Storer Communications Of Jefferson County, Inc

894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Storer Communications of Jefferson County, Inc and Kenny Guess and Donald Ray Wheeler Cases 9-CA-25251 and 9-CA-25283 February 8, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On September 14, 1988, Administrative Law Judge Richard L Denison issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Storer Com- munications of Jefferson County, Inc, Jefferson County, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge s determination that he December 28 1987 meeting was investigative in nature it is unnecessary to rely on Oper ations Manager Stevens handwritten statement G C Exh 4 Even as summg arguendo that this document falls within the attorney-client privilege and that the privilege was not waived Stevens January 11 1988 typewritten letter to Charging Party Guess provides sufficient cor roboration of credited testimony to warrant the finding that the Respond ent was still in the investigatory process on December 28 1987 Linda B Finch Esq, for the General Counsel William P Burns Esq, of Coral Gables, Florida, and Pa tricia F Weisberg Esq (Walter Haverfield Buescher & Chockley), of Cleveland, Ohio, for the Respondent DECISION STATEMENT OF THE CASE RICHARD L DENISON , Administrative Law Judge This consolidated proceeding was heard in Louisville Kentucky on June 17 , 1988, pursuant to a charge filed in Case 9-CA-25251 by Kenny Guess and a charge filed in Case 9-CA-25283 by Donald Wheeler on March 24 and 30, 1988, respectively The consolidated complaint issued May 3 1988 and amended at the hearing, alleges that the Respondent violated Section 8(a)(1) of the Act on or about December 28, 1987, when its supervisors denied a request by three of its employees for union rep resentation at an interview conducted in the context of circumstances concerning which it was reasonable to be lieve discipline would result The Respondents answer denies the allegations of unfair labor practices alleged in the complaint The Re spondent argues that the meeting in question was not an investigative interview, and that no employee request for union representation was made On the entire record in the case including consideration of briefs and observa tion of witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION Based on the allegations in paragraph 2 of the consoli dated complaint, admitted in paragraph 2 of the answer I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION Based on the allegations in paragraph 3 of the consoli dated complaint, admitted in an oral amendment to the answer, I find that International Brotherhood of Electra cal Workers Local 2100, AFL-CIO (IBEW) is a labor organization within the meaning of Section 2(5) of the Act III SUPERVISORS Based on the allegations in paragraph 4 of the consoli dated complaint admitted in paragraph 4 of the answer and the admissions and other undisputed evidence in the record I find that at all times material the following named persons have occupied the positions set forth op posite their respective names and have been and are now at all times material, supervisors and agents of the Respondent, acting on its behalf within the meaning of Section 2(11) and 2(13) of the Act, respectively John W Stevens Jr Operations Manager Cha-les King Technical Operations Manager Tom Spencer Plant Manager Okolona Facility Mike Datillo Supervisor IV LABOR RELATIONS HISTORY AND APPROPRIATE UNIT Based on allegations contained in paragraphs 5 and 6(a) of the complaint , admitted in the answer, and a stip ulation by the parties, I find the following On December 16, 1987, International Brotherhood of Electrical Work ers, Local 2100, AFL-CIO (IBEW) (the Union or Local 2100) was certified, in Case 9-RC-14862, as the exclusive collective bargaining agent of Respondents employees in the following unit appropriate for the purposes of collec 292 NLRB No 105 STORER COMMUNICATIONS tive bargaining within the meaning of Section 8 (b) of the Act All operation, production, service, construction and maintenance employees, including office clericals, customer service and dispatchers employed by Re spondent at its Jefferson County, Kentucky loca tions, but excluding all other employees, guards, and supervisors as defined in the Act At the time of the hearing in this proceeding, the va lidity of the certification was being tested V THE UNFAIR LABOR PRACTICES Respondent's business is the operation for profit of a cable television system in Jefferson County, Kentucky, including the city of Louisville From offices located in an administration building at Shively, Kentucky, Oper ations Manager John W Stevens, through his subordi nate supervision, directs the day to day operations at eight facilities, including the Okolona hubsite, the main transmission unit for Respondent's system Respondent employs some 230 employees among whom, until De cember 30, 1988, were service technician Donald Wheel er, line technician Kenny Guess, and Troy Harlow In addition to Christmas Day, Friday, December 25, 1987, the Respondent gave all employees not needed to operate the system a half day off, after all work was completed on December 24 Thus, Donald Wheeler, Kenny Guess, and Troy Harlow ceased work sometime shortly after noon that day Guess, however, was re leased from work subject to being on call for emergency repairs, and was assigned a company bucket truck to take with him for that purpose It is undisputed that, after being relieved from duty, these three employees se cured one half gallon of Jim Beam whiskey, which they proceeded to consume in the parking lot and in the building at Okolona, during the course of which an am plifier was smashed against a metal door The early stages of the drinking were observed by Supervisor Mike Datillo to whom they offered a drink, which he refused, before he left the premises I Sometime thereafter this in toxicated and destructive celebration was heard and ob served by employee Laura Winstel who alone had been assigned the duty of staffing the master control room during the holidays Winstel telephonically reported the incident to her supervisor Kathy Houck 2 Charles King has been employed by the Respondent as technical operations manager since May 25 1987 He is responsible directly to Operations Manager Stevens for system wide signal quality, maintenance work and cus tomer service The firsthne supervisors who oversee this phase of Respondents work report to him About 4 p in on December 24, 1987, King received a telephone call from Acting Supervisor Gary Mitchell, who described the revelry that was taking place at Okolona King told Mitchell to meet him at the facility, but not to enter the building unless he was accompanied by a supervisor ' Datillo no longer worked for the Company at the time of hearing and consequently did not testify 2 Neither wmstel nor Houck (whose name sometimes appears in the record as Hauck or Hock) testified at the hearing 895 Shortly thereafter as King was driving south from Lou isville on Interstate 65 toward Okolona he observed the company bucket truck assigned to Kenny Guess pro ceeding north driven by Donald Wheeler On arriving at the Okolona hubsite King met Mitchell, electronic tech nician Roger Sweeney, and Supervisor Mike Datillo waiting in the parking lot behind the building These three men reported that as they were arriving Wheeler was in the process of driving the bucket truck out of the parking lot with Guess in the passenger seat , but that the third celebrant, Troy Harlow, was still in his car, asleep After observing Harlow's condition, King and the other three men entered the building through the back door Inside they at once obser% ed that the company amplifier had been thrown several times against a metal door There were several marks on the door and the amplifier housing was still on the floor They also discovered an empty whiskey bottle, some cups, ice, and a 7 Up bottle After talking with Laura Winstel, King called Operations Manager Stevens, reported what he had learned and ob served, and recommended that the three employees in volved be discharged King testified that Stevens agreed with his recommendation , however, Stevens' testimony clearly reveals that King's recommendation was not ac cepted at that time Stevens testified that after King in formed him concerning what had transpired at Okolona and recommended termination , he said no Instead, he in structed King to conduct a full investigation, including obtaining photographs, written statements, and a written report from each of the people who were witnesses to the event Stevens also set a meeting of his supervisor for Monday morning December 28 at his office in the ad ministration building at Shively He specifically cau tioned King that he did not want to act before talking to all the parties According to King, after relaying Ste vens orders to the supervisors , he dictated his observa tions into a portable dictaphone King next turned his attention to the concern created by his direct knowledge of the fact that a company bucket truck was being driven on the highway by intoxi cated employees King asked Datillo to request that on call employee June Dale come to Okolona When Dale arrived King, Datillo, and Dale drove to Donald Wheel er's house where, as they anticipated, they found the bucket truck in Wheelers driveway Kenny Guess was sitting asleep in the passenger seat Then Datillo went to the front door of the house while the others stood by Wheeler answered the door and talked with Datillo while the others listened Datillo told Wheeler he was suspended with pay because of the Okolona incident, and demanded Wheelers keys to the Okolona building, the truck, and Wheelers identity card Wheeler complied and then assisted Datillo in helping Guess from the truck into the house After obtaining Guess' identity card, Da tillo drove the truck back to the hubsite , followed by King and Dale During the course of the holiday weekend the em ployees were notified by supervision, through separate telephone calls, that their suspension with pay would be in effect at least until they met with Stevens in his office on December 28 at 9 a in Also , according to undisputed 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and credited testimony by Jack Rawlings an employee and negotiating committeeman for Local 2100, each of the three employees called him on the afternoon of De cember 24, described the incident, and reported that they had been suspended pending a meeting with management on December 28 Rawlings told each of them that he would notify Local 2100, but that they should call him before attending the meeting Rawlings then alerted Union Representative Noyes of the suspension Early on the morning of December 28, Rawlings called Guess at his home about 7 45 am Rawlings told Guess that he had the right to have a union representa tive present at the meeting if he wished He asked what time the meeting was set to begin Guess gave Rawlings the time, and said he would probably ask for a union representative Rawlings then attempted to call Wheeler and Harlow at home, but failed to reach them He next called Respondents Shively office and left messages with receptionist Yvonne Williams to tell Wheeler and Harlow to call him before the meeting Harlow did not return the call, but Wheeler did Rawlings told Wheeler that he had the right to have a union representative with him at the meeting, and Wheeler said he would ask for one Troy Harlow was the first employee to report at the Shively office about 8 am on December 28, 1987 He was instructed to wait in the breakroom until such time as management was prepared to meet with the three employees He was joined at that location by Wheeler around 8 15 a m, and Guess about 8 30 However, no meeting at 9 a in occurred because Ste vens arrived late and decided to hold a management meeting about the incident before talking with the em ployees According to King, this meeting did not begin until about 10 45 a m Stevens King Datillo and Mitch ell were present During the course of the meeting, ac cording to Stevens and King the supervisors reviewed their observations of the incident, the written statements they had obtained and the photographs 3 King renewed his recommendation that the employees be terminated but Stevens insisted that he wanted to find out more about what had transpired by talking to all the parties before he made a decision He was particularly con cerned about the fact that he had been unable to confirm the statements of Winstel and Houck who were away from work and could not be contacted It was at this point about 11 a in , that the supervisors meeting ended Meanwhile, during this waiting period in the break room and at lunch at McDonald's, the three employees talked about the trouble in which they found themselves and what to do in the forthcoming meeting It is undis puted that during the course of this discussion, Wheeler stated he had been informed by Rawlings that he could ask for a union representative to be present Guess au thorized Wheeler to act as their spokesman during the meeting, but Harlow did not specifically do so until the outset of the interview 4 8 Mitchell Datillo Dale and Sweeney did not testify at the hearing 4 This finding is based on the testimony of the three employees con cernmg what was said in the break room and the testimony of all wit nesses who participated in the interview about how the meeting coin menced Following lunch the employees were called into Ste vens office around 1 p in Only Stevens and King were present on behalf of management Although the word spokesman or spokesperson was never used by the employees in the meeting, a careful examination of the testimony of all participants reveals that Wheeler in fact acted in that capacity 5 Stevens began the meeting by asking what had happened on December 24 at Okolona At this point it is clear that the other two employees looked to Wheeler to give their account of the events that occurred that day Both Wheeler and Guess testified that Wheeler began by asking that a union representative be present if any kind of disciplinary action was being considered against them Stevens and King specifically denied that any such request was made Harlow, who ap peared as a witness for the Respondent, avoided explicit ness, and, after a display of nervousness and hesitation, answered counsels leading question by testifying that he did not hear such a request Stevens and King s testimo ny about what was said during the course of this meeting was less detailed than that of Wheeler and Guess More over King's testimony was fragmentary and unclear as to the sequence of events, indicating a lack of memory Thus, when the testimony of Stevens, King, and Harlow conflicts with or omits details supplied in the account given by Wheeler and Guess, I credit these two employ ees I find and conclude that Wheeler acting as spokes person, requested the presence of a union representative to represent them at the meeting in the event the Compa ny was considering disciplinary action against them based on the events of December 24 Stevens responded to Wheelers request by stating, We don't recognize the Union King answered, There s no union at this company" Then Wheeler de scribed in detail how, after getting off work early at 1 p in on December 24, the three men engaged in a bac chanal on company premises 6 Wheeler told how the drinking, which began in the parking lot proceeded to the stockroom at the hubsite while they engaged "in a corner bounce game for about 45 minutes to an hour before he and Guess left the premises He said that later Datillo called, and then came to the house to get the truck and notify them that they were suspended until Monday for drinking on company property Then, in turn Guess and Harlow spoke They did not change or embellish Wheelers version but instead limited their re marks to apologizing for what had happened Stevens and King brought the interview to a close stating that they would consider what they had heard, and after talk ing again to the young lady who had called to report the incident and Gary Mitchell s people at Okolona, they would get back to them later about what they were going to do He said in the meantime they continued to be on suspension with pay King described the meeting 8 Stevens testimony on cross-examination to the contrary which con flicts with his testimony on direct examination on this point is not cred ited 6 Wheeler said that no mention whatsoever was made about Datillo having seen them drinking because he did not want to get Datillo into trouble Nor did any of the three employees deny having damaged coin pany equipment STORER COMMUNICATIONS 897 as a confession in that it only served to confirm what he had already learned from others On Monday afternoon Stevens met with Winstel and Houck individually The two employees substantiated their versions of the incident that the witnesses had pre viously given to Stevens supervisors Accordingly, at his instructions, King telephoned each of the three suspend ed employees on Tuesday evening, December 29, and told them to report to the office of Plant Manager Tom Spencer at Okolona at 10 a in on December 30 for an other meeting with Stevens and King At that time the three employees were terminated for having engaged in a flagrant violation of the Company s rules concerning the use of alcoholic beverages on company premises Ef forts by Guess to persuade management to reduce the discipline to suspension or probation were rejected On or about January 4, 1988, with the assistance of the Union, each of the employees wrote letters to Stevens requesting a meeting to appeal the Company s decision This request was denied by Stevens on January 11 Discussion and Concluding Findings I have found, for reasons set forth above, that the three suspended employees did in fact request the pres ence of a union representative during the meeting of De cember 28, 1987, and that this request was rejected In NLRB v J Weingarten, 420 US 251 (1975), the Su preme Court ruled that an employer violates Section 8(a)(1) of the Act when it denies union representation to an employee during an interview in which the employee reasonably believes that that interview might result in discipline, when the employee requests union representa tion that is denied and followed by the implementation of disciplinary measures The Respondent argues further that the meeting it held with Wheeler, Guess, and Harlow on December 28 was not an investigatory inter view, and consequently, its denial of union representa tion to the three employees in that interview did not vio late the rule of the Weingarten decision I disagree There was no factual dispute over the salient features of the events that took place on December 24 The three em ployees requested union representation in the context of circumstances that would cause any reasonable person to believe that some form of discipline would ensue It is also clear that everyone in attendance at that meeting un derstood that the purpose of the meeting was to give the employees an opportunity to tell their side of the story The fact that the employees version coincides almost precisely with the information already gleaned by the Employer does nothing to change the investigatory nature of the interview This fact is further confirmed by the January 11, 1988 letter from Stevens to Guess, Gen eral Counsel's Exhibit 2 and the handwritten statement that he gave to the Board with the permission of coup sel during the investigation These documents also refute any assertion that a decision to discipline the employee was reached prior to the completion of the investigation which concluded when Stevens met with Laura Winstel and Cathy Houck later on the afternoon of December 28 and personally reviewed with them the information they had previously reported by telephone to company super visors on December 24 I therefore find and conclude that the December 28 meeting, which Stevens and King conducted with Wheeler, Guess, and Harlow, constituted the type of interview that falls squarely within the ambit of the Supreme Court s decision in Weingarten and in denying the three employees union representation in the context of circumstances in which discipline was reason ably foreseeable, the Respondent violated Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in coin merce within the meaning of Section 2(2), (6), and (7) of the Act 2 Local 2100 is a labor organization within the mean ing of Section 2(5) of the Act 3 By requiring employees to participate in employee interviews or meetings without union representation, when such union representation has been requested by employees, when employees have reasonable grounds to believe that matters to be discussed may result in their being the subject of disciplinary action, and such discipli nary action was actually imposed by the Respondent, the Respondent has violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 5 The Respondent has not violated the Act in any re spects other than those specifically found THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I find it necessary to order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the pole cies of the Act However, a make whole remedy is not appropriate Taracorp Inc, 273 NLRB 221 (1984) Redway Carriers Inc 274 NLRB 1359 fn 4 par 2 (1985) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed7 ORDER The Respondent, Storer Communications of Jefferson County, Inc Jefferson County Kentucky its officers agents, successors, and assigns, shall I Cease and desist from (a) Depriving any employee of his right to union rep resentation at an investigatory interview that the employ ee reasonably believes might result in disciplinary action (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act 9 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 put poses 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Post at all the Respondent's facilities in Jefferson County, Kentucky copies of the attached notice marked Appendix "8 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspic uous places including all places where notices to employ ees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply B If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT deprive any employee of his or her right to union representation at an investigatory inter view that the employee reasonably believes may result in disciplinary action WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Rela- tions Act STORER COMMUNICATIONS OF JEFFERSON COUNTY, INC