Axelson, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 49 (N.L.R.B. 1987)

AXELSON, INC.
Axelson , Inc. and International Association of Ma-
chinists and Aerospace Workers, AFL-CIO.
Case 16-CA-9302
30 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 17 September 1981 Administrative Law
Judge Richard A. Scully issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, findings, 3 and
conclusions,2 as modified herein, and to adopt the
recommended Order as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Axelson, Inc., Longview, Texas, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an,admimstrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Will Products, 91 NLRB 544 (1950), enfd 188 F,2d 362 (3d Car 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Throughout his decision, the judge characterizes the 29 July 1981
meeting as an "investigatory" interview. The protection afforded employ-
ees as outlined in NLRB P. J Weingarten, 420 US. 251 (1975), covers
both `investigatory" and "disciplinary" interviews, except those inter-
views conducted for the exclusive purpose of notifying an employee of
previously determined disciplinary action . Baton Rouge Water Works Co,
246 NLRB 995 (1979) Therefore, we have modified the judge's recom-
mended Order and notice to conform to Baton Rouge.
The judge relied on Kraft Foods, 251 NLRB 598 (1980), in finding that
employee Bryant was not entitled to reinstatement and backpay since
there was no evidence that the employee was discharged on the basis of
information obtained during the unlawful interviews Although we agree
with his finding that the employee is not entitled to reinstatement and
backpay, Chairman Dotson and Member Stephens rely on Taracorp, Inc.,
273 NLRB 221 (1984), which overruled Kraft Foods. Member Johansen
concurs in the finding that a make-whole remedy is not appropriate when
an employee has been disciplined for lawful reasons.
2 The Respondent contends that employee Bryant was not entitled to a
union representative because the Union had lost the initial ballot count in
a decertification election held on 13 September 1979. On 28 February -
1984, however, after resolution of objections and determinative chal-
lenged ballots, the Board certified that a majority of valid ballots had
been cast for the Union. Thus, even assuming, arguendo, the application
of the "at risk" doctrine of Mike O'Connor Chevrolet, 209 NLRB 701
(1974), to the Respondent's postdecertification-election denial of a union
representative under Weingarten, we would still find the violation here
because the Union won the election and thereby reaffirmed its majority
representative status. See Saints Mary & Elizabeth Hospital, 282 NLRB 73
(1986)
49'
1. Substitute the following for paragraph 1(a).
"(a) Requiring any employee to take part in any
interview, except an interview conducted for the
exclusive purpose of notifying an employee of pre-
viously determined disciplinary action, without
union representation if such representation has been
requested by an employee who has reasonable
grounds to believe that the interview may result in
disciplinary action."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT require any employee to take part
in any interview, except an interview conducted
for the purpose of notifying an employee of previ-
ously determined disciplinary action, without union
representation if such representation has been re-
quested by an employee who has reasonable cause
to believe that the interview may result in discipli-
nary action.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
AXELSON, INC.
J O. Dodson, Esq., for the General Counsel.
Frank B. Wolfe, Esq., of Tulsa, Oklahoma, for the Re-
spondent.
J. D. Crow, of Dallas, Texas, for the Charging Party.
285 NLRB No. 5
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
RICHARD A . SCULLY, Administrative Law Judge. On a
charge filed on 11 August 1980, a complaint ' was issued
by the Acting Regional Director for Region 16 of the
National Labor Relations Board against Axelson, Inc
(the Respondent) alleging that it had engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act) The
Respondent filed a timely answer denying that it had
committed any violation of the Act.
A hearing was held in Longview, Texas, on 28 and 29
April 1981, at which all parties were given a full oppor-
tunity to participate , to examine and cross -examine wit-
nesses, and to present argument Briefs submitted on
behalf of the General Counsel and the Respondent have
been carefully considered . On the entire record and from
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
At all times material , the Respondent was a Delaware
corporation with offices and its principal place of busi-
ness in Longview , Texas, where it engaged in the manu-
facture and marketing of production equipment used in
the petrochemical industry . During the previous calendar
year , it received goods and materials valued in excess of
$50,000 directly from suppliers located outside the State
of Texas and it sold and shipped goods valued in excess
of $50 ,000 directly to customers located outside the State
of Texas . The Respondent admits, and I find , that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find , that at all times
material the International Association of Machinists and
Aerospace Workers, AFL-CIO (the Union) has been a
labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The first issue is whether the Respondent unlawfully
refused to permit employee Elijah Bryant Jr. to have a
union representative present during an investigative
interview on 29 July 1980, thereby violating his rights to
union representation under Section 7 of the Act as out-
lined in NLRB v. J. Weingarten , Inc., 420 U S. 251
(1975) The second issue is whether the Respondent dis-
charged Bryant in retaliation for his participation in a
strike at its Longview facility in 1979.
' Prior to the opening of the hearing the parties reached a settlement
in Case 16-CA-9279 and the General Counsel 's motion to withdraw the
portion of the consolidated complaint relating to Case 16-CA-9279 was
granted
B. The Facts
Bryant was employed by the Respondent at its Long-
view plant on 6 January 1964 His job classification was
that of "car loader," which included unloading incoming
raw steel from trucks inside the plant with the aid of an
overhead crane and loading finished steel rods on trucks
outside the building using a forklift truck . His duties also
involved doing the paperwork related to the receipt of
raw material.
The Union had been certified to represent the Re-
spondent 's employees for approximately 20 years prior to
the expiration of the most recent collective -bargaining
agreement on 18 February 1979. After that contract ex-
pired, there was an economic strike at the plant, which
lasted until 31 May 1979. Bryant was a member of the
Union and participated in the strike throughout its
course . Thereafter , he made an unconditional offer to
return to work and was recalled about 5 October 1979,
to work as a car loader on the night shift. He stayed
there until December 1979, when he was returned to the
first shift where he had worked prior to the strike
Bryant was the only car loader assigned to the first shift
in the Respondent 's rod plant.
After the end of the strike, a petition to decertify the
Union was filed and an election was held on 13 Septem-
ber 1979 There were many challenged ballots and objec-
tions to the election were filed by both the Respondent
and the Union . The Board has overruled the objections
and has ordered a number of the challenged ballots
counted A final determination on the decertification pe-
tition awaits the resolution of the remaining challenges,
which depends on the outcome of a related unfair labor
practices case
1. The alleged Weingarten violation
On the morning of Monday , 21 July 1980, Bryant ad-
vised his foreman , Kenneth Roberson , that he wanted
leave to attend a funeral Roberson went with Bryant to
the office of Richard McGehee, the superintendent of
the rod plant Bryant asked McGehee for 4 days' leave
in order to attend the funeral in Yuma, Arizona, of an
uncle "that had nearly raised him " McGehee advised
Bryant that he did not have authority to grant leave, but
that he would consult with the personnel department
McGehee then telephoned John Teegerstrom, the Re-
spondent's manager of industrial relations, and advised
him of Bryant's request Teegerstrom told McGehee that
he needed more information and that he would come
over and talk to Bryant
Teegerstrom came to McGehee 's office where McGe-
hee, Roberson , and Bryant were present Bryant asked
Teegerstrom for a leave of absence to attend the funeral.
Teegerstrom told Bryant that he could not grant leave to
attend the funeral of an uncle , but that he would try to
work something out 2 Teegerstrom then asked if Bryant
2 The collective -bargaining agreement , which had expired on 18 Feb-
ruary 1979, provided for 2 days off with pay for the purpose of attending
the funeral of a member of an employee 's immediate family However,
immediate family did not include uncles
AXELSON, INC
had any vacation coming to him. McGehee's unofficial
records indicated that Bryant had 40 hours of vacation
due and this was verified by the personnel department.
Bryant was asked if he would consider taking vacation
and responded that he wanted a leave of absence. When
Teegerstrom told him he could not have leave, he
agreed to take vacation. Teegerstrom told Bryant that he
would have to take all of his vacation that week and
return to work on Monday, 28 July Roberson and
McGehee agreed that they could get along without
Bryant for the rest of the week Bryant was told that he
could leave immediately, it being between 8 and 9 a.m.,
and that he would be paid for the time he had worked
that day and for his 40 hours of vacation. Bryant asked if
he could take 4 days of vacation that week and save 1
day or take Monday, 28 July, off and was told he could
not.3 There was some additional discussion about the va-
cation time Bryant had coming and Teegerstrom told
Bryant that he was being allowed to take his vacation
time that week because of special circumstances,4 that
Monday, 21 July, would be the first vacation day, and
that the only way he would be granted the vacation was
if he returned to work on 28 July.
Bryant asked if he could get his 40 hours' vacation pay
in advance and was told that it might be possible, but
that it would not be ready until the afternoon. Bryant
stated that he would work the rest of the day and did so
I find that Bryant was told explicitly that his being al-
lowed to take his vacation during the week beginning 21
July was conditioned on his return to work on 28 July.
Bryant acknowledged this in his testimony He further
testified he did not advise Roberson or McGehee that he
would not be back to work on 28 July and that when he
left he intended to be back to work on that date.5
Bryant did not report for work on Monday, 28 July,
and did not call in to explain his absence He came in on
Tuesday, 29 July, and on arrival was asked by Roberson
where he had been the previous day Bryant responded
3 It was company policy that vacations should be taken in weekly in-
crements , when possible , beginning on Monday and ending on Sunday,
and the printed vacation request forms used by the Company so provide
It was also company policy that vacation time due employees should be
taken and no payment in lieu of vacation would be made except at the
Company's request Under the circumstances, it appears that Teegerstrom
could have permitted Bryant to take Monday, 28 July, as a vacation day
had he chosen to do so It is clear that he did not do so and that Bryant
was told that he was expected to be back at work on Monday, 28 July
4 Normally , an employee must request vacation a month in advance
The Company has the final say as to when vacation time can be taken
5 My findings as to what transpired on Monday, 21 July, are based on
the credited testimony of Teegerstrom, McGehee, and Roberson in the
limited instances that their consistent versions of the events differ from
that of Bryant Bryant testified that he went directly to McGehee with
his request for leave and did not talk to Roberson It is clear , however,
that Roberson was involved and that he was present in McGehee's office
throughout the course of the conversations concerning Bryant's request
for leave to attend the funeral Bryant also testified that McGehee had
told him initially that there was no problem with his taking 5 days' vaca-
tion but that it was up to Teegerstrom However, the suggestion that
Bryant take vacation time was first brought up by Teegerstrom after he
arrived at McGehee's office McGehee had authority to grant vacation
but not leave If McGehee had approved Bryant's taking vacation there
would have been no reason for Teegerstrom to have gotten involved in
the matter Bryant denied that Teegerstrom told him he could leave im-
mediately on 21 July and be paid for the time he had already worked In
fact, Bryant was paid for 40 hours' vacation and for the full day he
worked on Monday, 21 July
51
that he had another vacation day coming to him Some-
time later, Bryant spoke to McGehee and told him there
had been a misunderstanding as to when he was to
report back to work At approximately 10 a.m., Bryant
met with Teegerstrom, McGehee, and Roberson in
McGehee's office to discuss Bryant's absence. A supervi-
sor named Johnny Merrill was also present, but did not
participate in the meeting. Teegerstrom asked Bryant
where he was on Monday and Bryant said he was at
home. Teegerstrom asked why he had not come to work
and Bryant said that he had had 40 hours of vacation
coming to him. Teegerstrom asked additional questions
concerning when the funeral had been, when Bryant had
returned home, and about stopping in Dallas to visit his
sister. Teegerstrom again asked why Bryant did not
come to work on Monday and Bryant responded that he
had 40 hours of vacation 6
At this point in the meeting Bryant told Teegerstrom
that he wanted a representative. Bryant testified that he
specifically asked for a "union representative" and was
told by Teegerstrom that as far as Teegerstrom was con-
cerned there was no union representation. When Bryant
repeated his request, Teegerstrom told him he could
have Bill Mulliken, the Respondent's personnel manager,
as a representative 7 Bryant refused because Mulliken
was "company." After his request for representation,
Bryant answered no other questions and was told to
return to work "pending further investigation."
Roberson, McGehee, and Teegerstrom all denied that
Bryant used the word "union" when he asked for a rep-
resentative. According to Teegerstrom, Bryant asked
only for "a representative " When Bryant rejected his
offer to get Mulliken as a representative, Teegerstrom
asked him who he wanted and Bryant responded, "you
know who." When Teegerstrom asked where the repre-
sentative he wanted was, Bryant responded, "you
know." These questions and answers were repeated sev-
eral times. McGehee and Roberson testified that this
conversation was essentially as described by Teeger-
strom. Bryant denied that Teegerstrom asked him who
he wanted called or where the representative he wanted
was. Teegerstrom testified that after the exchange con-
cerning the representative, he asked Bryant only if he
wanted to offer anything further, Bryant declined, and
the meeting terminated
Although in some respects Bryant's recollection of the
incidents on 29 July 1980, and at other times, was faulty
or confused, I credit his testimony concerning the re-
quest for a union representative at this meeting, notwith-
standing the contrary testimony of the three company
6 Bryant admitted making this statement Although he also testified
that he told Teegerstrom he was tired and feeling bad from the long
drive, none of the others present corroborated this According to Rober-
son, McGehee, and Teegerstrom, Bryant mentioned being tired only in
connection with his stopping at his sister's home in Dallas on Saturday I
do not credit Bryant's claim that he told them he did not come to work
on Monday because he was "tired and feeling bad "
r According to Bryant, Teegerstrom offered Mulliken as a representa-
tive in a meeting held at 3 p m that day Inasmuch as I credit the testi-
mony of Roberson, McGehee, and Teegerstrom that Bryant did not ask
for a representative at the afternoon meeting , this discussion must have
occurred at the morning meeting All those present but Bryant placed it
in the morning meeting
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representatives who testified. First, I find it difficult to
believe that Bryant, who was a member of the Union,
would ask only for "a representative" and never mention
the word "union" despite repeated inquiries by Teeger-
strom as to who the representative he wanted was and
where the representative could be found. I also find it
difficult to believe that Bryant would reject Mulliken as
a representative because he was "company," but not say
that the representative he wanted was "union ." I find it
likely that the questions about who Bryant wanted as a
representative and where the representative was, if asked
at all, came after Teegerstrom had dismissed Bryant's re-
quest for union representation by saying that as far as he
was concerned there was no union representation, a
statement that was consistent with the Respondent 's posi-
tion that the Union had lost the decertification election.
Also, I consider it incredible that two upper echelon
supervisors such as Teegerstrom and McGehee, each
with substantial experience with industrial relations mat-
ters and, specifically, with the conduct of disciplinary
interviews , were not aware that Bryant was asking for
union representation . I find that Bryant requested a
union representative and that his request was denied or
ignored.
At approximately 3 p.m., on 29 July 1980, Bryant was
again summoned to McGehee's office where Teeger-
strom, McGehee, and Roberson were present. A supervi-
sor named Art Meeker was also present but did not par-
ticipate in the meeting. According to McGehee and Ro-
berson, Bryant was asked if he wanted to add anything
to what he had said at the morning meeting and de-
clined Teegerstrom testified that he began the meeting
by reviewing what Bryant had said at the morning meet-
ing and then asked if Bryant wanted to offer anything in
his behalf. Bryant said, "no." All three deny that Bryant
asked for representation at this meeting.
Bryant testified that at this meeting Teegerstrom asked
him some of the same questions he had asked before and
asked him for proof that he had attended his uncle's fu-
neral . Bryant went out to his truck and got a program
from the funeral 8 Although Bryant stated that he asked
for a union representative at this meeting and was of-
fered Mulliken, as discussed above, I find that the con-
versation concerning a representative and Mulliken oc-
curred at the morning meeting.
This meeting ended with Teegerstrom telling Bryant
that he had failed to return to work on Monday, as he
had agreed, that he was being placed on indefinite sus-
pension for insubordination, and that he would be noti-
fied of the final disposition of the matter at a later date.
Bryant asked if his suspension had anything to do with
an accident he had had with a forklift truck and was told
that it did not. When Bryant indicated that he did not
understand what insubordination meant, Teegerstrom
gave him an explanation and then read him the definition
from a dictionary.
Bryant was directed to report to the plant on Friday
of that week, but when he got there he was told that
Teegerstrom had gone home sick. On the following
8 McGehee's testimony indicates that the funeral program was ob-
tained at the afternoon meeting (Tr 164 )
Monday, 4 August 1980, Bryant met with Teegerstrom,
McGehee, and Stu Hink, Respondent's vice president of
manufacturing. Teegerstrom again reviewed the facts
concerning Bryant's failure to return to work on 28 July
and asked Bryant if he had anything to say in his behalf.
Bryant said he had nothing to say and Teegerstrom told
him that he was terminated for insubordination.
Discussion and Conclusions
In the Weingarten case, supra, the Supreme Court held
that an employee has a statutory right to refuse to submit
without union representation to an interview that he rea-
sonably fears may result in discipline. The first questions
presented are whether under the circumstances the em-
ployee was entitled to union representation and whether
he made a valid request for such representation.9 The
Respondent contends that Bryant had no right to a union
representative because the Union had lost the decertifica-
tion election and, therefore, his request for union repre-
sentation is not concerted activity. Not only is the final
result of the election still in doubt, but the Board has
held" that the employees' statutory right to representa-
tion during an investigatory interview is not dependent
on the status of a union as a bargaining representative,
stating:
[I]n Weingarten, the Court's primary concern was
with the right of employees to have some measure
of protection when faced with a confrontation with
the employer which might result in adverse action
against the employee. These employee concerns
remain whether or not the employees are represent-
ed by a union. Here, employees Charles and Kittley
requested union representation at a time when the
Union had been selected by a majority of employees
in a Board-conducted election, but had not yet been
certified as the bargaining representative. Their re-
quest was an exercise of the right guaranteed to
them by Section 7 to act in concert for mutual aid
and protection In these circumstances, the status of
the requested representative, whether it be that of
Union not yet certified or simply that of fellow em-
ployee, does not operate to deprive the employees
of the rights which they enjoy by virtue of the plain
mandate in Section 7.11
Therefore, Bryant had the right to union representation
at the interview conducted on 29 July 1980.
The Respondent contends that Bryant's request for
union representation was ineffective because he failed to
designate a specific union representative by name. It is
true that the right to have representation at an mvestiga-
9 There is apparently no dispute that Bryant had a reasonable expecta-
tion that discipline might result from the meeting on 29 July 1980, and I
so find There is no merit to the suggestion in Respondent 's brief that dis-
ciplinary action had already been decided before the interview on 29
July Teegerstrom terminated the morning interview on that date by
sending Bryant back to work "pending further investigation " and testified
that he was still discussing what action to take on the morning of 4
August-
10 Anchortank, Inc, 239 NLRB 430 (1978)
11 Id at 431
AXELSON, INC.
tory interview is triggered only on a request for such a
representative, 12 but there is no specific requirement that
the employee designate a union representative by name.
It is enough when, as here, the request is "sufficient to
put the Employer on notice of the employee's desires."13
Given Teegerstrom's response to Bryant's initial request
for union representation, that as far as he was concerned
there was no union representation, and his offer to call
Mulliken, Respondent's personnel manager who replaces
Teegerstrom in his absence, to act as a representative, I
find that any attempt by Bryant to designate a specific
individual would have been futile. I was not impressed
by Teegerstrom's claim that he personally did not know
who or where the union representatives were. As the
Company's director of industrial relations it was his busi-
ness to know or to find out. The Union had been in the
plant for 20 years or more. Teegerstrom admitted that he
knew the Union had an office in Longview and that he
was acquainted with at least three union representatives.
He admitted that he made no effort to contact the union
office in Longview or any union representative. This is
not a case where the employee made a request for repre-
sentation that was impossible to comply with. On the
contrary, it appears that Teegerstrom did not make even
a good-faith effort to honor the request, but simply re-
jected it because "as far as he was concerned there was
no union representation." I find that Bryant made a valid
request for union representation during the morning
meeting on 29 July and that it was denied. I further find
that it was unnecessary to make a similar request at the
afternoon meeting because it was nothing more than a
continuation of the same interview on the same day, in
the same place, with the same participants, and about the
same subject matter and because Teegerstrom's response
to Bryant's initial request made it clear that any renewed
request would be futile.
The Board has held that:
Under Weingarten, once an employee makes such
a valid request for union representation, the em-
ployer is permitted one of three options: (1) grant
the request, (2) discontinue the interview, or (3)
offer the employee the choice between continuing
the interview unaccompanied by a union representa-
tive or having no interview at all. Under no circum-
stances may the employer continue the interview
without granting the employee union representation,
unless the employee voluntarily agrees to remain
unrepresented after having been presented by the
employer with the choices mentioned in option (3)
above or if the employee is otherwise aware of
those choices. [Emphasis in original.] i 4
Teegerstrom terminated the morning interview immedi-
ately after denying Bryant's request for representation
except for asking whether Bryant wanted to say any-
thing in his behalf. i 5 However, he reconvened the inter-
12 See Lennox Industries, 244 NLRB 607 (1979)
13 Southwestern Bell Telephone Co, 227 NLRB 1223 (1977)
14 Postal Service, 241 NLRB 141 (1979)
15 This alone may not have been sufficient to constitute a violation of
the Act See Texaco, Inc, 242 NLRB 291 (1979)
53
view that afternoon, reviewed the statements Bryant had
made in the morning, asked for and obtained a copy of
the funeral program, and again asked Bryant if he had
anything to add without offering Bryant the choice of
continuing the interview unrepresented or having no
interview at all. When the employer attempts to question
the employee, to engage in any manner of dialogue, or to
participate in any other interchange that could be char-
acterized as an interview after denying the request for
representation, there is a violation of the Act. i 6 The
meeting with Bryant conducted by Teegerstrom on the
afternoon of 29 July clearly constitutes such an interview
and a violation of Section 8(a)(1) of the Act.
When the employer conducts an investigatory inter-
view in violation of Weingarten and the employee is dis-
charged for conduct that was the subject of that inter-
view, a reinstatement and backpay order is appropriate
unless the employer establishes that the discharge was
not based on information that it obtained during the
interview, i 7 Here, the General Counsel has made a
prima facie showing that Bryant's failure to report for
work on Monday, 28 July, was the cause of his discharge
and was the subject matter of the unlawful interview.
The Respondent, however, has established that it relied
solely on information obtained prior to the unlawful
interview and not on anything obtained therein. Bryant
stated his reason for failing to report on 28 July, that he
had another day of vacation coming to him, to Roberson
and McGehee on the morning of 29 July and to Teeger-
strom at the meeting in McGehee's office before he made
his request for union representation. Bryant was dis-
charged for failing to return to work on 28 July, as he
had agreed when his application for emergency vacation
had been approved on 21 July. He understood and
agreed to the conditions Teegerstrom had set in granting
the vacation, accepted payment for 8 hours of vacation
in lieu of the time off, and then took the time off
anyway. All of these facts were known to Teegerstrom
before the meeting in the afternoon of 29 July and they
were the basis for Bryant's discharge. The only thing
new that was developed at the meeting was Bryant's
producing the funeral program which evidenced his at-
tendance at the funeral. Although this may have shown
that his request for time off was justified, it had no bear-
ing on the matter that caused his discharge, his failure to
return to work on 28 July . Because Bryant's discharge
was not based on information obtained during the unlaw-
ful interview, the Respondent will not be required to re-
instate Bryant or give him backpay.
2. The alleged 8(a)(3) violation
The complaint also alleges that Bryant's discharge was
in retaliation for his participation in a strike between 18
February and 31 May 1979. The General Counsel con-
tends that several incidents being the allegedly "trumped
up" reprimand of Bryant on 14 July 1980, over a record-
keeping error. According to Bryant, he was called into
Is Amoco Oil Co, 238 NLRB 551 (1978), Lennox Industries, supra
17 Kraft Foods, Inc, 251 NLRB 599 (1980), Coyne Cylinder Co, 251
NLRB 1503 (1980)
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McGehee's office and Roberson told McGehee that
Bryant had not correctly recorded certain raw material
that had been received. Bryant responded that he had
been sent outside to load a truck. McGehee told Bryant
that he had to keep up with the steel received on his
shift , either by doing it himself or training someone to do
it. When Bryant asked that the same man be sent to help
him every time, McGehee said maybe Bryant should find
another job.
According to McGehee, he questioned Bryant about a
report that bore Bryant 's initials and showed four or five
bundles of steel being received while a shipping notice
showed seven or eight bundles had been delivered.
Bryant was asked to help out in determining what was
wrong with the unloading document.
There is no evidence that Bryant was disciplined as a
result of this incident or that he was asked to do any-
thing other than what was a part of his normal duties as
a car loader.
Another incident occurred on 15 July 1980. While
loading a damaged crate of steel rods on a truck, the
forklift truck Bryant operated malfunctioned causing the
crate to slip off, striking and injuring the truckdriver
who was attempting to assist with the loading . Bryant
testified that the incident was investigated by McGehee
and Mulliken and Mulliken concluded that there "was
negligence on the fork operator."
According to McGehee's testimony , his investigation
of the incident indicated that the mechanical failure of
the forklift, which was known to have had a hydraulic
pressure problem for several months , was the major
cause of the accident although operator error was also
involved . No disciplinary action was taken against
Bryant.
To the extent their versions of these incidents differ, I
credit the testimony of McGehee who appeared to have
a clearer recollection of the events than Bryant There
does not appear to be any dispute but that Bryant was
not disciplined in any way with respect to either inci-
dent.
Finally, the General Counsel points to the suspension
and discharge of Bryant for missing a single day of
work . While the Respondent 's action in discharging ap-
pears harsh , the evidence shows that Teegerstrom and
McGehee made a considerable effort to accommodate
Bryant 's request for time off and to get him his vacation
pay before he left on 21 July, that Bryant was aware that
he was expected back on 28 July, and that he agreed that
he would be there. Under the circumstances , it cannot be
said that Respondent 's action in discharging Bryant was
without cause.
There is no evidence of any union animus on the Re-
spondent 's part . Considering all the evidence in the
record , I find nothing that would indicate Bryant's dis-
charge was in any way related to the fact that he had
participated in a strike that had ended 14 months earlier.
Accordingly, I find that the General Counsel has failed
to establish a prima facie case that Bryant's participation
in the strike was a motivating factor in the Respondent's
decision to discharge him and recommend that this alle-
gation be dismissed.
CONCLUSIONS OF LAW
1. The Respondent , Axelson , Inc, is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
on 29 July 1980, by requiring Elijah Bryant Jr. to submit
to an investigatory interview that he reasonably feared
might result in his discipline , while denying his request
for union representation.
4. The Respondent did not violate Section 8 (a)(1) and
(3) of the Act by its discharge of Elijah Bryant Jr.
THE REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) of the Act in certain respects , I shall recom-
mend that it be required to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as I have found that the Respondent's dis-
charge of Elijah Bryant Jr. was not based on any infor-
mation obtained as a result of the unlawful interview, I
shall not recommend that Bryant be ordered reinstated
or awarded backpay.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed18
ORDER
The Respondent, Axelson, Inc., Longview, Texas, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Requiring any employee to take part in any investi-
gatory interview without union representation if such
representation has been requested by the employee and
he has reasonable grounds to believe that the interview
may result in disciplinary action against him.
(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 policies of the Act.
(a) Post at its Longview , Texas facility , copies of the
attached notice marked "Appendix ." i 9 Copies of the
notice, on forms provided by the Regional Director for
Region 16 , after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
is 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 "
AXELSON, INC. 55
sonable steps shall be taken by the Respondent to ensure IT IS FURTHER RECOMMENDED that the complaint be
that the notices are not altered , defaced , or covered by dismissed insofar as it alleges violations not specifically
any other material. found.
(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.