United Telephone Co. of Florida

51() DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Telephone Company of Florida and Interna- tional Brotherhood of Electrical Workers, Local Union No. 199. Case 12-CA-8558-2 August 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PENELLO On April 30, 1980, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Re- spondent filed a brief in answer to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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 and to adopt his recommended Order. 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. i In agreeing with the Administrative Law Judge's conclusion that Re- spondent did not violate the Act. Chairman Fanning and Member Pen- lilo do not rely on Baron Rouge Water Works Company, 246 NLRB No 161 (1979), in which they dissented. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Ft. Myers, Florida on December 17 and 18, 1979,' pursuant to a charge filed on March 26 by International Brotherhood of Electrical Workers, Local Union No. 199 (herein referred to as the Union), and a complaint issued on July 30. The complaint, which was amended at the hearing, al- leges United Telephone Company of Florida (herein re- ferred to as the Respondent), violated Section 8(a)(l) of the National Labor Relations Act, as amended (herein referred to as the Act), by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by insisting that em- ployee Willene Dudley not leave an interview which Dudley reasonably believed would result in disciplinary action toward her after she had refused to further par- ' All dates referred to are in 1979 unless otherwise stated. 251 NLRB No. 101 ticipate in the interview without union representation and by suspending Dudley for three days because she left said interview. The Respondent, in its answer dated August 6, denies having violated the Act as alleged. The issues involved are whether the Respondent vio- lated Section 8(a)(l) of the Act by unlawfully insisting that Dudley remain at an interview and suspending her for leaving the interview which she reasonably believed would result in disciplinary action against her after she had refused to further participate without union repre- sentation. Upon the entire record in this case and from my obser- vations of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respond- ent, 2 I hereby make the following:3 FINDINGS O: FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation with its princi- pal office and place of business located at Ft. Myers, Florida, is engaged in the business of providing tele- phone service within a 13-county area of the State of Florida. During the 12-month period preceding July 30, a representative period, the Respondent in the course of its operations received gross revenues in excess of $250,000 and it purchased and received goods, supplies, and materials valued in excess of $50,000, which were shipped to it directly from points located outside the State of Florida. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED International Brotherhood of Electrical Workers, Local Union No. 199, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent operates a telephone service facility located at Ft. Myers, Florida. Included among its super- visory personnel are Toll Center Operations Supervisor Gloria Bircher, Group Chief Operator Elizabeth McCar- thy,4 Division Personnel Manager Gregory Ezell, Group Chief Operator Sara Wester, and Dorothy Gibson, who is the chief operator of directory assistance. It employs approximately 1,600 employees, including toll operators, who are in a bargaining unit represented by the Union. The Union's office is located across the street from the Respondent's Ft. Myers facility where there are approxi- mately five or six union stewards employed. Gerald DeWolf is the business manager. The Charging Party did not submit a brief. :1 Unless otherwise indicated the findings are based upon the pleadings, admissions, stipulations. and undisputed evidence contained in the record, which I credit. 4 These two individuals are supervisors under the Act. UNITED TELEPHONE CO OF FLORIDA 511 According to Personnel Manager Ezell, Operations Supervisor Bircher, Chief Operator Gibson, and Group Chief Operators McCarthy and Wester, the practice has been that, whenever an employee wants a union repre- sentative to be present, the employee asks the supervisor who will then obtain a union representative for the em- ployee. 5 Based upon the undisputed testimony of these individ- uals I find this to be the practice for requesting union representation. Once-a-month observations are conducted on each op- erator by a group chief operator. The purpose of the ob- servation is to determine the type service being given to customers by that operator and whether the operator is following the correct procedures and for training pur- poses. These observations are conducted by the chief group operator viewing the work of the operator from a remote location on the same type of screen used by the operator for a period of 39 minutes. The group chief op- erator is able to hear and observe what the operator, who is not aware at the time that he or she is being ob- served, is doing and writes down each call the operator makes and notes any failures on the calls and any train- ing the operator needs to improve performance. Upon completing the observation, the group chief op- erator enters the results on the operator's work trend record which is an itemized sheet of the operator's work performance that is used for the operator's apprisals. The group chief operator then has the operator taken off the position on which the operator is working, brought to the training table or office and informs the operator about the things observed during the observa- tion and the operator's performance. If any failures or ir- regularities on the part of the operator were observed, the operator is then informed of the correct procedures which should have been followed and, to insure that the operator then understands, the operator might be asked how to handle such a call. Nothing said during this discussion is entered on the operator's work trend record and no discipline is intend- ed to result from this discussion about the observation. If the quality of an operator's work is unsatisfactory on the observation, the group chief operator will inform the operator during this interview that a followup obser- vation will be conducted. This followup observation is then conducted within the same month and normally in the same manner as the observation.6 The purpose of the followup observation is to determine whether the opera- tor is utilizing the correct procedures on which addition- al training had been given as a result of the initial obser- vation. The results of the followup observation are not re- corded on the operator's work trend record. After completing the followup observation, the group chief operator then discusses with the operator what was observed. Nothing said in this discussion is entered on I The parties stipulated that Group Chief Operators Mary Butler, Dorothy Mazyck, Ernestine Brown, Siggy Odle, and Violet McConnell would also testify to this being the practice. 6 On occasion the group chief operator might sit in a position beside the operator during the followup observation rather than at a remote lo- cation. the operator's work trend record and neither the follow- up observation nor the discussions about it are used for disciplinary purposes. These findings regarding observations and followup observations and discussions about them are based upon the undisputed testimonies of Operations Supervisor Hircher, Personnel Manager Ezell, and Group Chief Op- erators McCarthy and Wester which I credit. While no disciplinary actions are intended as a result of the observations, followup observations, or discussions about them themselves, Hircher, McCarthy, Ezell, and Wester all acknowledged that any time an employee commits a serious error whether it occurs during one of these occasions or on any other occasion an employee can be sent home. Wester, Hircher, and McCarthy all denied any opera- tors had ever requested union representation during the discussions of observations or followup observations. D. Events Preceding and Willene Dudley's Suspension Willene Dudley, the alleged discriminatee, has been employed by the Respondent as a toll operator for ap- proximately 10 years. Her duties include placing long- distance and local telephone calls for customers and she presently works under the supervision of Group Chief Operator McCarthy. Dudley is a member of the Union and is employed in the bargaining unit. About February 5 or 6, Group Chief Operator McCar- thy conducted a regular monthly observation of Dudley. Operations Supervisor Hircher, who was observing Mc- Carthy at the time, was also present. Both McCarthy and Bircher stated that during the observation Dudley com- mitted about 17 errors and 5 or 6 irregularities. An error, as described by McCarthy, is more serious and can effect the billing of a customer's call whereas an irregularity in- volves such conduct as failinq to acknowledge common courtesy to a customer. Following this observation, Dudley was called into the office that same day, at which time McCarthy discussed the observation with her. Bircher, who stated she was present to observe how McCarthy conducted the discus- sion, was also present. During the discussion, McCarthy pointed out the errors and irregularities to Dudley which she had ob- served during the observation. Dudley testified she in- formed them she did not believe she had made that many errors because she had never had that many errors before7 and tried to explain some of them were misun- derstandings because she was sure of the work she had done that day. Dudley also stated Bircher told her that she could not tolerate that type of work and Dudley would have to improve. She also stated that at the end of the discussion McCarthy asked Bircher whether she should record this on the record as counseling where- upon Bircher replied, "Yes."8 7 According to Dudley, prior to this occasion four or five errors or irregularities were the most she had ever received during an observation I Bircher denied such a request was made to her but stated that Mc- Carthy labeled it as counseling which meant to let her know improve- ment was needed 512 DECISIONS OF NAlIONALI. LABOR RELATIONS BOARD McCarthy testified she told Dudley her work was gen- erally unsatisfactory. Bircher also testified that while they were discussing the observation Dudley called McCarthy a liar saying she did not do any of that stuff, whereupon Bircher stated she told Dudley she had observed the same thing McCarthy had on the observation and that McCarthy was not lying. Bircher further stated that McCarthy told Dudley she would do a followup observation. According to Bircher they did not ask Dudley whether she did any of the things they had observed but only informed her about what they had observed. On Februrary 21, McCarthy conducted a followup ob- servation on Dudley. She explained it was conducted be- cause of the errors and irregularities Dudley made on the monthly observation. After this followup observation, Dudley was called into the office that same day at which time it was discussed with her by McCarthy. Dudley tes- tified that McCarthy informed her that the followup ob- servation was not much better than the other observa- tion, whereupon she became upset because she did not feel she had committed the errors and irregularities on the first observation and told McCarthy it could not be true. Upon discussing it, she stated she disagreed with the findings McCarthy said she had committed on the followup observation. According to her, both she and McCarthy had become loud whereupon Bircher came in at which time she told Bircher what McCarthy had said and stated she did not believe it because she did not be- lieve some of the things they said about the first one. Dudley then said that if McCarthy said she did all those things, she was telling a lie whereupon Bircher replied she had sat in on the first one and asked whether she was callinq her a liar too. Dudley stated she informed Bircher that if she was not telling the truth it was noth- ing but a lie. Dudley testified that at this point she became hysterical and jumped up and said, "Well, I'm going to the union." When Bircher responded by telling her no, that she was not going anywhere, she repeated her statement about going over to the Union and then said she was going to call the union manager. After Bircher again said something about she could not do, or to sit down, Dudley left the office, went to the facility's lounge, and made a telephone call to the Union's Busi- ness Manager DeWolf. Subsequently, upon being asked by the General Coun- sel why she told them she wanted to go to the Union, Dudley for the first time stated she also told them she did not have any alternative except to try to get help and the Union was the only way she knew how. According to Dudley her reasons for telling them she wanted to go to the Union were because she had not committed that many errors on one observation, the fol- lowup observation was done and she denied she had ever had a followup observation previously, this was the first time something like this had ever happened to her, and because she had told them it was a lie about her work and they appeared upset and did not seem to like it. McCarthy's version was that she informed Dudley she had just done a followup observation on her and it was not good but not nearly as bad as the one she had done earlier. Dudley responded by talking in a loud voice saying she had no right to do a followup observation on her and that she already had her monthly observation. About this time McCarthy heard Bircher, who was out- side the room, tell another group chief operator to shut the door because it was disturbing the toll room, where- upon she asked Bircher to sit in on the discussion, which Bircher did. While then going over the observation and informing Dudley about the mistakes she had made, Dudley denied in a loud voice she had made those mis- takes, accused her of lying, and said she did not have to listen to her saying that about her. Bircher, referring to the first observation, said she had heard the same things and asked Dudley whether she was calling her a liar too. Dudley said she did not have to listen to this, that they were always telling lies about her, that she was going across the street, and then said she was going to the Union. McCarthy stated several times she and Bircher asked Dudley to lower her voice so they could finish discussing the observation with her but Dudley refused. Bircher, who corroborated McCarthy's testimony, fur- ther stated that after Dudley said she was going to the Union she informed Dudley to go on her own time and asked her to sit down and let McCarthy finish covering the observation. When Dudley stated she did not care and was going across the street, Bircher informed Dudley she was being insubordinate and told her that if she left the office just to go home she would contact her when Dudley could come back. Dudley then left the office. Both McCarthy and Bircher denied they understood Dudley requested union representation during this dis- cussion of the followup observation. To the extent the testimony of Dudley and that of Mc- Carthy and Bircher differs, concerning the discussions about the observations conducted about February 5 or 6 and on February 21, I credit the testimony of McCarthy and Bircher rather than that of Dudley. Besides my ob- servations of the witnesses in discrediting Dudley, her testimony was both vague and contradictory and she professed an inability to recall matters reasonably within her own knowledge. McCarthy's undisputed testimony, which I credit, es- tablishes she had previously conducted observations of Dudley, who had not requested union representation during the discussions of those observations. Bircher also credibly testified without denial that on one occasion in 1971, at a disciplinary interview, Dudley had requested of her and was furnished with a union steward and that on other occasions when she had planned to discipline Dudley and offered to have a union steward present, Dudley had refused. While Dudley denied she had ever had a followup ob- servation conducted before, Respondent's records and the testimony of McCarthy, which I credit, establish that followup observations were conducted and discussed with Dudley on May 31, 1977, by McCarthy, and on November 19, 1976, by Group Chief Operator Clara Ford. Respondent's records further reflect during the period from August 4, 1970, through June 13, 1978, there were 23 corrective disciplinary actions taken against Dudley UNITED TEL.EPtONE CO. OF FL.ORIDA 51 during which job stewards were either present or not present and on some of these occasions job stewards were not requested or not wanted by Dudley. After Dudley talked to Business Manager DeWolf on the telephone on February 21,9 she returned and talked to Operations Supervisor Bircher, who had reported the incident to Personnel Manager Ezell"' about returning to work. Bircher, who denied being aware at the time of Ezell's conversation with DeWolf, refused to allow Dudley to return to work and stated she reminded Dudley she had told her that if she left the office she would contact her when she could go back to work. Bircher further stated she told Dudley she could not go to work in her condition which she described as being loud and very nervous. However, later that day a meeting to discuss the inci- dent was arranged by Bircher at the direction of Ezell. The meeting was attended by Dudley, Union Steward Virginia Watkins, Group Chief Operator Wester, and Operations Supervisor Bircher. During this meeting both Bircher and Dudley related their versions about what had occurred at the discussion of the followup observa- tion. According to Bircher, whose testimony was cor- roborated by Wester and undenied by Dudley, Union Steward Watkins informed Dudley that her leaving the office after being told not to was insubordination and there was nothing she could do to help her. Wester also denied Dudley mentioned she had been requesting union representation. Following this meeting, Bircher discussed the matter with Ezell whereupon they both testified they agreed, after reviewinq Dudley's record, to give Dudley a 3-day suspension. The suspension notice, dated February 21, re- flects Dudley was suspended for 3 days for insubordina- tion by refusing a direct command. C. Analysis and Conclusions The General Counsel contends, while the Respondent denies, that the Respondent violated Section 8(a)(1) of the Act by unlawfully insisting that Dudley remain at an interview and suspending her for leaving the interview which she reasonably believed would result in disciplin- ary action against her after she had refused to further participate without union representation. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Under Section 7 of the Act" an employee has the right to have union representation at an investigatory in- terview which the employee reasonably believes might result in disciplinary action. .L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). The protection accorded em- ployees covers both "investigatory" and "disciplinary" interviews except for those interviews conducted for the ' Dudley did not lavec Respondents preminses " Personnel NManager Eell conttacted Businces, Manager DeXWolf about Dudley leasing the lob and I)e\A'olf informed him he had lalked Io) Dudley on the telephone and old her to relurn ito work , Sec 7 of the Act gu arantees to emploccs Ihce right io "engage in concerted acti ities foir Ihe purpose of cllle iie bargainlig or ther mutual aid or proctillon " exclusive purpose of notifying an employee of previously determined disciplinary action. Baton Rouqe Water Works Company. 246 NLRB No. 161 (1979). The test for deter- mining whether an employee reasonably believes the in- terview might result in disciplinary action is measured by objective standards under all the circumstances of the case rather than by an employee's subjective motivations. .V.L.R.B. v. J. Weingarten. Inc., supra, at 257, fn. 5. Fur- ther, to invoke this protection the employee must request union representation. The findings supra, establish that followup observa- tions of operators by chief group operators and the dis- cussions pertaining to these observations with the opera- tors, as was the type involved in the instant case, are nei- ther for investigatory nor disciplinary purposes but solely for the purpose of observing the operator and then informing the operator whether that operator is utilizing the correct procedures on which additional training has been given to the operator to correct errors or irregulari- ties observed on the initial observation. Neither the re- sults of the followup observations nor the discussions concerning them are entered on the operator's work trend record which is used for employee appraisals. Dudley was no stranger to disciplinary actions and her right to have union representation, having been involved in numerous disciplinary actions throughout her employ- ment with the Respondent on which occasions she was either represented or not represented by the Union ac- cording to her desires. Contrary to her denials, Dudley had also been subject- ed to followup observations and discussions about them previously and would have heen aware of the nondisci- plinary nature of such followup discussions. Moreover, her failure to request union representation at the outset of the discussion of the followup observation is further indicative of her lack of belief that such interview could result in disciplinary action. The fact that during the fol- lowup discussion, in disputing the reported observations of Group Operator McCarthy, she accused McCarthy, Operations Supervisor Bircher, or both of lying about what they had observed on the observations sould not detract from the nature of the discussion itself since nei- ther McCarthy nor Bircher responded by indicating oth- erwise and merely expressed their desires to continue the discussion about the followup observation. Under these circumstances, I am persuaded and find that Dudley had no reasonable grounds, based upon objective consider- ations, for believing such discussion might result in disci- plinary action. Further, the findings establish that at no time did Dudley ever expressly request to have union representa- tion at this discussion. The fact that just before walking out of the discussion she mentioned that she was going over to the Union could not arguably be equated to or construed as a request to have union representation pres- ent at the discussion. Rather, it appears more logical that she was expressing her intention to go to the Union and complain about what she may have perceived to be dis- crimination against her, which is an entirely different matter and unrelated to the issue involved here. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore I find the discussion of the followup obser- vation was not investigatory and could not lead to disci- plinary action; Dudley had no reasonable grounds for be- lieving the discussion might result in such action; and Dudley also failed to request union representation, all of which are essential elements in finding the violation al- leged here. Insofar as Dudley's 3-day suspension is concerned, the evidence establishes it resulted from her insubordination in walking out of the discussion contrary to her instruc- tions by Operations Supervisor Bircher to remain and complete the discussion and it was issued only after it was first discussed with Dudley in the presence of and with her union representative. Based upon the foregoing reasons, I am persuaded and find that the Respondent did not violate Section 8(a)(l) of the Act, as alleged, by unlawfully insisting that Dudley remain in an interview and suspending her for leaving that interview. CONCLUSIONS OF LAW I. United Telephone Company of Florida is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union No. 199, is a labor organization within the meaning of Secticn 2(5) of the Act. 3. The Respondent did not violate Section 8(a)(1) of the Act as alleged in the amended complaint. Upon 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 12 It is hereby ordered that the amended complaint be, and it hereby is, dismissed in its entirety. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes.