Kraft Foods, Inc.

5()X DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kraft Foods, Inc. and General Teamsters Local Union No. 528. Case 10-CA-13464 August 27, 1980 DECISION AND ORDER On April 26, 1979, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)() by ignoring then employee Fred Dinsmore's request to have a union representative present during an in- vestigatory interview which Dinsmore reasonably believed might result in his discipline. .L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). Respecting a remedy for the violation of Section 8(a)( ) committed by Respondent, the Administra- tive Law Judge's recommended Order directs Re- spondent to reinstate Dinsmore with backpay and to expunge from its records Dinsmore's discharge notice as well as all related documents. We find, in the circumstances of this case, that such a remedy is inappropriate. In determining the appropriate remedy for a re- spondent's violation of an employee's Weingarten rights, the Board applies the following analysis. Ini- tially, we determine whether the General Counsel has made a prima facie showing that a make-whole remedy such as reinstatement, backpay, and expun- gement of all disciplinary records is warranted. The General Counsel can make this showing by proving that respondent conducted an investiga- tory interview in violation of Weingarten and that the employee whose rights were violated was sub- sequently disciplined for the conduct which was the subject of the unlawful interview. In the face of such a showing, the burden shifts to the respondent. Thus, in order to negate the prima facie showing of the appropriateness of a make-whole remedy, the respondent must demon- strate that its decision to discipline the employee in question was not based on information obtained at the unlawful interview. Where the respondent Rcpondl nt h eceptetl to certilli credlit% findings miade h Ihe Airmmi ,raist .e l ass Judge 1h thie Board's e,,labli'-hed pool i cy rnt to orr' rul c n adlrnllrali r c lla, ijudg cs resiluiorlls il h respect tto credi- bilit) inless the l ea r prepo nde r ance ri i all of the rle.anrt es idence c lln- vlrlce, usi Ihal the resolutiol a r ire ircorrecl .Srltidrd Dr, Walr/l Produt ,ir ..')l NI RI 544 11950). clnfd I8 F 2d 362 (3d Cir 1951) We ha' e carefull5 examiined Ihe record rand find ir basis fil reersmirg his fldi'in gs 251 NLRB No. 6 meets its burden, a make-whole remedy will not be ordered. Instead, we will provide our traditional cease-and-desist order in remedy of the 8(a)(l) vio- lation. Applying the foregoing analysis to the instant case, we find that the General Counsel made a prima facie showing of the appropriateness of a make-whole remedy. We further find, however, that Respondent has met its burden in negating such showing by demonstrating that its decision to discipline Dinsmore was not based on any informa- tion it obtained at the unlawful interview. This is so because the only information Respondent ob- tained from the Dinsmore interview was Dins- more's identification of a photograph depicting the situs of the forklift collision involving himself and employee Jerry Ellington, : as well as a denial from Dinsmore that he had been engaged in a fight with Ellington. Since Dinsmore was discharge for fight- ing, and the fight was witnessed by several other employees who were interviewed by Respondent prior to Respondent's interview of Dinsmore, it is clear that the information obtained from Dinsmore played no part in Respondent's decision to disci- pline. 4 Contrary to the inference raised by our dissent- ing colleague, there is nothing in the record what- soever which indicates that Dinsmore was dis- charged for "dishonesty." In addition, we find no 2 ()ir dissenting coilleague rcognii e, ltha te burden placed cci tlhe ellroplyrr II iI cases if this Ipe is Ill the nature ofi all aifirraire defense Yet, despite this recognti i, h le takes the psitioin that the burden placed o11 tile emploer is icr grea ihat e oughl rnot cen giL'e tihe employer al oppoirluinl Ir estahlish it i af firali e d eerInsc Although v e recigniize thai applicatioc n of Ihis remedial est r.ill require close and careful anal - si,, is are u illing t adopt a c-r ic riule mercl y to promnolre decisio nal siniplicit' It is his corllision hich lead toi i fight bel cen I)insmorre arid Ell- ingrion I he record is clear, arid the Adinistlratise Law Judge friund, (ihal Disnore uas discharged flir fightilrg ad n for his iniolremrnt in the collision Ii h is [)Dec istii. , the Adiiinislraltlce .aw Judge ifound tlhal 'llinglon., the employee with hhom Dinsmo re had forught. had also been inter- viewed in vilation of We irtcen 4 hile declining o find tha the inter- view O if Ellingon violated Sec. (a)(I) since such as ineither alleged in the complain n1or argued by the General Cunsel, he Administratise Las Judge did f ind that the inler ieir F of Flling on ainted " any further ioestigatir in thai Ellrgirron pr-cided Respronden with certain informa- lion nt ailable frorm other sources ()n the record before us, we de- tine o pass n the issue ,if hether a disciplined eimploee whose W'in- gcricrr rigihts hae beIn ,iolaied is entitledI t a make-swhole remnedy when a i parl iof tile irrornlatiutri ilie d by a respcondct in its discipline decision is ibrlille c fro ano rtlh r crnplioee in ilaiirl l We'ingrten rattier ha n tfron the disciplined elrnplci e As tile Adirinisratise i[as Judge iroted. nr14 such llegalion is containl im te cmplaint and the G(eneral Couisel rade ~ic such argurrient tillce hearing Indeed. tre iGenerra l Counsel n- plcilliy iliaoiscd sruch a Iior, byi arguring hat )insni re's erntitlement it a rtale-whole reirled, irose slelIs t l O h unlas.fui interr-iA and icit uou Respi)ll de it's iCnticis Ic-u-i i all)n other emplo)cr It is ell el- l ied that a tlcorlr which is ritot nt c pamer d sec t l t ie cnp lai nt, Ilol litigal- ed during t he hearing. rd dlsaiso,.d h, the (eneral Cioursel cannol provide ai basis ffr tie drcciion if a admlniistratise las judge or the Board. See. Cg . fl rida )m,. (rnupanyr. Inr, 213 N LRB 604. 612 1974) r lame - KRAFT FOO()()I)S. INC 599 support in the record for our colleagues' inference that Respondent's decision to discharge Dinsmore and not Ellington resulted from Dinsmore's unwill- ingness to cooperate at the interview. Instead, it is clear from the testimony of the witnesses to the fight that Respondent had learned, prior to the un- lawful interview with Dinsmore, that he was the aggressor in the fight, that he landed all of the blows, and that Ellington was an unwilling partici- pant who only sought to protect himself from Dinsmore's assault. Therefore, we believe Re- spondent has demonstrated that its decision to dis- charge Dinsmore and not Ellington resulted from their respective conduct in the fight and not from Dinsmore's conduct at the interview. Accordingly, our traditional cease-and-desist remedy for Re- spondent's 8(a)(l) violation is appropriate." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Kraft Foods, Inc., Decatur, Georgia, its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Requiring any employee to take part in an in- vestigatory interview where the employee has rea- sonable grounds to believe that the matter to be discussed may result in his or her being the subject of disciplinary action and where Respondent has ignored, denied, or refused any request by him or her to have union representation. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at Respondent's food processing plant in Decatur, Georgia, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken I Pursuant to our recent decision in Hickmott Foods, Inc., 242 NLRB 1357 (1979), which was issued subsequent to the Administrative Law Judge's Decision here, we will provide a narrow cease-and-desist order rather than the broad one recommended by the Administrative Law Judge. 6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting in part: I cannot agree with my colleagues' failure to provide a "make whole" remedy for employee Dinsmore, the object of Respondent's unfair labor practice. Presumably in an attempt to "conform" our orders to the requirements of Section 10(c) of the Act,7 my colleagues have decided to alter our longstanding practice of ordering a "make whole" remedy whenever it has been established that an employer has disciplined an employee for conduct which was subject of an interview conducted in violation of Weingarten. In my view, their effort, although well intentioned, is neither required by Section 10(c) nor justified in light of recent Board decisions. I do not advocate ignoring the will of Congress as set forth in Section 10(c) of the Act, but rather I submit that, once an employer has disciplined an employee for conduct which was the subject of an interview conducted in violation of Weingarten, it becomes virtually impossible to determine whether the disciplinary decision was based upon "informa- tion" obtained at the unlawful interview. This is so even if the employee said nothing at the interview since the severity of the discipline imposed may be affected by the employee's demeanor or his "refus- al to cooperate" without representation. Particular- ly is this true when, as happened here, the employ- ee chooses to deny all accusations although some of them were true; he might not have made this choice, and so further antagonized the employer, had he been allowed the representation he request- ed and unlawfully was denied. Thus, in addition to proving that there was "cause" for discipline based on "information" gathered independently of the un- lawful interview, the employer must prove that the severity of the discipline imposed was not affected by the employee's statements or demeanor at the unlawful interview. It is proof of the latter which, I Sec. 10(c) of the National Labor Relations Act, a amended, pro- sides, inter a/ia, that "[njo order of the Board shall require the reinstate- ment of any individual as an employee who has been suspended or dis- charged, or the payment to him of any back pay. if such individual was suspended or discharged for cause" A resiec of the legislative history of this provision reveals that the burden of proof is on the employer to show affirmatively that the employee in question Was "suspended or dis- charged for cause, thus, any "rights' flowing from this proision are In the nature of an affirmatise defense which, in my ievs, must be pleaded and proved ' .. L.R B v J Itlenugaritn. Inc, . 420) I S 251 (1975). KRAFT F(X)t)S. INC 599 hOO( DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my view, will prove so formidable an obstacle for the employer. As, under both the majority's analysis and Section 10(c), the employer bears the burden of proof, such difficulties in proof will almost inevitably result in a finding that the em- ployer has not met its burden.9 In fact, the only sit- uation that I can conceive where the employer could prove that it did not rely on "information" obtained at the unlawful interview in making the disciplinary decision is where a final, binding deci- sion to impose certain discipline is made prior to the interview in question, a situation where I would find no Weingarten right.'° Additionally, given the nature of the employer's burden under the majority's analysis, almost every Weingarten-type case will present the "mixed motive" problem which has proved so troublesome in the enforcement of the Act.' Thus, I can see no purpose in opening another avenue of fruitless liti- gation which can only impair our effectiveness in achieving the purposes of the Act. Nor do I understand how the majority can find that Respondent has met its burden of showing nonreliance on Dinsmore's statements or demeanor at the unlawful interview; there is not one iota of evidence in the record to support such a conclu- sion. They rely solely on the fact that "the only in- formation Respondent obtained from the Dinsmore interview was Dinsmore's identification of a photo- graph . . . as well as a denial from Dinsmore that he had been engaged in a fight .... "(Emphasis supplied.) The record herein shows plainly that Dinsmore's denial that a fight had occurred was as serious an offense as engaging in the fight itself. Article VII, section 1, of the relevant collective-bargaining con- tract, relied on by Respondent to support its deci- 9 I note that Chairman Fanning and Member Penello recognize the in- surmountable nature of the employer's burden insofar as it relates to non- relliance on direct evidence, such as an admission, obtained at the unlaw- ful interview. As stated in their concurring opinion in Texaco. Inc.. 251 NLRB No. 63 (1980): It is extremely difficult to discern how an employer could: (I) decide to continue its investigation of employee misconduct through an inter- view of an accused employee. (2) affirmatively solicit from the employee information relating to the misconduct, and, (3) in fact succeed in obtain- ing perhaps the most telling information available to merit a decision to discipline and yet be found not to have based its disciplinary decision, in any way, on the information it was so successful in securing I could not agree more What escapes me is how they could conclude that the em- ployer's burden is any less onerous when attempting to prove nonreliance upon imponderables such as demeanor or "cooperativeness." '° See Baton Rouge Water Works Company, 246 NLRB No 161 (1979) (the majority opinion in Baton Rouge alludes to a circumstance where Weingurten rights would exist even though the disciplinary decision was allegedly made prior to the interview; this is so because, in the hypotheti- cal situations there discussed. the employer's conduct at the interview un- dermines the assertion that the disciplinary decision previously had been made and was final. binding, and certain ) " See, e.g. Coletrti' Furniture. Inc. v N.L.R B. 550 F.2d 1292 (Ist Cir. 1977). sion to discharge Dinsmore, provides, inter alia, as follows: It is agreed that at least one prior warning notice will be given before discharge except that no prior warning need be given in the case of: . . . dishonesty . . . fighting and/or initiating or provoking a fight .... Clearly, lying to a supervisor in the course of an official investigation of alleged offenses justifying discharge qualifies as "dishonesty." Consequently, it is impossible to determine whether Dinsmore was discharged for fighting, or for his alleged "dis- honesty" in denying that a fight took place-a denial which may never have occurred had the in- terview not been conducted unlawfully. Without supporting evidence, how can it be said that Dins- more's discipline would not have been less severe if he had "cooperated" without insisting upon repre- sentation or otherwise acted differently at the un- lawful interview?' 2 The burden of proving such matters lies with Respondent, and the only conclu- sion possible is that Respondent has failed to carry its burden. ' 3 In its brief to the Board, Respondent argues that, since its "uniform penalty" for fighting is discharge and the information which resulted in Dinsmore's discharge was obtained from other employees who witnessed the incident, its decision to discharge Dinsmore was not based on any information ob- tained at the unlawful interview. This argument is flawed in two respects: First, there is little evi- dence in the record indicating that Respondent had any "uniform penalty" for fighting; second, it is un- disputed that no one except the two combatants witnessed the beginning of the fight. To support its assertion that it had a "uniform penalty" for fighting, Respondent offers the testi- mony of the plant personnel manager. The relevant testimony is as follows: Q. Mr Griffith, does the plant have a uni- form policy for persons guilty of fighting, initi- ating or provoking a fight? A. Yes, we do. They are discharged. 1 I note with great interest that employee Ellington, the one with whom Dinsmore allegedly was fighting, did "cooperate" and was neither discharged nor disciplined in any way for participating in the fight "a My colleagues argue that a "close and careful analysis" reveals that Respondent has demonstrated its decision to discipline Dinsmore was not based on information obtained at the unlawful interview, yet, contrary to their assertion, they clearly have placed the burden of proof on the em- ployee whose rights were so blatantly violated. They note in the closing paragraph of their decision that "there is nothing in the record whatso- ever which indicates that Dinsmore was discharged for 'dishonesty"' however. they fail to recognize that since the burden of proof is upon Respondent to show nonreliance upon such "information." any absence of evidence militates against a finding that Respondent has met its burden. KRAFT FOODS, INC I)1 This is the only evidence introduced by Respondent to establish its "uniform penalty." In my view, this self-serving testimony in response to a leading question asked on direct examination is entitled to little weight. This scant proof hardly establishes that Respondent had any such "uniform penalty" for fighting. In fact, the employees' handbook (Resp. Exh. 6) does not even mention discharge as one of the possible "disciplinary actions" which may result from fighting. Even the collective-bar- gaining contract, supra, speaks of discharge as the ultimate, not the exclusive, penalty for fighting. Consequently, it is clear that Respondent has failed to prove that it had a "uniform penalty" for fight- ing. Respondent's assertion that the information which resulted in Dinsmore's discharge was ob- tained from other employees who witnessed the in- cident is refuted in its own brief. In its brief to the Board, Respondent argues that Dinsmore was dis- charged because "he engaged in an unjustified, vi- cious attack on a fellow employee which was only ended when other employees intervened and pulled Dinsmore off Ellington." What Respondent fails to note is the fact that the intervening employees did not witness the beginning of the fight. Clearly, the reasons cited by Respondent in support of its deci- sion to discharge Dinsmore all involve issues of how and why the fight began. Moreover, the fact that Ellington was not disciplined in any way is strong evidence indicating that Dinsmore was dis- charged because Respondent perceived him to be the aggressor rather than merely because he had been involved in a fight. A determination as to who was the aggressor necessarily involves an analysis of how the fight started; the testimony of the intervening employees merely indicates that Dinsmore was winning the fight when they first saw the altercation. Since only the two combatants witnessed the beginning of the fight and both these employees were interviewed in violation of Wein- garten, it is hard to conclude that the facts justify- ing the discharge, or those mitigating against it, were obtained anywhere other than from an unlaw- ful interview. Even assuming that Respondent de- cided to discipline Dinsmore merely because he had been involved in a fight and not because he al- legedly was the aggressor, one wonders whether an employer who is relying exclusively on the facts surrounding such misconduct would conclude that discharge is an appropriate discipline for an em- ployee with 26 years' seniority who may have been provoked into a fight. I think not. Accordingly, I dissent. APPENDIX NOTICE To EMPIOYEt:S POSTED BY ORDER OF THE NATIONA. LABOR REIATIONS BOARD An Agency of the United States Government WE V'II I. NOT require any employee to take part in an investigatory interview where the employee has reasonable grounds to believe that the matter to be discussed may result in his or her being the subject of disciplinary action and where we have ignored, denied, or refused any request by him or her to have union representation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. KRAET FOODS, INC. DECISION STATEMENT OF HI-HLG CAS[ IRWIN KAPLAN, Administrative Law Judge: This case was heard before me, in Atlanta, Georgia, on August 24. 1978, pursuant to charges filed on February 22, 1978, and a complaint which issued on March 22, 1978. The grava- men of the General Counsel's case is that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act) by ignoring then employee Fred Dinsmore's request to have a union rep- resentative present during an investigatory interview which Dinsmore reasonably believed might result in dis- cipline. The General Counsel asserts that Dinsmore was entitled to such representation under N.L.R.B. v. J Weingarten, Inc., 420 U.S. 251 (1975). According to the General Counsel, Respondent's investigation of Dins- more's involvement in a forklift collision and fight which culminated in Dinsmore's suspension and discharge was tainted because it inter alia denied him union representa- tion. Respondent denies that it violated the Board's guidelines as quoted with approval in Weingarten. On the basis of the entire record, including my obser- vation of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent Kraft Foods Inc., a Delaware corporation, maintains an office and place of business in Decatur, Georgia, where it is engaged in the production of food products. During the past calendar year and at all other times material herein, Respondent has derived revenue in excess of $50,000 in connection with the operation of its KRAFT FOODS INC. 601 602 I)2ECISIONS ()F NATIONAI. I.ABOR RE.AI()ONS BO()ARD Decatur, Georgia, facility directly from customers locat- ed outside the State of Georgia. Respondent admits, and I find, that it is an employer engaged in commncrce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that General Teamsters Local Union No. 528 (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. 11. IHI: Al 1 E(;I1) UNFAIR ABOR PRACTICIS A. Setting Fred Dinsmore had been employed for about 26 years at the time he was terminated on January 31, 1978.' Dinsmore was employed as a forklift operator on the second shift from 3:30 pm. to midnight on January 26, when the incident occurred which led to his discharge. On that occasion, about 6 p.m., Dinsmore was involved in a collision with a forklift operated by fellow employee Jerry Ellington. Dinsmore had backed up his forklift, the front of which was stacked with glass, and was about to make a turn when he collided with Ellington who had come around the corner from the left side shattering the glass on Dinsmore's vehicle. According to Dinsmore, Ellington called him a S.O.B., both men jumped off their forklifts and a fight ensued. Ellington denied calling Dinsmore a name or that he oth- erwise provoked the fight. In any event, the two men struggled with Dinsmore landing most if not all the blows, and wrestling Ellington to the ground. Employee Mike Rusher who did not witness the collision first thought the combatants were fooling around, and when he realized that they were involved in a serious fight, raced over and lifted Dinsmore off of Ellington. Dins- more got back on his forklift and resumed working. Approximately 20 minutes later Dinsmore and Elling- ton were summoned to see Second-Shift Superintendent James Atkinson about the incident. Atkinson put Dins- more in the salad filling supervisor's office and Ellington in the margarine supervisor's office and proceeded to in- vestigate. Both Dinsmore and Ellington at first denied that they had been engaged in a fight and requested union representation. According to Dinsmore, he repeat- ed the request a number of times but Atkinson refused telling him that he did not need representation. Ellington was questioned about the incident by Atkinson and Em- ployee Relations Manager Jackson. According to Elling- ton, he asked to have Robert Eberhart, second-shift shop steward present but assertedly was told that it would not be necessary; they just wanted to find out what hap- pened. Ellington, as noted above, first denied the inci- dent, then admitted to them that there had been an alter- cation. Atkinson denied that he told either Dinsmore or Ell- ington that they did not need a union steward. On the contrary, he asserted that he told them that he would get a union steward, although he acknowledged that he did not get one or that Dinsmore or Ellington specifically re- scinded their request to have a union representative pres- ent. Atkinson testified, "I asked Ellington if he would I All dates hereinafter refer to 1978, unless otherwise indicated tell us his part of the story without a steward being pres- ent." According to Atkinson. Ellington did not renew his request for a union steward and proceeded to tell him about the incident. Dinsmore had been moved from the salad supervisor's office to the conference room to the personnel office to await further questioning by Atkinson. About I p.m.. after Atkinson had questioned everyone else including Ellington about the incident, he was ready to hear Dins- more's account. Dinsmore again requested a union ste- ward. According to Atkinson, he asked Dinsmore, as he had assertedly asked Ellington earlier whether he would provide his version of the incident without a steward. Atkinson asserted that Dinsmore looked at a photograph on the table and noted "That's where we had the wreck." Atkinson further asserted that in response to his questions, he (Dinsmore) admitted that he, and Ellington both got off their forklifts, but denied that there was any fight. Dinsmore indicated that he was feeling sick and was told by Atkinson that he was "being suspended pending investigation of the situation''." Ellington was similarly suspended. and both he and Dinsmore were told to come in the following day for further question- ing. Dinsmore was questioned in the presence of Shop Steward Eberhart. On Monday, January 30, Ellington's suspension was removed and he returned to work. Dins- more was discharged the following day (January 31) for "fighting," and he filed a grievance the same day protest- ing the discharge. The grievance was processed to arbi- tration where it was denied on August 28.2 The arbitrator in assessing whether Ellington had pro- voked the incident noted "The record shows that Elling- ton's forklift was on the left wrong side and that he may have addressed questionable remarks to Dinsmore when the collision took place." He concluded, however, that such mitigating circumstances did not justify Dinsmore's action and that the company therefore had just cause for the discharge." B. Discussion and Analysis It is undisputed that Dinsmore and Ellington were in- volved in a forklift collision at approximately 6 p.m. on January 26 which precipitated a fight between them. Ap- proximately 20 minutes later they were summoned to meet with Superintendent Atkinson, who investigated the incident. The record discloses that Atkinson placed Dinsmore and Ellington in separate offices and ques- tioned them about the incident. It is also undisputed that at the outset both Dinsmore and Ellington requested union representation. Both Dinsmore and Ellington cre- dibly testified that Atkinson declared that union repre- sentation was not necessary. Atkinson's denial that he told Dinsmore and Ellington that union representation was not needed and his uncorroborated assertion that he actually told them that he would accede to their request by getting the union shop steward is rejected. It is noted that Employee Relations Manager Jackson, who was also 2 Respondent's unopposed mnltion to reccie the pos-trial arbitrator's award as Resp. Exh 10 is herehb granted :' There is no sheo's ig lalr is it assrtcd Ihal the airhiralto conllsidcrcd Dinsmore's Weingarten rights, which ill bhe dicscussed niore full5 helow KRAFT IF()()DS, INC 603 present during the Ellington interview, did not testify. Moreover, there ,was no reason for Ellington to fabricate his testimony. In this regard it is noted that Ellington was still employed by Respondent at the time of the hearing and as such testified against his pecuniary inter- est. Furthermore it is noted that Respondent supported Ellington's version over Dinsmore with regard to the fight. On the basis of the foregoing. the entire record and my observation of Atkinson's demeanor, I find that At- kinson was not a reliable witness. Conversely, noting particularly that Dinsmore and Ellington testified similar- ly in attributing to Atkinson the statement that union representation was not needed during the investigation, I credit their testimony where in conflict with the testimo- ny provided by Atkinson. As noted previously, both Dinsmore and Ellington first denied that they had engaged in a fight. These com- batants had good reason to fear that one or both of them would be discharged or suffer other adverse conse- quences. Thus it is noted inter alia that the company's plant rules specify 34 offenses for which employees may be subject to disciplinary action including significantly number 15, "Fighting on the premises at any time."4 In these circumstances I find that Dinsmore and Ellington were entitled to request union representation as pre- scribed in Weingarten. Once the request for the union shop steward was made, Atkinson could have provided time in order to summon the steward. The record disclosed that Shop Steward Eberhart was employed, working, and available at the time the interview was conducted Atkinson was also "free" within the guidelines noted in Weingarten to safely refuse to interview the combatants, and "act on the basis of information obtained from other sources." 5 In a similar setting whereby a respondent elected not to postpone the investigatory interview until union repre- sentation was provided but pressed forward instead, Ad- ministrative Law Judge Herzel Plaine with the Board's approval wrote as follows: Respondent simply pushed ahead with the inter- view, in effect denying the employee's right of union representation. The fact that employee Willis stayed. and answerLd the questions put to him, did not make his participation voluntary or constitute a waiver of his right to union representation. It should not be requisite to the continued maintenance of the properlyv asserted right of union representation that the lone em- ployee further antagonize the employer and jeopardize his job by walking out of the meeting or by refusing to answer questions. 6 [Emphasis supplied.] Administrative Law Judge Plaine's comments are par- ticularly fitting insofar as they relate to Ellington. Atkin- son conceded that Ellington requested the assistance of the shop steward and had not expressly rescinded such request. As I have previously rejected Atkinson's asser- 4 See Resp Exh , p 12 See ail, the article on "DI)Isharge" in the c,,lleclive-harganniiilg agreenmeC tRRcp x h 5, p 4) ". L.R. H, Reisgarstc. IEn sira, 258 25, quling w ilh approsal ,ohil il Corpralion, 1I9 N R I 1 52 ( 1I72) ' Super alu Xenia. ..I Dirl'owt o/ Supr llu Stisr. Inc.. 236 N RHi 1581. I591 (1978) tion that he agreed to get the shop steward and as Atkin- son refused to postpone the interview. I find that Atkin- son wrongfully deprived Ellington the "free" choice under Weingarten, to disclose his version of the incident without the presence of a union representative.7 Thus, as Ellington had specifically requested the assistance of the shop steward and was told in response thereto by a high level supervisor that he did not need a union representa- tive and as said supervisor failed to advise Ellington that he had an option to defer giving his account until union representation was provided, it is not surprising that he decided to tell his side of the incident. In these circum- stances, the interview and further investigation thereon was tainted. 8 Dinsmore, unlike Ellington, refused to tell all that he knew during the investigatory interview which he rea- sonably believed might result in discipline unless a union representative was present. This was his right guaranteed by Section 7 of the Act as affirmed by Weingarten. Dins- more credibly testified that he pressed for a union repre- sentative repeatedly throughout the evening of January 26 (the night of the incident) and Atkinson refused to oblige. Even Atkinson conceded that at least on two oc- casions that evening, Dinsmore had requested the assist- ance of the shop steward. Instead Atkinson removed Dinsmore from further production and confined him to the salad supervisor's office, conference room, and per- sonnel office, whereby he was isolated from other em- ployees and effectively deprived of union representa- tion.9 Atkinson, after having left Dinsmore so isolated for about 4 hours and armed with Ellington's "tainted" confession that he was involved in the altercation with Dinsmore l° and presumably after he had interviewed other employees, i was now ready to further question Dinsmore. It is admitted that Dinsmore once again asked to have his shop steward present. Atkinson did not make any effort to provide the shop steward and pressed for- ward with the interview. He asked Dinsmore whether he had been involved in the fight and whether he had gotten off his forklift. Dinsmore denied that he had been Unirted Staie, Postal Service, 241 NLRB 141 (1979) See, e g. Portter Elctri Signal Company. 237 NLRBH 12. 128 9 1. n 8 (1978). United Suta Postal Service. upra, 150 9 Dinsmore testified that when he was first conlfined to the salad super- visor's office, Shop Steward Eherhart came by foir a smoke in the smnrk- ing area outside that office Dinsmore asserted hat he told Eherhart that he would probably need him to represent him. Atkinson then had asser- tedly come over to transfer Dinsmore to he conference room when he. Dinsmore, asked to have union representation to hich Akinson re- sponded that he did not need any. According to Dinsmore Eberhart questioned Atkinson on why union representation was not needed hut Dinsmore could not recall or did not understand Akinson's response At- kinson denies that ay such verbal encounter took place. A Eherhart did not lestif 5 ad noting the agueness of Dinsmorc's testimony regarding this brief encounter I do not rely on Dinsmorc's tesimonN in this limited arsa in arrising at the findings below I do, hoveser. credit as noted preiously) Dinlsmores testimony that he conistentdl requested the pres ence of the shop steward See. e.g. 4.-.4 Equipmninr Sric C 'mpaun. 28 NRB 9() 0(11978) "' As hcoted preslousli. both EIlilngtgon and Dinsmore decied that the had been insol'ed i a fight " II is noted that the collision and fight were lot ohscrsed h a, superior urther. the the nplo.ees ssho siiiessed te ight did not obh- serve how It hd begtill Thus the ons ll llnese to the coitli ol and the fight were (lie coimhbatant FElingtioni and l)linsmlnre KRAFT FOS INC 603 - h604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in the fight but did identify the collision scene from a polaroid photograph (Resp. Exh. 9). He also ad- mitted that both he and Ellington had gotten off their forklifts. Counsel for Respondent asserts that Dinsmore provided this information voluntarily. Thus he argues, inter alia, "to prove a violation of Section 8(a)(l) of the Act, under Weingarten counsel for the General Counsel would have had to show that Dinsmore renewed his re- quest .... ." This of course ignores inter alia Atkinson's testimony whereby he conceded that Dinsmore request- ed the presence of the shop steward on at least two oc- casions that evening. The interview ended about 10 p.m. when Dinsmore told Atkinson that he had not eaten and was not feeling well. Atkinson suspended Dinsmore and told him to come back to be further interviewed the following day. The fact that Dinsmore was permitted to consult with Shop Steward Eberhart the following day (January 27) came too late and accorded little solace. The Respondent had already in effect metered out a form of discipline by confining Dinsmore for about 4 hours the previous eve- ning in the manner described above while ignoring his request that he be permitted the assistance of the shop steward. By the time Respondent yielded and provided Dinsmore union representation the investigation was al- ready tainted and virtually completed. As previously noted, the investigation was tainted inter alia by Atkin- son's failure to provide appropriate safeguards for Elling- ton when the latter requested but was not provided union representation. This taint was further compounded when Atkinson pushed Dinsmore into making certain ad- missions notwithstanding the fact that he had clearly not withdrawn his request to have the shop steward present during the interview. As Atkinson did not finish ques- tioning Dinsmore until the latter was physically unable to continue at which point he was suspended, I find that Dinsmore's Section 7 right to union representation prior thereto was violated.' 2 Accordingly, I find that Re- spondent violated Section 8(a)() of the Act. 3 Finally, Respondent contends that even if it committed an 8(a)(l) Weingarten violation, affirmative relief is pre- cluded under Section 10(c) of the Act, which provides, "No order of the Board shall require the reinstatement of any individual who had been suspended or discharged, or the payment to him of any back pay, if such individu- al was suspended or discharged for cause." In support thereof Respondent relies largely on the arbitrator's find- ing that there was just cause and an absence herein of any contention that the cited cause for the discharge was a pretext. Respondent, however, misconceives the Wein- garten rationale. Once the matter proceeds to arbitration on the basis of an initial defective investigation, as with Dinsmore's grievance herein, "it becomes increasingly difficult for the employee to vindicate himself, and the A,4nchortank. Inc., 239 NLRB 430 (1978); United States Postal Service, supra. Potter Electric Signal Company. upra; Super Valu Xenia. a Division af Supr Valu Siorv. Inc., supra ':' While I have found that Atkinson did not comport with the letter and spirit of Wingartn is-a-vti the Ellington interview. I deem it unnec- essary to find that Respondent additionally violated Sec. 8(a)(I) with regard to him. It is noted, inter alia, that the complaint does not allege nor does the General Counsel argue for an additional finding that Re- spondent vilated Sec (a)(I) of the Act relative to Ellington value of representation is correspondingly diminished. The employer may then be more concerned with justify- ing his actions than reexamining them." Weingarten, supra, 263-264. Thus, the arbitration hearing had come much too late and was too limited in scope to overcome the initial taint. In this connection it is noted that the ar- bitrator never considered Dinsmore's Section 7 right to have a union representative at the initial investigatory in- terview. In these circumstances I find that the investiga- tory taint rendered unlawful that which may have other- wise been a lawful discharge for cause.'4 Accordingly, I find that affirmative relief herein is warranted.'15 Ill. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action in order to effectuate the policies of the Act. Having found that Respondent unlawfully deprived Dinsmore of union representation during an investigatory interview which he reasonably believed might result in adverse consequences, and pursuant thereto Respondent first suspended and then discharged Dinsmore, I shall recommend that Respondent be ordered to offer Dins- more immediate and full reinstatement to his former posi- tion, or if that position is no longer available, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of pay as a result of the discrimina- tion against him, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).16 Further, having found that Respondent derived "taint- ed" information upon which it suspended and discharged Dinsmore, I shall recommend that said Respondent be ordered to expunge from its records any such informa- tion contained therein and any reference to Dinsmore's discharge. 7 CONCLUSIONS OF LAW I. The Respondent, Kraft Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local Union No. 528 (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. By ignoring Fred Dinsmore's request to have union representation in an investigatory interview which he 4 Anchortank, Inc.. supra,. 431, fn. 9 " A4nchorank. Inc, upra. Potter lectric Signal Company, upra. See also United State Pooal Service, upra, 156 See, generally, i Plumbing Heating Co.. 138 NLRB 716 (1962) '7 Potter Electric Signal C(opany. upra. 1289. fn 2 . KRAFT FOODS, INC 6() reasonably believed might result in disciplinary action practices affecting commerce within the meaning of Sec- against him, and by actually suspending and discharging tion 2(6) and (7) of the Act. him, Respondent violated Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor [Recommended Order omitted from publication.]