Chrysler Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1050 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
April 20, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On August 31, 1978, Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
cross-exceptions and a brief in support thereof and 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 has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, ' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91
NLRB 554 (1950), enfd. 188 F.2d 392 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Subsequent to the issuance of the Administrative Law Judge's Decision
herein, the Board issued its decision in Amoco Oil Company, 238 NLRB 551
(1978). On the facts in Amoco, the Board found that the employer had effec-
tively acquiesced in the employee's refusal to submit to an interview without
union representation by simply dispensing with the interview entirely and,
instead, informing the employee of the company's previously reached disci-
plinary decision. In dismissing the complaint in that case, the Board specifi-
cally found, based on the record evidence, that the employee was disciplined
because of his underlying misconduct and not because he had requested
union representation at the aborted interview. The holding in Amoco is
equally applicable here. Thus, as more fully set forth in the Administrative
Law Judge's Decision, Respondent here exercised its option of dispensing
with the interview and, instead, simply handed Suber his notice of suspen-
sion. On the facts presented here, it is clear that Suber was disciplined not
because he requested union representation when first ordered by his supervi-
sor to go to the office, but because of his disruptive misconduct on the plant
floor.
In adopting the Administrative Law Judge's Decision, Member Truesdale
finds it unnecessary to rely on Spartan Stores, Inc., 235 NLRB 522 (1978).
He also finds it unnecessary to pass on the Administrative Law Judge's
discussion of whether Suber's alleged misconduct after his discharge would
have disqualified him from reinstatement had his discharge been found un-
lawful.
ROBERT C. BATSON, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. §151 et seq. (herein called the "Act"),
was heard before me on March 7 and June 27, 1978,' based
on a complaint and notice of hearing issued by the Re-
gional Director for Region 7 (Detroit, Michigan) on No-
vember 29, 1977,2 growing out of a charge filed on October
30 by Fred Suber, an individual, alleging that Chrysler Cor-
poration, Hamtramck Assembly Plant, herein called the
Respondent, had violated Sections 8(a)(3) and (1) of the
Act.
In substance, the complaint alleges that Respondent, on
or about June 27, coercively attempted to require that its
employee Fred Suber participate in a meeting with man-
agement, without the benefit of representation which meet-
ing he reasonably believed might result in disciplinary ac-
tion against him), and on that date suspended him from
employment and thereafter, on or about August 10, dis-
charged him because he refused to participate in the meet-
ing without the benefit of representation by the Union. Re-
spondent's answer to the complaint denies that it has
committed any unfair labor practices.
All parties participated throughout by counsel or other
representatives and were afforded full opportunity to call,
examine, and cross-examine witnesses; to make oral argu-
ment; and to file post-hearing briefs. Helpful post-hearing
briefs were filed by counsel for the General Counsel and
Respondent.
Upon the entire record, including consideration of briefs
and my observation of the testimonial demeanor of the wit-
nesses testifying under oath, and upon substantial and reli-
able evidence, I make the following:
I The hearing was reopened on June 27. 1978, pursuant to the Respon-
dent's unopposed motion to reopen the record for the purpose of receiving
evidence and testimony concerning threats of physical violence allegedly
made by Fred Suber. the Charging Party herein, toward witnesses who had
testified adversely to him at the initial hearing. The events occurred near the
close of the initial hearing and after all the evidence had been presented. The
incident was reported to Respondent's attorney and the counsel for the Gen-
eral Counsel prior to the close of the initial heanng. Respondent's attorney
contended that Suber's conduct as reported to him would make him ineligi-
ble for reinstatement, assuming a violation of the Act to be found. The
counsel for the General Counsel stated that she was not prepared to litigate
the accusation and requested the Region be allowed to investigate the allega-
tions but that in any event Suber's eligibility for reinstatement should be
resolved at the compliance stage. I concluded that Suber's suitability for
reinstatement should be litigated in the unfair labor practice hearing and not
reserved to the compliance stage even though the issue is raised by events
occurring during the course of the unfair labor practice hearing, Roy L.
Burnham. a sole proprietor, d/b/a Bob's Ambulance Service, 183 NLRB 961
(1970), and the issue of forfeiture of reinstatement went to the remedy and
not to the issue of compliance with the remedy. Cf. Western Wirebound Box
Co.. 145 NLRB 1549 (1964). Therefore. if the General Counsel intended to
seek a remedy including reinstatement and Respondent intended to resist
such remedy on the grounds of forfeiture by the alleged threats, the unfair
labor practice record should be reopened to receive evidence upon which to
make the necessary factual findings.
2 All dates appearing hereafter are 1977. unless otherwise indicated.
241 NLRB No. 169
Chrysler Corporation, Hamtramck Assembly Plant
and Fred Suber. Case 7 CA 14455
1050
CHRYSLER (CORPORATION
FIND(iNGS () FcI
1. I BUSINESS ()F R-SP()NDENI
Chrysler Corporation, Hamtramck Assembly Plant, is,
and has been at all times material herein, a Delaware cor-
poration with an office and place of business located at
Hamtramck, Michigan, where it is engaged in the manufac-
ture, sale, and distribution of automobiles and related vehi-
cles and products. During the 12 months preceding the issu-
ance of the complaint herein, which is a representative
period, it derived gross revenues in excess of $1 million
from the operation of its business and caused to be trans-
ported and delivered to its various plants located within the
State of Michigan parts and other goods and materials val-
ued in excess of $1 million directly from suppliers located
outside the State of Michigan. The complaint alleges, the
answer admits, and I find that at all times material herein
Respondent is, and has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. TIlE ABOR ORGANIZATIONS INVO()IVE)
The complaint alleges, the answer admits, and I find that
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, and its Local
No.3 are, and have been at all times material herein, labor
organizations within the meaning of Section 2(5) of the Act.
Iii. THE UNFAIR LABOR PRA(CTICE
The events giving rise to the issues presented here oc-
curred on July 27, and with a single exception present there
are no crucial credibility questions. That exception is
whether or not Fred Suber requested his supervisor to ob-
tain the presence of his shop steward, either on the plant
floor or to be present in the office to which he was in-
structed to report, during the course of an on-the-plant-
floor encounter with the supervisor. I resolve this issue in
favor of the General Counsel and Suber's version of the
encounter in this respect. Having so resolved this issue, the
events occurring on that date and subsequently as hereafter
set forth must be considered in accordance with the princi-
ples enunciated by the Board in Quality, Manufacturing
Company, 195 NLRB 197 (1972), and Mobile Oil Corpora-
tion, 196 NLRB 1052 (1972), as approved by the Supreme
Court in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975).
Fred Suber was employed by Respondent for 5-1/2 years
and, although it was not his regular job, was working in the
paint department under the supervision of Gregory Hughey
on July 27. While there are numerous conflicts in the testi-
mony of Hughey and Suber as to the sequence of events
leading up to Suber's suspension from employment, except
as already noted, such conflicts are not crucial to the resolu-
tion of the legal issue presented. Hughey impressed me as a
forthright and credible witness whose recollection of the
July 27 events was presented in a straightforward and im-
pressive manner. Suber's testimony concerning these events
was elicited with some difficulty by the counsel for the Gen-
eral Counsel, and, as the record clearly demonstrates,
Suber's version of these events is difficult to comprehend.
Moreover, according to Suber. as well as Hughey and Gen-
eral Foreman Harry Collins, Suber became highly emo-
tional during the encounter with Hughey. and I am per-
suaded that such emotions distorted his recollection of the
events. However, I do credit Suber's testimony to the extent
that he told Hughey that he wanted his union steward and
would not go to the office as directed by Hughey until the
steward was present. In this regard Hughey testified merely
that he could not recall Suber's requesting the steward.'
Suber reported for work in the paint department at about
7:09 a.m. on July 27. having earlier been bumped from his
regular job due to a temporary reduction in fobrce in that
department. About 7:20 a.m. Hughey approached Suber at
Suber's work station, where Suber was working as a "body
handler," and admonished Suber to not slam the "damn
doors" and not to throw the "J nuts" on the floor.' In lan-
guage perhaps more acceptable on the shop floor than in a
fbrmal written finding of facts, Suber asked Hughey why he
was hassling him and told Hughey what he could do for
himself rather than hassle him.' Hughey told Suber to re-
port to the office.' While the events of the ensuing 3 or 4
minutes are not entirely clear, both Suber and Hughey
agree that Suber became highly emotional, and, according
to Suber, he began to cry. In any event, Suber expressed a
reluctance or refusal to go to the office. Suber slung a
gloved hand in the direction of Hughey with a force suffi-
cient to disengage the glove from Suber's hand and hurl it 3
or 4 feet, striking Hughey in the face. Hughey told Suber,
"[Ylou've done it now," and again told him to report to the
office. Hughey then pulled a switch shutting down the line
until he could get Suber's position filled. I find that upon
being told a second time to report to the office, Suber asked
Hughey for his steward and told Hughey he would not go
to the office until he got a steward.'
In crediting Suber in this respect. I do not rely upon the asserted cor-
roboration by Terrance Grosvenor. who did not impress me as a reliable
witness. I find support for Suber in the testimony of Ernest Jordan. whom
Hughey had directed to replace Suber on his job, that Suber stated he
wanted his steward and would not go to the office until he had the steward.
' Briefly stated. Suber's job as a body handler on this date required that
he, working on the left side of the line jointly with another employee. Fant,
who worked on the right side, receive the automobile bodies as they were
moved friom the paint shop and remove the J-nuts which had held the doors
open about an inch fior painting and place them in a container provided fir
that purpose, insert the rubber door strip, and close the door and wire it to
the frame.
'Suber testified that he merely told Hughey to go to hell and denied that
there were any J-nuts on the floor. Suber also testified that at this pIint
Hughey left him and walked to a nearby phone and, after using the tele-
phone. returned to him for the remainder of the encounter. To the extent
Suber's version diTffers from Hughey's. it is not credited.
I The office to which Hughey directed Suber to report, and was so known
to Suber. was the paint shop office suite, which consists of three rooms. The
room, connected by a door with the plant floor. contained two or three desks,
one of which was used by a clencal employee and another of which was
apparently reserved fr the shop stewards in the department. Adjoining this
room is one used as an office by the department foremen and supervisors and
another designated as a conference room.
I do not credit Suber's testimony that Hughey physically grasped his
arms and tried to pull him klxose from the automobile body to which he was
clinging, at which time he slung his hand, causing the glove to lightly strike
Hughey. On the other hand, I credit Suber that he requested his steward as
related above. Suber not only reasonably believed that action adverse to his
employment status might occur as a result of his visit to the office but also
was virtually certain that disciplinary action would result. Hughey and Gen-
eral Foreman Collins testified that standard operating procedure in adminis-
(Continued)
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hughey then instructed Ernest Jordan to take Suber's
position on the line and went to a telephone located a short
distance away and tried unsuccessfully to telephone a shop
steward. He then called the Employer's labor relations of-
fice and informed Labor Relations Representative Ralph
Mason that he had placed Suber on notice of suspension
and requested that Mason meet him in the plant office.
Hughey then advised Foreman Harry Collins, who had
come on the line, that he had placed Suber on notice of
suspension and instructed him to report to the office.
Hughey then went to the office. Suber. who had remained
at his work station, sought Collins out and, in an emotional
vein, told Collins his version of what had happened. Collins
told Suber to go on to the office, and they would "take
care" of it.8 Suber proceeded to the office, where he found
Chief Shop Steward Terry, who was using the telephone.
When Terry completed his call he asked Suber what his
problem was. Suber made no reply, but seated himself on a
desk and remained there until Hughey returned with his
written notice of suspension.
Prior to Suber's arrival in the office, Hughey had in-
formed Chief Steward Terry that Suber was on notice of
suspension and had given the reason for such action. Terry
told Hughey that he would get in touch with Suber's imme-
diate steward to handle the matter. While it is not entirely
clear from the record. it appears, and the counsel for the
General Counsel asserts in her brief, that there was a meet-
ing and discussion concerning the action to be taken against
Suber among Chief Steward Terry. Hughey, and Mason
prior to Hughey's issuing the written notice of suspension.
Twenty minutes or so after Suber arrived at the office.
Hughey entered from another office and proffered Suber a
copy of his written notice of suspension. Suber refused to
accept the notice, and Hughey placed it on the desk on
which Suber was sitting and walked over to Terry, who was
seated at another desk, and gave him a copy of the notice
and requested that he inform Suber that he must accept the
notice. Suber remained on suspension until August 10,
when he was discharged after compliance with the contrac-
tual provision of the labor relations agreement governing
such action.
Analysis and Conclusions
Having resolved all issues of fact that I deem essential to
the disposition of this case in favor of the General Counsel,
and prior to a discussion of the legal issues I perceive to be
presented here, it is necessary to set out the factual findings
tering discipline of an employee was to get the employee off the floor as
quickly and unobstrusively as possible, to avoid disruption of other employ-
ees. This bolsters my rationale for crediting Hughey's denial that he physi-
cally wrestled with Suber on the floor. Such conduct would have a tendency
to aggravate the situation Hughey was attempting to avoid. However, and in
part for the same reason, I do not credit Hughey that he told Suber, while on
the floor, that he was on notice of suspension. Such statement to Suber there
would also have had a tendency to aggravate his already explosive emotional
state. In view of the fact that such notice given on the floor is not generally
deemed final, as more fully discussed in the section of this decision entitled
"Analysis and Conclusions," I do not deem this determination to be crucial
to a resolution of the issue.
' Suber admittedly did not request a steward from Collins or advise Col-
lins that he had requested one from Hughey.
upon which my decision is based. During the course of an
on-the-plant-floor encounter between Hughey, the supervi-
sor, and Suber. the employee, involving appropriate in-
structions to Suber by Hughey, the tempers of the two men
flared, and Hughey instructed Suber to report to the office.
After a mild altercation in which Suber. with apparent
volatile emotions, flung a glove at Hughey, striking him
lightly in the face. Hughey again instructed Suber to report
to the office. At this point Suber requested his union stew-
ard and stated that he would not go to the office without
him. Hughey responded that he would not get any "damn
body." That Suber not only reasonably believed but also
was virtually certain that action adverse to his employment
status might occur upon his going to the office is not in
doubt. The General Counsel and Respondent stipulated, as
reflected by the General Counsel's Exhibit 4, that Suber
had been the subject of 17 disciplinary actions, ranging
from an oral consultation to 10-day suspensions for a wide
variety of offenses. It appears that at least some such ac-
tions were taken after Suber had reported to an office.
Moreover, on July 26, the day before the occurrence of the
events here, Hughey had threatened Suber with a disciplin-
ary layoff for what Hughey considered to be Suber's reck-
less moving of a "body" which resulted in a minor injury to
another employee. Even absent these factors, Suber could
reasonably have expected adverse action from the very na-
ture of his confrontation with Hughey on July 27.
Instead of reporting to the office as directed by Hughey.
Suber sought out General Foreman Collins and volun-
teered to Collins his version of the encounter with Hughey,
but did not advise Collins of his request of Hughey for a
union representative or make such request of Collins. The
counsel for the General Counsel contends, and I find, that it
was upon Collins' suggestion to Suber that he go to the
office and his representation that they would "take care" of
the matter there that Suber reported to the office as in-
structed. There were no further discussions or verbal ex-
changes between Suber and any management official until
after Suber had been tendered his written notice of suspen-
sion or, insofar as the record herein reflects, at any subse-
quent time.
Upon these facts, the General Counsel contends, as the
complaint alleges, that Respondent violated Suber's Section
7 rights by coercively attempting to require that he partici-
pate in an interview without the presence of his union rep-
resentative and subsequently suspending and discharging
him for his refusal to do so. This contention is predicated
on the assumption that the Supreme Court in Weingarten,
supra, and the Board in Mobile and Quality, supra, and sub-
sequent cases, have not established the parameters in which
an employee's so-called Weingarten rights may be asserted.
Thus, she argues that an employee who has the requisite
reasonable fear may request the presence of his representa-
tive on the plant floor or at least the promise that the repre-
sentative will be present to assist him when he arrives at the
office, and, failing to obtain one or the other of these alter-
natives, the employee may refuse to obey an order to go to
an office. The argument proceeds on the theory that it is at
this point that the employee's rights are violated if the em-
ployer fails to provide the representative on the plant floor
or promise the presence of such representative in the office,
and subsequently occurring events are of no moment.
1052
CHRYSLER CORPORAT'ION
Therefore, the counsel for the General Counsel argues that
an employee need not remove himself from the plant floor
and report to the office, permitting the encounter with man-
agement to come to fruition, prior to asserting this right.
I agree with the General Counsel that neither the Su-
preme Court nor the Board has established exclusive pa-
rameters in which employees' Weingarten rights become op-
erative. However, I disagree with the contention that the
feared encounter must be viewed exclusively from the em-
ployee's perspective and that what in fact occurs after the
request for representation is made by the employee and
denied by the employer is not pertinent to a determination
of whether the employee's Section 7 rights are violated.
While the counsel for the General Counsel in her brief con-
cedes, as she must, that "if an employer terminates the in-
terview after an employee's request for representation, no
violation has occurred." it appears that she would not ac-
cord the employer the corollary option of simply not com-
mencing an interview.
It is not here necessary to analyze the numerous cases in
which the Board has addressed various factual circum-
stances for the application of the principle that an employer
may not compel an employee to participate in a meeting or
interview with management without the presence of his
chosen representative where he reasonably fears that such
meeting might result in action adverse to his interests under
the rationale of Weingarten, Qualitr, and Mobile, supra.
Both the General Counsel and Respondent appear to agree
that these cases constitute well-settled precedents that in
order to guarantee employees' Section 7 rights to act in
concert for mutual aid and protection, it is necessary to
insure that an employer may not compel an employee to
participate in any meeting with management where the em-
ployee reasonably believes that such meeting could result in
action adverse to his interest without the presence of his
union representative9 where the employee requests such
representatives and such employee may not be disciplined
for requesting the representative or refusing to participate
without such. It appears there is also agreement that, as the
counsel for the General Counsel observes in her brief. "lilt
is not merely the denial of representation by the employer.
but rather such a denial coupled with employer compulsion
that the employee remain at such an interview without rep-
resentation which has a coercive effect. Thus, it is clear...
that an employer may deny an employee's request for rep-
resentation in a disciplinary interview: but, at that point, it
becomes incumbent upon the employer . . . to offer the
employee the choice of having no interview . . . or continu-
ing the interview without representation." Where an em-
ployee is given such a choice, his continued presence must
be viewed as voluntary.
Respondent contends that Suber was not denied repre-
sentation for an interview with management or required to
be a party to such interview, inasmuch as no interview
9 It appears that in the case of an unrepresented employee, the employee
in such circumstances would have the same right to the presence of a fellow
employee. Glotmnc Plausics. Inc., 234 NLRB (1978).
'0 An employee need not make a request of management for such repre-
sentative in these circumstances, notwithstanding an employer practice of
providing the representative upon request, but may engage in self-help bh
leaving the meeting and himself ohtain his representative. See .Spartan Slore.
Inc., 235 NI.RB 522 (19
7
8)
within the purview in lingarten, supra. ever took place.
nor was such interview contemplated at any time. Respon-
dent apparently argues that the purpose of directing Suber
to report to the office was to remove a disruptive. or poten-
tially disruptive, employee from the plant floor and to pre-
pare and furnish him a copy of a written notice of suspen-
sion for which the decision had already been made.
The first issue to be addressed appears to be whether an
employee may refuse to obey instructions to remove himself
from the plant floor for a feared encounter with manage-
ment. In this regard the General Counsel relies, in part,
upon 'VanTran Electric Corp., 218 NLRB 43 (1975). In V'an-
Tran, supra, during the course of an argument with a super-
visor, the employee "mentioned the need for his union com-
mitteeman," at which time he was told to go to the office.
The employee reported to the doorway of the office, but
refused to enter without his union committeeman and was
thereupon discharged for insubordination. The Board af-
firmed the Administrative Law Judge's finding that the dis-
charge was motivated by the employee's refusal to partici-
pate in a meeting with management without his union
representative. VanTran, supra, does not dispose of the issue
here, for there the employee reported to the office as di-
rected, at which point he asserted his right not to partici-
pate in the feared encounter with management. In my opin-
ion the employee in anTran supra, asserted his right to
refuse further discussion with management at the proper
point. The counsel for the General Counsel cites no cases
where the refusal occurred on the plant floor. It appears to
me that a legitimate and substantial employer interest is
served by reserving to the employer, absent a contractual
obligation, the unencumbered right to direct an employee
to report to an office regardless of what the employee may
fear from the office encounter. While an employee may
make the request for his union representative while on the
plant floor. and need not repeat the request at the office if
the official there is aware of such request, in my view he
may not refuse to report to the office as directed. However.
this is not to say that under no circumstances may an em-
ployee assert his statutory right to his representative on the
plant floor. For where it appears management has elected
that site to investigate or question an employee concerning
matters he reasonably fears will lead to disciplinary action,
such a right would become operative there. The employer
has a legitimate and substantial interest in reserving the
unencumbered right to request an employee to report to an
office in order to avoid an encounter on the plant floor
which may tend to disrupt production and interfere with
other employees' job performance. An employer should
have the right, if it chooses, to carry such encounter to an
office away from the production area, at which point an
employee has a right to have a representative with him or to
refuse further participation in the encounter, and the em-
ployer may not discipline him for such refusal.
In this case, Suber ultimately reported to the office as
directed and, upon arriving and finding a union steward
present, refused to discuss his problem with him. The coun-
sel for the General Counsel appears to argue that Collins,
who was not aware that Suber had requested his steward,
inveigled him into going to the office by telling him they
would "take care" of the matter there. First, it should be
1053
DI)ECISIONS OF NAI IONAL LABOR RELATIONS BOARD
noted that at the time Suber approached Collins and began
to give his version of the encounter with Hughey. Collins
had already been apprised by lughey that Hughey was
going to suspend Suber. I am persuaded that Collins' telling
Suber they would "take care" of the matter in the office was
not designed to dupe him into going to the office unrepre-
sented, but rather was designed to unobtrusively get Suber
to leave the plant floor and avoid further disruption of pro-
duction. It might be argued that at this point Suber aban-
doned his insistence on having his steward present and vol-
untarily agreed to the feared encounter with management.
However, having found that the employer had the right to
instruct Suber to report to the office, and to insist upon
such, I need not decide that question.
As heretofore noted, the counsel for the General Counsel
appears to contend that in a so-called Weingarten situation,
as perceived by the employee, and without regard to the
employer's real purpose in summoning an employee to an
office or what actually transpires there, an employer has
only the option of securing a union representative upon
request or affirmatively advising the employee that no rep-
resentative will be secured and that he may forego any
meeting, and thereby forego any benefits which might be
obtained from such meeting, or participate in the meeting
alone. Absent complying with one of the above options, an
employer may not impose any discipline upon an employee.
I do not believe this to be the state of the law at this time. It
appears to me that to adhere to this doctrine would have
the effect of requiring an employer to secure the presence of
a representative, upon request, for any confrontation with
management, whether investigatory relative to the adminis-
tering of discipline or predetermined, or to forego any disci-
plinary action.
Both the counsel for the General Counsel and Respon-
dent cite the Board's decision in C(ertified Grocers oq Califor-
nia. Ltd.. 227 NLRB 1211 (1977), in conjunction with their
citations of Weingarten, supra, but do not address the
proposition which Certified Grocers, supra, should sustain.
It appears that Respondent also argues that its sole purpose
in directing Suber to report to the office was to serve upon
him a written notice of suspension, which decision had al-
ready been made by Hughey.' The General Counsel argues
that assuming such decision had been made, it was not a
final decision and was subject to recision or modification
after consultation with the Union, and she appears to con-
tend that Certified Grocers, supra, requires such consulta-
tion, upon request. In Certified Grocers supra, the employer
refused an employee's request for union representation at a
meeting the parties stipulated was for the purpose of deliv-
ering a warning notice to the employee. The decision to
issue the warning notice had been made by a supervisor
other than the one delivering it, and the supervisor deliver-
ing the notice had no authority to modify it or rescind its
issuance. Respondent contended the meeting was only cere-
I have heretofore found that Hughey had reported to the employer's
labor relations department and to General Foreman Collins that Suber was
on noace of suspension. Suber had not been so advised. Moreover, as found
above, such "on-the-floor decision by a supervisor is not final and is subject
to recision after consultation with the Union, as evidenced b) Suber's expe-
rience in Jul) 1975, when a "write-up" for improper perlfrmance of his job
was rescinded after a meeting with his union steward in the same office here
involved.
monial and not an interview as contemplated by Weingart-
en, supra. While the Board found a violation, it is not en-
tirely clear whether its holding was predicated upon a
finding that the meeting was not in fact restricted to the
ceremonial act of delivering the notice to the employee or
whether any meeting, if only for the purpose of communi-
cating a predetermined disciplinary decision to the em-
ployee, is subject to the Weingarten and Qualitv Manujbc-
turing doctrine. The counsel for the General Counsel would
apparently argue the latter view. where, as here, a decision
had been made. but the employee's experience had been
that such decision could be rescinded after consultation
with the Union and the supervisor involved.
I am pursuaded to the former view that in Certified Gro-
cers, supra, the Board concluded that whatever the original
intent of the employer, the meeting became an interview
when the supervisor there adverted to the employee's unsat-
isfactory work record and expressed the view that it had not
improved and was still unsatisfactory. The employee dis-
puted the validity of that view and asked what was ex-
pected of him and requested to see his performance records.
True, the Board found that the respondent there violated
the principles of Weingarten supra, at the time Vaughn, the
employee there involved, requested Riddle, the supervisor
there involved, to have his shop steward present by failing
to offer Vaughn a choice of an interview without a union
representative or no interview. Nonetheless, the Board ap-
pears to rely upon the fact that "Riddle informed Vaughn
that he had reviewed his work performance record, that his
work had not improved, that his work was still unsatisfac-
tory, and that he was giving him a warning and disciplinary
layoff notice." After Vaughn's second request for his shop
steward was denied, Riddle signed the layoff notice and
handed it to Vaughn, and in response to Vaughn's state-
ment that he did not know what the company wanted from
him, Riddle indicated that "all he wanted was the job to be
done." Thus, whatever the Respondent's original intention
as to the purpose of the meeting, the meeting developed
into an interview in which "[t]he presence of Vaughn's
union steward might have resulted in his apprising Vaughn
of his rights, and how much support he could expect from
his rights, and how much support he could expect from his
representative. Also, the Union representative might have
elicited information that would be necessary for the protec-
tion of the interests of other employees in the unit." I do not
read Certified Grocers supra, as supporting the proposition
that an employee is entitled, upon request, to the presence
of his representative in every confrontation with manage-
ment that an employee fears might result in disciplinary
action where no interview or discussion in fact occurs, al-
though disciplinary measures are awarded to the employee.
In my opinion the Board has not at this time opted to ex-
tend the principles enunciated in Weingarten and Quality
MAanuacturing, supra, to include every confrontation with
management in which disciplinary measures are imposed.
In short, I conclude, inter alia, on the basis of Certified
Grocers, that Respondent did not violate Suber's Section 7
rights by declining to obtain the presence of Suber's shop
steward at his request on the plant floor or to assure the
presence of the shop steward at the office to which Suber
had been directed to report as a condition precedent to
Suber's obeying those instructions under the rationale set
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CHRYSLER CORPORATION
forth above. Secondly, I conclude that Respondent never
contemplated an interview with Suber at the office within
the purview of Weingarten, supra; and since no such inter-
view in fact occurred, 2 Suber's Weingarten rights never
came to fruition.
Accordingly, Respondent did not violate the Act as al-
leged. My conclusion that Respondent did not violate the
Act as alleged is based upon my reading and interpretation
of current case law involving the parameters in which the
Weingarten principle is to be applied and is not based upon
any crucial credibility determinations. The legal issue pre-
sented and decided here is not based upon clear and well-
settled legal principles, and the Board, upon review, may
view the existing case law differently or choose the attenu-
ated interpretation urged by the General Counsel, thus
finding a violation on the facts here. Therefore, it is prudent
at this point to consider and decide a final matter concern-
ing the appropriate remedy in the event the Board differs
with my conclusions.
As noted supra, the hearing was reopened on June 27.
1978, to receive evidence and testimony concerning threats
of bodily harm to certain of Respondent's witnesses alleg-
edly made by Fred Suber during the course of the initial
hearing on March 7, 1978. In support of its position, Re-
spondent called three supervisory witnesses, Ralph Mason,
Harry Collins, and Gregory Hughey, all of whom had been
present at the March 7 hearing. Each testified that during
the 2:30 p.m. recess on March 7, they, along with several
other witnesses and two shop committeemen, were in a cor-
ridor just outside the hearing room and overheard a conver-
sation between Suber and Shop Committeeman Edward
Jordan, better known as Mr. Forty-Five. As might be ex-
pected, each witness related what he had heard in different
words, although all were testifying to the same event. The
gist of their testimony is that Suber, directing his words to
Jordan, accused Respondent's witnesses of having lied and
stated in effect that he had a gun and would catch them on
the street and "wax" them-interpreted as "kill" them.
Suber testified that there was much talking and joking
12 There is no evidence to support the General Counsel's contention that
no such interview occurred only because, contrary to what Suber had been
led to believe, a shop steward was present, and the interview occurred with
him instead of Suber. It should be noted that in accordance with sec. 40 of
the current labor relations agreement, the employer is required "where prac-
ticable" to notify appropriate union officials prior to the end of the shift of
any notice of suspension, disciplinary layoff, or discharge and to advise the
employee that he has the right to request union representation. Hughey
testified that "normally," as here, the union representatives were consulted
prior to the imposition of any disciplinary action.
among the several people in the hallway, and in a joking
manner he told Jordan, "Well, if I had gun, . . . you would
be standing up side of a wall with your hands up begging
me not to kill you." Subsequently, Suber agreed with em-
ployee Terry's comment that Respondent's witnesses had
lied, and in response to Terry's question as to whether Ma-
son was going to testify, Suber replied, "Well, if he did, he'd
be thoroughly lying on the stand."
It is not difficult to understand how Respondent's witness
might have interpreted the remarks Suber admits he made
to constitute a threat against them. Edward Jordan, with
whom Suber was talking, was not called as a witness, nor
was Noah Hawkins, another shop committeeman, who was
present. Jordan would undoubtedly have been the best wit-
ness to place Suber's remarks in context, and Hawkins, it
appears, might also have been a disinterested witness who
could have shed light on these events.
The burden to establish a basis for denial of reinstate-
ment is upon the party seeking to block reinstatement. Big
"G" Corporation, 223 NLRB 1349 (1976). Here, that burden
has not been carried. I agree with the General Counsel that
the remarks attributed to Suber were nothing more than
"rough remarks" or "street talk" made by a man under the
stress of a trial, and there is no evidence that violence was
intended or occurred. Asplundh Tree Expert Company, 220
NLRB 352, fn. 2 (1975).
Accordingly, I find that Suber's conduct on March 7 did
not make him unsuitable for reinstatement.
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. Respondent has not violated the National Labor Rela-
tions Act, as amended.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following:
ORDER 1
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
' In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
purposes.
1055