Amoco Oil Co.

National Labor Relations Board - Board Decisions

Jan 16, 1986

278 N.L.R.B. 1 (N.L.R.B. 1986)

AMOCO OIL CO.
Amoco Oil Company and Oil, Chemical and Atomic
Workers International Union, AFL-CIO, Local
7-1. Case 13-CA-24455
16 January-1986
DECISION AND ORDER -
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 31 May 1985 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the' General -Counsel filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding, to a 'three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Amoco Oil
Company, Whiting, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Thomas Nixon, Esq., for the, General Counsel.
Robert O'Connell, Esq., of Chicago, Illinois, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charge was filed 22 August 198411 by Oil, Chemical
and Atomic Workers International' Union, AFL-CIO,
Local 7-1, Inc. (the Union or Charging Party). Com-
plaint issued on 18 October, alleging that Amoco Oil
Company (the Respondent or the Company), about 29
June, denied -the requests of employees Thomas D.
Adam and John Spotten for union representation during
interviews which they ' had reasonable cause to believe
would result in discipline, and- conducted, such interviews
despite such denial, in violation of Section 8(a)(1) of the
National Labor Relations, Act.
A hearing was held before me on these matters in Chi-
cago, Illinois, on 14 March 1985. On the,entire record,
including briefs filed by the General Counsel and Re-
spondent, and on my observation of the demeanor of the
witnesses, I make the following
1 All dates are 10984 unless otherwise specified.
278 NLRB No. 3
FINDINGS OF FACT
I
1. JURISDICTION
Respondent is a corporation with an, office and place
of business in Whiting, Indiana, where it is engaged in
the manufacture and distribution of petroleum products.
During the calendar year preceding issuance of the com-
plaint, a representative period, Respondent sold and
shipped from its Whiting, Indiana facility goods and ma-
terials' valued in excess of $50,000,directly to points lo-
cated outside the State of Indiana. The pleadings estab-
lish, and .1 find, that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and-I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Deferral Issue
1. Factual summary
Respondent contends that this dispute should be de-
ferred to the grievance-arbitration provisions of a collec-
tive-bargaining agreement. At all material times, . the
Union and the Company have maintained such an agree-
ment covering certain of Respondent's employees at its
Whiting, Indiana refinery (G.C. Exb. 5). Article II of the
agreement, contains a grievance procedure leading, in
some cases, to binding arbitration. Section 2.01 gives an
employee who has "a grievance case" the right to con-
tact his supervisor, who will, if requested ,` call a union
representative for a conference with management.2 Sec-
tions 2.02 through 2.08 of article II describe the proce-
dures for settlement of the grievance ° at various levels of
management . Sections 2.09 through 2.14 describe the ar-
bitration procedures. Section 2.15 in relevant part limits
the applicability of the arbitration sections to questions
directly involving applications, interpretations, or alleged
violations of the agreement.3 Section 2:21 of article Il in
pertinent part provides that any question concerning any
liability or obligation of the Company, requiring con-
struction or interpretation of the National Labor Rela-
tions Act, "shall not be eligible for processing through
E"Art. II, sec. 2.01, reads as follows:
Section 2.01. Questions upon which employees covered by this
Agreement desire consideration may be first presented by the em-
ployees to their immediate supervisor An employee having a griev-
ance case may contact his supervisor, who' will, if requested, call a
Union representative fora conference with the Management.
s Sec. 2.15 in relevant part reads-
Section 2.15. As a specific limitation on the foregoing Sections 2.09
'through 2.14, the following shall be effective:
A. Questions which may be referred to arbitration shall be limited
to:
I Questions, directly involving or arising from applications, inter-
pretations or alleged violations of the, terms of this Agreement.
2. Questions directly involving or arising from -applications, inter-
pretations or alleged violations of -the terms of arbitration awards
and written agreements not incorporated -in this agreement.
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance procedure." However, the section contin-
ues, its provisions _ do not prejudice the rights of parties
"which arise solely under and by virtue of and are based
entirely on the, terms of this Agreement."4 The words
"grievance", or "grievance case" are not defined in the
agreement, and no section specifically gives an employee
the right to file a grievance upon ' being directed to
attend a meeting at which he has a reasonable expecta-
tion of discipline (G.C. Exh. 5).
On 27 October 1982 Respondent'issued to its supervi-
sors a document entitled "Policy on Rights to Represen-
tation." The introductory paragraph of this document
refers to employee rights "based on case law referred to
as Weingarten rights." This clearly refers to NLRB v. J.
Weingarten, 420 U.S. 251 (1975).
On 21 April 1983, Respondent issued a memo to super-
visors dealing in part with the procedure to be followed
when a grieving employee requests a union representative
(G.C. Exh. 3). The representative is to be told through
Sec. 2.21 reads.
Section 2 .21 Questions concerning any liability or obligation of the
Company, which require the construction or interpretation of any
statute or law, for example , but not by way of limitation , Fair Labor
Standards Act, Workmen's Compensation laws; National Labor Re-
lations Act as amended, and Social Security laws, shall not be eligi-
ble for processing through the grievance procedure . The provisions
of this Section will in no way prejudice or affect the rights of the
parties, as set forth in Sections 2 09 through 2 15 of this Agreement,
which arise solely under and by virtue of and are based entirely on
the terms of this Agreement.
The memo reads as follows:
Policy on Rights to Representation
Recent rulings by the National Labor Relations' Board have extended
and revised employees' rights to representation. These rights are
based on case law referred to as Weingarten rights. The revisions are
noted by asterisk.
1. Pursuant to Section 2.01 of our Contract, any employee who
wishes to present a grievance may contact his supervisor who will, if
requested, call a Union representative.
*2. Employees are free to request a Union representative or an-
other employee (if available) at any time when they are called to
meet with a supervisor if the employee believes that disciplinary
action ' may arise as a result of this meeting.
*3. Supervisors investigating circumstances of misconduct may
interview employees without notice to the Union, but if the employ-
ee being interviewed requests the presence of a Union representative
or another employee, supervisors will either:
immediately arrange for the representative and discontinue the
discussion until the, representative has arrived,
reschedule the discussion when a representative is available,
or terminate the discussion and, proceed in their investigation by
other means.
4 Representatives will not be allowed'to interfere with investiga-
tory interviews. At 'grievance meetings, with employees in attend-
ance, representatives may assist in the presentation of the grievance.
5 Representatives may be requested by employees but need not be
called by supervisors in those instances where supervisors are merely
informing an employee of a predetermined disciplinary action with-
out further discussion
*6. These rights extend to non-represented employees.
*7. Employees who are subject to investigatory interviews are en-
titled to be informed of the subject matter of the investigation before
they consult with their representative
It is important to note that it is when the employee requests a representa-
tive or the subject of the interview that the Company assumes an obliga-
tion under Weingarten. We are not obligated to raise these matters with
the employee. Further, it is only in connection with an investigatory
interview which may lead to discipline, not a meeting in which discipline
is administered that these rights prevail (G C. Exh. 4).
his supervisor that an employee has a -grievance to dis-
cuss. After detailed discussion of these procedures, the
memo asks : "How do these guidelines affect what I
should do in discipline cases when the employee requests
a Representative? [Emphasis added.]" Id. The answers to
this question, in general, are the same as those set forth
in the prior memo dated 27 October 1982 (G.C. Exh. 4).
A charge in `Case 13-CA-24511 was filed on 19 Sep-
tember by - the Union alleging that a - supervisor had
called an employee into his office and had interrogated
him about his union activities. By letter dated 23 October
the Regional Director for Region 13 informed the parties
that he was declining to issue complaint because the
charge should be deferred to arbitration. The Regional
Director noted that "[t]he underlying dispute of the
charge is being actively pursued by both parties to the
bargaining agreement and the dispute is being scheduled
for arbitration" (R. Exhs. 5(a) and (b)).
On 9 November in Case 13-CA-24621, the Union filed
a charge -alleging that the Company had unilaterally in-
stituted mixed crews, in violation of Section 8(a)(5). By
letter dated 7 December the Regional Director advised
the parties that he was deferring the charge to arbitration
for the following reasons: "The underlying dispute of the
charge is the subject of a grievance now being processed
toward arbitration pursuant to the terms of the collective
bargaining agreement between the parties herein. Also, it
appears that arbitration of the dispute is- likely to resolve
the unfair labor practice allegations herein" (R. Exhs.
3(a), (b), and (c)).
As indicated, the charge in the instant case was filed
on 22 August. It alleged the, interviews of Adam and
Spotten described above. The charge also alleged that
Respondent had utilized information obtained in the
interviews to suspend one employee (John G. Ruggeri)
and to discharge another (Gregory Pittman). As appears
hereinafter, Ruggeri and Pittman were chief operators in-
volved in the same incident about which Adam and
Spotten were interviewed. As set forth above, however,
the complaint alleges as unlawful only the disciplinary
interviews of Adam and Spotten.
In response to an inquiry from company counsel, the
Regional Director, by letter dated 6 November, stated
that he was not deferring this dispute to arbitration be-
cause "the Complaint in this case involves a Weingarten
issue which under the Employer's contract with the
Union is specifically proscribed from eligibility for proc-
essing under the grievance arbitration procedure by Sec-
tion 2.21 of the contract" (R. Exh. 4(b)).
The Union filed grievances over the discipline admin-
istered to Ruggeri and Pittman (R. Exhs. 6 and 7), but
none was filed on behalf of Adam or Spotten. There is
no evidence that Ruggeri or Pittman requested union
representatives prior to any meetings they may have had
with the Company. As appears hereinafter, Adam and
Spotten; did make such requests.
2. Legal analysis and conclusions
In United Technologies Corp., 268 NLRB 557 (1984),
the Board restated and reaffirmed the criteria favoring
deferral set forth in Collyer Insulated Wire, 192 NLRB
AMOCO OIL CO..
837 (1971). Such criteria included cases where "the par-
ties' contract provided for arbitration in a very broad
range of disputes ....[and] the arbitration clause clearly,
encompassed the, dispute at issue" 268 NLRB at 558. The,
arbitration clause in that - case contained such a broad
clause. 268 NLRB at 5^7, fns. 3 and 4.
In contrast, the contract in this case limits the applica-
bility of arbitration to alleged violations of the , agree- ,
Section 2.01 gives an employee with " a grievance
case" the right to a representative "for a conference with
the- Management." "Grievance cases" are not defined in
the agreement. An employee told to attend an investiga-
tory meeting with a supervisor during which- he has a
reasonable expectation that discipline will be imposed
does not have "a grievance," since no discipline has yet
been imposed. Nor does he have a grievance upon sub-
mitting a request for a union representative] since he
does not yet know whether that request will be honored.
The first time that the employee arguably has a griev-
ance is when the investigatory interview begins without
the union representative. Under Board law, it is at this
point that the employee's Weingarten rights are violated.
Roadway Express, 246 NLRB 1127, 1128`(1979.
However, Section 2.01 of the contract clearly contem-
plates that the union representative will "be present" at
the conference-not that a grievance will be created be-
cause of "his "absence." Section -2.01 thus refers to a
grievance other than the absence of a union representa-
tive, which grievance arose prior to the conference at
which the representative's attendance was intended. Ac-
cordingly, the failure of management to request a repre-
sentative for an employee who has no grievance at the
time he requested the representative is not the type of
situation to which, the parties intended, Section 2.01
would apply. Respondent's separate treatment in its su-
pervisory instructions of grievance conferences and in-
vestigatory- interviews,{ and its explicit references to
"Weingarten rights," and Board and case law , show that
it understood such rights to be created by such law and
not by the contract.
Assuming arguendo that Respondent' s commencement
of an investigatory interview without a requested repre-
sentative did constitute a violation of the agreement
within the meaning of section 2.15, the violation is still
not eligible for processing within the grievance proce-
dure of the agreement, because the employee's' rights did
not arise from and were not based "solely" on the terms
of the agreement. They are also based on the National
Labor Relations Act and its interpretation by the Su-
preme Court in the Weingarten case, and are thus, ex-
cluded from arbitration by section 2.21 of the contract.
-In sum, it cannot be argued with any validity that the
contract in this case "provided for arbitration in a very
broad range of disputes ... [and] the arbitration clause
clearly encompassed the dispute at issue" (United Tech-
nologies , supra).
Respondent argues that the Regional Director was in-
consistent in deferring the disputes in Cases 13-CA-
24511 and 13-CA-24621 to arbitration, and declining to
do so in the instant case , where the same contract was
involved. However, in the former cases the parties ,were
actively seeking resolution of ' the disputes within the
3
grievance; arbitration framework of the contract, whereas
in the instant case no grievance has ever been filed. As
the Board stated in United Technologies, "the pre-arbitral
deferral policy articulated herein does not constitute a
waiver of employees' statutory rights nor does it `force
individual employees to litigate statutory rights in a con-
tractual forum.' Nothing in this decision diminishes the
right of employees to seek statutory relief for alleged
unfair labor, practices. We simply hold that where con-
tractual grievance-arbitration procedures have been in-
voked voluntarily we shall stay the exercise of the
Board's processes in order to permit the parties to give
full effect to those procedures." United Technologies,
supra, 268 NLRB at 560 fn. 17.6 No such procedures
have been invoked voluntarily in this case, at least not
by the employees or the-Union.
I, therefore, conclude that this dispute is not properly
referrable to the grievance-arbitration procedures set
forth in the collective-bargaining agreement, and shall
consider the case on its merits.
B. Factual Background
The Company, maintains and- operates- a refinery at
Whiting, Indiana. During- the 3, p.m. to 11 p.m. shift on
27 June and the shift beginning at 11 p.m. that day and
ending" at 7 a.m. on 28 June, Respondent's boiler- 32, in
power house 3,, overheated due to lack of water,, and sus-
tained damage costing in excess of $1 million.' On the
morning of 29, June; Adam, Spotten, and two other em-
ployees were individually interviewed by Company su-
pervisors about the damage to the boiler.8 No union rep-
resentative was present . during the Adam or Spotten
interviews.
C. The Damage to the Boiler
The Company had been engaged in work on boiler 32.
On the afternoon of 27 June, Utilities Operations Super-
intendent Douglas -Dayman9 ordered Shift Supervisor
W. Ransom to start up the boiler. The work was started
on the 3 p.m. to 11 p.m. shift by Chief Operator Gregory
Pittman and other personnel.10 Employees on this shift
were relieved about 10:30 p.m. by other employees, in-
cluding Adam, a turbine' room operator, and Spotten, a
boiler house operator. Their supervisor was Robert
Mitchell" and the chief operator was John G. Ruggeri.
6 Accord- Electrical Workers IBEW Local 1316 (Superior Contractors),
271 NLRB 338 (1984).
T Stipulation of the parties; memorandum dated 17 July of Douglas
Dayman , then , Respondent's,supenntendent of utility operations (R. Exh.
7)
Stipulation of the parties. The parties engaged in an extended collo-
quy on the proper wording of the stipulation , and I finally stated it as an
agreement that Respondent engaged in "diciplinary" interviews of the
employees . Although the record shows that Respondent's'counsel'con-
sented to this characterization ,of the interviews, his position otherwise is
that they were not disciplinary. Accordingly, I shall deem the assent to
have been an' advertent error: '
9 The pleadings establish , and I find, that Dayman was a 'supervisor
within the meaning of Sec' 2(11) of the Act, and an agent within the
meaning of Sec. 2(13).
10 Dayman 's memorandum dated 17 July, supra, fn. 7.
11 The pleadings establish , and I find, that Mitchell was a supervisor
within the meaning of Sec. 2(11) of the Act, and an agent within the'
meaning of Sec. 2(13).
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 12:30 a.m. on 28 June, the flames in two burn-
ers on boiler 32 went out. Adam testified that, together
with Ruggeri, and Spotten, he went to the boiler room to
"help relight the fires:" Spotten testified substantially to
the same effect.'2 -
Later in the shift about 4:30 a.m. on 28 June, accord-
ing to Adam, he was sitting in the "quiet room" with
Ruggeri and Spotten, when Supervisor Mitchell entered
the room and said .that steam was coming out the boiler.
Mitchell looked "a little frantic." According to Spotten,
Mitchell referred "to smoke" coming from the boiler.
Spotten testified that he went to the boiler With Mitchell,
"cut the fires," and showed Mitchell "what was wrong."
Ruggeri and Adam accompanied them , according to the
latter. The employees went home. at the end of the shift
and returned to work the same day for the 11 p.m. to 7
a.m. shift.
warrants an inference that, if it had done so, Mitchell's
"testimony would not have been favorable to the Re-
spondent." Pur 0 Sit Inc., 211 NLRB 333, 337 (1974).13
In addition, Adam and Spotten were both employees of
Respondent at the time they testified. The Board consid-
ers the testimonies of such employees to be "particularly
reliable, inasmuch as the witness is testifying adversely to
his or her pecuniary interest, a' risk not lightly undertak-
en." Gold Standard Enterprises, 234 NLRB 618, 619
(1978), rev. on other grounds 607, F.2d 1208 (7th Cir.
1979). For these reasons, and because Adam'' and Spot-
ten appeared to be truthful witnesses, I credit their testi-
monies that Spotten also asked for a union representa-
tive.
Adam testified that , as far as he wase concerned, he had
nothing to do with the boiler, and was not responsible
for the damage. However, Adam further testified he was
not certain that the Company would not discipline him
D. The 11 p.m to 7 a.m. Shift Beginning on 28 June
and the Request for Union Representation
Adam testified that he was "running water samples" in
the boiler "quiet room" about 11:45 p.m. on 28 June
when he was approached by Supervisor Mitchell. The
latter handed Adam a note stating that Spotten, Adam,
and two other employees had mandatory overtime at the
end of the shift concerning an investigation of the boiler
32. Adam asked Mitchell whether he had to stay, and
Mitchell replied affirmatively. Adam then told Mitchell
that he "would like a rep," and Mitchell replied that he
would "get a hold of the Captain of the Guards," a title
which, the record shows, designated Chuck Falda, a su-
pervisor. Adam's' testimony was uncontradicted, and Re-
spondent stipulated that he made a request for a union
representative during the 11 p.m. to 7 a.m. shift. I so
find.
A few minutes later about midnight, according to
Adam, he had a conversation with Spotten. Adam told
Spotten that Mitchell had handed him a note about the
boiler 32, and that he, Adam, had requested a union rep-
resentative. Adam advised Spotten that Mitchell would
probably be back to show Spotten the note. Spotten cor-
roborated this conversation.
About 12:15 a.m. on 29 June, according to Adam,
Mitchell entered the "quiet room" and handed the note
to Spotten. Adam was uncertain whether Chief Operator
Bob Briggs was present. Spotten read the note, handed it
back to Mitchell, and said that he "would like a rep."
Mitchell replied that Adam had already requested one,
and that "it was being taken care of." Spotten corrobo-
rated this testimony, stating Mitchell started the conver-
sation by saying that "we burned the boiler up, the 32
boiler." "That is when I asked' for a union representa-
tive," Spotten testified. In reply, Mitchell said that he
would see what he could do.
Although Respondent refused to stipulate that Spotten,
like Adam, asked for a union representative, it did not
present Supervisor Mitchell as a witness and otherwise
submitted no evidence to rebut the testimonies of Adam
and Spotten. The Company's failure to produce Mitchell
12 Dayman's memorandum dated 17 July asserts that Ruggeri "called
Adam and Spotten to assist him in relighting the burners" (fn. 7, supra).
because of the damage.
E. The Events on the Morning of 29 June
About 6:20 a.m., Adam went to the lunchroom area
where Spotten, Foreman Douglas Ogle,15 and other em-
ployees were present. On cross-examination, Adam testi-
fied that he had a conversation with Supervisor Mitchell
in the turbine room about 7:30 a .m. Mitchell told Adam
that he, Mitchell, "hadn 't got a hold of anybody at that
point," and that Foreman Ogle was in charge of getting
a union representative . The differences between this testi-
mony and Adam's pretrial statement, cited by Respond-
ent, are microscopic at most . Mitchell was not called as a'
witness, and I credit Adam's testimony about this con-'
versation.
Spotten testified to a conversation with Foreman Ogle
a few minutes later, about 8 a .m. Ogle told him that he
had left word with a secretary to get a union representa-
tive ' 16 The testimonies of. Spotten and Adam establish
that no outside telephone calls could be made from the
powerhouse or the lunchroom.
F. The Company's Investigation and the Employee
Interviews
1. Summary of the evidence
The parties stipulated that the Company interviewed
four employees the morning of 29 June, first Eugene
Kish and Clyde Carnett, and then Adam and Spotten, in
that order. The interviews began at 8:10 a.m. and termi-
1 1 At the hearing, the General Counsel requested compliance with cer-
tain subpoenas ad testificandum . Although the subpoenas are not in evi-
dence, a statement by Respondent 's counsel identifies Mitchell as one of
the individuals served with a subpoena.
14 Respondent questions Adam's credibility because, in a note to Union
Agent William Wyse attached to Adam's version of the events, Adam
told Wyse: "Any way I can help, let me know" (G.C Exh 2). I read
into this remark only Adam's intentions to be cooperative in defending
his and the Union 's position, not an intention to submit false statements.
'5 The pleadings establish that Ogle was a supervisor within the mean-
ing of Sec. 2(11) of the Act, and an agent within the meaning of Sec,
2(13).
16 Respondent in'its posthearing brief states that the supervisor to
whom Spotten was speaking on this occasion was Mitchell . My reading
of the transcript convinces me that it was Ogle.
AMOCO OIL CO. 5
nated not later than 9 a.m. Kish was the chief operator in
the control room on 28 June and Carnett was an opera-
tor.17
Adam testified that, about 8 :30 a.m., he went to Day-
man's office where he found Dayman , Supervisor Mitch-
ell, Operating Engineer Norb Klekowski , and Foreman
Al Williamson.18
Adam described the beginning of the meeting as fol-
lows: "I entered and Dayman told me to have a seat and
I did . Then Dayman started asking me questions." The
superintendent asked Adam what time he had relieved
the former employee, whether the latter told Adam that
boiler 32 was coming up, whether there was any prob-
lem with it, and whether the former employee had men-
tioned any . Dayman also asked whether Adam had any
contact with boiler 32 . Adam replied that the "fires" had
been lost at 12 : 30 a.m., and that he had gone back to the
boiler room with two other employees to relight, the
boiler . At that point, Dayman asked whether Adam had
noticed any problems with the boiler, and the color of
the tubes . The superintendent further inquired whether
Ruggeri was Adam 's chief operator , and whether he had
given Adam any special instructions "on bringing the
boiler up."
Supervisor Klekowski had paper and a pencil and was
taking notes during the interview , according to Adam.
As previously indicated, no union representative was
present and , according to Adam, there was no mention,
of a representative during the interview.
Spotten testified that he went into Dayman's office
about 8 : 35 a.m . Dayman, Mitchell , Klekowski, and Wil-
liamson were present. There was no union representa-
tive. Dayman asked Spotten where he had been relieved,
whether he checked to determine whether there was
water in the boiler, and whether he went up on the
boiler [to] check [and] get the true reading." Dayman
also asked whether Spotten went with 'Ruggeri to "walk
the boiler down," and whether he and Ruggeri put water
in the boiler.
Dayman did not testify about the substance of the
interviews on direct examination . Instead, he asserted
that his purpose in conducting them was only to find out
what Adam and Spotten "saw and observed on the
shift," and that he had no other purpose. On further ex-
amination , Dayman was asked whether he had told
Adam and Spotten, prior to the interviews, that he did
not consider the employees to be at fault . Dayman's
answer was not responsive-he contended that he told
both employees at the beginning of the meetings that the
latter were not disciplinary in nature . Dayman then
agreed that he had not spoken to the employees prior to
the meetings . During the General Counsel's rebuttal,
Spotten denied that Dayman said anything about the
interviews not being disciplinary in nature.
Dayman contended that he had determined on the
morning of 28 June, the day before the interviews, that
17 Appendix 'to Exh 9 . The appendix purports to list manpower staff-
mg for 27 and 28 June, but the second column is headed 29 June. I con-
clude that the latter is an inadvertent error
18 The pleadings establish that Klekowski and Williamson were super-
visors within the meaning of Sec. 2(11) of the Act and agents within the
meaning of Sec. 2(13).
Chief Operators Pittman and Ruggeri were responsible
for the damage. However, he had spoken only-with Pitt-
man, not with Ruggeri , prior to his interviews with
Adam and Spotten on 29 June . He did not inform Pitt-
man and Ruggeri that he considered them responsible.
His object-in talking to` Adam and Spotten was to deter-
mine "any operating information, processes, technical in-
formation that they observed ." Dayman acknowledged
that he later spoke to still other employees.
According to Dayman , he had been awakened at 5
a.m. by Mitchell the morning of the 28 June and arrived
at the refinery at 6:30 a .m. -He first went , to the central
control -room and determined `that the rest -of the utility
service to the refinery had' not been affected -by the
damage to boiler 32. He then examined the -boiler and
observed the damage . Dayman next talked with mainte-
nance personnel , caused further examination of the boiler
to be made by means of "a one -way passage into the
boiler fire box area," and consulted "historical data rela-
tive to the instrumentation on the boiler , strip charts, re
corder charts . . . [and] a copy of this very start-up pro-
cedure" that Respondent's counsel had placed before
him (R . Exh. 9). "The start-up-check list was not proper-
ly completed on the 3-il shift for the previous evening,"
Dayman testified. "It was fraudulently completed in part
on the 11-7 shift." Accordingly, Dayman asserted the
Company had determined , "that morning, Thursday
morning," that Chief Operators Gregory Pittman and
John Ruggeri were responsible, "in that sequence."
Respondent's Exhibit 9 is a 29-page document, with
appendices, entitled "Modernized Boiler Start-up Proce-
dure ." It is divided into seven sections , each with various
operating instructions . Each instruction has a space for
the date , hour, and name of the operator . The first date,
22 June, appears in the first section ("Flushifl
%tries Su-perheater Section"), and is initialed by "R.B ." En for
25 June are initialed by "J.O ." and "C.Z."19 Although
most of the instructions in" the first five sections are ini-
tialed and dated , some are left blank . The first entry
dated 27 June appears in the sixth section ("Light-Off
Main Flame"), at "5:20" (a.m. or p .m. unstated) and is,
initialed "C.Z." The seventh and final section ("Warmup
and Putting Unit on Line"), although it follows sequen-
tially in the exhibit , is dated the prior day, 26 June. The
initials "G.P." appear on 4 out of 29 instructions in the
seventh section dated 26 June , and the initials "J.R.," un-
dated, appear only once with reference to hourly pres-
sure readings.
On 17 July, Dayman wrote a 9-page memorandum on
"what is believed to have happened . This ` summary," he
wrote , "is based upon individual operator interviews,
review of computer and instruction data , review of the
No. 32 Boiler Start -up Procedure Operator 's Checklist,
and a review of the damage scope . . . . With regard to
the information received from individual- operator inter-
views, there were some discrepancies, as there was -no
doubt a desire to `cover up' inappropriate actions-1120
19 Charles Zavesky is listed as a boiler room operator on the 3 to 11
p.m. shift on 27 June (R. Exh 9, appendix).
20 R. Exh . 7, Dayman's memo dated 17 July, p. 1.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dayman outlines Pittman's alleged deficiencies, and then
Ruggeri's. The latter determination was based in part on
what Ruggeri did and did not do, what Ruggeri "stated"
he had done, and what "all [the] operators claimed" to
have done, onto have noticed.21 Specifically, the deter-
mination was based in'-part on what Control Room Chief
Operator Kish and boiler house operator Spotten ob-
served.22
Pittman was suspended on 6 July and discharged effec-
tive 19 July (R. Exh, 7). Ruggeri, the chief operator on
the 11 p.m. to 7 a.m. shift on which Adam and_Spotten
worked, was suspended for 2 weeks on 19 July. The
"final warning ,letter" to Ruggeri on that date alleges
that he did not "actively involve" his crew in start up
duties, or instruct, them in routine duties (R. Exh. 6).
2. Factual and legal analysis
If, as, Dayman asserted in his memorandum, his deter-
mination that Pittman and Ruggeri were responsible was
based in part on employee interviews,, then he could not
have reached that determination by Thursday morning,
28 June, since he had not completed those interviews by
that time. He had not even interviewed Ruggeri and,
clearly, had not interviewed Adam or Spotten. Nor, ap-
parently, had he interviewed control room personnel
Kish or Carnett. Further, Dayman conducted still more
interviews thereafter.
Dayman could not have known whether Ruggeri "ac-
tively involved" Spotten and Adam in startup proce-
dures until he interviewed all three of them-none of
which interviews had taken place by the close of busi-
ness on 28 June.
Dayman could not have reached any definitive conclu-
sions from examination of the documentary evidence
alone. Although the computer printouts may have assist-
ed him in determining what happened, they could not
have revealed the employees who were responsible. The
document on startup procedure at best is ambiguous. The
first initials - recorded on 27 June, "C.Z.," apparently
refer to Charles Zavesky. Although the initials "G.P."'
apparently refer to Gregory Pittman, the date is wrong.
Although the initials "J.R." apparently refer to John
Ruggeri, the entry is undated and only records the time
of pressure readings . Without further examination of
Ruggeri, this document, alone, is insufficient evidence
for a determination that Ruggeri "fraudulently" complet-
ed the 11 p.m. to 7 a.m. shift section-as Dayman assert-
ed.
All the evidence upon which Dayman relied could not
possibly have been ,available to him in the few brief
hours before noon on Thursday, 28 June. The initial dis-
cipline against Pittman was not imposed until, about 1
week after the damage to the boiler, and against Ruggeri
about 3 weeks thereafter.
For these reasons, I do not credit Dayman's testimony
that he had determined that Pittman and Ruggeri alone
were responsible for the damage to boiler 32 prior to his
interviews with Adam and Spotten on the morning of 29
June. This conclusion, in summary, is based on the ambi-
21 Ibid , p 6.
22 Ibid., p. 7.
guity of the documentary evidence, the fact that
Dayman had not even interviewed Ruggeri at the time
he interviewed Adam and Spotten, the still further inter-
views which Dayman conducted, the fact that his memo-
randa specifically state that his conclusions are based in
part on those interviews, and on the dates that discipline
was imposed on Pittman and Ruggeri.
I credit the uncontradicted testimonies of Adam and
Spotten as to the questions asked of them by Dayman on
29 June. `Close examination of those questions shows that
they were directed at determining what actions had been
undertaken by Adam and Spotten, as well as by Ruggeri.
I do not credit Dayman's assertion, denied by Spotten,
that Dayman said the interviews were not disciplinary in
nature. Adam and- Spotten testified in detail about sub-
stance of the interviews, whereas Dayman said nothing
about' them, except his asserted statement about their
nondisciplinary nature. Spotten was a current employee
of the Company at the time of his testimony, a factor
which makes it "particularly reliable." Gold Standard
Enterprises, supra. In these circumstances, Spotten's
denial that Dayman said anything about the alleged non-
disciplinary nature of the interview is more credible than
Dayman's contrary assertion.
Although Adam did not specifically deny any such al-
leged statement in his interview with Dayman, I also
find that. Dayman did not make the statement in the
Adam interview. This finding is based on Adam's de-
scription of the beginning of the interview, which did
not include any disclaimer by Dayman, on the detailed
nature of Adam's testimony concerning Dayman's ques-
tions, and the total absence of any such testimony from
Dayman. Further, the finding is buttressed by the fact,
that Dayman's questions indicated interest in any wrong-
doing by Adam, the fact that Respondent did not'
produce as witnesses the other supervisors who were
present during the interview, including one who took
notes (Klekowski), and the fact that Dayman did not,
appear to be a truthful witness.
Although Adam believed that he was not responsible
for the damage to the boiler, he was uncertain whether
the Company was going to discipline him. Supervisor
Mitchell had been "a little frantic" when he entered the
quiet room at 4:30 a.m. 'on 28 June and, later that day,
told Spotten that the employees had "burned up" the
boiler. -
Respondent cites two cases on the issue of whether an
employee reasonably expected discipline prior to an
interview, Postal Service, 256 NLRB 78(1981), and Spar-
tan Stores, Inc., 235 NLRB 522 (1978), enf. denied 628
F.2d 953 (6th Cir. 1980). In both cases, the Board
reached a position contrary to that advanced by Re-
spondent herein. In Spartan Stores, the Board concluded
that discipline could reasonably have been expected be-
cause the employee, after leaving a speech by a supervi-
sor before it was concluded, was later told that he had
been disrespectful, and was told to remain in the office.
Despite this, the employee left to find a steward. A, di-
vided court of appeals reversed the Board in part be-
cause the employee was "told almost from the outset of
the conversation . . . that he would not be disciplined as
AMOCO OIL CO.
a result of the meeting," and because he "unilaterally"
sought out a steward "in direct violation of the orders of
two supervisors" 628 F,2d at 958.
Neither of the above-cited factors, mentioned by the
court, is present in this case . Neither employee was told
that he would not be disciplined as a result of the meet-
ing, and neither one left the meeting to get a steward,
despite the fact that each had requested a representative.
As noted, the Board's position in Spartan Stores on rea-
sonable expectation of discipline was predicated on the
fact that the employee had been told that he was disre-
spectful in walking out of a speech by a supervisor. This
violation of protocol pales in insignificance compared to
damage to a boiler in excess of $1 million, followed by a
"frantic" supervisor's discovery of the damage, and a su-
pervisory accusation that the employees had "burned
up" the boiler. It was after this statement by Mitchell
that Spotten asked for a union representative. Adam, al-
though he believed himself to be innocent of any wrong-
doing, was uncertain whether Respondent was going to
discipline him. In 'the hours immediately following the
damage to the boiler, the Company engaged in an inves-
tigation of the incident, including employee interviews,
the obvious objective of which was to fix responsibility
for the damage. Under these circumstances , Adam and
Spotten could, reasonably have expected discipline, and I
so find.
G. The Extent of Union Participation
1. The availability of union representatives
a. Summary of the evidence
The parties stipulated that the Company did not make
a request for a union representative any earlier than 9:05
a.m. on 29 June. As indicated, the Adam and Spotten
interviews had concluded prior to 9 a.m. The parties fur-
ther stipulated that the Company knew the names and
home telephone numbers of the union representatives in-
volved in this dispute.
Union Representative William Wyse, a company em-
ployee, testified that there were seven union representa-
tives at the refinery. Each of them represented a specific
group of employees. The employees whom Wyse repre-
sented in June 1984 included those in the utilities division
where the current dispute arose.
Wyse averred that, during the evening of 28 June and
the morning of 29 June, he was at home at Crown Point,
Indiana, approximately 26 miles from the refinery. Wyse
was on leave. He did not receive a telephone call from
the Company. Wyse further testified that, on another oc-
casion, Supervisor Falda called Wyse at home and told
him that an employee had requested a union representa-
tive prior to" taking .a "drunk-o-meter" test. This employ-
ee was in a different division, and the Union's representa-
tives for this division were not at home. Accordingly,
Falda asked Wyse to represent the employee, and the
latter thereupon drove to the refinery. He was directed
to the police station, where he found Falda, the employ-
ee, and another union representative, not from the em-
ployee's division, who had been obtained by Falda.
Wyse testified in general that he represents employees in
7
different divisions in the event of sickness or absence of
the designated representative.
Wyse further identified various other union representa-
tives who, in June 1984 , worked the 8 a.m. to 4:30 p.m.
shift. Theresa Popa, union secretary , testified that she ar-
rived at the union office between 8 and 8:15 a .m. on, 29
June, and that she received no request for a union repre-
sentative from the Company between the time of her ar-
rival and 9:05 a .m. Papa also identified a list of union
representatives ' home addresses and telephone numbers
(including Wyse's), which she prepared and caused to be
delivered to the Company 's labor relations office (G.C.
Exh. 6).
b. Factual analysis
Although Wyse was at home, he could have been
reached by telephone. Indeed, he had previously been
telephoned to represent another employee who was not
in his division, and he customarily represented other em-
ployees in other divisions in the event of sickness or ab-
sence of a designated union representative. Other union
representatives were present at the plant on the morning
of 29 June when the interviews of Adam and Spotten
were being conducted. I conclude that union representa-
tives were available prior to-the interviews, but were not
called by the Company. I also note that, although Adam
and Spotten were told immediately prior to the inter-
views that no union representatives could be reached,
they could not have made such requests themselves be-
cause of the unavailability of outside telephone service
from the powerhouse or the lunchroom, the "mandato-
ry" overtime orders which they had received, and the
imminence of the interviews.
2. The Wyse-Johnson conversation
a. Summary of the evidence
Wyse first learned of these events when he returned
from vacation about Monday, 2 July. Shift Supervisor
Brian Johnson testified that Wyse called him about Tues-
day, 3 July. According to Johnson,; Wyse asked whether
Johnson knew that Adam had requested a union repre-
sentative, and further asked why "both chief operators"
had been suspended. When Johnson replied that both
had "claimed full responsibility," Wyse assertedly replied
that if he had been present, he would have had "every-
body" claim responsibility, so that none could have been
disciplined.
Wyse testified that be spent Monday trying to learn
what had happened and did place a call to Johnson. He
told Johnson that he, Wyse, should have been present so
that he could have advised Adam and Spotten. They
could have "got their stories straight," there would not
have been any "conflicting opinion," and there could
have, been a "factual investigation." Wyse denied that
Johnson said that the Company had already determined
who was responsible. He expressed the opinion that the
Company had not made any such determination at that
time because of the thoroughness of its investigations and
the length of time that they took.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Factual analysis
Neither Pittman nor Ruggeri had been suspended as of
the date of the Wyse-Johnson, conversation. It is, there-
fore, highly unlikely that Wyse would have stated that
they had been suspended, as Johnson asserted Wyse had
done. I credit Wyse's'version of this conversation. It has
no bearing on the merits of this case.
H. Legal Analysis and Conclusions
As indicated above, Adam and Spotten were directed
to attend investigatory meetings which they could have
reasonably expected might result in discipline. Both at-
tended the meetings, and neither was provided with the
representative which he had requested. Although neither
of them repeated the request in the interview, Supervisor
Mitchell, to whom the original requests had been made,
was present at both meetings. In such circumstances, the
Board has concluded with judicial approval that the re-
quest need not be repeated. Lennox Industries, 244,
NLRB 607, 608 (1979), enfd. 637 F.2d 340 (5th Cir.
1981).23
It is further clear that Respondent conducted the inter-
views without making any attempt to reach a union rep-
resentative, although such representatives were avail-
able-the representative for the employees' particular di-
vision was 26 miles away at home with a telephone
whose number was known to Respondent, and other rep-
resentatives at the plant.
I conclude that by conducting such interviews without
union representatives, Respondent thereby violated • Sec-
tion 8(a)(1) of the Act. Southwestern Bell Telephone Co.,
273 NLRB 663 (1984).
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Amoco Oil Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), -and
(7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, Local 7-1 is a labor organization
within the meaning of Section 2(5) of the Act.
3. By requiring that Thomas D. Adam and John Spot-
ten participate in employer investigatory interviews
without union representation, which had been requested
by both- employees and which Respondent had failed or
refused to supply, when both employees had reasonable
grounds to believe that the matters to be discussed might
result in their being the subject of disciplinary action,
Respondent has violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be re-
quired to cease and desist therefrom, and to take certain
affirmative action necessary to effectuate the purposes of
the Act.
Respondent argues that "the impact of any illegal con-
duct found herein is clearly de minimis," citing Titanium
Metals Corp., 274 NLRB 706 (1985). In that case, the
Board agreed with the recommended dismissal of a com-
plaint; despite an unlawful threat to a union grievance-
man, in part because the threat took place 15 months
before the trial, the employee suffered no reprisals, and
had filed many grievances before and after the threat.
Accordingly, the violation was found to be "an isolated
event."
In this case, there were two employees, rather than
one, whose rights were violated, and the violations were
more recent. Further, the violations were different in
nature. Although the coercive effect of a single threat
may perhaps be minimized by the absence of reprisals,
the passage of time, and by repetition of the protected
activity without any further threats, the effect of the co-
ercive conduct herein is not so easily diluted. In South-
western Bell Telephone Co., supra, the Board dealt with a
Weingarten violation, and disagreed with the judge's rec-
ommended make-whole remedy. The Board's disagree-
ment was based on its recent decision in Taracorp Indus-
tries, 273 NLRB 221 (1984), precluding a make-whole
remedy for a Weingarten violation where the employee
was disciplined for cause. Nonetheless, the Board adopt-
ed the judge's finding that the company had violated the
Act by requiring the employee to participate in the inter-
view without union representation . Although the, Board
deleted the recommended make-whole remedy, it adopt-
ed the recommended cease-and-desist order. It is clear
from Southwestern Bell Telephone that violation of a
Weingarten right is not de minimis even though it is not
followed by discipline, and that a cease-and-desist order
is required to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The Respondent, Amoco Oil Company, Whiting, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and, desist from
(a) Requiring its employees to participate in employee
interviews or meetings without union representation in
which such representation has been requested and Re-
spondent has failed or refused to prove it, when the em-
ployees have reasonable grounds to believe that the mat- -
ters to be discussed may result in their being the subject
of disciplinary action.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following- affirmative action necessary to
effectuate the purposes of the Act.
2.4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
as Accord: Consolidated Frerghtways Corp., 264 NLRB 541, 542 (1982), Order shall, as provided in Sec. 102.48 of the Rules, be adopted by'the -
Roadway Express, 246 NLRB 1127, 1128 (1979); Chrysler Corp, 241 Board and all objections to them shall be deemed waived for all pur-
NLRB 1050, 1053 (1979). poses.
AMOCO OIL CO. 9
(a) Post at its Whiting, Indiana, facility copies of the
attached notice marked "Appendix."25 Copies of notice,
on forms provided by the Regional Director for Region
13, after being signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered,- defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
45 If 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 Nation-
al 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
Section 7 of the Act gives employees these rights.
To organize
To form, join, or,assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT require our employees to participate in
employee interviews or meetings when they have reason-
able grounds to believe that the subject matters to be dis-
cussed my result in their being the subject of disciplinary
action and in which we have filed or refused to honor
their requests to be represented at such interviews or
meetings by their labor organization.,
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
AMOCO OIL COMPANY
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abidelby this notice.