Alfred M. Lewis, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 18, 1977229 N.L.R.B. 757 (N.L.R.B. 1977) Copy Citation ALFRED M. LEWIS, INC. Alfred M. Lewis, Inc. and Roger Hendershot, Paul V. Gregan, Harlan Swetnam, Peter Brix, David Woodard, Derol Cheatham, Robert Riland, Jr., Kendall C. Jones, Jack Nelson, and Paul E. Jaynes. Cases 28-CA-3628, 28-CA-3714, and 28-CA-3714-2 May 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 30, 1976, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs and answering briefs to the briefs in support of exceptions. The Charging Parties adopted the excep- tions and supporting brief filed by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, briefs, and answering briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge only to the extent consistent herewith.' i. We agree with the General Counsel that the Administrative Law Judge erred in concluding that Respondent did not violate Section 8(a)(5) and (1) of the Act by virtue of its unilateral establishment of a production quota and disciplinary system in July 1975. The relevant and material facts are fully set out in the Administrative Law Judge's Decision. In the spring of 1975, Respondent instituted a program of supervisory counseling of employees whose produc- tivity was not within 5 percent of crew averages. In July 1975, Respondent promulgated a procedure not only for counseling but also for disciplinary suspen- sions and terminations of employees who failed to attain the established production standards. The July production quota and disciplinary procedure were instituted without prior notice to, or an offer to bargain with, the employees' collective-bargaining representative. Following the imposition of discipline under the quota system, the Union filed grievances, the first two of which were processed through arbitration. In each arbitration, the arbitrator's award upheld the Respondent's position. During the pendency of the arbitration proceedings various 'In view of the extensive modifications, we have substituted our own order for the recommended Order of the Administrative Law Judge. 229 NLRB No. 116 employees filed unfair labor practice charges alleg- ing, inter alia, Respondent's violation of Section 8(aX5) of the Act by unilaterally instituting the production quota and disciplinary system. The Administrative Law Judge, while recognizing that the imposition of production standards and penalties are mandatory subjects of bargaining, concluded in reliance on Spielberg Manufacturing Company, 112 NLRB 1080 (1955), that deference to the arbitration awards precluded a finding of any violation of Section 8(a)(5). The General Counsel contends that the Administrative Law Judge improp- erly applied Spielberg, arguing that neither arbitrator addressed or ruled on the unfair labor practice issues in their awards. In Spielberg, the Board held that the objective of encouraging the voluntary settlement of labor dis- putes will be best served by the recognition of arbitration awards where the arbitration proceedings appear to have been fair and regular, all parties have agreed to be bound, and the arbitrator's decision is not clearly repugnant to the purposes and policies of the Act. Where the arbitrator does not address himself to the unfair labor practice issue and his decision is contrary to unfair labor practice decisions under the Act, binding effect will not be given to the arbitration award. Radio Television Technical School, Inc. t/a Ryder Technical Institute, 199 NLRB 570 (1972). In the instant case, both arbitrators took the position that the production quota was reasonable. Arbitrator McBreaty then concluded that: The company's right to take such steps [establish- ment of production quotas] cannot be denied so long as there is no direct conflict with the terms of the collective bargaining agreement. Arbitrator Hayes concluded that: Since there is no Collective Bargaining Agree- ment restricting the Company from establishing production standards, the Company has the right to unilaterally establish a production schedule for its employees in the grocery warehouse. Thus both arbitrators concluded that Respondent had a right to adopt unilaterally production quotas and disciplinary procedures because the contract did not specifically limit or restrict such actions. It is clear, however, that both arbitrators ignored well- established Board precedent holding exactly to the contrary. In the absence of a specific contract right, the unilateral institution of production or work standards, with accompanying penalties, is a refusal 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain in violation of Section 8(a)(5) of the Act. See Donna Lee Sportswear, 174 NLRB 318 (1969); Durfee's Television Cable Company, 174 NLRB 611, 613 (1969); Boland Marine and Manufacturing Com- pany, Inc., 225 NLRB 824 (1976), and cases cited therein. Even where an employer has a right to establish standards of conduct unilaterally, the promulgation without bargaining of a system of penalties for compliance with these standards vio- lates Section 8(a)(5). The Capital Times Company, 223 NLRB 651 (1976). The arbitration awards were therefore clearly repugnant to the purposes and policies of the Act and not entitled to deference under Spielberg. Since it is clear from the record that Respondent unilaterally instituted a production quota and disciplinary system in July 1975 without notifying the collective-bargaining representative and affording it an opportunity to bargain, we find that, by so doing, it violated Section 8(a)(5) and (1) of the Act. 2. We also find merit in the General Counsel's contention that, contrary to the finding of the Administrative Law Judge, Respondent violated the Act when it unilaterally instituted another produc- tion quota and disciplinary system on or about March 29, 1976, without first bargaining with the Union. On Friday, March 26, 1976, Saunders, Respondent's representative, gave Union Represen- tative Lock a copy of Respondent's engineered production quota system and advised him that the system would be put into effect in the warehouse the following Monday. Lock testified that when he told Saunders the Union could not agree to the system Saunders indicated that he was not looking for agreement, but that he just wanted to advise the Union that it was being put into effect. The warehouse is closed on weekends, and the first shift that could have been affected was the Sunday night shift preparing orders for Monday delivery. From these facts, it is clear that the Union was faced with a fait accompli; there was neither an offer nor time to bargain. We conclude, therefore, that Respondent's unilateral institution of another production quota and disciplinary system on March 29, 1976, also violated Section 8(a)(5) and (1) of the Act. 3. We also find merit in the General Counsel's contention that on and after August 7, 1975, Respondent violated Section 8(a)(l) of the Act by its refusal to permit a union representative to be present at counseling sessions carried out under the produc- tion quota and disciplinary system, and it violated 2 195 NLRB at 199. 3 Employee Hendershot testified: Q. But you knew that, from being in the second step of the system that the third step could very well mean suspension for you? He had told you that before? Section 8(a)(5) at the same time by unilaterally changing its prior policy of permitting union repre- sentation at counseling sessions and disciplinary interviews. The Administrative Law Judge concluded that union representation was not appropriate at such counseling sessions, citing the Board's decision in Quality Manufacturing Company, 195 NLRB 197 (1972), and the Supreme Court's decision in N.LR.B. v. J. Weingarten, Inc., 420 U.S. 251 (1957). In Quality Manufacturing, we said that we would not apply the rule requiring representation at interviews to such "run-of-the-mill shop-floor conversations as, for example, the giving of instruction or training or needed corrections of work techniques."2 However, the Board immediately qualified this limitation on the application of the rule by noting: In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative. But in the present case the conclusion is inescapable that employees involved in the type of counseling given by Respondent had reasonable grounds to fear adverse consequences. The counseling sessions ex- plored the reasons for an employee's failure to meet production quotas and took place as an integral part of Respondent's production quota and disciplinary system. The counseling was a preliminary step to the imposition of discipline under the system.3 Investiga- tory interviews which may lead to discipline are clearly within the scope of Weingarten, supra, under which the employees' right to representation was affirmed. We conclude, therefore, that by refusing to allow employees union representation at counseling sessions on and after August 7, 1975, Respondent violated Section 8(a)(l) of the Act. We also find and conclude that by unilaterally terminating the practice of allowing union representation at counseling sessions and disciplinary interviews without first bargaining with the Union, Respondent violated Section 8(a)(5) of the Act.4 CONCLUSIONS OF LAW 1. Respondent Alfred M. Lewis, Inc., is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. Transport and Local Delivery Drivers, Ware- housemen and Helpers, Local Union No. 104, an A. He [Supervisor Numkenal had told me that. Yes. Contrary to the Administrative Law Judge's finding in fn. 4 that this violation was not alleged in the complaint, we note, and Respondent agrees, that pars. 12 and 13 of the complaint in Case 28-CA 3714 allege this unilateral change of policy to be a violation of Sec. 8(aX 5) of the Act. 758 ALFRED M. LEWIS, INC. affiliate of the Teamsters International, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally promulgating a production quota and disciplinary system in July 1975 without first bargaining with Local Union No. 104 of the Teamsters Union and, thereafter, on or about March 29, 1976, unilaterally instituting another production quota and disciplinary system without first bargain- ing with Local Union No. 104 of the Teamsters Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By refusing, on and after August 7, 1975, to permit union representation at counseling sessions conducted pursuant to Respondent's July 1975 production quota and disciplinary system, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By unilaterally changing on August 7, 1975, its policy of permitting union representation at counsel- ing sessions and disciplinary interviews conducted pursuant to its production quota and disciplinary system without first bargaining with Local Union No. 104 of the Teamsters Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action de- signed and found necessary to effectuate the policies of the Act. The events that gave rise to these proceedings are, or are the consequences of, Respon- dent's unlawful unilateral institution of a production quota and disciplinary system in July 1975; a unilateral change of policy regarding employee rights to union representation at counseling sessions and disciplinary interviews under the production quota system on or about August 7, 1975; a refusal on and after August 7, 1975, to allow union representation at counseling sessions; and a second or revised produc- tion quota system unilaterally instituted on March 29, 1976, to supplant the July 1975 quota system. As a result of Respondent's unlawful conduct, various I We do not order rescission of the unlawfully instituted July 1975 production quota system in view of the fact that this system was supplanted by the March 29, 1976, "engineered" quota system and is no longer in effect employees have been unlawfully disciplined and either suspended or discharged. In these circum- stances, we shall order Respondent to cease and desist from unilaterally instituting any production quota and disciplinary system; unilaterally changing its policy regarding union representation at counsel- ing sessions and disciplinary interviews without first bargaining with the Union; or denying union representation to employees at counseling sessions and disciplinary interviews. Affirmatively, we shall order Respondent to rescind the March 29, 1976, production quota and disciplinary system,5 and, upon request, bargain with the Union about the institution of any production quota and disciplinary system governing employees represented by the Union. We will also order that Respondent fully restore the status quo ante which existed at the time of its unlawful actions by (I) rescinding all disciplinary actions resulting from failure to meet the conditions of the unlawfully instituted production quota and disciplinary system, (2) offering all employees dis- charged or suspended, or otherwise denied work opportunities as a result of said quota and disciplin- ary system, immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and (3) making whole those employees who were either discharged, suspended, or otherwise denied work opportunities solely as a result of said quota and disciplinary system. In all cases of lost pay and/or benefits, the amounts shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Alfred M. Lewis, Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Instituting unilaterally and thereafter enforcing production quota and disciplinary systems or chang- ing policy unilaterally regarding union representation at counseling sessions and disciplinary interviews involving employees represented by Transport and Local Delivery Drivers, Warehousemen and Helpers, Local Union No. 104, affiliated with Teamsters and our Order prohibits the establishment of a production quota disciplin- ary system without bargaining. 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, without first bargaining with said Union. (b) Requiring any employee to take part in any counseling sessions, or disciplinary interviews with- out union representation if such representation has been requested by the employee and if the employee has reasonable grounds to believe that the matters to be discussed may result in his being subject to disciplinary action. (c) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of his rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Cancel, withdraw, and rescind the March 29, 1976, engineered production quota and disciplinary system in effect as to employees represented by the aforesaid Union. (b) Remove from the files of employees who are represented by the aforesaid labor organization all disciplinary warnings, notices, or memoranda issued since July 1975 resulting from application of the July 1975 production quota and disciplinary system, the March 29, 1976, engineered production quota and disciplinary system, and/or the refusal to allow union representation at counseling sessions and disciplinary interviews. (c) Offer all employees discharged, suspended, or otherwise disciplined or denied work opportunities as the result of the institution of production quota and disciplinary systems in July 1975, and on March 29, 1976, and/or the refusal to allow union representa- tion at counseling sessions and disciplinary inter- views, immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges. (d) Make whole all employees who were dis- charged, suspended, or otherwise denied work opportunities solely as a result of the institution of said production quota and disciplinary systems and/or refusal to allow union representation at counseling sessions and disciplinary interviews in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order respecting rescission of all disciplinary actions. (f) Post at its facilities in Phoenix, Arizona, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 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 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT institute and thereafter enforce production quota and disciplinary systems appli- cable to employees represented by Transport and Local Delivery Drivers, Warehousemen and Helpers, Local Union No. 104, an affiliate of Teamsters International, or change policy regard- ing union representation at counseling sessions and disciplinary interviews involving employees represented by said Union without first bargain- ing with said Union. WE WILL NOT require any employee to take part in any counseling session or disciplinary interview without union representation if such representa- tion has been requested by the employee and if the employee has reasonable grounds to believe that the matters to be discussed may result in his being subject to disciplinary action. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL cancel, withdraw, and rescind the March 29, 1976, engineered production quota and disciplinary system in effect as to employees represented by the aforesaid Union. WE WILL remove all disciplinary warnings, notices, or memoranda issued since July 1975 resulting from application of the July 1975 production quota and disciplinary system and the March 29, 1976, engineered production quota and disciplinary system, or refusal to allow union representation at counseling sessions and disci- plinary interviews from the files of employees who 760 ALFRED M. LEWIS, INC. are represented by the aforesaid labor organiza- tion. WE WILL offer all employees discharged, suspended, or otherwise disciplined or denied work opportunities as a result of the unilateral institution of said production quota and disciplin- ary systems, or refusal to allow union representa- tion at counseling sessions and disciplinary interviews immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent ones, without preju- dice to their seniority or other rights and privileges. WE WILL make whole all employees who were discharged, suspended, or otherwise denied work opportunities as the result of the unilateral institution of said production quota and disciplin- ary systems, or refusal to allow union representa- tion at counseling sessions and disciplinary interviews. ALFRED M. LEWIS, INC. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: These consolidated cases were heard before me in Phoenix, Arizona, on April 15 and 16. 1976.1 The charge in Case 28- CA-3628 was filed on September 4; in Case 28-CA-3714 on November 28; and in Case 28-CA-3714-2 on Decem- ber 2. Complaints in the first two cases were issued by the Regional Director for Region 28 of the National Labor Relations Board (herein Board) on January 16, 1976, and complaint in the third case issued January 19, 1976. Answers in each of the aforementioned complaints duly filed by Alfred M. Lewis, Respondent herein, on January 28, 1976, acknowledged the requisite jurisdictional data required under the National Labor Relations Act (herein Act), but denied the commission of any unfair labor practices as alleged in the complaint. On February II, 1976, the three cases were consolidated for hearing and all parties notified.2 More specifically, the complaint in Case 28-CA-3628 alleges that on August 7 and II Roger Hendershot, an employee of Respondent, was denied union representation at interviews in which said employee reasonably believed could result in disciplinary action against him, in violation of Section 8(a)(1) of the Act. The complaint in Case 28- CA-3714-2 raises identical issues; it is alleged that Paul E. Jaynes was denied union representation at interviews occurring on December I and 14, in which said employee reasonably believed could result in disciplinary action against him. The complaint in Case 28-CA-3714 alleges I Most of the significant and relevant dates with which these cases are concerned occurred in the year 1975. Unless otherwise indicated. all dates hereinafter will refer to the year 1975. 2 While there are no supporting instruments in the file, representations were made at the hearing which I have accepted that on March 8, 1976. that (a) Respondent instituted a production quota and disciplinary system without notice to or consultation with the collective-bargaining representative, (b) without notice to or consultation with the collective-bargaining unit, Respondent changed the method of compensating unit employees injured on the job, and (c) pursuant to said policies, a number of specified employees were suspended and/or terminated, all in violation of Section 8(a)(1) and (5) of the Act. At the hearing, General Counsel was permitted to amend the complaint in Case 28-CA-3714 by adding a paragraph alleging that on or about March 29, 1976, Respondent instituted a new production quota system which supplanted the one heretofore alleged as being violative of Section 8(aX5) and (1) of the Act. The General Counsel, Charging Party, and Respondent were each represented by very competent counsel. All parties were given full opportunity to submit evidence, examine and cross-examine witnesses, and, at the conclu- sion of the hearing, to argue orally. Oral argument was waived by extremely helpful briefs submitted by the General Counsel and Respondent and have been carefully weighed and considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF THE RESPONDENT Respondent is, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of California. Respondent maintains an office and place of business at 435 South 59th Avenue in the city of Phoenix, Arizona, where it is engaged in the wholesale and distribution of dry goods, refrigerated foods, and related products. During the past calendar year, which period is representative of its operations generally, Respondent in the course and conduct of its business operations purchased and caused to be transported and delivered to its Phoenix, Arizona, place of business dry goods, refrigerated foods, and other goods and materials valued in excess of $50,000 which were transported and delivered to its Phoenix, Arizona, place of business in interstate commerce directly from States of the United States other than the State of Arizona. During the same period of time Respondent, in the course and conduct of its business operations, sold and distributed from its Phoenix, Arizona, place of business products valued in excess of $50,000 which were shipped from said place of business in interstate commerce directly to States of the United States other than the State of Arizona. On the basis of these admitted facts, I now find Respondent to have been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent filed with the Board a Motion for Summary Judgment and request for oral argument in Case 28-CA-3714. On April 2. 1976, counsel for the General Counsel filed a motion in opposition to Respondent's Motion for Summary Judgment and on Aprl 14, 1976. the Board issued an order denying Respondent's motion. 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Transport and Local Delivery Drivers, Warehousemen and Helpers, Local Union No. 104 (herein Union), an affiliate of Teamsters International, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues This rather uncomplicated, not seriously disputed, set of facts raises a number of interesting legal issues. (I) Under the particular circumstances of this case have the parties to the contract elected to resolve their differences by the grievance and arbitration machinery rather than by the unfair labor practice route? (2) Did the arbitration awards meet the standards required by the Board? (3) May individual employees prevail before the Board where their exclusive bargaining representative has provided for and availed itself of a different forum for resolution of the identical dispute? (4) Does on-the-job counseling come within the ambit of the Weingarten case?3 (5) Are employer-employee conferences which are of a routine or perfunctory nature intended to advise of a decision already made the type of "investigative interview with reasonable fears of disciplinary action" encompassed within the language of the Board and Court in Weingarten? B. Background and Sequence of Events The pleadings filed herein establish that Robert Burke, vice president and division manager of Respondent; Cornelius Caldwell, superintendent of operations; Jeff Thrasher, night superintendent; and Fred Numkena, night supervisor, are, and at all times material herein were, supervisors within the meaning of Section 2(11) of the Act. At the hearing Respondent stipulated and I herewith find that the following description of certain employees of Respondent as set forth in the current collective-bargaining agreement between Respondent and the Union constitute an appropriate unit for the purpose of collective bargain- ing: "warehouse and trucking employees performing the occupational classifications listed in Article IX hereof employed at the Company's Arizona warehouses, exclusive of the cash and carry units, which includes employees on trucks working in and out of such warehouses, however, excluding supervisory, clerical and office employees." The Respondent Company and the Union involved herein have had a successful working relationship dating back at least until 1950 and perhaps longer. It should be emphasized that there is not a scintilla of evidence contained in this record indicating Respondent's course of conduct was in any sense motivated by antiunion consider- ations; nor is there any claim of discriminatory conduct. The basic conflict stems from Respondent's efforts to introduce policies and adminstrative procedures seeking to upgrade the productivity of the work force, which proce- dures in turn have caused the affected employees to feel that their "wages, hours and working conditions" have been altered in a manner that contravenes the law. The conflict primarily concerns those employees working in the warehouse who are classified as "order runners." The duties of the order runners consist of obtaining an order or bill from a "console," filling the order by driving an electric-powered "tug" through the aisles of the warehouse, collecting the items as listed on the order, and delivering them to a loading dock for loading into trucks for delivery to Respondent's customers. The productivity of the "order runners" herein involved is below that of order runners at other warehouses owned and operated by Respondent. Sometime around the first of 1975, Respondent began an "informal" program of counseling - seeking to improve the quantity of work of the order runners. This "informal" procedure failed to achieve the desired results and in March the procedure was set forth in writing and each order runner not attaining productivity within 5 percent of the crew average was to be counseled in a constructive manner for the purpose of helping him improve his production. The procedure for order-runner counseling appears in the record as Respon- dent's Exhibit I I and is sufficiently significant to be set forth in its entirety: PROCEDURE FOR ORDER RUNNER COUNSELING I. COUNSELING SHOULD BE DONE IN THE WORK AREA, NOT IN THE OFFICE. IT SHOULD BE INFORMAL AND DONE IN A CONSTRUCTIVE MANNER. THE PURPOSE OF TALKING TO THE EMPLOYEE IS TO HELP HIM IMPROVE HIS PRODUCTION. 2. ALL ORDER RUNNERS BELOW 5% OF THE CREW AVERAGE MUST BE TALKED TO NIGHTLY AND A WRITTEN RECORD KEPT. NOTHING SHOULD BE MENTIONED ABOUT WRITTEN WARNING, SUSPENSION OR TERMINATION. TRAINING SHOULD BE STRESSED. RIDE WITH AND INSTRUCT THESE PEOPLE TO SHOW THEM HOW TO INCREASE THEIR PRODUCTION. BE SURE TO CONVEY THE MESSAGE THAT YOU ARE TRYING TO HELP IN A CONSTRUCTIVE WAY AND NOT AS A PUNISHMENT OR PUNITIVE MEASURE. 3. WRITE YOUR RECORDS AFTER YOU HAVE TALKED TO, OR INSTRUCTED THE ORDER RUNNER. DATE YOUR RECORDS, RECORD TIME SPENT WITH THE PERSON, NOTE HIS ATTITUDE AND ANY RELEVANT REMARKS. 4. COMPILE, AT THE END OF EACH WORK WEEK, A LIST OF ALL EMPLOYEES WHO HAVE BEEN COUNSELLED. 5. DO NOT MENTION STANDARDS. 6. DISCUSS WITH THE SUPERINTENDENT OF OPERATIONS THOSE EMPLOYEES WHO HAVE BEEN ON THE WEEKLY LIST TWO OF THE FOUR WEEKS IN EACH CALENDAR MONTH. The record is clear and not in dispute that a large number of "order runners" were counseled in keeping with this procedure. In late July or early August a "Grocer Order Filler Disciplinary Procedure" was established (see Resp. Exh. 2), 3 N.L. R B. v. J. Weingarlen, Inc., 420 U.S. 251 (1975). 762 ALFRED M. LEWIS, INC. which outlined not only a procedure for counseling, but also established a precise suspension (3 days) and then termination procedure in the event an employee failed to respond to the counseling by attaining the required crew average. At the hearing the parties stipulated that, pursuant to the above-described productivity quota and disciplinary sys- tem, the following employees received discipline as indicat- ed: Randall Pfeiffer, suspended August 4-6; John F. Clapper, suspended August 11-13; Roger Hendershot, suspended August 11-13; Donald F. McGaughey, sus- pended September 15-17; Anthony J. Utz, suspended September 15-17; Dave Miller, suspended September 22- 24; Terry Harris, suspended October 22-24; Gary Gromer, suspended November 24-26; Paul E. Jaynes, suspended December 1-3; Paul E. Jaynes, discharged December 14; and Robert W. Riland, suspended December 20, 21, and 24. It was further stipulated that following his suspension Terry Harris was discharged and later was reinstated. Respondent does not deny that in late March 1976 it abandoned the crew average concept of production standards and adopted a completely new engineered set of standards (see G.C. Exh. 2). The union business agent, Anthony Locke, was informed of the "engineered stan- dards," but there was no offer to bargain nor did Locke demand to bargain concerning the new standards. In a memo dated March 21, Ron Huber, the industrial relations director for Respondent, advised various supervi- sors regarding the impact of the Weingarten case which included, inter alia, this paragraph (complete text Resp. Exh. 14): Our general policy over the years has been to question employees until it was decided that disciplinary action was going to be taken, whether it be an oral warning, written warning, suspension or discharge. Under the terms of Weingarten, this is no longer possible. An employee who asks for his steward must be allowed the presence of that steward or the questioning must cease. This does not apply in counseling or training situations where there is no intent on the Company's part to impose any discipline whatsoever, but merely help the employee improve his performance. The parties stipulated "that prior to August 7, 1975, it was the company policy of the Respondent to allow union representation at counseling and disciplinary procedures with its employees and after August 7, 1975, it was and is company policy of the Respondent to prohibit union representation at counseling sessions and disciplinary procedures with its employees." 4 The other issue of these cases involve the alleged change of policy concerning the question of pay for the remainder of an employee's shift following an on-the-job injury. Mr. Burke acknowledged that prior to May 1975 it had not 4 The General Counsel devoted a portion of his posthearing bnef to the proposition that this change in practice was a violation of Sec. 8(a 5) of the Act in addition to being a violation of Sec. 8(aX I) of the Act as determined by the Weingarten case. Such an allegation was not included in the complaints heard by me. nor was there any attempt to amend the complaints to include such an allegation. In my opinion, Respondent has not had a sufficient opportunity to defend itself of such an allegation, the matter was not fully litigated, and, even if meritorious, to find validity in such an allegation at this late date would be most unjust to Respondent. been company policy to seriously question an employee's right to payment for the balance of his shift following an on-the-job injury, but that about that time Respondent began to question the necessity of every employee leaving the job following an injury. As a consequence, some employees who left the job following what Respondent believed to be superficial or minor injuries were denied payment for the balance of their shifts. This resulted in a number of grievances being filed, all of which have been resolved in favor of the grievants under the contract's grievance procedure. It is the change in policy from and automatic payment to a discretionary payment that General Counsel alleges is violative of Section 8(aX5) of the Act. C. Argument by the Parties 1. Timeliness Respondent first argues that Section 10(b) of the Act5 bars the charge and therefore requires dismissal of the complaint in Case 28-CA-3714 because the counseling program was initiated in January and the charge was filed in November. While there is some testimony indicating that Respondent began taking steps in January to improve the productivity of its employees, the program was not formalized and put in writing until March 18, which is well within the 10(b) period. Moreover, it was not until the following July that the job improvement or counseling program was coupled to definitive standards with penalties for failure to attain the required standard. Until that was done, the counseling policy was completely harmless. Appropriately, the purpose of Section 10(b) is to prevent laches and to avoid stale charges. The disputes considered here are not stale and the Charging Parties could not be expected to act until they had knowledge or were affected by the new program. I find the complaints to be based on valid charges. 2. Is the new program a mandatory subject for bargaining? The General Counsel argues effectively that Section 8(aX5) of the Act requires the respondent to bargain with the union in respect to rates of pay, wages, hours of employment, or other conditions of employment. These mandatory subjects of collective bargaining require that any changes in the subjects occur only after negotiations with the selected collective-bargaining representative. 6 The theory is that any unilateral action taken by a company which affects or may affect the job tenure, wages, or other working conditions of its employees necessarily diminishes the authority of the collective-bargaining agent chosen by s The relevant portion of which reads: "Provided That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... I N.LR.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342 (1958). 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees to bargain over these issues. General Counsel then quotes from Murphy Diesel Company7 wherein the Board stated: "Plant rules, particularly where penalties are prescribed for their violation, clearly affect conditions of employment and are mandatory subjects of collective bargaining." In two other cases the Board's choice of words has made it unmistakably clear that the unilateral institution of a warning system, having direct effect on job tenure and the amount of work employees are expected to perform, is a matter falling within the scope of "wages, hours, and other terms and conditions of employ- ment" and is, therefore, an appropriate matter for collec- tive bargaining.8 Clearly, the factual situation of the instant case is analogous to that in the cases cited by the General Counsel and it would appear that under Board and court precedent Respondent may have violated Section 8(a)(5) of the Act. 3. Should the Board defer to the arbitration process? Respondent contends, however, that under the doctrine expressed by the Board in Spielberg9 the Board's pre- scribed criteria for deferral to arbitration awards have been met and thus the Board should defer to the arbitrators' awards. In Spielberglo the Board stated that, where the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act, "we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrators' award." Later the Board added a fourth requirement; namely, that the issue involved in the unfair labor practice case before the Board must have been presented to and considered by the arbitrator. " The rationale of Spielberg was enunciated in Internation- al Harvester Company (Indianapolis Works), 2 where the Board said: The Act . . . is primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. Experi- ence has demonstrated that collective-bargaining agree- ments that provide for final and binding arbitration of grievances and disputes arising thereunder, "as a substitute for industrial strife," contribute significantly to the attainment of this statutory objective ... If complete effectuation of the Federal policy is to be achieved, . . . the Board . . . should give hospitable acceptance to the arbitral process as "part and parcel of the collective bargaining process itself," and voluntarily ? Murphy Diesel Company, 184 NLRB 757, 762 (1970); also see Miller Brewing Company, 166 NLRB 831 (1967), enfd. 408 F.2d 12 (C.A. 9. 1969). 8 Donna Lee SportsKwear, 174 NLRB 318 (1969); Durfee's Television Cable Company, 174 NLRB 61 , 613 (1969). 9 Spielberg Manufacturing Company, 112 NLRB 1080(1955). 0o Id at 1082. i] Raytheon Company,, 140 NLRB 883 (1963), set aside 326 F.2d 471 (C.A. 1, 1964). withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfair- ness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act. In reaching its decision in International Harvester, supra, the Board relied in part on Section 203(d) of the Act which provides that: "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective- bargaining agreement." The Supreme Court has added emphasis and support for arbitration, for example, in Carey v. Westinghouse,'3 the Court held that a union representing a group of production and maintenance employees could compel arbitration, by a suit brought in a state court, or a grievance asserting that technical employees represented by yet another union were performing production and maintenance work, even though the dispute may have involved matters within the jurisdiction of the National Labor Relations Board. Arbitration, the Court said, is available as an alternate remedy to an NLRB proceeding. In August 1971 the Board further recognized the role of arbitration in the solution of industrial disputes by announcing the Collyer doctrine.14 In Collyer the Board held that, if a collective-bargaining contract contains a grievance-arbitration procedure for resolving disputes under the contract, the Board will defer to the contractual procedure where an unfair labor practice charge also involving a contractual issue has been filed with the Board prior to arbitration. After the award has been issued, the Board then will review it to determine whether it met the Spielberg standards for honoring awards. If the record fails to reveal that the arbitration tribunal was not presented with, or had failed to duly consider, those aspects of the dispute with which the Board would be involved in an alleged unfair labor practice, then it might refuse to honor the arbitration award.' 5 The collective-bargaining agreement between the Union and the Respondent provides for final and binding arbitration regarding "any complaint, disagreement or difference of opinion between the Company, the Union, or the employees covered by this contract, which concerns the interpretation or application of the terms and provisions of this contract .... " (See art. 23 of Resp. Exh. 1.) While this language could conceivably confine grievance and arbitration to disputes arising out of the interpretation of the language set forth in the contract, nevertheless there was undenied testimony indicating that the parties have resorted to arbitration on the occasion of the Company unilaterally instituting an attendance policy; on another 12 138 NLRB 923, 926 (1962), enfd. sub nom. Thomas D. Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7, 1964), cert. denied 377 U.S. 1003. 13 Carey, President of International Union of Electrical, Radio & Machine Workers, AFL-CIO v. Westinghouse Electric Corp., 375 U.S. 261 (1964). 14 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). L5 See Yourga Trucking, Inc., 197 NLRB 928 (1972). 764 ALFRED M. LEWIS, INC. occasion when they required a specified form of sick leave certificate; and on yet another occasion when the Compa- ny refused to pay sick leave to employees who had vasectomies. Each of these issues clearly involved items falling within the area of mandatory subjects for collective bargaining. The testimony established that in all instances the parties have abided by the arbitrator's final decision. There have been two arbitration decisions arising under the labor agreement (Resp. Exh. I) following the institution of the Company's production quota and disciplinary procedures established in mid-1975. The first of these involved the discharge of George McCown. There the issue as set forth by the third impartial arbitrator in his decision was: "Was the defendant, George McCown, discharged for 'just cause' under the terms of the collective-bargaining agreement, if not, what is the proper remedy?" This issue which is rather narrowly framed would appear to have foreclosed or prevented a consideration by the arbitrator of the right of the Respondent to unilaterally initiate the production quota and disciplinary procedure. However, the broader and more relevant question was presented to the arbitration panel as reflected by the posthearing letter or brief submitted by the Union's appointee to the panel, Horace Manning (see letter dated November 18 from Manning to James C. McBrearty, the impartial member of the panel, which is attached to and made a part of the arbitrator's decision and appears in the record as Resp. Exh. 7c). I have carefully examined the typewritten 78-page decision of Mr. McBrearty and have concluded that the required criteria for deferral to arbitration awards as established by the Board in Spielberg and Raytheon, supra, are all present in this arbitration award. The arbitrator's decision was dated December 11, 1975. A second arbitration decision was rendered on January 23, 1976, which involved the suspension of John F. Clapper following the institution by the Respondent of the production quota and disciplinary system. Again the issue as framed by the parties was rather narrow: "Was grievant, John F. Clapper, suspended by the Company for just cause; if not, what remedy should be imposed?" However, the posthearing brief submitted by the Union and appear- ing in the record as Respondent's Exhibit 8b leaves no doubt that the broader question of the Company's right to initiate the program was fully considered. The Union's posthearing brief (p. 9) specifically raises the key question, "Does the Company have the right to unilaterally impose production standards and a corresponding system of discipline?" The following two paragraphs also appear in the Union's brief: It is clear that the production standards imposed by the Company were put into effect without the Compa- nies having discussed their ramifications with union representatives. Had the Company bargained with the Union about the change in management policy occa- sioned by the production standards, many of the problems raised in this hearing need not have occurred. "6 Monroe Manufacturing Companyv, Division of Continental Oil Compan'y, 167 NLRB 1074, fn. 2 (1967): Blount Farmers Cooperative. Inc.. 150 NLRB 1681 (1965) Tursair Fueling, Inc. 151 NLRB 270(1965). In National Labor Relations Board parlance, the actions of the employer constitute a clear "refusal to bargain." An employee injured by the unilaterally imposed acts of an employer is entitled to be made whole for any damage suffered as a result of such a unilateral act. Similarly, the posthearing arbitration brief submitted by the Company carefully argues the Company's right to unilaterally establish the production quota and disciplinary system (see Resp. Exh. 8a). Arbitrator Raymond F. Hayes, in a well-reasoned decision, cited a number of arbitration cases holding that the company had the right to unilateral- ly install a production schedule for its employees. I have carefully examined the arbitrator's decision and can find nothing therein to indicate that it does not meet all of the requirements established by Spielberg and Raytheon, supra. The issue of Respondent's right to unilaterally institute a production quota and disciplinary system was fully presented to not just one panel of arbitrators, but two; the parties agreed to be bound to arbitration; the proceedings were fair and regular; and the result reached is not clearly repugnant to the purposes and policies of the Act. Unless the Board is to pay only lipservice to Spielberg, supra, then it is not for me to substitute my judgment for that of the arbitrator's. 4. The Charging Parties were not parties to the arbitration Before finally disposing of this aspect of these consolidat- ed complaints, it is necessary to give some consideration to the rights of the individual Charging Parties vis-a-vis the collective-bargaining representative in bringing this partic- ular charge alleging an 8(aX5) violation of the Act. As the General Counsel correctly points out, a charge may be filed by any person.1 6 Section 102.9 of the Board's Rules and Regulations and Statements of Procedures, Series 8, as amended, provides: "A charge that any person has engaged in or is engaging in any unfair labor practice affecting commerce may be made by any person." There is a difference, however, between the right to file a charge and the right of a charging party to prevail in the complaint which might stem from the charge. A charge is a mere claim or unproven contention by one or more persons. The charge serves to initiate the investigation by the Board. The complaint which follows, in the event there appears to be merit to the charge, must be weighed in light of the factual evidence, the statutory provisions of the Act, and the Board's and court's interpretations of those statutory provisions. In other words, the mere fact that any person has a right to file a charge does not necessarily mean that that person will prevail in any complaint that might issue. It should be noted that each of the individuals alleged to have been wrongfully disciplined pursuant to the unilater- ally promulgated production quota and disciplinary system had filed grievances which were being processed through the grievance and arbitration procedure until withdrawn voluntarily by the Union (see letter dated February 19, 1976, which is a part of Resp. Exh. 5). The testimony 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicated that the Union and the individual employees agreed that further efforts to pursue their grievances in light of the two arbitrators' decisions would be futile, and their action was taken voluntarily and not because of any fraud, coercion, and pressure. The Act provides that it shall be the designated or selected representative for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, that shall be the exclusive representative of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employments. In the absence of some showing of fraud or collusion between the Company and the collective-bargain- ing representative, to allow the individual employees to pursue their individual methods of resolving a dispute would be most disruptive of the industrial scene and contrary to the purposes of the Act.18 The United States Supreme Court gave strength and support to this proposition in 1953 when it reversed a decision of the circuit court of appeals and dismissed a suit brought by a group of dissident employees protesting the right of the exclusive bargaining representative to negotiate certain seniority clauses in their labor agreement.' 9 The Eighth Circuit Court of Appeals put it very succinctly in Lion Oil Company and Monsanto Chemical Company v. N.L.R.B., 245 F.2d 376, 378-379 (C.A. 8, 1957), when it said: The National Labor Relations Act does not counte- nance negotiating with individual employees when they have bargaining representatives . ... It requires that representatives designated by the majority of employ- ees shall be the exclusive collective-bargaining represen- tatives in respect to rates of pay, wages, hours of employment or other conditions of employment. Lion Oil is compelled to deal exclusively and collectively with the union or, as the Supreme Court has put it, ". . . the obligation to treat with the true representa- tives was exclusive and hence imposed the negative duty to treat with no other." [Citations omitted.] More recently the Supreme Court has confirmed the view that it would be unwise to permit dissident or minority groups to bargain directly with their employer in contra- vention to that exclusive right established by law in the collective-bargaining representative. 20 I conclude and find that to allow these individual employees to prevail in an 8(a)(5) complaint after their exclusive bargaining represen- tative has availed itself of arbitrating the identical subject matter would be making a nullity of the Spielberg doctrine, supra. Moreover, these employees are working under a labor management agreement which provides for a broad final and binding arbitration procedure to which they had access. Under the Collyer doctrine, supra, the matter involving the suspension and the discharge of specific employees would have been deferred to the arbitration process. In this instance the grievance and arbitration II See Sec. 9(a) of the Act. 18 This case is quite different from the situation found by the Board in Kansas Meat Packers, a Division ofAristo Foods, Inc., 198 NLRB 543 (1972), where it was doubtful the employees could or would be fully and fairly represented by the Union. process became final and binding when the grievances were voluntarily withdrawn. In a recent Supreme Court decision, the Court noted with approval that "Board policy is to refrain from exercising jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a contract violation when. . . the parties have voluntarily established by contract a binding settlement procedure."' I shall recommend dismissal of that portion of the complaint in Case 28-CA-3714 alleging that Respondent unlawfully established a production quota and disciplinary system pursuant to which individuals received suspensions and/or discharges. 5. Changes in policy of payment of wages for balance of shift when employee injured on the job It was also alleged as a part of the complaint in Case 28- CA-3714 that the Company's change in attitude toward payment for the remaining portion of the shift when employees are injured on the job was a change in policy affecting wages, hours, and working conditions and therefore subject to bargaining. The evidence is clear and undisputed and I herewith find that Respondent did change its policy. I shall recommend dismissal of this aspect of the complaint, however, for two reasons. First of all, the evidence reveals that every grievance that was filed regarding the failure of an employee to receive pay for the remainder of the shift on which he may have been injured was resolved through the grievance procedure by payment of the required sum of money to the respective grievants. Thus, the issue has been finally resolved by an agreed-upon grievance and arbitra- tion procedure and all that has been said heretofore regarding other portions of this complaint is equally applicable to this allegation; i.e., where the parties have a workable dispute-resolving machinery the Board should not interfere. Second, the Board has neither the time nor the manpower to look behind every grievance on the part of either management or labor unions which might arise in the process of enforcing or interpreting labor-management contract language. Each change of supervisors or business agent is apt to bring forth a slightly different "attitude or policy," but the parties have provided for a means of resolving those differences, if and when they became unreasonable. The question is not whether there was a change of "policy or attitude," but did the resulting conduct breach either the contract or the law. In the instances herein involved the Union protested through its established dispute-resolving machinery and won. In the incidents alleged to be violative of the Act Respondent has acknowledged it was wrong and has made full restitution. The issue has become moot because the Company has capitulated. The record does not fully reveal - nor was it necessary - all the circumstances surrounding these particular on-the-job injuries, but obviously the Company 19 Ford Motor Company v. Huffman, 345 U.S. 330 (1953). 20 Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975). 21 William E. Arnold Co. v. Carpenters District Council of Jacksonville and Vicinity, e al., 417 U.S. 12(1974). 766 ALFRED M. LEWIS, INC. did not feel it could prevail. It is entirely possible that given the proper circumstances and set of facts Respondent may wish to test its right to deny payment, but it is not for the Board to become involved in interpreting contract lan- guage. Moreover, the Board seemed to have recently recognized the problem when, in dismissing an 8(aX5) complaint concerning the unilateral institution of time- clocks by a respondent company, the Board said: While there is some evidence that the Respondent was lax in enforcing its rule, we cannot say that such inattentiveness raised the former normal procedure to the level of a term and condition of employment which the Respondent was required to bargain over before changing. For absent discrimination, an employer is free to choose more efficient and dependable methods for enforcing its workplace rules. In the circumstances of this case, we find that the Respondent's introduction of the timeclocks was but a part of the day-to-day managerial control which it was free to exercise.22 As indicated earlier herein there is absolutely no evidence of union animus or discrimination and I shall recommend dismissal of the allegation charging Respondent Company with a violation because of its change of attitude or policy regarding the payment of moneys for the balance of the shift on occasions when employees are injured on the job. 6. The 1976 production quota standards An amendment to the complaint was permitted at the hearing to allege that Respondent had, on or about March 29, 1976, unilaterally and without notice to or consultation with the Union, or affording the Union an opportunity to request bargaining, instituted a production quota system for its warehouse employees which supplanted the previous production quota system. I shall recommended dismissal for lack of proof. The record established that changes were made in the production standards in the spring of 1976 (see G.C. Exh. 2). However, there was no evidence tending to prove that the newly instituted engineered set of standards in any manner affected the employees. The right to establish the basic production quota and disciplinary program has heretofore been found valid. In the absence of some showing that the program instituted in 1976 represented a "material, substantial, or significant change" from prior practice, there is no basis for finding a violation.2 3 Moreover, all that has heretofore been said regarding deferment by the Board under either the Collyer or Spielbery doctrines is applicable here. In sum, I find that the General Counsel has not shown by a preponderance of the evidence that Respondent violated the Act by institut- ing a new set of production standards in the spring of 1976. 7. The right to have a union representative present The issues raised in Cases 28-CA-3628 and 28-CA- 3714-2 are identical and relate to the right of employees to 22 Rust Craft Broadcasting of New York, Inc.. 225 NLRB 327 (1976). 23 Wabash Transformer Corp., Subsidiarv of Wabash Magnetics, Inc., 215 NLRB 546 (1974). have a union representative present at "employee-supervi- sor interviews." The evidence is clear that it had been Respondent's policy to permit union representatives to be present upon request at interviews which might reasonably result in disciplinary action (see Resp. Exh. 14). In connection with the production quota and disciplinary procedure instituted by Respondent it became an almost daily occurrence for the night supervisor, Numkena, to discuss with each of the order runners their productivity of the previous evening. In every instance, those employees who failed to come within 5 percent of making the average production attained by the entire crew were talked to or counseled by the supervisor in an effort to improve their production. In some instances this counseling took the form of actually riding on the "tug" with the employee for the purpose of trying to learn what might be causing the low production. On other occasions it was a matter of questioning the employee regarding the condition of his equipment or the working conditions which might have caused the low production. Mr. Huber, director of industrial relations for Respon- dent, testified that, in August 1975, the Company's policy regarding permitting a union representative to be present at the counseling sessions, as well as at the disciplinary sessions, was changed. (See the stipulation set forth herein above under the caption "Background and Sequences of Events.") Huber explained that it became necessary to change their practice because the employees began request- ing union representatives to be present so frequently at the counseling sessions that it made job instruction and training impossible. The allegations in Case 28-CA-3628 to the effect that, on or about August 7, Roger Hendershot was denied union representation at a counseling session relating to on-the-job instruction or training, and the fact that, on or about August 11, Respondent denied Roger Hendershot the right to have a union representative present in a "conference" which resulted in his suspension are not seriously contested or disputed and I herewith find them to be facts. The same is true regarding the allegations in Case 28-CA-3714-2 wherein it is alleged that Paul E. Jaynes was denied union representation at an interview with Jeff Thrasher, Respondent's night superintendent. Jaynes credi- bly testified that, after arriving at Thrasher's office and being told that Thrasher wanted to talk to him about his low productivity, he (Jaynes) asked to have union represen- tation. He was told by Thrasher that it was not needed and then was advised of his suspension. Jaynes testified that on December 14 when he was told that Jeff Thrasher wanted to see him he went to Thrasher's office but immediately asked for union representation. Again he was told that it was not needed and Jaynes was informed that in accor- dance with their established policy his productivity had not improved and he was being discharged. A resolution of these allegations is to be found in the application of Weingarten, supra. Respondent acknowledges that the Weingarten decision holds that an employee has a right to have his union representative present at an interview where the employee reasonably believes the investigation will result in disciplin- 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary action, but contends that this right does not apply: (1) to run-of-the-mill shop-floor conversations involving train- ing instruction or in correction of work techniques; or (2) to situations where there is no interview or investigation. Respondent's counsel argues persuasively that when the employees were advised of their discipline no discussion or interrogation took place. Respondent contends the disci- plinary action was perfunctory in accordance with a cut- and-dried company policy and that the right to union representation at such sessions does not apply. I find Respondent's counsel to be entirely correct insofar as the warehouse floor counseling, or job instruction, is concerned, but I feel that he has misconstrued the scope of the Supreme Court's language in Weingarten, supra, as it relates to disciplining sessions, even though the rationale is predicated on a situation that contemplates interrogation, investigation, and exploration in an effort to ascertain the facts. For example, the opinion states [420 U.S. 251 at 262]: 24 A single employee confronted by an employer investi- gating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union represen- tative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Both the Board's Decision and the Court's approval thereof, however, is predicated on the right of an employee to engage in concerted activities for the purpose of mutual aid or protection and the Board's permissible construction of the statute that concerted activity includes the right to have a union representative present when the employee's employment security is threatened. Perhaps the most precise and succinct statement of what the court majority said can be found in the dissenting opinion written by Justice Powell, wherein he said [420 U.S. 251 at 269]: "Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140, guarantees to employees the right to 'engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.' The Court today construes that right to include union representation or the presence of another employee at any interview the employee reasonably fears might result in disciplinary action." Under the broad reasoning expressed by the Board and approved by the Court in Weingarten there can be little doubt that when Roger Hendershot and Paul Jaynes were denied an opportunity to have a union representative present as they were being told that they would be suspended and/or discharged that Respondent was thereby interfering with the employee's Section 7 rights in violation of Section 8(a)(1) of the Act. Both employees had been counseled on several occasions and were aware of the written policy; therefore, they each had every reason to know what was going to occur at the interview. 24 Also see the language set forth by the Court in fn. 7 which also suggests that the Court envisions and exploratory type of conference On the other hand, I can find nothing contrary to the Act, or the Board and Court's interpretations thereof, in Respondent's refusal to permit a union representative to be present at each of the counseling or on-the-job instruction- al sessions, because as the Board stated in Quality Manufacturing Company, 195 NLRB 197, 199 (1972): We would not apply the rule to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative. Clearly the evidence supports the position that the night supervisor, Mr. Numkena, never disciplined any of the employees and his role was solely one of seeking to aid the employees in attaining adequate production. Hiring and training employees is an expensive labor cost to most employers and they are not anxious to discharge employees if they are capable of performing a reasonable and accepted standard of work. CONCLUSIONS OF LAW 1. Respondent Alfred M. Lewis, Inc., is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. Transport and Local Delivery Drivers, Warehouse- men and Helpers, Local Union No. 104, an affiliate of the Teamsters International, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By specifically denying employees Roger Hender- shot's and Paul Jaynes' request for union representation at interviews conducted by Night Superintendent Jeff Thrash- er under circumstances from which said employees could reasonably conclude that their job security was in jeop- ardy, Respondent interfered with, coerced, and restrained employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Allegations contained in these consolidated com- plaints not specifically found herein are to be dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed and found necessary to effectuate the policies of the Act. However, under all of the circumstances of this case, I shall not direct that Hendershot or Jaynes be reinstated and/or compensated for time lost because, as wherein a union representative might be helpful, in contrast to one that is as cut and dried or perfunctory as is represented by the instant dispute. 768 ALFRED M. LEWIS, INC. indicated in the body of this Decision, the propriety and reasonableness of the disciplinary action has already been resolved in a manner and forum established by the parties to the labor agreement. Reinstatement would in effect vitiate the arbitrator's decision and be unduly punitive to the Respondent. The violation found is a technical one stemming from broad language which compels the finding of a violation, but the rationale of the applicable case does not comport with the factual situation here. When this fact is weighed along with the total absence of union animus on the part of Respondent, I feel the remedy herein recom- mended fully effectuates the purposes of the Act. [Recommended Order omitted from publication.] 769 Copy with citationCopy as parenthetical citation