Amoco Oil Co.

National Labor Relations Board - Board Decisions

Sep 27, 1978

238 N.L.R.B. 551 (N.L.R.B. 1978)

Amoco Oil Company and Louis Nunn. Case 13 (CA
17016
September 27, 1978
DECISION AND ORDER
BY MI MiI RS PI NSI.I.(), MURPIIY. AND) TRL I S)AI.D
On May 11. 1978. Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
exceptions, a supporting brief, and a brief in response
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board had considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge, relying on our De-
cision in Certified Grocers ad Califrria, L.td.., 227
NLRB 1211 (1977), found that Respondent violated
Section 8(a)(I) of the Act when it denied the request
of Charging Party Louis Nunn for union representa-
tion at a disciplinary interview held on October 31,
1977.2 In its exceptions, Respondent contends, inter
aria, that no disciplinary interview was actually con-
ducted on that date and that the Administrative Law
Judge erred in concluding that the result reached in
Certified Grocfers is determinative of the issues herein.
We agree.
On Friday, October 28, employees Nunn, Curtis
Daniels, and Carl Wilkerson were directed by Super-
visor Peter Rizzo to report to the office of Superinten-
dent Steve Gadus for the purpose of being inter-
viewed with respect to allegations by Rizzo that they
had violated established plant work rules by their
presence in an unauthorized area. As found by the
Administrative Law Judge, Nunn participated in the
interview with Gadus and presented his own account
of events related to the charge against him, without at
any time requesting union representation. At the end
of the interview, Gadus told Nunn that the matter
would be further investigated and he would inform
him on Monday (October 31) as to what action would
be taken. Gadus, following usual company proce-
dures, then prepared a memorandum on the incident
I he Respondent has requested oral argumenl. Ihis request is hereb 5
denied as the record, the exceptions. and briets adequately present the issues
and the positions of the parties
2 All dates hereinafter are In 1977. unless other ise indicated
AMOCO O011 COMPANY
which he forwarded to Paul Monastyrski, a supervi-
sor whose duties encompassed labor relations and
personnel matters.
On the morning of October 31, Monastyrski re-
viewed Gadus' memo and the personnel files of the
three employees involved. He then had a discussion
on the matter with Gadus, at the end of which they
both agreed that Nunn and Wilkerson should be
given indefinite suspensions.3 and that Daniels-be-
cause of his status as a casual employee-should be
terminated.
Late in the afternoon of October 31, Nunn was
again directed to proceed to Gadus' office. When
Nunn and Gadus met, Nunn immediately requested
that a union representative be called. Gadus replied
that he would send for a union representative when
he was finished talking with Nunn. But Nunn per-
sisted. stating that he would not talk with anyone
without first seeing a union representative. Gadus
then terminated the conversation by informing Nunn
as follows: I'll make it short and simple, you are
suspended as of 4 p.m. indefinitely: if and when you
return to work you will receive a white slip."4 Then,
in accord with Gadus' direction, another Respondent
official immediately notified the Union of Nunn's sus-
pension and his request for representation.
Since the decision of the United States Supreme
Court in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975), it has been well established that an employee
has a statutory right to refuse to submit without
union representation to an interview which he reason-
ably fears may result in his being disciplined, as such
right inheres in the Section 7 guarantee of the right of
employees to act in concert for mutual aid and pro-
tection. However, the existence of such employee
rights does not impose upon employers the absolute
obligation to comply with all requests of that nature.
For, if an employer does not wish to conduct that
type of interview with a union representative present,
it may exercise the option of dispensing with the in-
terview altogether. Similarly. if an employee's request
for union representation is rejected, he has the option
either to dispense with the interview and any benefits
such interview might confer on him or to proceed
with the interview without representation.
3 It appears from the record that Respondent maintains what it terms a
"progressive discipline" policy under which- once it is determined that an
employee's offense, in light of his overall personnel record, so warrants--an
indefinite suspension is imposed. Then, at a later date, higher supervisory
authonit and the Company's employee relations division determine the
length ol that suspension on the basis of their view of fairness and uniformity
of application No issue was raised in this proceeding with respect to the
length of suspension eventually meted out to Nunn.
'Ihe record establishes that Respondent's usual procedure is to effectuate
a suspension orally and later give the concerned employee a white slip (set-
ting forth the Infraction and discipline in writing) only when and if the
employee returns to work
238 NLRB No. 84
551
DECISIONS OF NATIONAL LABOR RELAT IONS BOARD)
Here, in our view, Superintendent Gadus lawfully
exercised his option to dispense with the interview
which he had apparently desired. According to the
testimony credited by the Administrative Law Judge.
after Nunn's repeated insistence upon union repre-
sentation, Gadus confined himself to a single sentence
informing Nunn of his suspension; he made no at-
tempt to question him, engage in any manner of dia-
logue, or participate in any other interchange which
could be characterized as an interview.
We regard Certified Grocers, supra, as inapposite
because there the respondent employer-after refus-
ing its employee's request for the presence of a union
shop steward-proceeded nevertheless with the
planned interview, discussing the employee's work
record and commenting negatively thereon. The em-
ployee then renewed his request for the shop steward,
it was again denied, and, thereupon, disciplinary
sanctions were imposed and further conversation en-
sued. Here, by way of contrast, Superintendent Ga-
dus effectively acquiesced in Nunn's wholly proper
refusal to submit to the interview without union rep-
resentation by dispensing with the interview entirely.
He then simply informed Nunn of the Company's
previously reached disciplinary decision-a determi-
nation partially based on the October 28 investigatory
interview at which no request for union representa-
tion was made.
Our inquiry on the issues raised by this case does
not, however, end at this point, for a violation of Sec-
tion 8(a)(1) would nevertheless be established if there
was substantial record evidence that Nunn was disci-
plined or otherwise disadvantaged because he sought
union representation, or for the purpose of discourag-
ing him or other employees from seeking such repre-
sentation in the future.5 But the credited record testi-
mony shows only that Nunn was suspended in accord
with a management decision reached prior to his de-
mand for representation; the same disciplinary action
for the same offense was meted out against employee
Wilkerson, and Respondent's later determination as
to the length of Nunn's suspension has not been at-
tacked on the basis of its fairness or alleged to have
been based on considerations relating to his request
for union representation.
In view of the foregoing, we conclude that substan-
tial evidence in the record as a whole fails to sustain
the General Counsel's burden of proving that either
Respondent's denial of the Charging Party's request
for representation or the disciplinary action taken
against him was, under the circumstances herein, vio-
lative of Section 8(a)(l) of the Act. Accordingly, we
shall order that the complaint be dismissed in its en-
tirety.
'CfC United States Postal Service, 237 NLRB No. 169 (1978).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
I)E('ISION
Sl[AILNI M()I 1111l ASE:
RAI.PII WINKI.IR. Administrative Law Judge: Hearing in
this matter was held on March 23. 1978, upon a complaint
issued by the General Counsel on December 9, 1977, and
an answer filed by Respondent. There are no jurisdictional
questions, and all parties agree that Respondent Amoco is
an employer within Section 2(6) and (7) of the Act and that
Oil, Chemical and Atomic Workers Union, Local 7 1. Ind.
(herein called the Union) is a labor organization within Sec-
tion 2(5) of the Act.
Upon the entire record in this case, including observation
of the demeanor of witnesses and upon consideration of
briefs. I make the following:
FINI)IN(;S ()i F:A( I
The Unfair Labor Practices
T he complaint alleges that Respondent denied employee
Louis Nunn's request for a union representative during a
disciplinary interview on October 28. 1977. and that Re-
spondent changed a disciplinary warning to a suspension 3
days later because Nunn requested union representation at
a second disciplinary interview on the latter date. At all
material times, Respondent and the Union have been par-
ties to a collective-bargaining agreement containing griev-
ance procedures.
October 28 Events
The issues in this case arose out of an incident on Octo-
ber 28, 1977, when three employees (Nunn, Curtis Daniels,
and Carl Wilkerson) were purportedly' found taking a
break in an unauthorized area in violation of an established
plant rule. Supervisor Peter Rizzo (planner fbr construc-
tion) thereupon instructed the three men to follow him to
his trailer office, and they did so together with Foremen
Timothy Romans and John Williams. The employees were
then accompanied one at a time to the trailer of Superinten-
dent Steve Gadus where Gadus interviewed them sepa-
rately respecting the aforementioned incident.
Nunn testified that while he and the two other employees
were in Rizzo's trailer, he said to Rizzo. "why isn't the
[union] rep here," and that Rizzo replied, "just wait here,
don't get upset" and that "Gadus wants to talk to you."
Nunn further testified in effect that while being interviewed
by Gadus in Rizzo's presence, he asked Gadus for union
As I advised the parties at the hearing, this case does not require a
determination respecting the merits of the "break" matter. Hence, the "pur-
ported."
552
AMOCO OIL COMPANY
representation and that Gadus. in effect, ignored the re-
quest and continued the interview until he [Nunn] said he
would refuse to say anything further without a union repre-
sentative. By this time Gadus had interviewed the three
employees and Gadus remarked to Rizzo that the men had
told different stories of the incident. Gadus told Nunn, and
apparently the two other employees. to return to work and
that he would investigate further and let them know on
Monday (October 31) what action he would take.
Gadus and Rizzo each denied that Nunn had requested
or even mentioned union representation on October 28.
Foreman Romans testified that he was with Nunn and Riz-
zo in Rizzo's trailer during the entire period until Nunn
went to Gadus' trailer and that Nunn did not request a
union representative, and Foreman Williams testified that
he was present or in the vicinity during part of that period
and heard no such request. Andy Pavlo is president of the
Local Union and an International representative: James
Smith is secretary and treasurer of the Local Union. Pavlo
and Smith later became involved in this matter when Nunn
was subsequently suspended and in connection with this
hearing. While discussing this case in a Mr. Stepich's office
several days before this hearing, according to Smith's testi-
mony, Pavlo or Smith said that the Union had no "concrete
evidence" that Nunn had requested union representation
on October 28. And despite the fact that Nunn testified that
"we" (the three employees together in Rizzo's trailer) had
requested a union representative of Rizzo. neither of the
two other employees was called to corroborate Nunn's tes-
timony in this regard. Nunn testified that after leaving Ga-
dus' trailer on October 28, he did not call the union hall to
speak with a union representative until after a second meet-
ing with Gadus on October 31. On the basis of demeanor
and testimony of' all witnesses, I credit the October 28 ac-
counts of Rizzo. Romans, and Gadus and find that Nunn
neither requested nor mentioned union representation on
that date.
Subsequent Events
On October 28, after interviewing Nunn and the two
other employees, Gadus prepared a memorandum on the
matter and he delivered a copy of the document to Paul
Monastyrski, a supervisor in the maintenance and engineer-
ing administration department. The latter's duties include
personnel matters and labor relations. On October 31. Ga-
dus and Monastyrski discussed the memorandum and the
personnel records of the affected employees and what disci-
plinary action should be taken. Although Gadus is autho-
rized to suspend employees and is not bound by Monastyr-
ski's recommendations in such matters, Gadus discussed
the matter with Monastyrski pursuant to a plant practice of
"progressive discipline" involving consideration of such fac-
tors as "uniformity and fairness" in disciplinary situations.
The record shows that, upon reviewing the matter on Octo-
ber 31 in light of these considerations, Monastyrski recom-
mended to Gadus that both Nunn and Wilkerson should be
suspended indefinitely and be given white slips on return to
work and that Daniels -because he was a casual em-
plovee-should be discharged. The record further estab-
lishes that Gadus agreed at that time that this was the ap-
propriate resolution of the matter and that he would
effectuate that decision.
Respondent's practice respecting suspensions and the like
is to call affected employees to the disciplining supervisor's
office-Gadus in this case-and notify them orally of the
disciplinary decision. Gadus followed this procedure with
all three employees, and on October 31. after the Gadus-
Monastyrski discussion. Nunn was instructed by Rizzo to
report to Gadus at the latter's trailer.
As in the case of the October 28 incident, there is a credi-
bility conflict concerning what happened after Nunn's ar-
rival at Gadus' trailer on October 31. The parties agree, in
effect. that Nunn told Rizzo on that occasion he would not
talk with anyone without a union representative and that
Rizzo replied that Nunn had not made such request earlier.
Gadus, entering the trailer at the time, heard this exchange
between Nunn and Rizzo. Nunn testified that Gadus there-
upon told Nunn that he "was going to give you a white slip
but since you are so damned smart [in refusing to talk with-
out a representative] I will suspend you" and that Nunn
could get a union representative outside the gate. Giadus.
corroborated by Rizzo, denied these statements attributed
to him by Nunn. Gadus testified that he told Nunn he
would get Nunn a union representative after talking to
Nunn and if Nunn had a grievance. (Respondent's contract
with the Union provides that an emplovee having a griev-
ance is entitled to a union representative.) Gadus then said
he would make it "short and simple" and, also according to
his testimony, Gadus told Nunn he was suspended indefi-
nitely and "if and when you return to work you will receive
a white slip." (It is uncontradicted that Gadus notified WVil-
kerson to a like eflect that same day.) Gadus thereupon
gave instructions. which were immediately followed, to no-
tit' the Union of Nunn's suspension and of the latter's re-
quest for a union representative.
Although Gadus testified it was a "possibility" that Nunn
might have been able to talk Gadus out of the suspension,
and in context I am satisfied that this was only a theoretical
possibility, he testified that the only purpose for summoning
Nunn was "to give him discipline." Monastyrski testified, in
effect, that as a practical matter under the circumstances
and under applicable standards of "progressive discipline,"
Gadus had no discretion to withhold the suspension from
Nunn and Wilkerson.
Both Nunn and Wilkerson thus received indefinite sus-
pensions and the record shows, without contradiction, that
white slips are issued only when a suspended employee re-
turns to work. The record also shows that the length of an
indefinite suspension is not determined until a later time
and, then, by higher management.
I find, as all parties agree, that Gadus did deny Nunn's
request for union representation on October 31, but, con-
trary to the complaint, I find that the record does not estab-
lish that Gadus changed a disciplinary warning to a suspen-
sion because of Nunn's request.
The "Certified Grocers" issue
Although the complaint does not specifically allege that
Respondent violated the Act by denying representation to
Nunn on the occasion of Nunn's suspension on October 31.
553
DE CISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties litigated and briefed that issue and I therefore
deem it within the purview of this case.
In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975).
"the Supreme Court held that it is an 8(a)(1) violation for
an employer to deny an employee's request that a union
representative be present at an investigatory interview
which the employee reasonably fears [may lead to] disci-
plinary action" (Glomnac Plastics, Inc., 234 NLRB 1309
(1978)). Unlike Weingarten, however, the October 31 inci-
dent did not involve an investigatory interview, for by that
time Gadus had decided to suspend Nunn, as he and
Monastyrski had agreed, and he called Nunn to his office to
notify Nunn of the suspension. The General Counsel never-
theless contends that the instant situation is controlled by
Certified Grocer.s of California. Ltd., 227 NLRB 12 1 1 (1977),
and he further asserts (G.C. Br.. p. 10) that "Since the Su-
preme Court's decision in Weingarten, the Board has con-
sistently taken an expansive view of an employee's rights to
representation during an interview with his employer." cit-
ing Glomac Plastics, supra, and C'limax Molybenum Cotm-
panv. a Division of Amosa. Inc., 227 NLRB 1189 (1977).
Asserting that the October 31 situation did not involve
either an investigatory or a disciplinary interview, and
claiming that Nunn suffered no detriment by not having
representation where the only purpose for the meeting was
notification of a predetermined discipline, and further
claiming that to require employers to supply union repre-
sentation on such occasions would place a needless and un-
justifiable burden on them Respondent urges that the Act
did not mandate Nunn's entitlement to a union representa-
tion on the occasion of his October 31 suspension. Respon-
dent cites various authorities, including a Board decision, to
support its thesis. I shall not discuss them, however, be-
cause, like Administrative Law Judge Jalette, 2 I believe that
the certified Grocers case is controlling in this situation.
In Certified Grocer., the employer's executive director,
Walz, decided to give employee Vaughan a disciplinary lay-
off. Walz prepared the appropriate disciplinary notice and
sent it to his subordinate supervisor, Riddle, who in turn
was to deliver it to Vaughan. Vaughan was thereupon
called to Riddle's office and, apprehensive that Riddle
might be disciplining him, he asked Riddle to have a union
steward present. Riddle denied the request, saying a stew-
ard was not necessary. Riddle then told Vaughan that the
employer had reviewed his performance records and found
his work unsatisfactory and he [Riddle] was therefore issu-
ing Vaughan a notice of disciplinary layoff. Vaughan asked
to see his performance records and again requested a shop
steward; Riddle denied both requests. Riddle then signed
the notice which Walz had prepared and gave it to
Vaughan. Vaughan inquired what the employer wanted of
him, and Riddle said that he expected the job to be done.
2 Administrative Law Judge Jalette recently discussed Ihis matter it some
length in (nited Stuate Puslal Servuie, (iase 6 ('A 99981P)I JI) 197 78
(April 5, 197X)
The purpose of the Riddle-Vaughan meeting was to deliver
the layoff notice, and the Board also found that Riddle had
no authority to modify the notice or to withhold issuing it.
Despite the employer's contention that Riddle was per-
fiorming only a ministerial function at his meeting with
Vaughan and that it involved no investigative aspects of
any sort, a majority of a Board panel concluded that
Vaughan's Section 7 rights were violated by Riddle's refusal
to accord him union representation. Board Member Wal-
ther dissented.
The General Counsel relies on the majority opinion in
(ertified Grocers, while Respondent urges that dissenting
Member Walther "correctly summarizes and states that law
applicable to the facts of the instant matter" (Resp. Br.. p.
12). Although I might decide otherwise as an original
proposition, I am bound by the majority decision and I
accordingly conclude that Respondent unlawfully denied
Nunn's request for union representation at the October 31
suspension meeting.
CON(' I.tSIO)NS ()I I AW
1. Respondent is an employer within Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within Section 2(5)
of the Act.
3. By denying Nunn's request fior union representation at
the October 31, 1977. meeting which was held solely to
notify him of a predetermined suspension, Respondent has
violated Section 8(a)( I) of the Act.
4. l he foregoing unfair labor practice affects commerce
within Section 2(6) and (7) of the Act.
5. Respondent has not violated the Act in any other re-
spects alleged.
1' i Ri SM l)Y
Having found that Respondent has engaged in a certain
unfair labor practice, I shall recommend that it cease and
desist therefrom and post an appropriate notice.
The Board in the Certified Grocers case also directed,
among other things, that the employer expunge from its
records all references to Vaughan's disciplinary layoff, re-
scind the layoff, and make Vaughan whole for any loss of
pay resulting from the layoff (227 NLRB at 1215). I do not
know the record in that case and therefore do not know all
the facts and circumstances underlying the Board's Order.
However. for remedial purposes in the circumstances of the
present case. I believe such expunging and make-whole or-
der would be unwarranted. Nunn, in my opinion, suffered
no financial loss by reason of the absence of a union repre-
sentative when he was notified of his suspension, and I am
also convinced that the presence of such representative
would not have affected that notification or Nunn's em-
ployment status.
{Recommended Order omitted from publication.]
554