Appalacian Power Co.

National Labor Relations Board - Board Decisions

Dec 22, 1980

253 N.L.R.B. 931 (N.L.R.B. 1980)

APPALACHIAN POWER COMPANY
Appalachian Power Company, John E. Amos Plant
and United Steelworkers of America, Local
Union No. 8621, AFL-CIO-CLC. Case 9-CA-
14244
December 22, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On August 15, 1980, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and the Respond-
ent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
' Member Penilo disavows the Administrative Las Judge's discussion
of Baton Rouge Water Works Company. 246 NLRB 161 (1979), and Cert/
fled Grocers of California. Ltd., 227 NLRB 1211 (1977), at fn 4 of her
Decision and continues to adhere to the position, as set forth in his dis-
sent in Baton Rouge, that an employee is entitled to union representation
at both investigatory and disciplinary interviews Members Jenkins and
Zimmerman note that the Administrative Law Judge inadvertently stated
that "[tlhe Board reversed its ruling in Certified Grocers of California
Ltd., 227 NLRB 1211 (1977), only to the extent of limiting Weingarten
solely to disciplinary interviews in Baron Rouge Water Work* Company.
246 NLRB No 161 (1979)," whereas the majority in Baton Rouge ill fact
specifically stated that it was not holding "that there is no right to the
presence of a representative at any disciplinary interview This error,
however, has no effect on the validity of the Administrative Las Judge's
findings and conclusions
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Pursuant
to a charge filed on August 22, 1979, by Local 8621,
United Steelworkers of America, AFL-CIO-C-C, a
complaint issued on September 14, 1979, alleging that
Appalachian Power Company, John E. Amos Plant (Re-
spondent), through its representatives, denied the request
of Mike Parsons and Howard Noffsinger for union repre-
sentation during a disciplinary interview in violation of
Section 8(a)(l) of the Labor Management Relations Act
253 NLRB No. 135
(the Act). Respondent filed an answer denying the alle-
gations. Specifically, this case presents two questions: (1)
whether employee Michael Parsons made a request for
union representation independent of the request made by
his shop steward; and (2) whether the rights guaranteed
to employees under the Weingarten doctrine' are proper-
ly invoked when a request to attend a disciplinary inter-
view with management is made by the union representa-
tive rather than the involved employee.
A hearing on the matter was held before me on May
22, 1980, in Charleston, West Virginia. All parties were
afforded full opportunity to be heard, to present oral and
written evidence, and to examine and cross-examine wit-
nesses. Subsequent to the hearing, a brief was filed on
behalf of the General Counsel and by Respondent.
Upon the entire record, together with my observation
of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
A. Preliminary Findings
The complaint alleges, the answer admits, and I find
that:
1. Respondent, a Virginia corporation, is engaged in
the generation, transmission, and sale of electric power at
its St. Albans, West Virginia, facility. During the past
year, in the course and conduct of its business oper-
ations, Respondent received gross revenues in excess of
$250,000 and sold electric power valued in excess of
$50,000 to customers located outside West Virginia. Re-
spondent is now and has been at all material times herein
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. At all times material herein, the Union is, and has
been, a labor organization within the meaning of
Section 2(5) of the Act.
B. The Alleged Unfair Labor Practices
On July 18, 1979, water leakage compelled the shut-
down of a high pressure water heater designated 8-A.
During the initial phase of repairing the heater, an em-
ployee suffered hot water burns. Later that day, the 4-to-
12 shift maintenance supervisor, Charles Harrison, as-
signed Michael Parsons, a maintenance mechanic on his
crew, to perform further repairs to the heater. Parsons
refused the assignment, indicating that he was fearful the
heater was unsafe.
Harrison reported Parsons' recalcitrance to his superi-
or, Production Supervisor Goldie Williams, who then
met with Parsons at the jobsite. At Parsons' request,
Larry Goff, the union steward, joined in this discussion,
questioning Williams about the Company's safety policy.
Subsequently, Harrison permitted Parsons to work on a
different heater with a fellow employee, Howard Noff-
singer.
The following day. Harrison again assigned Parsons
and Noffsinger the task of completing the welding on 8-
' ..R B J HIeinarlc,. 420 S 251 1975)
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DECISIONS OF NATIONAI LABOR RELATIONS BOARD
A. Despite Harrison's assurances as to the heater's safety,
Parsons continued to express apprehension and objected
to the assignment. While Parsons and Noffsinger were
examining the security procedures which had been taken
in repairing the heater, Harrison reported Parsons' in-
transigence to Williams who in turn reported it to his su-
perior, Arthur Hill, maintenance superintendent.
Hill had Parsons and Noffsinger summoned to his
office in the hope that he could convince them to under-
take the assignment. Just prior to responding to that sum-
mons, Parsons paged Goff on a public address system,
stating that he needed him and asking that he join them
in Hill's office. Without waiting for Goffs arrival, Par-
sons and Noffsinger entered the area in which the super-
visory offices are located. At the northern end of the
corridor which bisects this area, the employees encoun-
tered Hill. He began to question them about their refusal
to perform the work and attempted to persuade them
that the job was safe. Approximately 15 feet away
toward the southern end of this corridor and to Hill's
rear, were Harrison, Williams, and Ed Bradley, person-
nel supervisor.
Several minutes after Hill's discussion with Parsons
and Noffsinger was underway, Goff entered through the
southern door to the corridor. Both the witnesses for the
Respondent-that is, Harrison and Bradley-and the
Government's witnesses, Noffsinger and Goff, agreed
that Goff approached Harrison who asked Goff what he
was doing there. Goff answered, "lI'm here for the meet-
ing. ' 2
The only significant conflict in the testimony occurs at
this point. Harrison and Bradley testified that Harrison
told Goff he was not needed and ordered him to return
to his work. They stated that Goff then left without fur-
ther comment from him, or from Parsons or Noffsinger.
Bradley added that he had not heard Goff being paged
on the public address system prior to his arrival in the
corridor, explaining that certain channels on that system
do not reach the supervisory office area. Hill, who was
facing Parsons and Noffsinger and whose back was to
Goff, stated that he was unaware of Goffs presence in
the corridor and that Parsons made no request for a shop
steward.
Goffs and Noffsinger's version of the hallway encoun-
ter is at odds with that of Respondent's witnesses in one
critical respect. According to Goff, Parsons said when
he saw that Goff was leaving, "But I asked for him" and
that Harrison nonetheless insisted that Goff return to his
job. Noffsinger also stated in response to a question from
me that, when Harrison tried to eject Goff, Parsons
stated that Goff was there to represent them as shop ste-
ward. However, during his direct examination, Noff-
singer testified that Goff left after Harrison ordered him
back to his job, and Noffsinger "never heard anymore."
Parsons, who was no longer employed by Respondent at
the time of the hearing, did not appear as a witness.
Hill's discussion with Noffsinger and Parsons contin-
ued for several minutes after Goffs departure. When the
2 Harrison and Bradley recall that toilWs response was that he as
there as union steward I find this difference immaterial. Similarly. I do
not find it significant that the witnesses disagreed as to whether Alfred
Mooxre. plant manager, also was present i the corridor.
employees persisted in their refusal to work on 8-A, Hill
terminated the meeting by indefinitely suspending both
men. The following day, the suspension was limited to 3
days without pay.
CONCLUSIONS oiF LAW
Resolution of the dispute in this case falls squarely
within the control of N.L.R.B. v. J. Weingarten, supra,
where the Supreme Court held that an employer violated
Section 8(a)(1) of the Act by denying an employee's re-
quest that a union representative attend an investigatory
interview which the employee reasonably anticipated
would result in disciplinary action.
The Court approved language in Board decisions'
which restricts an employee's right to union representa-
tion only to those situations in which the employee re-
quests such representation reasonably believes the inves-
tigation will result in the imposition of discipline. The
employer may deny the employee's request, but must
advise the employee that it will not continue the inter-
view unless the employee is willing to proceed unaccom-
panied by a representative. If the employee then opts to
terminate the interview, he must forgo any advantages
which might accrue from remaining without representa-
tion. Id. at 257. Accord: Lennox Industries, Inc., 244
NLRB 607 (1970); Certified Grocers of California, Ltd.,
227 NLRB 1211 (1977), enforcement denied 587 F.2d
449 (9th Cir. 1978). 4
The dispute in the instant case lies not in whether Par-
sons and Noffsinger had reason to believe that disciplin-
ary measures would result from their meeting with Hill.
Goff's and Noffsinger's uncontradicted testimony that
Parsons paged Goff and asked for his assistance at the
forthcoming meeting with Hill is sufficient proof of his
apprehension.
Rather, the critical issues here are whether Parsons
made a timely request to Hill for union representation at
the meeting and, if he did not, whether a request by a
union representative to attend the interview in the em-
ployees' behalf is sufficient to activate the Weingarten
doctrine.
A. The Employees Failed To Request Union
Representation
At the outset, although I have no doubt that Parsons
called for Goffs assistance prior to the meeting, the
record fails to establish that this call was heard by Re-
spondent's supervisory personnel. Bradley testified credi-
bly that he did not hear Goff being summoned and his
uncontradicted testimony that not all channels on the
public address system can be heard in the supervisory
area provides a rational explanation for this failure. Fur-
ther, the witnesses agreed that, when Harrison first en-
countered Goff, he spoke first, asking Goff what he was
: Quality Manufacturing Conpany, 195 N.RB 197 (1472); Mobil Oil
Corporation, 196 NLRB 1052 (1972).
4 he Board reversed its ruling in Cetrrlied Grocers only toI the extent
of limiting Weingarren solely to disciplinary itervites in Baton Rouge
if.ltr Workv Company, 246 NL.RB 995 (1979). However, the principles
affirmed in Weingarten, as surnmarized by the Hloard (Certified Grcwers
remain intact
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APPALACtHIAN PO()WER COMPANY
doing there. If Harrison had heard Parsons paging Goff,
he would have had no need to pose that question.
The more troublesome problem is whether Parsons
commented about Goffs presence as Harrison was order-
ing him to leave. The key to unraveling this conflict lies
less in the demeanor of the witnesses than in certain fac-
tual omissions and improbabilities which become evident
on a careful consideration of the record.
Goff and Noffsinger testified that, as Goff was leaving
the corridor, Parsons indicated that he had asked that
Goff attend. Goff then stated that Harrison continued to
insist that he leave, but Goff made no mention of further
comment by any of the other persons present. Had Par-
sons' remark been made as Goff alleged, it is impossible
to believe that Harrison would have usurped the authori-
ty of his superior, Hill, to determine whether Goff could
remain at the meeting. Moreover, if Parsons had referred
to Goff, surely Hill would have turned and acknowl-
edged his presence if only as a reflexive action. Yet not
one witness indicated that Hill ever turned toward the
direction in which Goff was standing or uttered a com-
ment about his presence. Noffsinger's testimony in this
regard is less than candid. Although he was in the court-
room throughout Goff's testimony, Noffsinger failed to
mention during his direct examination that Parsons com-
mented about Goff's appearance in the corridor. In fact,
Noffsinger initially suggested that nothing further was
said by anyone after Harrison ordered Goff to leave.
Only when I specifically put the question to him did he
attribute a comment to Parsons. s Nor did any reference
to Parsons' comment appear in Noffsinger's affida it
taken by a Board agent, although the statement was pro-
vided at a time when his recollection of the events de-
scribed should have been fresher than on the ate of the
hearing.
It is also significant that Parsons did not testify. When
a party without a satisfactory explanation fails to pro-
duce a witness whose testimony would be important to
support its case, an inference may be drawn that such
testimony would be unfavorable. Wigmore, 3A Evidence,
§ 1017-26 (3d ed. 1942). See Martin Luther King, Sr.,
Nursing Center, 231 NLRB 15, fn. 1 (1977). In the instant
case, the General Counsel offered no explanation as to
why Parsons, a critical witness, did not testify. There-
fore, an inference that Parsons would not have testified
that he requested union representation is warranted.
The General Counsel contends that, even if it is found
that Parsons failed to ask specifically that Goff remain at
the meeting, the employees' silence must be viewed as
indicating their sense of futility at making such a request
when they saw that Goff was being ejected. There is no
basis in fact for such conjecture in the circumstances of
this case. It would be equally reasonable to speculate
that Parsons failed to request that Goff remain because
with Noffsinger at his side and the meeting underway, he
no longer felt a need for union representation. Thus, I
conclude that the General Counsel has failed to sustain
its burden of proving by a preponderance of the reliable
s Had Parsons actually made the statement attributed to hill. I ould
find that it was adequate to invoke his right to representatiln silce it
would have provided Respondent sufficient notice as to his dsilres 5cc
Sourhwestern Bell relephone Company,. 227 NLRB 1223 (1977)
and substantial evidence that Parsons or Noffsinger com-
municated to Hill their interest in having union represen-
tation at the meeting.
B. Weingarten Right. tustr Bc nvoked by the
Involved Ernployc
Alternatively, the General Counsel contends that
Goff's assertion that he was present at the meeting as
shop steward was a sufficient invocation of W'ingarten's
protections even without a specific request to the em-
ployver from the employees involved. This position
stretches Weingarten beyond the boundaries currently de-
marked by the Board or the courts.
In Weingarten, the Supreme Court expressly endorsed
the Board's view that the employee must request repre-
sentation, but that he "may forgo his guaranteed right
and, if he prefers, participate in an interview unaccom-
panied by his union representative" NL.R.B. v J. ;Hin-
garrten, supra, at 257. His continued participation is, then,
a volitional matter and it is within his discretion to waive
his guaranteed right.
The reason for vesting this choice with the employee
is clear. As the Court explained in Weingarten, it is the
individual employee sxho has an immediate stake in the
outcome of the disciplinary process for it is his job seciu-
rity which may be jeopardized in any confrontation with
management. Id. at 261 Therefore. it should be the em-
ployce's right to determine hetlher or not he wishes
union assistance to protect his ciplomenit interests. The
union represeltative's interest in attending such a meet-
ing is not solely to safeguard the employee's interests but
also to assure other employees that the aidl and protec-
tion provided to one employee will be available to them
in a similar situation. Ibid.
If, as the General Counsel contends, the right t be
present at a disciplinary interview could be asserted by
the union representative, the employee no longer would
have the choice of deciding ,shether the presence of the
representative was more or less advantageous to his in-
terests. Thus, one of the fundamental purposes of the
rule as articulated in Weingarten would be undermined.
While the facts in the present case are somewhat dis-
tinguishable from the situation where a union representa-
tive, completely on his own motion, seeks to assert a rep-
resentative role at a management-conducted meeting, I
am constrained to conclude that the present record does
not establish that the employees expressed a continued
concern for union representation since Parsons did not
renew his request or insist that Goff remain when he had
the opportunity of communicating that desire directly to
Hill.
I find no precedents which would authorize extending
the Weingarten principle in the manner suggested by the
General Counsel. Rather, the Board consistently has re-
quired that the involved employee initiate the request for
representation. See, e.g., Koll'v Food Company. 249
NLRB 75 (1980); First National Supermarkets In.. d,'hbla
Pick-N-Pay Supermarkets. Inc., 247 NLRB No. 162
(1980), cited in ,lirco -llloVys a Division o.-lirco, Inc., 249
NLRB 524 (1980) (Chairman Fanning's concurrence);
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lennox Industries, Inc., supra; Inland Container Corpora-
tion, 240 NLRB 1298 (1979).
Further, the Board has held that the employee's re-
quest for union representation must not only be personal,
but also must be directed to the management official
who alone knows why he wishes to communicate with
the employee and is in a position to assess whether or
not to grant the employee's request for representation.
Thus, in Lennox Industries, supra, an employee's request
for union representation, which was made to a manage-
ment official prior to the commencement of a disciplin-
ary interview conducted by another supervisor, was
found to be insufficient to trigger Weingarten where the
request was not made known to the official who called
for and conducted the meeting.
In the present case, Parsons' call to Goff prior to the
meeting with Hill was not an effective invocation of his
Weingarten rights since Hill was not privy to that call.
There is no reason to assume that Parsons was unaware
of his right to seek union representation or that he har-
bored a belief that a renewed request would be denied.
Indeed, he knew he was entitled to representation, for
just the previous day Goff had accompanied him to a
meeting with Production Superintendent Goldie Wil-
liams without incident.
The General Counsel suggests still another reason for
invoking Weingarten. He argues that Parsons' and Noff-
singer's failure to comment when Goff spoke to Harrison
in the corridor served to ratify Goffs statement that he
was present as the shop steward. However, since Hill
was unaware of Goffs presence and did not hear the ex-
change between Goff and Harrison, 6 he could not be
aware of any ratification of Goff's statement by Parsons
or Noffsinger. In these circumstances, Hill could extract
no significance from the employees' silence. Since Hill
had no knowledge of Parsons' desire for union represen-
tation, it cannot be said that Respondent violated the em-
ployees' Section 7 rights.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this matter, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 7
The complaint is dismissed in its entirety.
I As a courtesy. Harrison could have asked the employees if they had
requested Gof's attendance but, under Weingarien, he was under no legal
duty to do so.
1In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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