it, and that Grant asked for union repre- sentation during the meeting. Following the meeting of August 22, Grant first went to the Union and then went to the Newark office of the National Labor Relations Board where he filed the charge. The charge was received by Respondent on August 23. 2. Grant's discharge On August 30, Grant was discharged. The termination letter states: On April 12, 1979, a meeting was held at the of- fices of L. E. Solomon, Inc., between management members of L. E. Solomon, Inc. and members of the bargaining unit of L. E. Solomon, Inc., and rep- resentatives of Retail Clerks Local 1371, represent- ing the bargaining unit. Among other matters discussed at this meeting was the pricing of accessories installed by the deal- ership on new Datsuns. You made the statement that you felt that the accessory prices were too high, particularly radio prices, and that you were not going to attempt to sell customers radios, and were in fact going to advise them that our prices were too high and that they should look elsewhere to buy radios. You were immediately advised by me that this attitude and action were totally unaccepta- ble, and such activity would result in your termina- tion. You were also advised by Mr. Russo of the Retail Clerks Local 1371 that such action would be out of order, and could result in termination. It has come to my attention in the past two weeks that there were at least two incidents in which you in fact did advise my customers to buy radios elsewhere, one in April, shortly after the above mentioned meeting, and one more recently in August. Because of the nature of this incident, and be- cause of the explicit warnings given to you, both by me, and by your union representative, you are hereby terminated immediately. It is the General Counsel's position that the discharge of Grant was motivated by the fact that he had filed an unfair labor practice charge against the company on August 22. The General Counsel, in support of this con- tention, relies on the timing of the discharge in relation to the filing of the charge. Additionally, she relies on the reaction of Eric Solomon to Grant's criminal charge against Proctor wherein he allegedly told Grant, on August 22, that he was never to make any complaints about the Company's managers and "never again to give testimony" in court or anyplace else against any of the Company's management. As noted above, Eric Solomon testified that shortly before August 22 he had learned from Proctor and Howarth that Grant had referred Joseph Mazotas to an- other company for the purchase of a radio. In this regard, Mazotas testified that on two occasions, in July and August, he asked Grant about the cost of an AM- FM stereo radio and that Grant had told him that he could save a lot of money if he purchased such a radio elsewhere. According to Mazotas, Grant gave him the name of a dealer in Freehold, New Jersey, but he could not recall the dealer's name. On August 18, Mazotas took delivery of his car and, according to Proctor, he re- ceived a phone call from Mary Bruce Hikes, Mazotas' secretary and fiancee, who asked to speak to Grant. He stated that he asked Miss Hikes what she wanted, as Grant was not available, and she said that she wanted to know the name of the dealer in Freehold which Grant had mentioned for radios. Proctor stated he immediately told Eric Solomon of this call. Howarth also testified that soon after the car was delivered to Mazotas, he also spoke to Hikes and was told that Grant had referred Ma- zotas to another company for a radio. Subsequently, and on August 31, after Grant's discharge, Eric Solomon went to see Mazotas who confirmed that Grant had re- ferred him to another company to buy a radio and Mazo- tas signed a statement to that effect on September 10. It is noted that Mazotas has no personal or business rela- tionship with any persons affiliated with Respondent and had no prior dealings with Respondent before becoming a customer of the Company. Although the General Counsel asserts that Hikes was a friend of Howarth, the evidence only establishes that she was a prior customer of the Company who used Respondent's service depart- ment for her own car. Another customer, Robert P. Adams, also testified that Grant had told him it would be cheaper to buy an AM- FM radio with a tape deck from someone else rather than Respondent. In this regard, Adams who had pur- chased a pickup truck, came to the Company's premises on August 25 and there is no dispute that on this occa- sion he asked Grant, in the presence of Tom Solomon, 502 L. E. SOL()OMON, INC. the name of the dealer in Freehold where he could get a radio. Grant asserts, however, that when Adams said this, he (Adams) winked at Tom Solomon who smiled in return. Grant stated that he responded to Adams' ques- tion by saying "look, I don't know what you two are up to. I don't know what you two are trying to pull, but I'm not going to be any part of it .... " In essence, Grant asserts that this was a frameup, designed to serve as a pretext for his discharge. I" As Adams and Tom Sol- omon deny the wink and smile, this therefore becomes a credibility issue of some note. In this regard, Grant testi- fied that at the time this incident occurred, he was of the opinion that it was a frameup. He also testified that the notebooks he kept were maintained by him to afford himself a degree of protection from the Company and that he therefore wrote down anything of any impor- tance which concerned himself or his job. Notwithstand- ing Grant's practice of recording any and all important incidents in his logs for his own protection, and notwith- standing his testimony that as of August 25 he was of the opinion that an attempt was being made to fabricate evi- dence against him, there is nothing written in Grant's logs concerning this incident. I am therefore of the opin- ion that this incident did not occur in the manner in which Grant testified and that his testimony regarding the "wink and smile" is an afterthought designed to ex- plain the fact that Adams did ask him in Tom Solomon's presence the name of the company in Freehold to which he had been referred. IV. CONCL.UDING FINDINGS Regarding the discharge of Jerry T. Grant, it is my opinion that the evidence in this case cannot support the allegation that he was discharged because he had previ- ously filed an unfair labor practice charge against the Company. In this respect, the credited testimony of Ma- zotas and Adams, who I view as disinterested witnesses, warrants the conclusion that Grant breached his employ- ment obligations by telling them they could purchase radios more cheaply elsewhere and by referring custom- ers to another company. As such, their testimony fur- nishes sufficient basis for finding that Grant's discharge was for good cause. Additionally, they tend to corrobo- rate the testimony of Eric Solomon that at the meeting of April 12, Grant had stated that he intended to refer customers to other companies for accessories which were available from Respondent, and that Grant was warned that such action could lead to his discharge. Whatever reason Grant had to engage in such a prac- tice need not be resolved as the evidence is clear that he did, in fact, refer customers to another company. Such a practice clearly is at odds with his obligations to sell Re- spondent's products and, as such, constitutes good and sufficient cause for his discharge. As it became apparent 'O The only connection between Adams and Respondent is that Re- spondent was a customer of the company in which Adams works and which is owned by Adams' father-in-lay.. I In my opinion, both Adams and Mazotas were neutral witnesses who have no interest in the outcome of the case. As such, I conclude that it is highly unlikely that they would have incurred the risks or pe jiu ry to attain a result in Respondent's favor which is of no benefit to them- selves I therefore credit their testimony to Respondent between April 20 and August 25 that Grant was making such referrals, his discharge on August 30 was, in my judgment, precipitated by this practice and not for any other reason. I therefore recom- mend that this allegation of the complaint be dis- missed. 2 In addition to the allegation concerning Grant's dis- charge, the General Counsel alleges that certain acts and statements of Respondent on August 22 were violative of the Act. Initially, I note that with respect to the events of August 22 1 shall credit the testimony of Eric Solo- mon and Tim Proctor to the extent that their testimony varies from the testimony of Grant. As noted above, I found Grant's explanation regarding the "first refusal" incident on June 25 to be contrary to logic or common business practice and I have discredited his testimony re- garding the August 25 incident involving Adams and Tom Solomon. Moreover, I found Grant to be both ar- gumentative and evasive in his response to questions, and on demeanor grounds I conclude that his testimony lacks reliability. Therefore, crediting Solomon's version of the August 22 events, I conclude that the meeting had been previ- ously planned for the purpose of telling Grant, and through him, the other salesmen, of a variety of compa- ny policies, most specifically, the policy that the sales- men were not to refer customers to any insurance agents. I also conclude that another purpose of this meeting was to inform Grant, in no uncertain terms, that as a sales- man he had an obligation to sell the products offered by Respondent and to implicitly warn him that his failure to do so would have unpleasant consequences for Grant. Additionally, the evidence establishes that Grant was told not to use any business cards or other forms having the Company's name without prior company authoriza- tion, that he was to remove his notebooks from the Com- pany's property and that Solomon was not pleased with the remarks Grant allegedly made in the courthouse on August 20. Finally, the evidence establishes that on at least two occasions during the August 22 meeting, Grant asked for union representation, that this request was denied on the assertion that the meeting was not disci- plinary in nature, and that at no time during the meeting was Grant asked any questions although he was told he could comment when Solomon finished. On the latter point, Grant, when asked if questions were presented to him, testified that Solomon "was too busy telling me what I was going to do. I was being told what to do." Based on the above, I conclude that although Grant may have had some legitimate fears that the meeting would result in discipline, the nature of the meeting was not investigatory in nature and no information was sought from Grant pursuant to which the Company hoped to justify some disciplinary action. On the con- trary, it is concluded that the meeting was designed to transmit to the employees through Grant, the shop ste- ward, of the Company's policies regarding referrals to insurance agents and to tell Grant, with a degree of chas- 2 Having cotncluded that Grant's discharge swas not violative of the Act, it is not necessary to determine if this allegation should be deferred to arbitration 503 I)tl(ISI()NS ()t NATII)NAI. I.AB()R REI.AII()NS Io()ARD tisement, and implicit warning, what he could not do and what was expected of him as an employee. No formal disciplinary action was in fact taken against Grant at this meeting which was terminated when Grant reiterated that he was ill and was allowed to go home. The nature of the meeting of August 22 raises a sub- stantial question as to whether Respondent violated the Act by refusing to allow Cirant to have another union representative at the meeting. In A'.L.R.B. v. J. Weingar- ten Inc., 420 U.S. 251 (1975), the Supreme Court held that an employee has a Section 7 right to request union representation at an investigatory interview where the employee reasonably believes that the investigation will result in disciplinary action. In reaching this conclusion the court approved the Board's rationale and stated: The Board's construction also gives recognition to the right when it is most useful to both employee and employer. A single employee confronted by an employer investigating whether certain conduct de- serves discipline may he too fearful or inarticulate to relate accuratelg the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonethe- less that union representation at this stage is unnec- essary because a decision as to employee culpability or disciplinary action can be corrected after the de- cision to impose discipline has become final. In other words, respondent would defer representation until the filing of a formal grievance challenging the employer's determination of guilt after the employ- ee has been discharged or otherwise disciplined. At that point, however, it becomes increasingly diffi- cult for the employee to indicate himself, and the value of representation is correspondingly dimin- ished. The employer may then be more concerned with justifying his actions than re-examining them. While the Supreme Court dealt with the question of whether an employer may deny a request for union rep- resentation in investigatory interviews, it did not specifi- cally address another and older line of cases where the Board had concluded that an employer violates the Act when it denies an employee union representation during a disciplinary interview. ' Thus, it is settled that the right to union representation is held at an investigatory interview, but that such a right does not adhere to "run- of-the-millshop floor conversations as, for example, the giving of instructions on training or needed corrections of work techniques." 4 In Certified Grocery of Calijiirnia Ltd., 227 NI.RB 1211 (1977), the Board held that an employee has a right to union representation at a meeting where he is notified of "a See, fRr example, liruco Inc. Itouroi Produc-ng DI)vi)n. Ih8 NI.RH 31 (1967): (Chevrn Oil Company,. Ih NLRB 574 (19h7): J'ohc- Pearron hbrd. Inc., 172 NI RH 594 (19h8) ' Q)ualiy Mazunuat. urizmg (Crflpanl. I1' NI.R 1. 19)g 19721. disciplinary action taken against him, and that the em- ployer cannot require the employee to attend the meet- ing while refusing his request for union representation. However, the Board's decision in Certified Grocers was denied enforcement by the Ninth Circuit Court of Ap- peals. Subsequent to the Board's decision in Certified Grocers the Board again was faced with the issue in Baton Rouge Water Works Company, 246 NLRB No. 161 (1979). In the opinion filed by Board Members Jenkins and Trues- dale they stated: In Certified Grocers, the Board concluded that the Supreme Court's decision in Weingarten applied to any interview, whether labeled investigatory or dis- ciplinary, which the employee reasonably believes may result in disciplinary action being taken against him. The United States Court of Appeals for the Ninth Circuit denied enforcement of the Board's Order, as in its opinion Weingarten did not require a right to representation when the purpose of the in- terview was merely to inform the employee that he was being disciplined. We have reexamined our de- cision in Certified Grocers, and now think that case was wrongly decided on its facts. To that extent, it is hereby overruled. We now hold that, under the Supreme Court's decision in Weingarten, an employ- ee has no Section 7 right to the presence of his union representative at a meeting with his employer held solely for the purpose of informing the em- ployee of, and acting upon, a previously made disci- plinary decision. We stress that we are not holding today that there is no right to the presence of a union repre- sentative at any "disciplinary" interview. Indeed, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full panoply of pro- tections accorded the employee under Weingarten may be applicable. Thus, for example, were the em- ployer to inform the employee of a disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen's compensation, such conduct would remove the meeting from the narrow hold- ing of the instant case, and the employee's right to union representation would attach. In contrast, the fact that the employer and employee thereafter en- gaged in a conversation at the employee's behest or instigation concerning the reasons for the previously determined discipline will not, alone, convert the meeting to an interview at which the Weingarten protections apply. In summary, as long as the employer has reached a final, binding decision to impose certain discipline on the employee prior to the interview. based on facts and evidence obtained prior to the interview, no Section 7 right to union representation exists ' 587 1F 2d 449 (1978) 504 L F. SOLOM)N. INC under Weingarten when the employer meets with the employee simply to inform him of, or impose, that previously determined discipline, To the extent that the Board has in the past distinguished between investigatory and disciplinary interviews, i light of Weingarten and our instant holding, we no longer believe such a distinction to be workable r desir- able. It was this distinction which CertiJied Grocers abandoned and to that extent we still believe the decision was correct. Thus, the full purview of pro- tections accorded employees under W4 iinglarien apply to both "investigatory" and "disciplinary" i- terviews, save only those conducted for the exclu- sive purpose of notifying an employee of previously determined disciplinary action. Member Murphy concurred in the above opinion and stated: I would find an employee entitled to the presence of a representative, upon request, in any iter- view-whether called investigatory or disciplirl- ary-in which information is sought from the em- ployee. I thus distinguish between interviews to secure infirmation on the one hand, and action to impose discipline on the other. The logic behind such a distinction is readily apparent wheni consid- ered in the light of the Supreme Court's opinion in Weingarten wherein the Court observed that the function of an employee representative present at investigators interviews is to "assist the employee, and ... attempt to clarify the facts or suggest other employees who may have knowledge of them." Opportunities to give assistance which present themselves to such a representation are indeed boundless, and I shall make no attempt here to ex- haust the possibilities. Houever, it is clear that "as- sistance" contemplates more than mere advocacy in a determination of "guilt or innocence," embracing as well all manner of guidance which may be af- forded an employee to protect the latter's rights under a collective-bargaining agreement. In analyzing the majority opinion in Boaton Rouge Water Works, I must say that I am confronted with what I perceive to be a certain degree of ambiguity. Thus, in former Member Murphy's opinion, it would appear that the sole question is whether or not information is sought from the interviewee, and, if not, the employer has the right to reject a request for union representation. How- ever, in the view of Members Jenkins and Truesdale, it would appear that not only must the employer refrain from seeking information in a disciplinary interview, but also the discipline must have been previously decided upon. I confess, however, to some difficulty i seeing the significance of the second condition from either the em- ployee's or the union's point of view. Thus, from the point of view of either the union or the employee con- fronted with an interview, the fact that the employer may determine to impose discipline at some point during the course of the interview, rather than having previous- ly decided to impose such discipline, would not seem to make any difference provided, of course, that the inter- view itself uwas rnot used to gather admissions or other factual information upon which to base such discipline Reading the majority opinion in Baton Rouge Water Horks against the backdrop of earlier decisions holding that an employer is obligated to commence bargaining with a union at the moment a disciplinary action is an- nounced, which thereby gives the Union a right to he present during the disciplinary interview, it would appe:ar to me that the majority opinion have the funic- tional effect of deferring grievance bargaining to a later time T'his, at least to e, would seem to be a more formal view of the process of contract administration en- tailing the possibility of a more efficient utilization of time and effort by the parties. Thus, it may be that when negotiations are commeliced at the point in time when the discipline is imposed a union xwith no prior notifica- tionl would feel compelled to present a igorous argu- ment at this first step without h;:ving had the benefit of sufficient infornlation to make a reasonable judgment. O)n the other hand, if the commencement of bargaining is de- la' cd until after the discipline is imposed, the union would hav a period of time to reflect anrid evaluate the efficacy of a responsive grievance and if a determination is miade not to pursue the mattlel, bargaining would therefore not he necessary. It therefore appears to me that fron a functional point of view, the Baton Rouge de- cision balances the interest in having disciplinary actions discussed and negotiated at the carliest possible moment (and therefore at a time hen positions have riot likely hardened), ersus an interest in having grievance bar- gaining conducted in a more reflective and formal manuer. roim a public policy point of view, each side of the balance can be said to hae merit, but it would appear that a majority of the Hoard has opted to give greater weight to the latter mode of handling potential grievance,,s elating to disciplinary actions. Blased on the above, I therefore am inclined t the view that the underlying result that the majority seeks to achieve is that hen iinforla;tion in any form is solicited by aniy meas from air employee during the course of any inlerview which reasoniablr would be expected to lead to disciplinary action, the employee has the right to withdraw from the interview or have a union representa- tive present who will serve the function of assisting in setting forth a balanced view of the facts so as to give all parties as full arid complete a factual foundation to base any disciplinary action or subsequently filed grievance. As noted, I am of the opinion that the majority also seeks to defer bargaining at this stage and to limit the union's role to the functions described above. Turning to the facts in the instant case, it appears to me that the meeting of August 22 was riot investigatory in nature arid that no infiilma;lti( was sought or solicited front Grant during the meeting. As such I would con- cludc, under the rationale of Baton Rouge Water WorkA that no violarionl call he found in Respondent's refusal to accede to Grant's request to have a union representative present. Further, I doubt that the meeting can even be described as a disciplinary interview within the meaning of ( ertifid iGrocr.s of C;/i/ornia, No formal discipline S() DECISIONS OF NATIONAL LABOR RELATIONS BOARD was meted out to Grant at this meeting and, although Grant, in my opinion, had a reasonable right to suspect that he was in trouble, the major purpose of the meeting was to set forth the Company's policies in certain areas and to make sure that Grant and the other employees were cognizant and carried out those policies. As such, I do not believe that the presence of a union representative would be appropriate at such a meeting and it is my opinion that if a company holds a meeting with employ- ees merely to communicate to them its policies it should have the right to do so outside the presence of a union representative. To the extent that a policy communica- tion or directive may turn out to be contrary to the terms of a collective-bargaining agreement, it seems to me that the appropriate relief should be sought pursuant to the grievance arbitration provisions of the collective- bargaining agreement. This is not to say that such a meeting may not turn into something else or that, in ap- propriate circumstances, the Weingarten rights may not come into play. Nevertheless, in this case, I do not be- lieve that the facts herein warrant the conclusion that the Employer's denial of the request by Grant (who also was the shop steward), for union representation on August 22, constituted a violation of the Act. As described above, the General Counsel also alleges that Respondent interfered with its employees Section 7 rights when it ordered Grant to remove from its prem- ises certain notebooks he maintained. Although Eric Sol- omon asserts that he was not aware of the contents of these notebooks, he concededly was aware that Grant did, from time to time, keep on his desk and make entries in a notebook having, on its cover, a Snoopy cartoon. This particular notebook also had on its cover, in large lettering, "Private Log Book for Union Matters." Thus, although Grant never discussed the contents of the book with any company officials and although I am certain that they did not read its contents, the fact remains that the notebook, at times, was openly displayed, and by its cover indicated that it was used by Grant, as shop ste- ward, for union business. While I do not credit Grant's assertion that he was threatened with discharge unless he removed the notebooks from Respondent's property, there is no question but that Eric Solomon did order Grant to remove the notebooks. It is my opinion that an employee who is also a union shop steward is entitled to maintain a notebook on com- pany premises to aid and assist him in the responsibilities of his office.'6 It therefore seems to me that the utiliza- tion of such a notebook and the entry of incidents as they occur is a necessary part of a shop steward's func- tion of investigating and presenting grievances. Accord- ingly, I conclude that by ordering Grant to remove the notebook from its premises Respondent interfered with the right of the union's shop steward to perform his 16 Article IV of the collective-bargaining agreement states: The Employer recognizes the right of the Union to designate one salesperson as a shop steward. The authority of shop steward shall be limited to the investigation and presentation of grievances in accordance with the provisions of the collective- bargaining agreement. Before acting, the stewards shall first obtain the permission of the supervisor which permission shall not be unreasonably refused. functions and thereby interfered with the right of its em- ployees to have adequate representation. I also note that although Eric Solomon testified that he told Grant, on August 22, that he (Grant) was spending too much time working on his notebooks, the evidence herein is insuffi- cient to establish that, in fact, Grant's maintenance of his books interfered with his responsibilities as an employee of the Company. CONCI USIONS 01: LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent, by Eric Solomon, violated Section 8(a)(1) of the Act by ordering Jerry Grant to remove from Respondent's premises, notebooks he used and maintained as part of his function as the union shop ste- ward. 4. Except to the extent as found above, Respondent has not violated the Act in any other manner. 5. The unfair labor practice found affects commerce within the meaning of Section 2(6) and (7) of the Act. THE RtMED)Y As I have concluded that Respondent violated the Act in the manner described above, I shall recommend that it cease and desist from engaging in such acts and that it post a notice to its employees. Therefore, upon the fore- going findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 7 The Respondent, L. E. Solomon, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: Ordering any employee who occupies the position of shop steward for United Food and Commercial Workers, AFL-CIO, Local 1371, herein called the Union, from maintaining and using notebooks, logs, or other notes or records on Respondent's premises, where such logs, no- tebooks, or records are used for the purpose of carrying out his or her function as a shop steward, provided that such activity by the shop steward is carried out at rea- sonable times. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business copies of the attached notice marked "Appendix."' 8 Copies of said notice, on " In tile event no exceptions are filed as provided by Sec. 102.4 of the Rules and Regulations of the National I.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes '" In the event that this Order is enforced by a Judgmlentr of a United States Court of Appeals, the words in the notice reading "Posied by Order of the Natiolnal Labor Relations Board" shall read "Posted Pursu- Continued 506 L. E. SOLOMON, INC. forms provided by the Regional Director for Region 22, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for a period of 60 days consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT order any employe who occupies the position of shop steward for United Food and Commercial Workers, AFL-CIO, Local 1371, from maintaining and using notebooks, logs, or other notes or records on our premises where such logs, notebooks, or records are used for the purpose of carrying out his or her function as a shop steward, provided that such activity by the shop steward is carried out at reasonable times. WE Wll.l. NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. L. E. SOLOMON, INC. 507