Southwestern Bell telephone Co.

SOUTHWESTERN BEL TLI.EPHO()N CO() 62 5 Southwestern Bell Telephone Company and Commu- nications Workers of America, Local 12203. Cases 16-CA-8110, 16-CA-8153, and 16-CA- 8162 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENEI.I.O, ANI) TRUISDAI I On August 10, 1979, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief and Re- spondent filed an answering brief to the Charging Party's exceptions. 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 conclusions2 of the Administrative Law Judge, as further explained below, and to adopt his recommended Order. The Administrative Law Judge found, inter alia, that Respondent did not violate Section 8(a)(l) of the Act when it conducted disciplinary interviews with employees Alves and Dawson on May 8, 1978. The Charging Party has excepted to those findings of the Administrative Law Judge. We find no merit in those exceptions, for the reasons dis- cussed below. The facts reveal that, prior to the May 8 inter- view between Supervisor Starnes and Alves, Starnes advised Alves that a warning was going to be placed in his personnel binder. The meeting itself lasted about 5 minutes, during which Starnes informed Alves that a warning would be placed in Alves' personnel binder regarding his low produc- tivity. As to the May 8 interview between Supervi- sor Harris and Dawson, the facts reveal that al- though Harris informed Dawson that the meeting would be held, the purpose of the meeting was not revealed. At the meeting, Harris read from a warn- ing form which had been prepared prior to the meeting, and ended the discussion by preparing a Reslpondent has excepted to certain credibilit Findings made by the Administrative Law Judge. It is the Board'` established polic no to overrule an administrative lass judge's resolutions :ith respect to credi- bility unless the clear preponderance of all of the releN ant evidence n- %tnces us that the resolutions are incorrect Standard Drv IWall Products Inc.. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 19511 We haxe carefully examined the record and find no basis for reversing hi, findings I In adopting the Administrative l.aw Judge's conclusion thal. during the July 25 investigator interview% between Superi.sors Sarnes and Smith and emplosee Alves, Respondent did not iolate the Act because ii in fact did not inslruc Alves' union representatie to remain silent and simply lake notes, We dlsa ,os the Administrative la. Judge', gratuilu comment, regarding he right of an emplo.,er to linmit he parltiipation if a union represenative at a Hi'ingarten interiiew. See S.outhis.crr Heo/i ilephone (Company,. 251 N RB No 61 I 1980) 251 NLRB No. 62 written warning to Dawson. In both cases, the su- pervisor had advised the employee to obtain union representation for the interview, and the employee was unable to obtain the representation of a desig- nated union steward. As a result, a fellow employ- ee attended the interview as the employee's repre- sentative. The Administrative Law Judge found that Re- spondent did not unlawfully deny Alves and Dawson union representation at their interviews even though the interviews were conducted with fellow employees, rather than union stewards, serv- ing as the employees' representatives. The Admin- istrative Law Judge reasoned that in both cases the employee did not adequately convey to manage- ment his objection to having a fellow employee, rather than a union steward, serve as his repre- sentative. In adopting the Administrative Law Judge's dis- missal of the 8(a)(1) allegations regarding the May 8 interviews of Alves and Dawson, we do so for the following reason. In Baton Rouge Water Works Company, a majority of the Board reversed Certi- fied Grocers of California, Ltd., 4 and held that under the Supreme Court's decision in N.L.R.B. v. J. Weingarten, Inc.,5 an employee does not have a Section 7 right to union representation at a meeting with his employer held solely for the purpose of in- forming the employee of, and acting upon, a previ- ously made disciplinary decision.6 In the instant case, the record is clear that the sole purpose of the May 8 interviews with both Alves and Dawson was to inform those employees of a previously made disciplinary decision. Accordingly, we find that Respondent did not violate Section 8(a)(1) of the Act as a result of the May 8 interviews with Alves and Dawson. 7 3 251 NLRB No. 161 (19791. Chairman Fanning and Member Penllo dissenting separately 4 227 NI.RB 1211 (1977 s 420 U S 251 (1975) "The Board majority reasoned that [Als long as the employer has reached a final, binding deciion to impose certain discipline otn the cmploee prior o the iner, tevic halsed on facts and esidlnce iob ained prior to the in1teritew. no Sec- tion 7 right to union representatlon exists under Wingartcrn r hen the employer meets with the emplhLyee inply to infirm him of. or impose, that preiously determined discipline [246 NLRB No 16h1] In agreeing .ith their colleagues that Respondcnt did not unlawfully deny union representation to A.Ises and l)asson at their May 8 inter- ies'ws. Chairman Fanning and Memnber P'enello. each of hom disserned in Baturon Rouge r 1 rtcr I'ork. adopt in full the Admininsratilve Las Judge' findings, cnclusilns. and rationale Contrary to the Administrative Laaw Judge. Member Truesdale would find that Repondenlt unlals fully denied union representalion Ito emplocee Cynthia Ciray during an iltervie with her supervisor on Octlober I I. 1978 Member Iruesdale ould find that, Il ies of the conflict, be- twseen Gray and her supers lsor. It sas notl ul nrcaslnable fr Gray to fear that discipline might resull front the iilers te. Moreoser. Gray's ears ere parlially confirmed. fit nolels of tIle rletinlg were placed In her ( onirttllcd h26 DECISIONS OF NA TIONAL LABOR REI.ATIONS BO()ARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. personnel file Memher I rucsdale would order Respondent to remove l he notes from (ir;rays file and expunge Ihetefroin all references to the inter- 'iesw betecCn (ira anid her supervsisor oi that date DECISION S I I rIMEN T OF rHlt CASE GRAI I) A. WA( KNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in Lubbock, Texas, on February 28, and March 1, 1979. Charges were filed by Communica- tions Workers of America Local 12203 (herein called the Union) against Southwestern Bell Telephone Company (herein called Respondent) on September 27 (Case 16- CA-8110), October 20 (Case 16-CA-8153), and October 27 (Case 16-CA-8162), 1978.1 Thereafter, on November 16, 1978, the Regional Director for Region 16 of the Na- tional Labor Relations Board (herein called the Board) issued a complaint and notice of hearing in Case 16-CA- 8110: and, on November 27, said Regional Director issued a consolidated complaint and notice of hearing in each of the aforementioned cases, alleging violations by Respondent of Section 8(a)(1) of the National Labor Re- lations Act, as amended, herein called the Act. 2 Re- spondent's answers to the complaint and consolidated complaint, duly filed, deny the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing briefs have been received from the General Counsel, counsel for Respondent, and counsel for the Charging Party. Upon the entire record and based upon my observa- tion of the witnesses and consideration of the briefs sub- mitted, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Missouri corporation with a facility located in Lubbock, Texas, where it is engaged in the furnishing of a telephone service. In the course and con- ' All dales or lime periods herein are within 1978 unless otherwise i- dicated. ' At the outset of the hearing, counsel for the General Counsel moved to amend the complaint by adding an additional allegation concerning denial of an employee's request for union representation at a disciplinary meeting. This motion was granted. Further, the General Counsel moved to delete an allegation of the complaint involving the denial of union rep- resentalion to employee Danny Robinson on the basis that the Regional Director's original determination to proceed on this issue, embodied il the complaint, was determined to be in error upon further invesitigatni This motliol was pro'isiionall denied duct of its business operations Respondent has an annual gross volume of business in excess of $1 million, and fur- nishes goods and services valued in excess of $50,000 di- rectly to customers located outside the State of Texas. It is admitted, and I find, that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(h6) and (7) of the Act. I1. 'I1HI I ABOR OR;ANIZATION INVOI VFI) It is admitted, and I find. that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act ill. TilE .AII (;1l) LNI AIR I ABO()R 'PR\C IIC-S A. The Ivsue5 The principal issues raised by the pleadings are wheth- er Respondent failed to grant employees' requests for ef- fective union representation during the course of disci- plinary interviews and, further, whcther Respondent un- lawfully attempted to cause union stewards and repre- sentatives to limit their activity in filing grievances. 13. he Ft'uts 1. The May 8 meeting between Supervisor Starnes and employee Alves Employee L. Scott Alves is a directory sales repre- sentative engaged in the solicitation of yellow page ad- vertising, and in May was one of five or six employees working under the supervision of Jim Starnes, directory sales supervisor. Starnes, in turn, reports to Larry Barnes, division directory sales manager. Alves testified that on May 9. at a motel used as a field office while the crew was soliciting advertising in Plainview. Texas, Starnes advised Alves that a warning was going to be placed in his personnel binder and asked if he wanted union representation.:' Alves, who was the union steward for his crew, responded that he did desire to have union representation, whereupon Starnes offered Alves the choice of either Danny Robinson or Stan McNeil, both of whom were relatively new employees and were not union stewards. Alves stated to Starnes that he wanted to wait and obtain representation from a union steward. 4 Starnes denied this request and repeated that Alves had the choice of Robinson, McNeil, or nobody at all. Given this choice, Alves selected Robin- son, an employee of about 8 months, as McNeil had only been employed about 7 weeks and, as far as Alves knew, was not even a member of the Union. During the ensu- :' The applicable collect isve-bargaining agreemenn bet E eel Respoindenl and the Uion, under he heading "lnion Rcpreseilatio,"l contains the follosi, g provision: At any metig eting ete a rcprescitalive of the Company and al employee ill which discipline (including ssartniigs which are to be recorded as such in the pcrsonillel ile, uspension, demoltion, or dis- charge) is to he announced. a Union representative may be presetl if the cmployee so requests ime spent il uch a meeting shall he con- sidered swork time 4 According to Ales, tilere sere other cress working in the Plain- iles area, and the services of a union tessard from another cress could hase been obtained ithin It) to 15 minutes S()OLUHWnS'SllRN BELL IEEI'(ONE C ing meeting which lasted about 5 minutes Starnes stated that a warning would he placed in Alves' personnel binder regarding his low productivity. Robinson testified similarly, stating that Starnes insisl- ed that Alves have union representation, but that, when Alves requested the services of a "union officer" in this regard, Starnes became irate and said, "By damn, Danny's [Robinson] going to have to represent you." Starnes' testimony is entirely different. Starnes main- tains that the incident occurred not on May 9 in Plain- view, but rather, on the morning of May 8, in the Lub- bock office. At this time, Starnes advised Alves that a "job affecting" discussion was necessary and that Alves would need union representation. Alves expressed the desire for union representation and Starnes replied that. as soon as Alves had completed certain other work, the discussion would take place. Starnes testified that he thereafter observed Alves with employee Sherry Liid- sey, president of the Union, in the coffeeshop. Later, in the work area, Alves asked Starnes if he were ready to proceed with the discussion. Starnes said yes, whereupon Alves entered the office with Robinson. A discussion ensued and Alves was advised that a warning was being placed in his personnel file. Starnes further testified that the warning notice was prepared and signed by him on May 9. The notice re- flects that the discussion "with Scott and Danny Robin- son as his union representative" was held on May 8. O()n May 10, Alves was asked to read and initial the warning. He did so, and noted on the warning that in fact his pro- ductivity had been improving. He made no comment or notation, however, regarding the statement in the warn- ing notice that Robinson had appeared as his union rep- resentative. 2. The May 8 meeting between Supervisor Harris and employee Dawson Dan Dawson, a union steward on another directory sales crew supervised by Michael Harris, testified that on Friday morning, May 12, Harris phoned the motel at Plainview and advised Dawson that he would be arriv- ing from Lubbock in 30-45 minutes and wanted to dis- cuss a matter with Dawson. Harris instructed Dawson to remain at the motel and suggested that Dawson secure union representation. Dawson asked what the discussion would involve,and Harris merely replied that the matter would be covered when he got there. Dawson then at- tempted to obtain the services of Union Steward Alves, but was unable to locate him. When Harris arrived Dawson advised him that he had been unable to obtain union representation, whereupon Harris stated that an- other employee, Craig Lawhorn, would have to serve as Dawson's representative as he was the only employee available. Dawson said he did not think this was proper as Lawhorn not only was not a steward, but possibly not even a member of the Union, having been employed only about 6 weeks. Harris replied that he had been in- structed to conduct the discussion that morning, and Dawson reluctantly consented, stating, "Well, I wouldn't want you to be insubordinate . . . to your boss, but this is not a union representative, and I don't have any union representative." Harris then proceeded to read from a warning form .hich had been prepared, and ended the discussion with a formal warning that any further prob- lem of a similar nature could result in suspension or dis- missal. Lawhorn testified that, prior to Harris' arrival at the motel, Dawson related to several employees what had transpired during his phone conversation with Harris. A suggestion was made that perhaps Dawson would like to have one of the employees remain at the motel to take notes during the meeting with Harris. Dawson said no, and thereafter left the area. Dawson returned some 20 minutes later, stating to Lawhorn, who had been in- structed by Harris to remain at the motel for reasons un- related to the meeting with Dawson, that he had tried to find somebody to represent him, but was unable to locate the particular individual. When Harris arrived he asked if Lawhorn was going to be Dawson's union representa- tive. Dawson said. according to Lawhorn, "No. he's not a member of the Union." 5 Lawhorn does not recall the remainder of the conversation, and testified that he re- mained seated at the table in the coffeeshop with Harris and Dawson only for a few minutes thereafter because the ensuing conversation did not involve him. He specifi- cally did not recall Dawson stating that he was reluctant to proceed without union representation or that he de- sired to postpone the meeting until union representation could be obtained. Harris testified that this particular incident occurred on May 8. rather than on May 12;6 that he phoned Dawson from the Lubbock office and advised him what the discussion would be about; and that he advised Dawson to obtain union representation. Harris arrived and was sitting in the coffeeshop when Lawhorn walked in and took a seat at the same table. Dawson entered some 10 or 15 minutes later, and Harris asked if he had secured union representation. Dawson gestured toward Lawhorn and stated, "He's the only one available." As- suming that this meant that Lawhorn was Dawson's rep- resentative, Harris commenced the discussion. At no time, according to Harris, did Dawson say that he de- sired union representation or was unable to locate a ste- ward. After the discussion Harris prepared the written warning, dated May 8, which begins, "Record of warn- ing discussion held with Dan and Craig Lawhorn as union representative this date." 3. The July 25 meeting Alves testified that, on July 11, Supervisor Starnes ad- vised him that Starnes wished to discuss the manner in which Alves had handled several accounts, and that Alves would need union representation. Alves sought out Dawson, who agreed to attend the meeting. Thereaf- ter, Starnes, accompanied by another directory sales su- pervisor, E. K. Smith, met with Alves and Dawson. Ac- cording to Alves, Starnes told Dawson he was there strictly to take notes and that he was not to ask questions s The record is unclear v hether La Ahorn lsas a union member a this particular lime ' Harris also had a "deelopmenlal discusiounll" ilh I)awson oIni May 12 regarding "sloppy paper ork and clerical aciirac " There is no complaint allegalion regarding his discussion o2 628 I)ECISIONS OF NATIONAL ABOR REI.ATIONS BOARD or have anything to say. Starnes inquired about a partic- ular account, and during the meeting advised Alves that he was suspended indefinitely as of I p.m. that day. Alves testified that Dawson "did nothing but sit there and take notes" and that Starnes said nothing further to Dawson. The indefinite suspension lasted 2 days.7 Dawson testified that the incident occurred "after the 4th of July," and that Starnes commenced the meeting by stating, "I want to just remind you, I just want to point out one thing, that you're here to take notes strict- ly. I mean you're not to ask any questions or argue this case. You're here on behalf of the Union to take notes in this meeting and that's the way we're going to conduct it."8 Dawson said that during the course of the meeting he did ask for clarification of various statements made by Starnes, and Dawson's testimony indicates that his in- quiries were answered. Starnes testified that the meeting occurred on July 25, as evidenced by a written warning issued that date, and denies that he told Dawson he was not to take part in the discussion. In fact, according to Starnes, Dawson did participate by asking several questions, and got into a lengthy dissertation with Smith concerning general prob- lems involving the particular types of customers' ac- counts being discussed. This portion of the conversation ended with Smith telling Dawson that none of this was relevant to Alves' handling of the specific accounts under discussion. Smith, who entered the meeting after it commenced, testified that at one time during the course of the discus- sion he asked Dawson to please confine his conversation to the relevant factors, as Dawson was rambling and making irrelevant examples and had talked incessantly for 8 or 10 minutes. The meeting continued thereafter for another 5 to 10 minutes. 4. The September 19 incident between Supervisor Harris and employee Dawson On September 19, Dawson and Harris engaged in a heated conversation over the handling of a particular ac- count, as a result of which Harris advised Dawson, in front of the crew, that Dawson would be "charged back" or not reimbursed for certain work as a result of a mistake he made. Thereupon, Dawson asked, in front of the other employees, whether a meeting could be held with Harris.9 Harris replied that he was busy and had no time available until perhaps the following week. 7 In August a similar incident took place, and Alves was represented by a different stesard Alves' indefinite suspension resulting from this discussion lasted 4 days. s Dawson testified that since about 6 months prior thereto the supervi- sors had taken he attitude that whenever the Company requested some- one to be present for disciplinary action the union representative was not permitted to participate by asking questions, presenting evidence, or rais- ing other issues. If the Union wanted to explore the natter with manage- ment it had the option of requesting a further meeting. Dawson brought this matter to the attention of the president of the Union but the record does not indicate that the Union had firmerly raised an) objection to this procedure I was generally understood that such a meeting would conlstitute the first step (of the grievance procedure. "' Neither .awhorn. who was present at the time and who estified to other unrelated matters. nor ally other employees. were called on Io cor- rolhorate Dawsson's testimotny Dawson further testified that when the other crew members left the room to perform their assigned tasks in the field Harris approached Dawson, sat down, and said, "Dawson, it seems that every time that you and I have a disagreement . . . about something of this nature, that either to gig me or to show off in front of your peers, you threaten me with a grievance." Dawson said he was not attempting to be threatening but was just following procedure. Harris replied, "Well, anyway, the thing is, if you continue to do this to me . . . every time we have a discussion about something . . . you're going to continue to threaten a grievance, well then, we're going to have problems, you and I are." Dawson explained that he was just following procedure, requesting a discussion before filing a formal grievance. Harris testified that, on September 19, the four-man crew, including Craig Lawhorn, was using a motel con- ference room in Alpine, Texas. Dawson approached Harris with a work-related problem concerning a cus- tomer's complaint and they commenced to discuss it. Harris stated that it appeared the matter was Dawson's mistake. Dawson became rather argumentative and loud and, according to Harris, the customer was on the phone and could overhear Dawson's remarks. Harris told him to get the complaint handled to the customer's satisfac- tion, and that they could later discuss the matter and decide whether an error had been made by Dawson. As a result of the outburst by Dawson several employees conspicuously left the room. Shortly thereafter, Harris proceeded to tell Dawson that he had been unnecessarily loud and bellicose, and had disrupted the crew and that such outbursts were unnecessary as there were more ap- propriate methods of handling disagreements. Further, Harris stated that the time and place to challenge a su- pervisor's decision was not during a very busy morning before the entire crew, adding that this type of behavior could do nothing but cause problems. Harris further testified that Dawson was prone to get loud and belligerent being a very excitable person, and had exhibited such conduct on frequent prior occasions. On many such occasions he had been asked to "cool things" and in the name of "decent interpersonal human relations" to follow standard procedures in voicing his grievances. Harris denied that Dawson asked for an in- formal grievance meeting. 5. The September 5 group meeting On September 5, Division Directory Sales Manager Larry Barnes summoned all supervisors and union stew- ards to a meeting. The purpose of the meeting was to "clear the air," according to Dawson, who was one of the stewards in attendance. Alves was also present. There had recently been two terminations, three suspen- sions, one formal written warning, and three or four grievances, some of which matters have been discussed above, and Barnes stated that he realized these events had caused considerable tension. Dawson testified as fol- lows regarding Barnes' comments: He thought the meeting would be in order, you know, to kind of iron out the-clear the air. He said SOUTHWESTERN BELL TELFPHONE CO. h2 basically that he realized that as members of the CWA and stewards that we, you know, had an obli- gation or a duty to perform for the Union, but he also wanted to remind us that we also had an obli- gation and responsibility to the Company, and he felt that in our division at that particular point in time there was too much of a Union versus Man- agement atmosphere where, you know, people felt like if they had any problem they had to go to the Union and file a grievance, that they-that was the only recourse they had, and he said that basically a steward is responsible to the Company in that they're kind of like a policing agent to sift out-file grievances and, you know, counsel with people as to what they grieve, that peer pressure applied by the Union members, [should be] used to, you know, keep unnecessary grievances down. * * * And then some questions were fired around. I think somebody raised some questions about Union representation, whether it was . . . to be accorded and in what instances, and he . . . said he didn't feel like that every meeting with the Company or a supervisor that you had to have a Union ste- ward present to, you know, make it valid, that-he cited a case of, for example, Melanie . . wants to talk something over with a supervisor, she selects somebody, you know, at random, just a member, you know, and that's good, and that's good as far as purposes of the contract is concerned, you know, they can represent as well as anyone else as long as they're a member of the Union. Dawson further testified that he understood Barnes to mean that, in Barnes' opinion, the stewards were not using their influence sufficiently to dissuade people from filing grievances that he considered petty. Barnes also stated, according to Dawson, "that if we couldn't handle our job, we should resign [their jobs as stewards]." Fol- lowing the comments by Barnes, there was a lengthy question and answer period. The record contains no evi- dence that stewards were precluded from discussing any matters they deemed significiant. Nor does it appear that questions were raised regarding Respondent's alleged failure to permit employees to have union stewards pres- ent at disciplinary interviews. Barnes' testimony did not differ significantly from that of Dawson. Barnes testified that he opened the meeting by stating that it was very informal and that "we're here for a jam session" to "talk about problems and try to re- establish some of the communications that we've lost over the past few months," adding "you talk about your problems, and I want to talk about mine." Both the su- pervisors and the stewards were advised not to take notes. During the course of the meeting Barnes stated that he had a lot of confidence in the management team as well i~ In a satemenl attached to the charge herein, Barnes is quoted as stating: "Of course [a directory representative] can ask an) union member to represent him [burl since yoru [the leards] are supposed to be the leadership. we'd prefer Working with you" as representatives of the Union, and that personally if he could not handle his job he would "probably quit and turn it over to someone else," suggesting that he believed the stewards should feel the same way because "we got to have proper people in both places in order for the or- ganization to function." 6. The October II meeting involving employee Cynthia Gray On October II, Cynthia Gray, a service representative in the commerical department, was told by her supervi- sor, Raul Velasquez, that he wanted to speak with her. Gray explained that she was busy at the moment, but Velasquez said, "No, I'll talk to you right now." Velas- quez, who had been Gray's supervisor only for about 6 weeks, accompanied Gray to a private room. Velasquez stated that he wanted to discuss what had happened the prior week,' 2 and suggested that Gray had been insubor- dinate. Gray replied that she had nothing to say without union representation. Velasquez replied that he was just attempting to ascertain what the problem was, and Gray reiterated that she would not discuss the matter without union representation. Velasquez replied that he ould have to talk with Debbie Morris, business office man- ager, and this portion of the conversation was concluded. Velasquez approached Gray about 10 minutes later, again said that he wanted to talk with her, and advised Gray that it would be only a nondisciplinary discussion. Again Gray stated that she wanted union representation. and she followed him into the private room. The collo- quy continued in the same vein for a short period of time when Morris entered and began to explain why union representation was not needed for a nondisciplinary dis- cussion. Gray began to cry and, on again being denied union representation, asked Velasquez what was wrong with her work. Velasquez did not criticize her work, but asked why she did not look directly at him when he complimented her on her work. She said she did not need to be told that her sales were good because she knew this, and that when she passed him in the aisle she was too busy to look at him. Velasquez said he was her boss and she would follow instructions. Morris indicated her agreement with Velasquez, but added that Gray had not had trouble with any other supervisors. Morris there- upon advised Gray that Velasquez would give Gray as much respect as she gave him, and that if there were any problems, Gray could come directly to Morris. Further, Morris stated that, if it became necessary, the matter would be referred to the Union. Velasquez testified that he initially told Gray that he wanted to straighten out a "problem we're having be- tween us." Gray refused to have a discussion without union representation, and Velasquez stated that this was not a disciplinary action, and that the discussion did not 2' The prior week, Gras had refused to fllo' an instruction ger h. Velasquez, advNising Velasquez that according to standard ffice proce- dures the ervice representative ho initially handled a particular ac- count should make the adjustment. and hat Iherefore Gray should not have to perform the ork as she "sas not responsible for the account This confrontation resulted i a someswshat rained relationship. accord- ing to Gray. as eidenced hby the exchange of noles regarding o irk except In the case of esential erbal communicallon s 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involve her ability as a service representative as she was a very capable representative. After Gray's persistent and repeated refusals, Velasquez said he would ask his supervisor, Debbie Morris, what she thought about the matter. Later, after conferring with Morris, Velasquez sum- moned Gray back to the meeting room. Velasquez stated that he did not know what was going on between them, and asked why she felt negative toward him and would not accept his praise of her work. Velasquez also said he felt Gray had been insubordinate regarding the matter the week before, but, when Gray asked whether he was accusing her of this, Velasquez said no, but that he just wanted to know why she was acting that way. Gray then "blew up" and stated that Velasquez had been unfair to her and had screamed at her and was making her do other people's work. At this point Morris entered the room and asked what the problem was. Gray said she hated coming to work because she felt miserable, and reiterated what she had told Velasquez. Velasquez stated that he too felt ill at ease and uncomfortable with Gray. Gray asked, "Don't you think I'm a good rep?" Velasquez replied, " You're a great rep, you a very good rep . . . but that's not what we're here for." Other than on this occasion Gray has not been coun- seled in any way. Velasquez made notes of the meeting and placed them in Gray's personnel file. 7. The June 26 incident involving employee Danny Robinson On June 26, Starnes summoned employee Danny Rob- inson to his office. Prior thereto, Robinson and Starnes had engaged in a conversation about mishandled ac- counts, and apparently Starnes had intimated that Robin- son had forged a customer's signature on a particular document, and that the matter would be discussed fur- ther. According to Robinson, Starnes motioned for Rob- inson and another employee, Wanke, to enter the office. Initially, Robinson testified that Starnes said he needed to have a serious discussion pertaining to Robinson's job and that Robinson would need union representation. Im- mediately following thi; testimony, Robinson stated: Well, actually, what he said was that I needed union representation and that Wanke could come into the office and set down and that Wanke would be my union rep. Robinson replied that he wanted to wait until his ste- ward, Alves, was available. Starnes denied this request and emphasized that Wanke could represent him. Robin- son replied that if he could not have Alves he didn't want anybody. Then Starnes told Wanke to leave.' 3 Starnes testified that he summoned Robinson into the office, stated that he and Barnes needed to have a very i: Wanke did not corroborate Robinson's testimony. Rather, Wanke. who has remained in Respondent's employ at a different location, tesli- fied that he was summoned into the office after Robinson and Startles were in the office. Starnes asked Robinson if he wanlted union representa- lion, and Robinson said no. Wanke then left the office and observed Rob- inson and Starnes walking to Barnes' office. serious discussion with Robinson, and recommended that he obtain union representation. Robinson refused, stating that he did not desire union representation. According to Starnes, Wanke walked in by accident at the time Robin- son stated he did not want union representation, and Robinson said nothing about not wanting Wanke or wanting to wait for Alves. Starnes advised that they would go into Barnes' office for the discussion. At the outset of the discussion in Barnes' office, Barnes again recommended that Robinson obtain representation, and Robinson replied that he did not want anybody from the Union in there messing in his affairs. Barnes testified sim- ilarly. As a result of the interview Robinson was indefinitely suspended. Robinson resigned 2 weeks later, again refus- ing union representation at the time of his resignation. C. Analysis and Conclusions In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court upheld the Board's determination that Section 7 of the Act gives an employee the right to insist upon the presence of his union representative at an investigatory interview which he or she reasonably be- lieves will result in disciplinary action. 4 As previously noted, Respondent readily acknowledges that employees possess such rights, and the Weingarten concept is em- bodied in the collective-bargaining agreement between the parties. 1. The May 8 meeting between Supervisor Starnes and employee Alves I find that the meeting occurred on May 8, as credibly testified to by Starnes and as reflected in the written memorandum which Starnes prepared the following day. I further credit Starnes' testimony that Alves, a union steward, was told he should obtain union representation and thereupon obtained the services not of another union steward, but of Danny Robinson. Under all the sur- rounding circumstances, I do not credit the account of the meeting given by Alves or Robinson. Thus, all par- ties acknowledge that in the event of a disciplinary warning the Respondent is obligated to give the Union a reasonable opportunity to provide representation to an employee, i and indeed the applicable collective-bar- gaining agreement herein so specifically provides. Nor did the General Counsel attempt to show that in fact Alves was ignorant of such matters. Accordingly, I find it difficult to believe that Alves, a union steward, would have unwillingly permitted the interview to be conduct- ed absent such union representation, in flagrant disregard of the contract, the parties' clear understanding of the procedure to be followed, and Alves' alleged unequivo- '4 The Court, at fn. 5 explained that an employee's reasonable belief is to be measured "by objectise standards under all the circumstances of the case" and, adopting the Board's analysis in Qualitv Manufacturing Compa- ny, 195 NLRB 197 (1972), determined that in the giving of instruction or training or needed corrections of work techniques there cannot normally be any reasonable basis for an employee to believe that the interview will result in discipline. 's See Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977). S).T1A'FS Tl RN 1FII. I 'LILI'HO()N C) h I cal request that the intervies\ be postponed until he .was able to obtain the services of another steward. Starnes testified that the incident occurred on Ma 8 at the Lubbock office of Respondent, and that he ob- served Alves talking to Union President Sherry Lindsey shortly before the discussion was to take place, thus indi- cating that representation hb the president of the Union was immediately available. Such testimony is in direct contradiction to Alves' account, as Alves testified that the incident occurred at a field location in Plainvice, and that he was unable to readily obtain union represen- tation as the stewards on the other crews were working in the field. Lindsey did not testify in this proceeding al- though she was present in the hearing room throughout the hearing. While the witnesses and prospective wit- nesses were sequestered prior to the commencement of the hearing, and it would have no doubt been argued that Lindsey was thereby precluded from testifying, nev- ertheless, neither the General Counsel nor Charging Party's counsel attempted to assert grounds of surprise or other circumstances warranting modification of "the rule" in order to adduce evidence through Lindsey which would tend to rebut Starnes' testimony. Further, it is of great significance that, during the meeting of September 5, there was no mention of such a contract violation despite the fact that all the stewards were assembled and were invited by Barnes to respond to his remarks in which he acknowledged the employees' entitlement to union representation. I shall therefore dis- miss this allegation of the complaint. 2. The May 8 meeting between Harris and Dawson I find that, during this meeting, Dawson did not make it clear to Harris that he desired union representation. and that Harris assumed that Dawson had selected La- whorn as his representative. While the testimony of Harris and Lawhorn is somewhat conflicting, neverthe- less, Lawhorn's testimony does not sufficiently corrobo- rate that of Dawson. Thus, Harris testified that, upon in- quiring whether Lawhorn would be Dawson's union rep- resentative, Dawson did not reply directly, but rather ambiguously stated that Lawhorn was the only individu- al available. Lawhorn however. while testifying that Dawson unequivocally stated that Lawhorn was not his representative, could recall no more of the conversation although he remained for several minutes thereafter. Thus, Lawhorn does not corroborate Dawson's testimo- ny that he expressed his displeasure and accused Harris of acting improperly, or that Harris thereupon insisted that Lawhorn serve as Dawson's union representative. It would appear that such an exchange, had it occurred. was of sufficient significance to have been recollected by Lawhorn. Moreover, had Lawhorn been advised by Harris that he was, in fact, to be Dawson's representa- tive, it appears Lawhorn would not have left the table believing that the conversation did not concern him. Fi- nally, as in the case of Alves, discussed above. I find it improbable that Dawson, a union steward, would have permitted Harris to proceed with the meeting in clear violation of the contract. Nor did Das son mention this incident at the September 5 meeting when Barnes invited the stewards to speak up on the very issue of union rep- resentation. I shall therefore dismiss this portion of he complaint. 3. The July 25 incident insolving Starnes and Alres I credit Starnes and Smith, both of whom testified that not only was Dawson not instructed to remain silent, but that in fact Dawson participated in the meeting. Indeed. contrary to the testimony of Ales, Dawson admils in- quiring into the matters discussed by Starnes, and further appears to acknowledge that Starnes replied to such in- quiries. Dawson 'was not, therefore, limited to tile role of being simply a notetaker. loreover, as it appears that at least the initial portion of the meeting 'sas in the nature of an investigatory interview. Respondent was privi- leged. under 'eingarten, supra. to limit the participatlli of the union steward. I find that the evidence is iiisuffi- cient to sustain this allegation of the complaint. 4. The September 5 group meeting 'The group meeting was called by Barnes to explain his views regarding the proliferation of grievances during the period of time in question. uring the course of the meeting Barnes stressed that union stewards cre. in his opinion, something more than mere conduits for trans- mitting grievances by employees to management. Rathr. Barnes expressed his opinion that union stewards .ould better serve the interests of both the Union and Respond- ent by asserting the influence of their positions to at- tempt to deter or dissuade employees from filing obvi- ously nonmeritorious or nuisance grievances, thus result- ing in a more harmonious relationship. To emphasize the point Barnes stated that if he believed he sas not per- forming his job properly he would resign the position. and suggested that the union stewards should similarl\ view their jobs as stewards. In Weingarten, at footnote 7. the Court expressed a similar view, citing Caterpillar Tractor Co.. 44 Lab. Arb. 647, 651 (1965), in support of its determination that union representation at an investigatory level is mandated by Section 7 of the Act, as follows: The procedure ... contemplates that the ste- ward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified. Similar- ly, there exists the responsibility upon management to withhold disciplinary action, or other decisions affecting the employees, where it can be demon- strated at the outset that such action is unwarranted The presence of the union steward is regarded as a factor conducive to the avoidance of formal griev- ances through the medium of discussion and persua- sion conducted at the threshold of an impending grievance. It is entirely logical that the steward ill employ his office in appropriate cases so as to limit formal grievances to those hich iniolhe differ- i Ihe Court i [1I gor.nirl hcJl 1 h 1 d-11 tli l 111 Ill cerl lgi rt,r Iori!tills lf ih rt r\i Ihe rl t lplosecr i "t'lcc to 1iflll t11t he . ii I rei , rt-.l it.l ill Ilhzt lilt-. in he;lrillg ll-. ciploCI'\ t . 11 .viICtl t ii II11 rllltta 'r litl.fr tlncgIkIon. - nl. n X 1111 tr} 1)11% l li ]l. ' p rltllplilloll pt> (i'. 1il l rCpr. (12 I)ICtISIO(NS ()f NATI()NAI. LAB()R RELATIONS ()ARD ences of substantial merit. Whether this objective is accomplished wsill depend on the good faith of the parties, and wxhether they are amenable to reason and persuasion. At no point did aries state that Respondent would not accept griev;ances of any nature, nor did he threaten the stewaards, explicitly or imp l iedly. with reprisal should thes not hliced his observationls. s Thus, I find that such statemients by 1Barners did not reasonably tend to restrain and coerce unioni officers or stewards inl the performance of their duties as representatives of the Union. I shall therefore dismiss this allegation of the complaint. 5. The September 1) incident involving Harris and Dawson I credit the testimony of Harris, who appeared to be a forthright witless, and find that he did not threaten L)awson with problems of a undisclosed nature ill retali- ationi for Dv0sol's iiplicil alloullcenlent that he in- tended to ile a gricv;anc regarding a disagreement that morning. The reciordl e idlce clearly indicates that the excehangle hcbet eeiIn arris and i )Dawsoi was overheard by several other employees. icludinlg Craig awhorn, who testified in this proce(di ng regarding other matters. Yet no w\itesses were cal led oni to corroborate, even ill part, I)awsol's \ersion of the icidenlt. I finl that Harris' ref- el-rece to "problelns" conierned I)vawson's propensity to disrupt the work of otlier employees, and that Harris in no manner implied that "problems" would result from Dawsoll's utilization of the grievance procedure. I shall therefore dismiss this allegation of the complaint. 6. The October Il I meeting between Velasquez and Gray There is no significant dispute regarding the facts of this incident. Gray acknowledges that she was repeatedly assured that no disciplinary action against her was con- templated and that she therefore was not entitled to union representation. Velasquez, a new supervisor, ac- kno, ldges that he, in effect, advised Gray that in his opinion an incident the prior week bordered on insubor- dination, and that he anted to ascertain the reason for Gray's attitude toward him, emphasizing that no disci- pline was intended or contemplated. At the same time he reassured Gray that the interview had nothing to do with the quality of her work as Gray was an otherwise exemplary employee. As a result of the meeting Gray .,as not disciplined, nor has the incident which prompted Velasquez to call the meeting been used against Gray in any regard. I conclude that under the circumstances it was unrea- sonable for Gray to fear disciplinary action in the face of C (' Ctliduihd righlwai (orporarl.t oJ )c/alu.re, 242 N RB 77 (7t)) repeated assurances that no discipline was contemplated or would be imposed. Further, there is no evidence that the prior relationship between Velasquez and Gray, albeit short term, provided reason for Gray to disbelieve Velasquez' representation in this respect. I shall therefore dismiss this allegation of the complaint. 7. The June 26 interview between employee Robinson and Supervisors Starnes and Barnes It should be initially pointed out that Wanke did not corroborate the testimony of Robinson, but rather cor- roborated Starnes' testimony that Robinson specifically declined union representation. Although Wanke's testi- mony varies with that of Starnes regarding whether or not Wanke was summoned by Starnes or just happened to walk into the office, the testimony of both individuals is the same regarding Robinson's declining of union rep- resentatioll. Moreover, Wanke testified that he saw Rob- inson and Starnes walk to Barnes' office immediately thereafter. Both Barnes and Starnes testified that Robinson was again offered union representation in Barnes' office, and again declined. According to the testimony of Robinson, he left immediately after the meeting with Starnes and, therefore, would have had no occasion to attend a subse- quent meeting with Barnes. I do not credit Robinson's testimony in this respect. Nor do I credit such testimony of Alves insofar as it attempts to corroborate that of Robinson. As I find that Robinson was repeatedly asked whether ie desired union representation, and repeatedly declined. I shall dismiss this allegation of the complaint, and grant the General Counsel's motion to amend the complaint by deleting this particular allegation. CONCI USIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not violated the Act as alleged. Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER l 8 The complaints are dismissed in their entirety. I In the eientl n exceptions are filed as provided by Sec 102 46 of the Rules and Regulationrs of the National l.abor Relations HBoard, the findinigs. conclusiolns ad recommended Order herein hall, as provided im Sec. 102.48 of the Rules and Regulaions. he adopted by the Hoard and become its finldings. conl usions, and ()rder, and all bjections thereto shall be deemed wailed for all purposes