Southwestern Bell Telephone Co.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwestern Bell Telephone Company and Commu- nications Workers of America, Local 12222, AFL-CIO. Cases 23-CA-7024, 23-CA-7072, and 23-CA-7157 August 27, 1980 DECISION AND ORDER On August 21, 1979, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel, joined by the Charging Party, filed limit- ed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found, inter alia, that the Respondent: (1) violated Section 8(a)(l) of the Act by requiring employee Gottschalk's union steward to remain silent during an investigatory in- terview concerning Gottschalk, thereby depriving him of his union representative's counsel and assist- ance during the interview; (2) did not violate Sec- tion 8(a)(l) by allegedly depriving employee Brooks of union representation at an interview at which she was informed of her discharge; and (3) did not violate Section 8(a)(5) by refusing to fur- nish the Union with copies of certain documents from employee Martin's personnel file without Martin's written request. The Respondent has ex- cepted, inter alia, to the Administrative Law Judge's finding that it is not permitted to require a union representative to remain silent during an in- vestigatory interview of an employee. The General Counsel has excepted to the Administrative Law Judge's finding that Brooks was not denied union representation at the interview at which she was informed of her discharge, as well as to the finding that the Respondent was not required to furnish the Union with certain documents from Martin's personnel file. In addition, the General Counsel has excepted to the Administrative Law Judge's failure to order the Respondent to offer Gottschalk rein- statement and backpay as a result of the unlawful denial of union representation found by the Admin- istrative Law Judge. We find no merit in the Re- spondent's exception nor in the General Counsel's exception regarding the denial of representation to Brooks, for the reasons discussed below. However, we do find merit in the General Counsel's excep- tion to the Administrative Law Judge's failure to find a violation of Section 8(a)(5) for the refusal to furnish the Union with the requested information from Martin's personnel file, and to the failure to 251 NLRB No. 61 order the reinstatement and backpay of Gottschalk, for the reasons discussed below. As more fully set forth in the Administrative Law Judge's Decision, the facts concerning Gotts- chalk indicate that the Respondent arranged for a meeting with Gottschalk in order to question him about certain property which had been stolen from the Respondent. The meeting was attended by Gottschalk, Hataway (first line supervisor), Garner (third line supervisor), and Hubbard (security su- pervisor). When Hubbard displayed the stolen property (which had been recovered from a pawn shop) and began asking Gottschalk about his in- volvement in the alleged theft, Gottschalk request- ed union representation. Union Steward McQuiller was called in and informed of the allegations against Gottschalk. Hubbard then informed McQuiller that he did not want him to say any- thing, and that he wanted Gottschalk to answer in his own words.' Hubbard then questioned Gotts- chalk further, informing him that if he did not con- fess to stealing the property he would be arrested by a policeman who was already on his way to the Respondent's offices.2 Gottschalk became very upset and began to cry, and shortly thereafter he confessed to the theft of the Company's property as well as to several other thefts of company prop- erty. After a written confession was signed, Hub- bard asked McQuiller if had anything to say. Thereafter, Garner suspended Gottschalk, pending termination. The Administrative Law Judge found that by re- quiring the union steward to remain silent through- out Gottschalk's interview the Respondent had re- duced Gottschalk's right under the Supreme Court's decision in N.L.R.B. v. J. Weingarten, Inc.3 to the mere presence of a union representative rather than the assistance of that representative during the interview. The Administrative Law Judge relied upon repeated references in the Wein- garten decision to the statutory right of employees to seek the assistance of their statutory representa- tive at investigatory interviews which the employ- ee reasonably fears may result in his discipline. The Administrative Law Judge specifically noted the Supreme Court's extensive elaboration on the role to be played by a statutory representative during a i ubbard cstified Ihat he intended his staternerlt t McQuiller o mean that McQuiller could lnot ask any questions until the intlcrr iev with (iottschalk Aas oecr. but that McQuiller ".a, free to seek clarificalions during the illtcrvle.. Hubbard also lestified that flloVl.ing his tatement Io McQuiller iht latler said lothilig during and after the interiev Although a policenaln as it) I act onl his as I t he Respi dent's offices v hil the tlllntcer.l. v ss Il progress. the Respondcllt had decided prior to the ilterl IC 101 to file crinailal charges againt (ilottschalk i 420) LI S 251 (1q751 SOUTHWESTERN BELL TEL.-HEIPONE COMPANY 61 Weingarten interview.4 Nevertheless, the Respond- ent asserts herein, as it did before the Administra- tive Law Judge, that the Supreme Court intended to permit employers to demand the silence of a statutory representative during an investigatory in- terview when the Court stated that "[t]he employ- er . . . is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation." 5 However, the Administrative Law Judge noted that immediately preceding that statement the Supreme Court stated that: The employer has no duty to bargain with the union representative at an investigatory inter- view. "The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them...." Thus, viewing the decision as a whole, the Admin- istrative Law Judge rejected the Respondent's con- tention that an employer could demand the silence of the statutory representative throughout a Wein- garten interview. In agreeing with the Administrative Law Judge's findings and conclusions on this issue, it is our view that the Supreme Court, in the course of its Weingarten decision, intended to strike a careful balance between the right of an employer to inves- tigate the conduct of its employees at a personal in- terview, and the role to be played by a statutory representative who is present at such an interview. It is clear from the Supreme Court's decision that the role of the statutory representative at an inves- tigatory interview is to provide "assistance" and "counsel" to the employee being interrogated. However, the Supreme Court made it equally clear that the presence of the statutory representative "need not transform the interview into an adver- sary contest,"6 or indeed, any type of collective- bargaining confrontation. Clearly, then, an employ- er's right to regulate the role of the statutory repre- sentative at an investigatory interview is limited to a reasonable prevention of such a collective-bar- gaining or adversary confrontation with the statu- tory representative. In the instant case, the Respondent, by demand- ing the silence of Gottschalk's union steward until after Gottschalk had confessed to the charges, did not engage in a reasonable prevention of a collec- tive-bargaining or adversary confrontation with the statutory representative. Rather, the Respondent at- tempted from the very outset of the interview to stifle any participation by the union steward during 4 Id at 262-263. 265 Id. at 260 Id. at 263 the interview. At the time that Hubbard demanded McQuiller's silence, there was no indication that McQuiller had sought or would seek to turn the in- terview into a collective-bargaining or adversary confrontation. We note, further, that the interview itself, as well as its outcome, demonstrates the critical need for the rights granted to employees under Weingar- ten. For as the Supreme Court stated in Weingar- ten, often "an investigative interview is conducted by security specialists; the employee does not con- front a supervisor who is known or familiar to him, but a stranger trained in interrogation techniques." 7 Similarly, Gottschalk was confronted at the inter- view by Hubbard, a security supervisor and former FBI agent who was trained in interrogation tech- niques and who used those techniques to procure a total written confession from Gottschalk. Obvious- ly, the mere silent presence of Gottschalk's union steward at the interview was insufficient to alter the imbalance which the Supreme Court sought to alleviate in its Weingarten opinion. Accordingly, we agree with the Administrative Law Judge that the Respondent, by requiring Gottschalk's union representative to remain silent, denied Gottschalk union representation at an inves- tigatory interview which Gottschalk reasonably feared might result in his discipline, in violation of Section 8(a)(1) of the Act. With regard to Brooks, the facts reveal that on the morning of March 9 the Respondent's manager of operator services, Ruth Reese, was instructed to discharge Brooks because of excessive absences. When Brooks reported to Reese's office that morn- ing in order to present Reese with a doctor's excuse for her latest absence, Reese told her that she (Reese) wanted to meet with her. Brooks re- quested that they wait for the arrival of her union steward, Brown. Upon Brown's arrival, Reese in- formed Brooks that the decision had been made to discharge her, and provided Brooks with precise reasons for the discharge. When Brown sought to intervene in the discussion, Reese told Brown that she could say nothing until after Brooks left the meeting. At that point, Brooks accepted the dis- charge and left the meeting. The Administrative Law Judge, relying on Amoco Oil Company,8 Texaco, Inc.,9 and K-Mart Corporation,'o found no unlawful denial of union representation because the Respondent merely in- formed Brooks of the discipline "that had been de- cided upon prior to the session, and thus did not 7 Id. at 265, fn. 10. a 238 NLRB 551 (1978). 242 NLRB 291 (1979). to 242 NLRB 855 (1979) 614 I)FCISIONS OF NATIONA I LAB()R RELATIONS BOARDI engage in any other type of interchange which could be characterized as an interview." Howev- er, subsequent to the Administrative Law Judge's Decision, the Board issued its Decision in Baton Rouge Water Works Company. 2 A majority of the Board there held that, under the Supreme Court's decision in Weingarten, an employee has no Section 7 right to union representation at a meeting with his employer held solely for the purpose of inform- ing the employee of, and acting upon, a previously made disciplinary decision. 1 3 In the instant case, the record is clear that the Respondent had reached a final decision to dis- charge Brooks prior to the March 9 meeting at which she was informed of her discharge. The record is also clear that the Respondent had reached that decision based upon facts and evi- dence which it had obtained prior to the March 9 meeting, and it is undisputed that the sole purpose of the meeting was to inform Brooks of her dis- charge. Accordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act as a result of the March 9 discharge meeting. 4 With regard to the information requested by the Union from employee Martin's personnel file, the facts reveal that on March 22 Staff Supervisor Pat Burke informed Martin, a mail driver, in the pres- ence of Martin's union steward, LaBorde, that Martin was suspended for lying on his employment application. Apparently, Martin had indicated on his employment application that he had three or four moving traffic violations, whereas his driving " Amoco Oil Company, supra. 'Z 246 NLRB No. 161 (1979), Chairman Fanning and Member Plencli dissenting separately. '' The Board majority reasoned that: [Als long as the employer has reached a final, binding decision to impose certain discipline on the employee prior to the interview, based on facts and evidence obtained prior to the interview, no Sec- tion 7 right to union representation exists under Weingarten when the employer meets with the employee simply to inform him of. or impose. that previously determined discipline. [246 NLRB No. 161] The Board majority also emphasized that "the fact that the employer and employee thereafter engage in a conversation at the employee's behest or instigation concerning the reasons for the previously determinled disci- pline will not, alone, convert the meeting to an interview at which the Weingarten protections apply." (Id.) 14 Chairman Fanning and Member Penello, each of whlom dissented in Baton Rouge Water Works, would find that the Respondent violated Sec 8(a}(1) by requiring Brooks' union steward to remain silent at Brook's dis- charge interview. Thus, they disagree with the Administrative Law Judge's application of Amoco Oil. Texaco, and K-Mart. The facts, as Found by the Administrative Law Judge, reveal that during the meeting, Reese discussed with Brooks the doctor's excuse, previous absences and disciplinary action, the reasons Brooks had given for those absences, and Brooks' attendance record as compared to those of other employees. Reese herself testified that there was "some interchange" between her and Brooks about the latter's record. Since the discharge meeting rose to that level of an interview requiring the Weingarren protections, Chairman Fanning and Member Penello would find that the Respondent, by requir- ing Union Steward Brown to remain silent until after the interview with Brooks was over, unlawfully denied Brooks union representation at the interview. record received from the State indicated eight speeding convictions and two negligent collisions. Martin was told that he would be discharged at noon the next day unless he resigned before that time. LaBorde then requested copies of Martin's employment application and driving record, and Burke indicated that he saw "no problem" with that request, but he would have to check with his supervisor first. Martin turned in his key and ID card, and left the premises. At 7:30 the next morn- ing, Burke informed LaBorde that he could not provide LaBorde with copies of the documents without written authorization from Martin. La- Borde was unable to contact Martin, and Martin resigned later that morning. The Administrative Law Judge, inadvertently finding that the events above occurred on May 22 rather than on March 22, concluded that pursuant to a settlement agreement between the Respondent, the Union, and the Board, which was enforced by the United States Court of Appeals on May 16, the Respondent was under no obligation to supply the Union with copies of the requested documents without Martin's written authorization. Since the Administrative Law Judge erroneously relied upon the settlement agreement to resolve this allegation, we must determine whether the Respondent violat- ed the Act based upon our own review of the facts. It is undisputed that the Respondent refused to provide copies of the documents as requested by the Union, and that the information contained in the documents was relevant and necessary for the performance of the Union's statutory function in representing Martin. For example, had the Union been able to review the documents, it might have been able to advise Martin as to whether he should resign from the Respondent, or allow himself to be discharged and pursue his remedy through the grievance arbitration system. In addition, the sole reason relied upon by the Administrative Law Judge for finding no violation was the Respondent's defense that Martin had not authorized in writing the release of the information from his personnel file. We note, however, that this defense has been repeatedly rejected by the Board.' 5 Accordingly, we find that the Respond- ent, by refusing to furnish the Union with copies of designated documents from Martin's personnel file, violated Section 8(a)(5) and (1) of the Act.' 6 l' Cf. The Electric .4uto-rit Comnpany, 89 NLRB 1192. 1198 99 (1950) N, L R.B. v. Acme Indurrial Co. 385 U S. 432. 435 (1967). S()O'rHWFSTFRN HEI.I. TII.FI'H()NE C()MPANY hl5 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall recom- mend that it cease and desist therefrom and take certain affirmative action set forth below designed to effectuate the policies of the Act. We have found, in agreement with the Adminis- trative Law Judge, that the Respondent violated Section 8(a)(l) of the Act by depriving Charles Gottschalk of union representation at an investiga- tory interview which Gottschalk reasonably be- lieved might result in his discipline. Since the Re- spondent's unlawful interview with Gottschalk re- sulted in a confession and Gottschalk's immediate suspension and termination, we deem it appropri- ate, in order to rectify the harm caused by the un- lawful interview, to grant the remedy of reinstate- ment and backpay.' 7 We shall order the Respond- ent to offer Gottschalk immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed. We shall also order the Respondent to make Gottschalk whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, by paying to him a sum of money equal to the amount he normally would have earned as wages from De- cember 13, 1977, to the date of the Respondent's valid offer of reinstatement, less net earnings during said period. The amount of backpay due 17 Illinois Bell Telephone Co.. 251 NLRB No. 128 (1980) We note that in the instant case, as in Illinois Bell, the General Counsel has shown that an unlawful investigatory interview occurred and that the employee was discharged for conduct which was the subject of the interview Howe,- er, unlike Illinois Bell. the Respondent did not come forward with evi- dence as to the basis for its decision to discharge Gottschalk. NIeverthe- less, we deem it unnecessary to reopen and remand this case to the Ad- ministrative Law Judge for a hearing that would provide the Respondent with an opportunity to show that its decision to discharge Gottschalk was not based on information which it obtained at the interview In this regard, we note Security Supervisor Hubbard's testimony that "the pur- pose of obtaining the written statement from Mr. Gottschalk was so that there wouldn't be any question as to what was true and what was not true." and that his "intent and purpose . prior to going into the meet- ing wasl to obtain a written confession from Mr. Gottschalk " Hubbard further testified that the only evidence the Respondent had prior to the interview implicating Gottschalk in the theft of company property was the name, address, and physical description of the man who pawned the company property, which information was obtained b the pawn shop operator directly from the driser's license presented by the man pawning the property Hubbard admitted that "anybody could have gone up there with Mr Gottschalk's driver's license and pawned the equipment . Finally, we note that Gottschalk was suspended immediately after he signed the written confession and prior to the end of the interview Under these circumstances, we deem it highly improbable that the Re- spondent did not rely on Gottschalk's written confession in its decision to suspend and terminate him. Member Jenkins joins in this result, for the reasons expressed in his concurrence in llinois Bell: that the reason for Gottschalk's discharge was related to the subject matter of the interview. Member Penello, who did not participate in Illinois Bell. relies on that decision only insofar as it discusses the issue of the appropriate remedy for a Weingarten violation shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (19 7 7). 18 Furthermore, as part of the make-whole remedy, we shall order that Gotts- chalk's written confession obtained at the inter- view, as well as any references to any disciplinary action arising out of the interview, be expunged from the Respondent's files and records. ' 9 We have also found, contrary to the Administra- tive Law Judge, that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to fur- nish the Union with copies of certain documents from Mickey Martin's personnel file. Therefore, we shall order the Respondent to furnish the requested copies of Martin's employment application and driving record from the Texas Department of Public Safety. In addition, in order to restore Martin and the Union to the status quo ante, we shall order the Respondent to waive any grievance procedure time limitations so that the Union may have the opportunity to file a grievance over Mar- tin's termination. 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, Southwestern Bell Telephone Company, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Depriving any employee of his right to union representation at an investigatory interview which the employee reasonably believes might result in disciplinary action, by requiring the union repre- sentative to remain silent throughout the interview. (b) Refusing to furnish Communications Workers of America, Local 12222, AFL-CIO, upon request, all information which is relevant and necessary to the proper performance of the Union's statutory duties of collective bargaining and grievance proc- essing. (c) 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. ]a See, generally. is Plumbing d Heating Co.. 138 NLRB 716 (1962) Member Jenkins would compute the interest due n backpay in accord- ance with iMedical Corporation, 250 NLRB No 11 1980) 19 Nesvertheless, if Gottschalk does accept reinstatement, the Respond- ent is not foreclosed from disciplining him fr theft of company properti so long as such action is not taken on the basis of an5 information oh- tained at the December 13 interview As noted in Illinois Bell lelephone Co., "this procedure remedies the unfair labor practice. while preserving Respondent's right to discipline and discharge its employ)ees. so long as its actions do noI contralvene the Act " 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action: (a) Offer Charles Gottschalk immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make whole Charles Gottschalk for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, as set forth in the section of this Decision entitled "The Remedy." (c) Expunge from its records and files Gotts- chalk's written confession obtained at the unlawful investigatory interview of December 13, 1977, as well as any references to any disciplinary action taken against Gottschalk as a result of the Decem- ber 13 interview. (d) Furnish the Union, upon request, with copies of Mickey Martin's employment application and his driving record from the Texas Department of Public Safety, and waive any grievance procedure time limitation so that the Union may have the op- portunity to file a grievance over Martin's termina- tion. (e) Furnish the Union, upon request, with the 1977 daily time reports of special services crew 7299, and the 1977 "Daily Serial List" reports, monthly "Load Forecast" reports, and monthly summaries for all teletype crews (Form S-902). (f) Post at its facilities in Houston, Texas, copies of the attached notice marked "Appendix." 2 0 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Psoted 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAIl LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deprive any employee of his right to union representation at an investiga- tory interview which the employee reasonably believes may result in disciplinary action, by requiring the union representative to remain silent throughout the interview. WE WILL NOT refuse to furnish Communica- tions Workers of America, Local 12222, AFL- CIO, upon request, all information which is relevant and necessary to the proper perform- ance of the Union's statutory duties of collec- tive bargaining and grievance processing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Charles Gottschalk immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges pre- viously enjoyed; and we will make him whole for any loss of earnings he may have suffered by reason of our discrimination against him, plus interest. WE WILL expunge from our records and files Charles Gottschalk's written confession obtained at the unlawful investigatory inter- view of December 13, 1977, as well as any ref- erences to any disciplinary action taken against Charles Gottschalk as a result of the Decem- ber 13 interview. WE WILL furnish the Union, upon request, with copies of Mickey Martin's employment application and driving record from the Texas Department of Public Safety, and WE WILL waive any grievance procedure time limita- tions so that the Union may have the opportu- nity to file a grievance over Mickey Martin's termination. WE WILL furnish the Union, upon request, the 1977 daily time reports of Special Services Crew 7299 and the 1977 "Daily Serial List" reports, monthly "Load Forecast" reports, and monthly summaries for all teletype crews (Form S-902). SOUTHWESTERN BELL TELEPHONE COMPANY SOUTHWESTERN BELL TELEPHONE COMPANY 617 DECISION STArFt NIl N O Till. CASEI MARION C. LADWIG, Administrative Law Judge: These consolidated cases were heard at Houston, Texas, on December 7-8, 1978.1 The charges were filed on April 17, May 17, and July 17, and the complaints and consolidation orders were issued on July 13 and Septem- ber 1. Following earlier proceedings involving the Compa- ny's interference with employees' right under L.R.B. v. J. Weingarten Inc., 420 U.S. 251 (1975), to have union representation at investigatory interviews, and involving the Company's failure to furnish certain documents to the Union, the Company began placing restrictions on the participation of the union steward in disciplinary meetings with employees, and refused to furnish other company records requested by the Union. The primary issues are whether the Company unlawfully (a) denied employees union representation, counseling, and assist- ance by requiring the union steward to remain silent during the course of disciplinary interviews in violation of Section 8(a)(1) of the National Labor Relations Act, and (b) refused to furnish the Union with certain request- ed information in violation of Section 8(a)(5) and (1) of the Act. Upon the entire record, 2 including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel, the Com- pany, and the Union, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Missouri corporation, is a communi- cations common carrier providing telephone and other communications services in Texas, Arkansas, Oklahoma, Kansas, and Missouri, where it annually receives rev- enues in excess of $100,000. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALL.EGED UNFAIR LABOR PRACTICES A. Alleged Denials of "Weingarten" Right I. Prior interference In Southwestern Bell Telephone Company, 227 NLRB 1223 (1977), the Board held that the Company interfered with employees' Weingarten right to have union repre- sentation during interviews with potential disciplinary consequences in violation of Section 8(a)(1) of the Act by telling "employees, on three different occasions, in re- sponse to their inquiries regarding the propriety of ob- taining union representation and an outright request for l All dates are in 1978 unles, otherv, re indicated I grant the Company, unopposed January 2. 1979. motion and suhti- tule (as Resp Exhh A and B) the Board order and conenr judgmentl in Cases 23-CA-6314 and 23 CA- 475 for the order and consent Ildg- mern (Resp Exhs I and 2) in Case 23-CA-476 representation, that the result of granting those requests would be that higher management would have to be called in on the investigation and that the probable con- sequences would be worse for the employees." The Board ruled that the "threat that the exercise of the right to representation would lead to more severe discipline or that the employee's fate would be in more capricious and hostile hands is no less interference and restraint than an outright denial of his right." 2. Instructions for union steward to remain silent a. Charles Gottschalk. Case 23-CA- 7024 On December 13, 1977 (following the Board's finding of interference in the above-cited case), the Company granted employee Charles Gottschalk's request for union representation during an investigatory interview, but in- structed the union steward not to say anything during the interview. District Staff Supervisor-Security Billy Hubbard and a city detective, Fincher, had recovered a pair of the Company's climbing hooks and a safety belt from a pawnshop whose owner stated that employee Gottschalk was the person who pawned the company property. Before learning that District Manager-I/R-Special Serv- ices Robert Garner had made the decision not to file criminal charges against Gottschalk, Hubbard arranged for Detective Fincher to attend a meeting in which Hub- bard would question Gottschalk about the stolen proper- t y. PBX Repair Foreman Tom Hataway called Gotts- chalk to the meeting, which was attended by District Manager Garner (Gottschalk's third line supervisor), Hataway (his first line supervisor), and Hubbard (former- ly employed by the F.B.I.). Hubbard displayed the stolen property and began asking Gottschalk about his involve- ment. Gottschalk then requested union representation, and Hataway called in Union Steward Mark McQuiller, whom Hubbard informed of the allegations against Gottschalk. At that point, as Hataway credibly testified, Hubbard looked directly at Mark and said, "I'm going to ask Charles some questions. I don't want you to say any- thing. I want him to answer in his own words." [Empha- sis supplied.] As recalled by McQuiller, "At that time, he told me not to say anything or answer any questions that he would pose direct." (Hubbard, who impressed me as being less candid about the matter, did not admit telling McQuiller to remain silent.) After instructing Union Steward McQuiller not to say anything, Security Supervisor Hubbard (as McQuiller, now a supervisor, credibly testified) proceeded to ques- tion Gottschalk about the theft and "informed Gotts- chalk that a police officer was on his way to the meeting and that if he didn't confess to these charges, that he would be taken downtown." (Hubbard did not reveal the decision-which he admitted that District Manager Garner had made before the meeting-not to file crimi- nal charges.) Gottschalk became quite upset and began to cry. He had discussed the matter with McQuiller before the meeting and McQuiller had suggested that he not say anything at all. However, that was before Hub- 618 I)I:.CISIONS OF NATIONAL LABOR RELATIONS BOARD bard's threat that he would be taken downtown to the police station if he did not confess. Being forced to make a decision on his own, without further advice from the union steward, whom Hubbard had instructed to remain silent, Gottschalk finally stated, "I may be going against my union representative's advice; but, yes, I did do those things," saying that he needed the money for medicine for his kids. Gottschalk then admitted also taking another set of climbing hooks and safety belt and a third safety belt. Hubbard had begun preparing a written confession for Gottschalk to sign by the time the detective arrived. Hubbard then advised the detective that no criminal charges would be filed. It was not until after the confes- sion was signed and witnessed that Hubbard asked if Union Steward McQuiller had anything to say. McQuiller did not at that time and Hubbard and the de- tective left the meeting. District Manager Garner there- upon suspended Gottschalk pending termination. b. Andrea Brook.s; Case 23-CA-7072 On March 9, the Company again required a union ste- ward to remain silent during a disciplinary meeting. However, this meeting, in which the Company an- nounced its earlier decision to discharge the employee for poor attendance, was initiated by the employee her- self in an effort to explain the latest absence and to avoid being discharged. After the Company announced its final decision to discharge the employee and refused to con- sider her explanation she was permitted to leave the meeting. Manager of Operator Services Ruth Reese was in- structed by her superior that morning to discharge oper- ator Andrea Brooks who had been absent again the day before. Before reporting to work that afternoon Brooks asked to see Reese. When Reese called her to the office a few minutes later, Reese told her that Reese also wanted to see her and that Union Steward Johnnie Brown had been asked to stay over and meet with them. Brooks then gave Reese a note from her doctor and said that she would like to wait until the steward arrived. Upon the steward's arrival, Reese pointed out that the doctor's note gave no prognosis, and then proceeded to tell Brooks that the decision had already been made to discharge her. Reese explained that Brooks had the worst attendance record within the unit, read from her personnel record the times she had been absent or tardy, and reviewed her prior warning, suspension, and final warning. Reese did not ask her any questions and told her, "Andrea, regardless [ofl your doctor's excuse, we have made [the decision] to terminate you." Reese re- fused to discuss any explanation for the poor attendance, and when Steward Brown repeatedly attempted to inter- vene, Reese told her that she could not until after Brooks left. Finally Brooks told Reese, "If you don't allow her to represent me and you won't consider my doctor's paper, then I guess I will just leave. You have already made your decision." Brooks then left the meet- ing. 3. Contentions of the parties Concerning the Gottschalk case, the General Counsel contends that by insisting that the union steward remain silent during the course of the interview, in which Secu- rity Supervisor Hubbard warned Gottschalk that a police detective was on his way to pick him up if he did not confess, the Company denied Gottschalk "union repre- sentation, counseling and assistance" in violation of Sec- tion 8(a)(1) of the Act. The Union contends, "It is clear that Hubbard (a former FBI agent) was conducting an investigatory interview" in a "highly coercive atmos- phere" and "of the type that mandates union participa- tion." The Company contends, on the other hand, that Gottschalk had the right to have only the union stew- ard's presence, and not his participation, during the in- vestigatory interview, and that by requiring the steward to wait until after Gottschalk confessed "to ask questions and seek clarification and gather whatever information" the steward wanted, the Company was "simply asking that the interview be conducted in an orderly fashion." Concerning the Brooks' case, the General Counsel contends that the Company proceeded to "interview" Brooks after notifying her of her discharge, and that by insisting on the union steward remaining silent until the conclusion of the "interview," the Company "violated those Section 7 rights that Weingarten seeks to protect," and further denied Brooks the choice of an interview without her union representative, or no interview at all. The Union contends that by prohibiting the union ste- ward to participate in the discussion of Brooks' attend- ance record as contained in her personnel history file, the Company improperly and unlawfully refused to allow the union representative to participate in the :'in- terview." The Company, to the contrary, contends that it was not seeking any information or explanation from Brooks about her attendance record; that there was no "interview"; that the Company "simply wanted to tell her that she was fired and tell her why": and that the dispute over the steward's participation occurred when Brooks and the steward "attempted to turn the meeting into an interview" and the Company "refused to let it follow that course," whereupon Brooks left and the meeting ended. 4. Statutory right of "assistance" In its opinion in NL.R.B v. J. Weingarten, In., 420 U.S. 251 (1975), the Supreme Court repeatedly referred to the statutory right of an employee to have the ass-isl- ance, and not merely the presence, of a union representa- tive in a compulsory, investigatory interview which the employee reasonably fears may result in his discharge. After pointing out that the Board "shaped the con- tours and limits of the statutory right" in its decisions in Quality Manufacturing Company, 195 NLRB 197 (1972), and Mobil Oil Corporation, 196 NLRB 1052 (1972), the Supreme Court approvingly quoted (420 U.S. at 256- 257) the Board's language in the Mobil Oil decision that: it is a serious violation of the employee's individual right to engage in concerted activity by seeking the assistance of his statutory representative if the em- SO()THWESTERN BELLI TEL.EPHONE COMPANY 610 ployer denies the employee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee's right to act collectively to protect his job interests is. in our view, unwar- ranted interference with his right to insist on con- certed protection, rather than individual self-protec- tion, against possible adverse employer action. [Em- phasis supplied.] Then, after reviewing the Board's other "contours and limits of the statutory right" and ruling that "The Board's holding is a permissible construction of 'concert- ed activities for . . . mutual aid or protection' and should have been sustained" by the lower court, the Su- preme Court specifically held (420 U.S. at 260): The action of an employee in seeking to have the assistance of his union representative at a confronta- tion with his employer clearly falls within the literal wording of s 7 that "[e]mployees shall have the right . . to engage in . . concerted activities for the purpose of. .. mutual aid or protection;" [Em- phasis supplied.] Elsewhere in the opinion, the Court further referred to union assistance, and to what this assistance may entail. It quoted (Id. at 262, fn. 7) from the arbitrator's opinion in Independent Lock Co., 30 LA 744, 746: Participation by the union representative might reasonably be designed to clarify the issues at this first stage of the existence of a question, to bring out the facts and the policies concerned at this stage, to give assistance to employees who may lack the ability to express themselves in their cases, and who, when their livelihood is at stake, might in fact need the more experienced kind of counsel which their union steward might represent. [Emphasis sup- plied.] The Court then added that "A single employee con- fronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inar- ticulate to relate accurately the incident being investigat- ed, or too ignorant to raise extenuating factors" (emphasis supplied), and pointed out that "A knowledgeable union representative could assist the employer by eliciting fa- vorable facts, and save the employer production time by getting to the bottom of the incident occasioning the in- terview. Certainly his presence need not transform the interview into an adversary contest." Thereafter the Court again referred (420 U.S. at 266) to union assistance when holding that the Court of Appeals "impermissibly encroached upon the Board's function in determining for itself that an employee has no 'need' for union assistance at an investigatory interview." (Emphasis supplied.) This holding followed the discussion (Id. at 265, fn. 10) in which the Court cited sophisticated investigative tech- niques, including interviews conducted by security spe- cialists, and pointed out that "These techniques increase not only the employees' feeling of apprehension, but also their need for experienced assistance" (emphasis sup- plied), as when "the employee does not confront a super- visor wuho is known or familiar to him, but a stranger trained in interrogation techniques." In its brief, the Company ignores all of these refer- ences in the Supreme Court's Weingarten opinion to the necessity of union assistance and participation at the in- vestigatory interview, and contends that the employer "can lawfully insist that he does not ant to hear from the union representative during an investigatory inter- view." The Company relies primarily upon one sentence in the Court's opinion (420 U.S. at 260), where the Court-after holding that "The employer has no duty to bargain with the union representative at an investigator, interview"--cited language in the Board's brief that "The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation." Fhe context of the sentence. though. reveals that hereas the em- ployer may insist on being only interested in hearing tile employee's on account of the matter. the employer may not deprive the employee of the right of union as- sistance during the interview. In fact, the preceding sen- tence in the Board's brief, as quoted by the Court, spe- cifically stated that "The representative is present to assist the employee. and may attempt to clarify the facts or suggest other employees who may have knowledge of them." (Emphasis supplied.) The Company also relies on certain language in footnote 5 of Justice Powell's dissent- ing opinion.( Id. at 273-274.) The footnote states that the employee's [Section] 7 right announced today may prove to be of limited value to the employee or to the stabilization of labor relations generally The Court appears to adopt the Board's view that investigatory interviews are not bargaining sessions and that the employer legitimately can insist on hearing only the employee's version of the facts. Absent employer invitation, it would appear that the employee's [Section] 7 right does not encompass the right to insist on the participation of the person he brings with him to the investigatory meeting. The new right thus appears restricted to the privi- lege to insist on the mute and inactive presence of a fellow employee or a union representative; a wit- ness to the interview, perhaps. (Neither the Court nor the Board has adopted this restricted interpretation of the statutory right.) Relying on the majority opinion of the Supreme Court in Weingarten, I find that when an employer grants an employee's request for union representation at a compul- sory, investigatory interview which the employee reason- ably believes might result in disciplinary action, it is a se- rious violation of the employee's statutory right to engage in concerted activity if the employer deprives him of the assistance and counsel of the union repre- sentative by requiring the representative to remain silent during the interview. Although the employer has no duty to bargain with the union representative at the in- terview and may insist upon being only interested at that time in hearing the employee's own account of the matter under investigation, the employer may not de- 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prive the employee of his statutory right to have the union representative give him advice and counsel during the interview, and to otherwise assist him by clarifying the facts, raising extenuating factors, etc. Of course, on the other hand, the employer may decide to refuse to allow such union representation and to carry on the in- quiry without interviewing the employee. As the Su- preme Court held in its Weingarten opinion (420 U.S. at 258), the "exercise of the [employee's] right may not in- terfere with legitimate employer prerogatives. The em- ployer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the em- ployee, and thus leave to the employee the choice be- tween having an interview unaccompanied by his repre- sentative, or having no interview and forgoing any bene- fit that might be derived from one." 5. Concluding findings It is clear that in the Gottschalk case, the Company denied the employee his statutory right to have the as- sistance and counsel of the union representative during the investigatory interview. The Company required em- ployee Gottschalk to attend the interview which he rea- sonably believed might result in disciplinary action. Before beginning the interview in the presence of Gotts- chalk's first line and second line supervisors, Supervisor- Security Hubbard instructed Gottschalk's union repre- sentative to be silent during the interview. Hubbard then proceeded to question Gottschalk about the stolen climb- ing hooks and safety belt on display. Without revealing the Company's earlier decision not to file criminal charges, Hubbard informed Gottschalk that a police offi- cer was on his way to the meeting and that unless Gotts- chalk confessed stealing the property, he would be taken to the police station. He could not seek the union stew- ard's counsel because of Hubbard's instructions that the steward remain silent. (The steward had previously ad- vised Gottschalk not to say anything, but this advice was given before the threat of arrest.) In this "highly coer- cive atmosphere," Gottschalk became quite upset, began to cry, and finally confessed, "I may be going against my union representative's advice; but, yes, I did do those things." He then confessed to stealing other property as well, and signed a written confession, before the steward was given the opportunity to say anything. Gottschalk was then suspended pending discharge. Under these cir- cumstances, the Company was utilizing the interview as a means of coercing a confession from Gottschalk, while requiring the union representative to remain silent. Gottschalk was forced to make the decision on his own, without any assistance or counsel of the steward during the interview. I therefore find that the Company, by re- quiring the union steward to remain silent, unlawfully deprived Gottschalk of the union representative's counsel and assistance during the investigatory interview, there- by interfering with the Section 7 right of employees to act in concert for mutual aid and protection, in violation of Section 8(a)(1) of the Act. In the Brooks case, however, I agree with the Compa- ny that the employee was not entitled to union represen- tation. Employee Brooks requested the meeting after the Company had already decided to discharge her for poor attendance. At the meeting, Manager of Operator Serv- ices Reese refused to discuss any explanation for Brooks' poor attendance; informed Brooks that the discharge de- cision had already been made; explained that Brooks had the worst attendance record; and reviewed her record and the prior disciplinary actions taken against her. Reese did not ask Brooks any questions and refused to discuss the matter with the union steward who was pres- ent. Brooks was then permitted to leave the meeting when she told Reese, "If you don't allow [the steward] to represent me and you won't consider my doctor's paper, then I guess I will just leave. You have already made your decision." Under these circumstances, Brooks was not required to submit to an "interview," and she was permitted to leave the meeting upon being denied union representation. Before she left the meeting as in Texaco, Inc., 242 NLRB 291 (1979), the employer merely informed her "of the action taken and of the reason therefore." Also, as in the disciplinary sessions involved in K-Mart Corporation, 242 NLRB 855, fn. 5 (1979), the employer did not go beyond informing the employee of the discipline "that had been decided upon prior to the session, and thus did not engage in any other type of in- terchange which could be characterized as an inter- view." Amoco Oil Company, 238 NLRB 551 (1978). Ac- cordingly I find that the Company did not violate the Act by denying Brooks union representation. B. Alleged Refuisals To Furnish Relevant Information 1. Prior proceeding On November 9, 1977, the Company and the Union joined in executing a formal settlement agreement in Southwestern Bell Telephone Company, Cases 23-CA-6314 and 23-CA-6475 (Resp. Exh. 3), in which they (as Re- spondent and Charging Party) agreed to the Board enter- ing an Order (Resp. Exh. 8A), requiring the Respondent to: (a) Make available to the Charging Party to read and inspect during normal business hours on company premises the following items relating to the testing of bargaining unit personnel: All test, tapes of test- ing assessments or evaluations, answer sheets and scores. Further make available, as indicated above, any material contained in the personnel history files of bargaining unit personnel. It is understood that the Charging Party may not remove said items from company premises or make copies thereof but that all such items shall be made available to the Charging Party for use at any step of the grievance proceedings including a hearing before an arbitrator. Any such items introduced in a hearing before an arbitrator shall be made available only subject to an appropri- ate protective order guaranteeing its confidential nature. Make available a duplicate copy of the contents of a personnel history file of bargaining unit personnel to the employee-grievant in question upon presentation of a written request by said employee-grievant. [Emphasis supplied.] SOUTHWESTERN ELL TEILEPHONE COMPANY 2 1 The Order, dated February 1. was enforced by the Court of Appeals for the Fifth Circuit on May 16 (Resp. Exh. 8B). Thus, in settlement of the earlier cases, the Company and Union agreed that the Company would be required to furnish to the Union, to read and inspect on the prem- ises, "any material contained in the personnel history files of bargaining unit personnel," upon the understand- ing that the Union would not make copies; and, further, that the Company would be required to furnish a em- ployee-grievant a duplicate copy of the contents of the file upon his written request. 2. Mickey Martin, Case 23-CA-7157 On May 22, about 10:30 p.m., Staff Supervisor Patrick Burke called mail serviceman Mickey Martin and his union steward, Terry LaBorde, to a disciplinary, meeting. In the meeting, Burke informed Martin, who had been employed about 2 months, that he was suspended for lying on his employment application, and that he would be discharged at noon the next day if he did not resign in the meantime. Reading from Martin's application and his driving record received from the Department of Public Safety, Burke pointed out that Martin had indicated three or four moving violations on his employment appli- cation, whereas the DPS form showed that he had eight speeding convictions and two negligent collisions on his record. Burke asked, "Mickey, can you explain this?" Martin answered, "I thought I put them all down. I guess I might have forgotten one or two." Burke had the two one-page documents, the employment application and the DPS report, on the desk in front of him and read off the nature of the violations. From where he was sit- ting, LaBorde could see the DPS report, which listed the dates and the violations, but he did not examine the report closely. LaBorde did not ask to "read and in- spect" the two documents from Martin's personnel histo- ry file-as he on behalf of the Union was entitled to do upon request under the above-mentioned settlement agreement-but instead asked for copies of the employ- ment application and the DPS form. Although Burke's response is in dispute, I find that he replied that he saw "no problem" furnishing LaBorde with the copies, but that he would have to call his supervisor in the morning because he thought that under the settlement stipulation, there was a union form which had to be completed. (I discredit Burke's claim that he went further and told La- Borde that the form had to be signed by the employee. I also discredit LaBorde's claim that he told Burke he "had a form which would compel him to give me copies of the document," that he asked if Burke would give him the copies without the form, and Burke answered, "Yes, no problem.") Martin turned in his key and identification card, and left the premises. About 7:30 the next morning, as Union Steward La- Borde was leaving the night shift, he asked Supervisor Burke, "Where are my copies?" Burke answered that he was waiting for a telephone call. LaBorde then wrote out a form for requesting the production of documents for use in the processing of a pending grievance. After checking with his superior, Burke told LaBorde that he could not give LaBorde copies of the documents without written authorization from employee Martin. (As indicat- ed above, the Company is required under the settlement agreement to furnish the employee with a copy of the contents of his personal history file upon "written re- quest." LaBorde admittedly had not read the settlement agreement.) LaBorde still did not ask specifically to "read and inspect" the two documents. Martin resigned later that morning. At the hearing, Union Steward LaBorde testified that he needed the information to determine if there was "Anything that would lessen the severity of [employee] Martin's punishment," and Supervisor Burke acknowl- edged that "these documents would be pertinent to whatever advice Mr. LaBorde might give as to whether or not [Martin] should resign or be fired." However, al- though finding the information to be relevant and neces- sary for the performance of the Union's statutory func- tion in representing the suspended employee, I find that the General Counsel has failed to prove the necessity of copies of the two documents. LaBorde could have ob- tained the information he needed while Martin was pres- ent in the disciplinary meeting merely by requesting to "read and inspect" these documents from Martin's per- sonnel history file, as provided in the earlier settlement agreement. (Burke testified that "to the best of my knowledge, I let [LaBorde] and Mr. Martin review" the two documents, but admitted that he was "not 100 per- cent sure.") The General Counsel has shown no need for copies that night, nor the next morning-after Martin had left the plant and at a time when LaBorde had no way to contact Martin to give him advice before the noon deadline for resigning. I therefore find that under all of the circumstances, the Company did not unlawful- ly refuse to bargain collectively with the Union in viola- tion of Section 8(a)(5) and (1) of the Act, by refusing to furnish it copies of documents from employee Martin's personnel history file without his written request. 3. The Teletype, Case 23-CA-7157 Over the period of several months the Company, as- serting shifting positions, adamantly refused to furnish the Union with requested relevant documents which were necessary for the Union to evaluate a grievance concerning the Company's elimination of Monday as an "SN" (nonscheduled) day for Teletype Crew 7299. For about 8 years, employees on this crew were per- mitted to take Monday off (as an SN day) when they were scheduled to work the following Saturday. On March 1, PBX Repair Foreman James Pousson an- nounced to the crew members that they could no longer take Mondays off because the work was heaviest on Monday and Tuesday. Job Steward Douglas Walters protested that this would mean that the senior crew- members would no longer work on Saturdays, and "it would be down to one person working every Saturday." Pous.on responded that if he had his way, he would con- tinue to give them Monday off, but that his superior had decided to the contrary. The Union filed a greivance, alleging that the Compa- ny's action in changing the scheduling of SN days in Special Services Crew 7299 was unfair, violated the col- 622 I)tICISI()NS OF NATIONAL LABOR RELATIONS BOARD lective-bargaining agreement, and was arbitrary and done in bad faith. On March 16 (the day it filed the grievance), the Union began making written requests for company re- cords, on a form stating that "This information is abso- lutely essential to an intelligent handling of the case." All of the written requests, except the one dated May 16, specifically asked for the 1977 "time reports" for Crew 7299 (referring to the daily reports for each of the five crewmembers during 1977), and also the "dispatch trou- ble logs" for all teletype crews in 1977. Although the Company did not have documents specifically entitled "dispatch trouble logs," it understood at the time that the Union was referring to the "Daily Serial List" (C.P. Exh. 1), a one-page list each day of all dispatches; and, as discussed below, the Company used this terminology in the Union's request to refer to the "Load Forecast" (C.P. Exh. 2), a one-page monthly document showing expected and actual trouble reports for each day of the month, and also Form S-902 (C.P. Exh. 3), a one-page untitled monthly summary for all teletype crews, show- ing both trouble reports and other work performed on each day of the month. The Union's May 16 request asked for production of "All documents on decision to SN employees on any day other than Mondays. For TTY [teletype] crews in Spec. Serv. Dist.," and the Company admittedly relied on the monthly load forecast and the monthly summary (Form S-902) in justifying its change of SN days. In the grievance meetings, the Union contended that there was no necessity for the unilateral change of SN days; that the amount of the Monday work (which tradi- tionally had been larger than on other days of the week) was insignificantly greater when compared to the other days; and that the Monday work included routine pre- ventive maintenance which could have been deferred until later in the week. The requested documents were clearly relevant for de- termining whether or not these union contentions were correct. The information, for a period of a whole year, would reveal not only the total amount and distribution of the work each day but also whether there had been any significant change in the flow of work during the year for the respective days of the week. The time re- ports for Crew 7299 would give detailed information for the crewmembers directly involved in the grievance; whereas the so-called "dispatch trouble logs" for all four teletype crews would reveal similar information concern- ing the amount of work which was assigned, as required, to the available crews throughout the city. In addition, the time reports and daily serial lists would reveal the distribution of the routine maintenance work on the re- spective days of the week throughout the year. b. Shifting positions The Company's first response to the Union's request for company records was given over the signature of Foreman Pousson on March 16, the date of the first re- quest. The written note to the steward stated that Pous- son was willing to schedule a grievance meeting if re- quested, but added: As of this time I have no information from the com- pany stating that I should provide the union with company records before or during such a meeting. Therefore I will not provide the information in whole or in part that you are requesting. [Emphasis sup- plied.] On March 31, again over Pousson's signature, the Company gave a similar response to the Union's second request. The note to the union steward, written after the first grievance meeting, stated that the March 16 "answer" would remain in effect until the Union was no- tified of a change. At the second-level grievance meeting in April, the Union orally renewed its request for information. The Company refused to furnish any of the documents and stated that the Union's request went beyond the National Labor Relations Board settlement agreement, which con- cerned the production of material in the personnel histo- ry files. At the third-level grievance meeting on May 16, Dis- trict Manager Garner wrote on the Union's third written request (G.C. Exh. 8) the notation: Advised [District Steward] Flores do not have any obligation to furnish company documents. Will agree to furnish anything in personnel files of any employee. Thus, at this and the preceding grievance meeting, the Company was taking the position that it was not obligat- ed to furnish the Union any documents unless they were contained in the personnel history files. Before this May 16 meeting, the Company had com- piled some of the information from three of the monthly load forecasts to obtain a 3-month average of the number of teletype "customer reports" (not the actual number of dispatched assignments) for each day of the week. This summary, which District Manager Garner orally report- ed to the Union at the meeting, showed that there were more trouble reports on Mondays and Tuesdays, which was something the Union already knew. Personnel Staff Manager Jack Chance produced none of the requested documents at the June 13 fourth-level grievance meeting. A month later, on July 13, he re- sponded to the request for more information by making an oral report to the Union over the telephone and deny- ing the grievance. The report, confirmed in writing on July 19, extended District Manager Garner's summary from a 3-month to a 12-month daily average of "custom- er reports," and added some separate averages of routine maintenance (i.e., dispatches omitted from the daily aver- age of "customer reports"). In the next grievance meeting, on August 8, the Union again made a written request for the company records. District Staff Manager Allen Short submitted a written response on August 15 claiming, without explanation, that "It is our belief that the Union's request is too vague, overly broad and unduly burdensome." The letter, written after the filing of the charge herein added, "In denying this request, we do not intend to imply that we will not furnish any documents to you. We will, of S(O)U'I'IWES'l'ERN EL. 'TELEPHONE COMPANY t. 23 course, give you whatever information the Union needs to effectuate a reasonable resolution of the above-men- tioned grievance. Therefore. attached is a summary of the information requested. If the Union is desirous of a meeting to discuss this matter further we will be pleased to make the necessary arrangements." The Union re- sponded by renewing the request for company records and stating that it "feels no purpose would be served to meet again on the grievance, as you offered, without the information requested." Short acknowledged at the hear- ing that the Union had not requested a mere summary, and admitted that the requested documents (the daily time reports and serial lists and the monthly load fore- casts and Form S-902's) were available but were not fur- nished to the Union. He claimed, "'n my opinion, the in- formation we had furnished [the summary] was suffi- cient." He mentioned no difficulty in furnishing copies of the requested documents or giving the Union an oppor- tunity to review the individual time reports of Crew 7299. The summary "as of' August 15 (not the requested in- formation for 1977, preceding the grievance) as an update of Staff Manager Chance's July 19 summary, plus the "Source of Information" at the bottom. Under "A," the summary showed the 12-month daily average of "dis- patched and cleared trouble reports" for all four teletype repair crews, Monday through Friday. The five figures furnished were 48, 46, 44, 40, arid 35, respectively. They did not include all of the dispatched assignments on the "Daily Serial List forms." The source given was "Dis- patch Log of TTY Trouble Reports"--referring to, but not naming, the Company's 12 preceding monthly "Load Forecast" reports, which contained information from the "Daily Serial List" (the one-page list prepared each day of all dispatches). The Company did not attach the daily serial lists and monthly load forecast reports, either for the preceding 12 months or for 1977. The daily serial lists were needed by the Union to determine whether the difference in the number of dispatches on the various days of the week had changed sufficiently during the year to require the elimination of Monday SN days. (The five average figures were of little, if any, value in evalu- ating the grievance.) The monthly load forecast reports, on which the Company relied to justify the change of SN days, were needed to determine whether the Compa- ny made the decision without consideration of all of the work performed. Under "B" in the August 15 summary, the Company showed averages which had been omitted from the "A" averages of "trouble reports." This part of the summary indicated the required daily average, for each of the first 8 months of 1978, of teletype "Routines" for the four teletype repair crews "to meet objection." The averages ranged from I I to 14. Then next, under "C," the sum- mary showed the 12-month average of teletype routines completed on Monday by the four teletype crews to be eight. According to this information, fewer "routines" were being performed on Monday than on other days of the week. Thus. by furnishing the Union with the "A" average of "trouble reports" for each day of the week. the Company could show a larger amount of work on Monday-48--in proportion to the amount of work during the remaining days of the week--46, 44. 40, and 35-whereas its furnishing of the daily serial lists to the Union would have revealed smaller differences in the total amount of work performed. The source of informa- tion for "C," the average of eight Monday routines, was indicated to be the same as the source of information for "A," the average number of trouble reports for each of the five weekdays, that is, "Dispatch Log of TTY Trou- ble Reports," which was terminology similar to the Union's request of "dispatch trouble logs." However, at the hearing, the Company admitted that the source was different: not the monthly load forecast reports. as for "A," but the untitled monthly summary (Form S-902), which also contained information from the "Daily Serial List." If these regularly kept documents had been at- tached to the August 15 summary, they would have re- vealed the distribution of the routine maintenance on the respective days of the week throughout the year-there- by indicating whether it would have been feasible to defer all or most of the remaining eight Monday routines to other days of the week. By itself, the single average of eight routines was of limited value in evaluating the grievance. Thus, instead of granting the Union's repeated requests for "dispatch trouble logs" for all teletype crews for 1977, the Company provided certain averages which were of little or no value to the Union, and cited as the source of the averages. "Dispatch Log of TTY Trouble Reports," referring to but not identifying the monthly load forecast reports and monthly summaries (based on the "Daily Serial List"). The Company thereby not only refused to furnish the information needed by the Union. but concealed from the Union the names of relevant doc- uments which the Company kept in the regular course of business. At the hearing the Company continued to shift its po- sition, in an endeavor to justify its refusals over a period exceeding 9 months, to furnish the Union with the re- quested documents. District Manager Garner testified that "In my opinion," the information requested by the Union "is not relevant to the case and it is confidential information." To the contrary, on the second day of the hearing the Company's counsel conceded that the daily serial lists, load forecasts, and monthly summaries for all teletype crews were "relevant to the grievance," and the Company apparently has dropped the unsupported claim that the information is confidential. In its brief, the Com- pany admits that the requested Crew 7299 time reports were "relevant to a legitimate bargaining objective" C. Contentions and Concluding Findings The General Counsel contends that the Company vio- lated Section 8(a)(5) of the Act by refusing to provide the Union with the requested documents which are rele- vant and necessary to enable the Union to perform its duty as the bargaining representative of the employees. The Union contends that this is an example of the Com- pany's "blatant refusal to provide documents necessary to the intelligent processing of the grievance." On the other hand, the Company contends that it timely gave the Union, first orally and then in writing, all the infor- 624 I)ECISI()ONS OF NATIONAL. LABOR RELATIONS BOARD) mation it needed to effectuate an intelligent.resolution of the grievance. The Company also contends that "there are no documents in the possession of the Company" which are called "dispatch trouble log" (as requested by the Union), and that the Union's request therefore did not properly identify the "Daily Serial List." the "Load Forecast," and the untitled monthly summary (Form S- 902). In making such a contention, the Company not only ignores the fact that it used the load forecast re- ports and monthly summaries (based on the daily serial lists) to prepare the August 15 summary furnished to the Union, but concealed from the Union the Company's names of these documents by using terminology, "Dis- patch Log of TTY Trouble Reports." The evidence shows that the Company initially re- fused, on two occasions, to provide the Union with any of the requested information concerning the grievance. Next the Company refused, on two occasions, to furnish any company documents unless they were in employees' personnel history files (referring to the inapplicable set- tlement agreement discussed above). After a 2-month delay, the Company gave the Union an oral summary, of five figures, represented as being a 3-month average of the number of "customer reports" for each weekday. Two months later, orally and then in writing, the Com- pany provided a revised five-figure summary, represent- ed as being a 12-month average, plus some routine main- tenance averages. One month later, the Company wrote the Union, promising to "give you whatever information the Union needs to effectuate a reasonable resolution of the above-mentioned grievance," but then attaching only an updated summary-again failing to furnish the rele- vant company records which the Union needed to sup- port its grievance. During this extended period of time, and at the hearing, the Company asserted shifting posi- tions regarding its obligations to furnish the documents. "There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435 (1967). Having found that the requested 1977 daily time reports of Crew 7299 and the 1977 "Daily Serial List," monthly "Load Forecast," and untitled monthly summary (Form S-902) for all four teletype crews were relevant and necessary for the Union's evalu- ation of the Crew 7299 grievance, I find that good-faith bargaining required the Company to furnish these docu- ments to the Union. Accordingly, I find that from March 16 until the hearing, the Company violated Section 8(a)(5) and (1) by refusing to furnish the Union the re- quested company records. CONCIUSIONS O LAW 1. By instructing employee Gottschalk's union steward to remain silent during an investigatory interview which Gottschalk was required to attend, the Company unlaw- fully deprived Gottschalk of the union representative's counsel and assistance during the interview, thereby in- terfering with the Section 7 right of employees to act in concert for mutual aid and protection, and engaging in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The Company did not unlawfully deprive employee Brooks of union representation. 3. The Company did not, under all of the circum- stances, violate the Act by refusing to furnish the Union copies of documents from employee Martin's personnel history file without his written request. 4. By refusing to furnish the Union with certain re- quested documents which were relevant and necessary for the Union's evaluation of the pending Teletype griev- ance, the Company violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act as set forth in the recommended Order below. [Recommended Order omitted from publication.]