Praxair Distribution, Inc

PRAXAIR DISTRIBUTION, INC. 358 NLRB No. 7 27 Praxair Distribution, Inc. and Pablo Rivera. Case 28– CA–023266 February 21, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND FLYNN On July 19, 2011, Administrative Law Judge William L. Schmidt issued the attached decision. The Acting General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Acting General Counsel filed a reply brief. The National Labor Relations Board has delegated 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 briefs, and has decided to affirm the judge’s rulings,1 findings,2 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. 1 We find it unnecessary to pass on the Acting General Counsel’s exception to the judge’s failure to grant the motion to amend the com- plaint to allege that the Respondent violated Sec. 8(a)(1) by requiring Rivera to put his workplace concerns in writing. Even assuming the complaint included this allegation, a finding of a violation would not be warranted, as the record fails to establish that Rivera’s concerns impli- cated any protected concerted activity. 2 The Acting General Counsel has excepted to some of the judge’s credibility findings. 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. In adopting the judge’s dismissal of the allegation that the Respond- ent violated Sec. 8(a)(1) of the Act by interrogating employee Pablo Rivera, we agree with the judge that the conversation between Rivera and the Respondent’s human resources manager, Carson Mellott, did not concern any protected concerted activity. We thus find it unneces- sary to rely on the judge’s statement that the Acting General Counsel “offered no evidence that Mellott . . . inquired as to who Rivera intend- ed to call during the interview.” The judge dismissed the allegation that the Respondent violated Sec. 8(a)(1) by denying Rivera’s request for representation at an investigato- ry interview. In his exceptions, the Acting General Counsel requests that the Board reconsider IBM Corp., 341 NLRB 1288 (2004) (finding that the rights of union-represented employees under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), do not extend to unrepresented employees). In adopting the judge’s dismissal of this allegation, we note that even considering the record in the light most favorable to the Acting General Counsel, there has been no showing that Rivera re- quested, or that the Respondent prohibited, the presence of a coworker at the investigatory interview. In view of the absence of such evidence, Chairman Pearce and Member Griffin find it unnecessary to pass on whether IBM Corp., supra, was rightly decided. William Mabry, Esq., for the Acting General Counsel. Frederick Miner, Esq. (Littler Mendelson), for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. I heard this case at Phoenix, Arizona, on April 26, 2011. Pablo Rivera, an individual, filed the underlying charge on November 17, 2010,1 alleging that his employer, Praxair Distribution, Inc. (Praxair, Company or Respondent), violated Section 8(a)(1) and (4) of the National Labor Relations Act (Act). The Acting Regional Director for Region 28 of the National Labor Rela- tions Board (NLRB or Board) issued the original complaint on February 28, 2011 alleging that Respondent violated Section 8(a)(1) of the Act. On April 8, 2011, the Regional Director amended the complaint to add a further allegation. Respondent filed timely answers to the original complaint and the amend- ment to the complaint denying that it engaged in the unfair labor practices alleged. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the Acting General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation with an office and place of business located in Phoenix, Arizona (Respondent’s facility) has been engaged in the retail sale, storage, and packaging of gases, including oxygen and helium. During the 12-month period ending November 17, 2010, the Respondent, in conduct- ing its business operations, derived gross revenues in excess of $500,000; and during the same period of time, it also purchased and received at its Phoenix, Arizona facility goods valued in excess of $50,000 directly from points located outside the State of Arizona. Accordingly, I find that Respondent meets the Board’s retail industry discretionary standard and that it would effectuate the policies of the Act for the Board to assert its stat- utory jurisdiction to resolve this labor dispute. II. ALLEGED UNFAIR LABOR PRACTICES A. Relevant Facts 1. Introduction The complaint alleges that the Charging Party, Pablo Rivera, engaged in protected concerted activity in connection with his complaints to management about his negative interactions with Gary Kallias, a fellow employee as well as about a safety viola- tion. The Acting General Counsel’s complaint alleges that Re- spondent interrogated its employees about their concerted activ- ities; promulgated an overly-broad and discriminatory rule prohibiting its employees from discussing their concerted activ- ities with others; threatened its employees with unspecified reprisals because they engaged in concerted activities; and de- nied Rivera’s request to be represented by another employee 1 All dates refer to the 2010 calendar year, unless shown otherwise. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 during an interview which he reasonably believed would result in disciplinary action being taken against him. All such con- duct, the complaint alleges, violates Section 8(a)(1). The Respondent denies the commission of any unfair labor practices. Respondent argues that Rivera’s claims that Re- spondent violated the Act lack merit. In effect, Respondent asserts that it did nothing more than thoroughly investigate the claims that two feuding employees had made to management. Further, the Respondent contends that the action taken against Rivera was unrelated to any protected concerted activities in which he may have been engaged. The Respondent denies that any of its actions were discriminatory or were in any way in- tended to interfere with its employees’ right to engage in Sec- tion 7 activity. 2. The prior case The Acting General Counsel believes that Rivera’s activities in a prior proceeding (Case 28–CA–22806) are relevant and pertinent to this current case. The complaint was based on Respondent’s actions following the filing of a report detailing several employee complaints, submitted by Rivera and his coworker, Abram P. Tarango. Judge Gregory Z. Meyerson conducted a 4-day hearing in that case and issued a decision (JD(SF)-33-10) on August 4, 2010, dismissing the most serious allegations contained in that complaint. Below is my summary of Judge Meyerson’s findings in that decision. Prior to his discharge, Tarango had worked 19 years for the Company. Rivera had worked 14 years at the time of the prior hearing. Both were canister fillers; Tarango had become the Company’s lead canister filler. In the years preceding the prior NLRB charge, both men had accumulated a number of work- place concerns regarding Respondent’s Phoenix, Arizona oper- ation. In July 2009 the men began collectively discussing their concerns with what they perceived to be unsafe working condi- tions, sexual harassment, improper conduct of certain supervi- sors, and other matters relating to wages, hours, and working conditions at the Phoenix facility. The two men jointly met with Dave Schmidt, the Phoenix plant manager, to voice some of their complaints but left the meeting unsatisfied with the response they received. Frustrated with Schmidt’s reaction, Rivera and Tarango, as- sisted by their wives, prepared a 12-page report detailing their concerns and sent it to Respondent’s corporate management on October 20, 2009. They titled their report “Violations: Busi- ness Integrity, Safety, EEOC, and Human Rights” and attached a cover letter signed by each of them. Their detailed report listed a multitude of complaints and supporting facts, including the following: that employees were forced to falsify pressure logs; the equipment used to fill gas cylinders was in disrepair; supervisors used cell phones while driving forklifts and other vehicles around the work area; the downloading games and pornography on company computers; the use of a “demanding tone of voice and despotic and authoritarian attitude” by super- visors; the possible gang connections of employees; the viola- tions of various Federal statutes; the release of a misbranded product to a customer in 2005; filling cylinders without proper- ly conducting required tests; and the failure of managers and supervisors to wear safety gear. Based on the report, and after many communications be- tween Rivera, his wife, and corporate management, Respondent began an investigation into the complaints.2 Upon finding out about this appeal to upper management, Schmidt questioned Rivera about his involvement as well as the involvement of his wife, and their reason for participating. Rivera asked him to respect his privacy regarding the matter. Following Rivera’s meeting with Schmidt, Rivera alleged that his floor supervisor, Jemal Norwood, began maintaining surveillance of him during his shifts at the plant. On or about October 26 or 27, Respondent sent Carson Mel- lott, its human resources manager, and Sean Covert, a corporate security manager, to the Phoenix plant precisely to conduct the investigation into the report’s allegations. During the investiga- tion Mellott and Covert met with Rivera and Tarango in sepa- rate sessions. Both Rivera and Tarango protested being inter- viewed outside the presence of the other. However, both men reluctantly agreed after the managers explained the need for such procedures based on privacy concerns, denied the re- quests, and insisted that the interviews must be conducted sepa- rately. The interviews sought to gather more information about the concerns enumerated in the October 20 report. During Taran- go’s interview he admitted to falsifying documents regarding the settle pressure test readings on several of Respondent’s canisters. Tarango reported that he only falsified the records at the direction of fellow employee Bill Freidlander. However, Respondent’s investigation found, and the administrative law judge’s decision concurred, that Freidlander was not Tarango’s supervisor or superior.3 In Rivera’s interview he focused on allegations against Schmidt such as the misbranding of products.4 Rivera claimed that he could prove the actions through records removed from the plant. Mellott then reminded Rivera that removing docu- ments from work violated company policy, and questioned him as to why he waited so long to report such violations. Rivera acknowledged that he understood the company’s policy regard- ing document removal. In addition to Rivera and Tarango, the investigating officials also interviewed several other employees implicated in this report. After the onsite investigation in late October, Rivera and Ta- rango faxed a follow up report on November 8, 2009 to corpo- rate management including Covert, Bogard, Jeff Gage, associ- ate director of physical security, and Bill Woods, director of safety. They titled this four page follow up report “Annex to Previous Report.” The document primarily alleged misconduct by plant manager Schmidt.5 Covert responded to the additional 2 Several of Rivera’s managers including Dave Schmidt, Eddie Da- vis, Steve Bogard, and Sean Covert reported frequent and persistent phone contact with Rivera’s wife, Ana Rivera. 3 The General Counsel failed to prove either primary or secondary indicia of Freidlander’s supervisory authority. 4 By this Rivera meant that Schmidt had intentionally removed the labels on cylinders from one type of gas and replaced them with labels for a different type of gas, in order to show nonmedical gas as being of medical grade. 5 The allegations suggested that Schmidt ignored a fire alarm that was engaged and resulted in the Respondent’s work force leaving the PRAXAIR DISTRIBUTION, INC. 29 report via email on November 11, 2009. This email informed both Rivera and Tarango that Respondent had looked into the new claims upon receipt of their second report and that both investigations were considered complete and currently under review with upper level management. Additionally, he request- ed that the men refrain from further contact unless they had new information to communicate, in which case they should address him directly. On November 12, Mellott completed his close-out report that concluded most of the expressed concerns were unsubstantiated and lacked merit. As a result of the interviews, on November 20, 2009 Re- spondent fired Tarango for the falsification of records, despite his mistaken belief that reporting the falsification exempted him from punishment based on a whistleblower law. Addition- ally, after the discharge of Tarango, Rivera, who is the next most senior member of the cylinder filling team, was not pro- moted to lead cylinder filler and received a written warning not to remove documents again.6 Both men cited these actions as a response to the October 20th report. However, Respondent supported the actions based on company policy and the lack of need for a lead canister filler.7 On November 24, 2009, following the actions taken by Re- spondent regarding the October 20 report, Rivera’s wife Ana Rivera (Ana) called Covert to express concern about the treat- ment of her husband after submitting the report. Covert at- tempted to explain that he could not speak with her because his wife was in labor and he was attending to her at the hospital. Ana congratulated him, but insisted that he call her husband at work because other employees were retaliating against him for filing the October 2009 report. According to Mrs. Rivera, Cov- ert used a condescending tone of voice and said something to the effect that her husband should be happy that he had a job, and he should “stop reporting things, to stop going around in- specting things, because [Covert] was the inspector, [her hus- band] was not.” Further, he warned her that if her husband did not do so, he “might be in trouble, and that he should confine himself to doing his job and only his job.” Covert then alleged- ly ended his conversation by telling Ana that her husband should call him on Monday, after Thanksgiving. Judge Meyerson determined that Respondent did not violate the Act through its conduct in response to this report. Although the Judge found that the men had engaged in protected concert- ed activity, he concluded that the General Counsel failed to prove that Respondent’s subsequent adverse actions were sub- stantially motivated by that activity. Moreover, as to Tarango’s plant, with the exception of Schmidt. Further, it was claimed that when Schmidt did finally exit the facility, he was not wearing his personal protection equipment (PPE). 6 Rivera felt that the position of lead canister filler offered more de- sirable work based on the ability to work inside in the climate con- trolled building. 7 Respondent no longer required a lead canister filler because prior to the submission of the report it hired a new production manager, Jemal Norwood (Norwood), and Norwood fulfilled many of the duties performed by Tarango. Additionally, Respondent explained Tarango’s position of lead canister filler as a means for the company to reward him with slightly higher compensation based on his seniority, since no higher positions in his area existed. discharge and the denial of a promotion and more desirable work to Rivera, the Judge found that the General Counsel failed to prove a prima facie case that the protected concerted activity was a “motivating factor” in Respondent’s decision. Addition- ally, Respondent rebutted any evidence offered by General Counsel with a legitimate business justification for discharging Tarango, based on the company policy against falsifying docu- ments. Furthermore, Judge Meyerson recommended the dismis- sal of the additional allegations regarding conversations with Schmidt, Mellott, Davis, and Covert, as well as allegations of surveillance and allegations regarding written communications based on the legitimate business justification for taking such action and the lack of evidence of adverse motive. However, Judge Meyerson found merit to the allegation con- cerning the November 24 conversation between Ana and Cov- ert. In that instance Judge Meyerson determined that the con- versation constituted a threat to employees of unspecified re- prisals, discharge, closer supervision, conditioned continued employment on relinquishing Section 7 rights, all as a result of their having engaged in concerted activities; and promulgated an overly-broad and discriminatory rule prohibiting employees from engaging in concerted activity; and created an impression among its employees that their concerted activities were under surveillance. As a result he ordered Respondent to cease and desist from the unlawful actions and post a notice to employees acknowledging that Respondent would respect their rights. Presently, the case is pending before the Board on exceptions. 3. Facts relevant to the current dispute In August 2010,8 shortly after Judge Meyerson’s decision, Rivera began complaining to his supervisors, Norwood and Schmidt, about his fellow employee, Gary Kallias. No evi- dence shows that Rivera sought to enlist the support of other employees at anytime to deal with the developing antagonism between himself and Kallias. Rivera had a variety of complaints about Kallias. He claimed that Kallias locked him out of the lunchroom and ig- nored his requests to be let in. Subsequently, on September 7th, Rivera alleged that Kallias disconnected his CO2 line, thereby interfering with Rivera’s production. In September, a new employee told Rivera that Kallias spoken negatively with him about Rivera, mentioning things such as how difficult Ri- vera was to work with. In addition, Rivera left his helmet in the bathroom around this time and, when he returned for it, some- one had filled it with water. Rivera characterized this incident as a safety concern. All of these issues were reported to either Norwood or Schmidt. As a result of the reports by Rivera, Schmidt assigned Norwood to monitor the usage of the CO2 pump. On September 28, Mellott made a visit to the Phoenix, Ari- zona plant. Mellott’s responsibilities included hiring, training, discipline, and investigation. During his visit Mellott spoke with Rivera. Rivera asserts that Mellott told him “[T]hings are as they are” and Rivera understood this to be a reference to Respondent winning the prior case pertaining to the October 8 If not shown otherwise, dates pertinent to this case refer to the 2010 calendar year. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 2009 report. Mellott generally corroborates this interaction, but he characterizes it as simply communicating that while the Company may have disagreed with Rivera during the previous proceeding, it simply wanted to move forward. At this time Rivera did not mention his complaints regarding Kallias. Rive- ra stated that he did not mention the incidents because he had already reported each of them to one or both of his supervisors. As time passed, Rivera had more difficulties with Kallias. On October 22, Rivera noticed Kallias mocking his habit of whistling. On October 28, Kallias grabbed Rivera’s hand to prevent him from reaching for a doughnut from a box that had been set out for the employees in the lunchroom. At an unspec- ified time Kallias began parking in Rivera’s parking space.9 The parking lot created further issues for Rivera when Kallias allegedly opened his car door quickly as Rivera attempted to move into a parking space. Rivera claims that this incident almost resulted in an accident and such behavior presents a valid safety concern. Lastly, Rivera reported that Kallias pur- posely removed a dolly that he brought to his station for his use.10 On November 4, Mellott visited the Phoenix facility. This visit partially involved complaints to Mellott by Kallias on November 1 about Rivera. Kallias indicated that he was “[F]rustrated with Pablo” and “[T]hat Pablo was . . . doing things to people and trying to get people in trouble.” Kallias alleged that Rivera whistled to annoy people, complained when others used equipment that he wanted to use, became angry when someone parked in the spot that he considered his, and that he had pushed Kallias. Shawn Hernandez, another em- ployee, supposedly corroborated Kallias’ account of the push- ing incident. When Mellott told Schmidt about Kallias’ claims, Schmidt informed Mellott about Rivera’s corresponding com- plaints. Based on the complaints he received and had heard about, Mellott conducted two interviews after arriving at the Phoenix facility on the morning of November 4. Both interviews took place in the distribution center office, aka, Sam Castillo’s of- fice. He first questioned Kallias for about 30 minutes. After that, Schmidt brought Rivera to the office to speak with Mel- lott. Schmidt claims that Rivera never made a request of any kind for the presence of a coworker at the meeting. During the interview, Mellott first asked Rivera to verbally inform him about his recent issues at the plant. Rivera detailed the previously reported issues pertaining to Kallias with Mellott and Schmidt for approximately an hour. Rivera said that both Mellott and Schmidt took notes as he spoke. Occasionally Mellott interrupted Rivera to ask a question, or requested him to move on to another subject. The most notable interruption reported by Rivera occurred when Mellott accused him of lying because he had said nothing about any of the incidents when the two last spoke on September 28. 9 Although spaces are not assigned and no company policy exists re- garding this issue, Rivera claimed employees always respected each other’s parking spot selections. 10 Respondent does not assign dollies, however Rivera considered this a personal affront because there were several dollies at Kallias’ station that he could have used. At the conclusion of his report about Kallias, Mellott asked Rivera if he bumped Kallias in the bathroom during the past week. Rivera denied this accusation. Mellott then requested that Rivera put his claims in writing. At first, Rivera refused and asked to make a phone call.11 Mellott denied this request and said that if Rivera refused to write out his complaints he would make a note of that and report that Rivera refused to cooperate.12 Schmidt corroborated these facts and testified that Mellott told Rivera he could not make a call because he wanted to get the information in Rivera’s own words and he had to leave soon to catch a plane. After protesting, Rivera acqui- esced and began writing the report, fearful that a negative re- port that he had been uncooperative could result in his termina- tion. Mellott acknowledged that Rivera appeared hesitant to give a written statement, but both he and Schmidt credibly denied Rivera’s claim that he only did so after Mellott physically barred him from leaving, stating “[Y]ou are not going any- where.” Once Rivera began the report, Schmidt left the meet- ing. Rivera likened this experience to the events surrounding the October 2009 complaint. While Rivera recorded his complaints, Mellott frequently in- terrupted him to check his progress. Mellott admits making several inquiries about Rivera’s progress but explained that he did so because of his flight schedule. Rivera’s written com- plaint contains all of his allegations except the situation regard- ing his helmet, which he left out because he believed Mellott’s refusal to listen to him about it initially amounted to a dismissal of that complaint. At the end, Rivera wrote that his report amounted to only a summary of the events made for Mellott. Although he admits that Mellott did not require him to limit or restrict his written account in any way, he made no reference in the report about being unable to leave or to place a telephone call. After handing over his written account to Mellott, Rivera asked for a copy of it. Mellott denied the request. Rivera claims that even after he asserted his right to receive a copy of the report, Mellott loudly and affirmatively denied this request stating that the memorandum was Praxair property, and that he required approval to issue him a copy. Mellott agrees that he initially denied Rivera’s request for a copy but denies the force- ful nature of his refusal attributed to him by Rivera. Instead he claims that he told Rivera he could have a copy if it was ap- proved. Both parties agree that the meeting and subsequent recording session lasted approximately 1-1/2 to 2 hours. Sever- al hours after the meeting Schmidt delivered a copy of Rivera’s written report to Rivera and informed him that Mellott had left. Rivera explained that following the interview he did not at- tempt to report Mellott’s treatment of him during the meeting or his demand for a written record. Based on his prior experi- ence with the Company’s “hotline,” he believed that any such internal option would not serve to address his complaints be- 11 Rivera admitted that he wanted to call his wife for her opinion as to whether Mellott could require him to write out his complaints. 12 Rivera also claimed that Mellott barred him from leaving the room at this time by blocking the door with his body. I do not credit that claim. PRAXAIR DISTRIBUTION, INC. 31 cause of their connection to management. However, Rivera submitted another report to Schmidt about a further incident with Kallias. In response to the November 4, 2010 meeting, Respondent sent Rivera a letter on December 8, 2010. The letter contained a summary of Rivera’s complaints, excluding the helmet issue and Kallias’ conversation with a temporary worker regarding Rivera’s attitude. Additionally, the letter made suggestions for improvement of the atmosphere in the plant. B. Analysis and Conclusions The Acting General Counsel alleges in this case that Re- spondent has violated Section 8(a)(1) of the Act. That provi- sion makes it an unfair labor practice for an employer to inter- fere with, restrain, or coerce employees who exercise the rights guaranteed them by Section 7. The relevant portion of that section provides that employees have the right to “self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” [Emphasis added] The Meyers litigation13 produced the Board’s current view about the reach of the the statutory term “concerted activities.” In Meyers I, the Board explained that “concerted activities” as used in Section 7 requires that an employee’s activity must be engaged in with or on the authority of other employees, and not solely by and on behalf of an individual employee. 268 NLRB 497. In Meyers II, the Board conceded that concerted activity could also encompass “individual employee activity so long as the employee acts as a representative of at least one other em- ployee” 281 NLRB 885. Included within its Meyers I defini- tion, the Board held, are those instances where an individual employee seeks to initiate or to induce or to prepare for group action, as well as the conduct of an individual employee who brings “truly group complaints” to the attention of manage- ment. Id. at 887. Before turning to the specific complaint allegations, some preliminary observations are in order. Although the Meyers test was clearly met in the prior case, I have concluded that none of Rivera’s activities in the current case met the Meyers standard. Put another way, all of Rivera’s complaints about Kallias’ conduct are personal in nature. They lack the quality that would permit a rational conclusion that they related to or involved other employees. There has been no showing that Kallias bullied everyone, or even a limited number of employ- ees. Instead, he focused his perturbing, petty behavior solely at Rivera. Rivera, in turn, made no known effort to enlist any other employee to assist in putting an end to Kallias’ annoying conduct. Instead, he complained only to management. My findings as to the specific complaint allegations follow. 13 Meyers Industries, 268 NLRB 493 (1984) (Meyers I); remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985); Meyers Industries, 281 NLRB 882 (1986) (Mey- ers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). 1. The alleged interrogation Complaint paragraph 4(a)(1) alleges that Mellott “interrogat- ed [Praxair] employees about their concerted activities” on November 4. The Acting General Counsel asserts that Mellott interrogated Rivera during their November 4 meeting (1) by demanding “that Rivera submit and repeat his complaints in a written re- port,” and (2) by seeking the identity of the person Rivera wanted to call after Mellott requested that he set out his com- plaints in writing. Respondent contends that the Acting Gen- eral Counsel failed to meet his burden of proof regarding the allegations that Mellott interrogated Rivera or promulgated an unlawful rule prohibiting discussion of protected concerted activities. I agree with Respondent’s contention. The AGC offered no evidence that Mellott asked any questions regarding any pro- tected activity, or inquired as to who Rivera intended to call during the interview. Hence, there is no factual support for the Acting General Counsel’s claims. In fact, as the entire session between Mellott and Rivera pertained to Rivera’s personal complaints about another employee and that employee’s com- plaints about Rivera, the vast bulk of the session involved no protected concerted activity on Rivera’s part at all. And contra- ry to the Acting General Counsel’s assertion, I find no connec- tion between Rivera’s prior protected activity in the earlier case and his conduct that led to the November 4 interview. They are entirely separate matters. Ordinarily, unlawful interrogation involves some effort by an employer to coercively question an employee concerning pro- tected subjects or employee conduct. See Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985). Mellott’s request that Rivera put his personal com- plaints in writing does not amount to coercive questioning con- cerning any protected subject. Accordingly, I will recommend that this allegation be dismissed. 2. The alleged promulgation of a rule prohibiting protected concerted activity Complaint paragraph 4(a)(2) alleges that Mellott “promul- gated an overly-broad and discriminatory rule prohibiting its employees from discussing their concerted activities with oth- ers” on November 4. The Acting General Counsel contends that “Mellott’s di- rective to Rivera [during the November 4 interview] that he was not going to call anyone amounts to a rule prohibiting Ri- vera from calling other employees for mutual aid and protec- tion.” Respondent contends that Mellott did not violate Rive- ra’s protected Section 7 rights by simply denying Rivera’s re- quest to call an unidentified person for an unspecified purpose. I conclude in agreement with Respondent’s contention that this allegation also lacks merit. At the outset, no evidence sup- ports a finding that Rivera ever intended to call another em- ployee or ever disclosed to Mellott that he wanted to call anoth- er employee. Moreover, I find that Mellott’s denial of Rivera’s vague request to make a phone call during the interview did not amount to a “rule” of any kind. Instead, it amounted to nothing more than a specific, declarative response to a specific ques- tion. The evidence concerning this incident considered in its DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 entirety establishes that the response was never intended to have an application beyond the immediate question that Rivera asked. Again, there is no factual support for the claims made in the Acting General Counsel’s complaint and brief. No evidence supports a rational finding that Mellott, acting on behalf of Respondent, promulgated a rule banning employees from call- ing coworkers in the circumstances similar to those found here or from engaging in any other form of protected concerted ac- tivity. Accordingly, I will recommend that this allegation be dismissed. 3. The alleged threats Complaint paragraph 4(a)(3) alleges that the Company threatened its employees with unspecified reprisals because they engaged in concerted activities. The Acting General Counsel argues that Mellott’s statement to Rivera when denying him a copy of his written report at the end of the November 4 meeting on the ground that he needed “to check something, I want to be sure that I’m not involved in this and that later I will get a surprise because (a lawyer) will be involved in this or you contact one of the agencies” amounts to a threat of some unspecified reprisal. Respondent argues that Mellott’s statement to Rivera at that point in the interview fails to support a threat allegation. I agree. Rivera admitted that he was given a copy of his statement later in the day. Mellott’s statement amounts to nothing more than an expression of caution on his part likely based on his experience with the prior proceeding. For this reason, I am unable to conclude that the statement he made when refusing Rivera a copy of his statement at the end of the interview amounts to either an explicit or implicit threat. Accordingly, I will recommend the dismissal of this allegation. 4. Denial of representation during an investigatory interview Complaint paragraph 4(a)(4) alleges that Respondent denied Rivera’s request to be represented by another employee during an interview for which he had reasonable cause to believe that disciplinary action would be taken against him. The Acting General Counsel argues that by denying Rivera’s request to make a phone call, Respondent “denied any possibil- ity” that Rivera could request a coworker to be present during the November 4 investigatory interview. Respondent lists three reasons dismissing this allegation. First, unrepresented em- ployees, such as those involved here, have no right to a Weingarten representative. Second, even if unrepresented em- ployees had such a right, as they have in the past, Rivera did not properly invoke the right. And third, Mellott responded appropriately even if it is found that Rivera made a proper re- quest for representation. I agree with most of Respondent’s arguments. Under exist- ing case law, Weingarten rights do not apply to unrepresented workers such as the employees of the Praxair operation in- volved here. IBM Corp, 341 NLRB 1288 (2004). Under prior law governing this subject, an unrepresented employee could request the assistance of a “coworker” during an investigatory interview. Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). The right did not contemplate the presence of an outside representative. Here, Rivera made no explicit request for assistance by a coworker. Rather, when he requested to make a phone call, the key fact on which the Acting General Counsel has fashioned this allegation, he admit- tedly sought to speak with his wife, who is not an employee of Respondent but who played a significant role in the prior case. For the foregoing reason, I need not engage in “what if” speculation as to whether Mellott acted properly if it could be assumed that Rivera’s request to make a phone call amounted to a request for coworker representation. Accordingly, I rec- ommend the dismissal of this allegation. CONCLUSION OF LAW Respondent, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, did not engage in the unfair labor practices alleged in the complaint. On these findings of fact and conclusion of law and on the entire record, I issue the following recommended14 ORDER The complaint is dismissed. 14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes.