Cook Paint and Varnish Company

National Labor Relations Board - Board Decisions

Nov 30, 1979

258 N.L.R.B. 1230 (N.L.R.B. 1979)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook Paint and Varnish Company and Paintmakers
and Allied Trades Local 754 affiliated with In-
ternational Brotherhood of Painters and Allied
Trades, AFL-CIO. Case 17-CA-8258
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 30, 1979, the National Labor Re-
lations Board issued a Decision and Order in the
above-entitled proceeding,' adopting an Adminis-
trative Law Judge's finding that Respondent Cook
Paint and Varnish Company violated Section
8(a)(1) of the National Labor Relations Act, as
amended, by threatening employees Jesse Whitwell
and Douglas Rittermeyer with disciplinary action
for their refusal to submit to interrogation by Re-
spondent's attorney and other representatives con-
cerning an incident involving another employee as
to which arbitration had been invoked. The Ad-
ministrative Law Judge also found that Respondent
further violated Section 8(a)(1) of the Act by
threatening Union Steward Whitwell with disci-
pline for refusing to submit to questioning by Re-
spondent's attorney and other representatives and
refusing to submit written material to Respondent
concerning the same incident. In its Decision, the
Board found that, inasmuch as Whitwell was enti-
tled to the protection of the Act as a regular em-
ployee, it was unnecessary to pass on whether his
role as union steward entitled him to additional
protection. The Board ordered Respondent to
cease and desist from the conduct found unlawful
and to take certain affirmative actions designed to
effectuate the policies of the Act. Thereafter, Re-
spondent filed a petition for review of said Order
and the Board filed a cross-application for enforce-
ment with the United States Court of Appeals for
the District of Columbia Circuit.
On April 2, 1981, a panel of the court of appeals
issued its decision,' declining to enforce the
Board's Order and remanding the case to the
Board for further proceedings. In its decision, the
court determined that the interview of Rittermeyer,
a regular employee, did not violate Section 8(a)(1)
of the Act. With respect to Whitwell, however, the
court noted that "very different considerations may
be relevant in considering the legality of an inter-
view of a union steward that are not present in the
case of employees generally."' Accordingly, since
' 246 NLRB 646.
a648 F.2d 712 (D.C. Cir. 1981).
a Id. at 725.
258 NLRB No. 166
the Board had declined to pass on the issue of
whether Whitwell's position as union steward enti-
tled him to protections not available to employees
generally, the court remanded the case to the
Board for further proceedings on that issue.
Thereafter, the Board informed the parties that
they were entitled to file statements of position on
the issue remanded to the Board. Respondent filed
a statement of position.
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, having accepted the remand, respect-
fully recognizes the court's decision as binding for
the purposes of deciding this case.
The pertinent facts surrounding Respondent's in-
terview of Union Steward Jesse Whitwell are as
follows. On February 2, 1978, employee Paul
Thompson was involved in an incident in Respond-
ent's tank washing room which purportedly result-
ed in Thompson slipping and injuring himself.
Whitwell, who was union steward for the area of
Respondent's plant where Thompson worked, testi-
fied without contradiction that his initial involve-
ment in the incident came about when Thompson
and Working Foreman Mallot approached him to
discuss a paint spill that had occurred in Thomp-
son's work area. Whitwell discussed the matter
with Thompson and Mallot and got the problem
"straightened out." Several minutes later, Mallot
and Thompson returned to Whitwell with a dispute
as to whether Thompson should clean up the spill
or continue with his regular duties. Whitwell told
Thompson to continue with his regular duties and
then sought out Floor Supervisor Ervin Woolery.
Meanwhile, Thompson allegedly fell in the area of
the paint spill and requested permission to go to
the doctor. The record reveals no further discus-
sions involving Whitwell on that day concerning
the Thompson matter. 4
As a result of the February 3 incident, Respond-
ent decided to discharge Thompson. Toward this
end, a meeting was held on February 6. The meet-
ing was attended by Whitwell, Union Business
Representative Fixler, and several management
representatives. Those present at the meeting, in-
cluding Whitwell, discussed the February 3 inci-
dent and Respondent reiterated its decision to dis-
charge Thompson. On the same day, the Union
filed a grievance on behalf of Thompson.
' As was indicated by the Administrative Law Judge, it is unnecessary
for resolution of this case to determine the merits of Respondent's actions
concerning Thompson. For our purposes, the significant facts concern
Whilwell's role in the incident, For all practical purposes, the actions of
Whitwell are undisputed.
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COOK PAINT AND VARNISH COMPANY 1231
Thereafter, the grievance was processed in
accord with the parties' collective-bargaining
agreement. Whitwell, as steward for Thompson's
department, was directly involved in all three steps
of the grievance which failed to result in a resolu-
tion of the matter. Pursuant to the contractual
grievance procedure, the Union invoked binding
arbitration. The arbitration hearing was scheduled
for May 3, 1978.
On April 21, 1978, Whitwell was called into the
office of General Superintendent Keller. Already
present were other management officials and Wil-
liam Nulton, Respondent's labor relations attorney.
Nulton informed Whitwell that he was preparing
for. the upcoming arbitration hearing and wished to
question Whitwell as to the February 3 incident.
He told Whitwell that refusal to cooperate would.
result in disciplinary action against him. Whitwell
requested and was granted time to discuss the
matter with Business Representative. Nash. Because
Nash was not available, Whitwell contacted Union
Attorney Robert Reinhold who came to the plant
and accompanied Whitwell into Keller's office.
Upon resumption of the meeting, Nulton reiterat-
ed that Whitwell would be subject to discipline if
he refused to cooperate. Following a discussion
and legal argument between Reinhold and Nulton,
Whitwell agreed to answer questions under protest.
According to Whitwell's uncontradicted testimony,
Nulton then asked him a series of questions pertain-
ing to. the events which occurred on February 3,
Thompson's action regarding the spill, and "con-
versations taking place between myself [Whitwell],
Mr. Thompson, Mr. Mallot, Mr. Woolery."
During the questioning, Whitwell revealed that
he had kept contemporaneous notes relating to the
Thompson matter. Nulton then "ordered"
Whitwell to produce them. Whitwell refused, stat-
ing that the notes were part of his union notebook.
Nulton then told Whitwell to produce the notes by
8 a.m. of the following day. Whitwell did not
comply with the directive but, instead, sent the
notes to the Thompson case arbitrator. On the next
day, Respondent made no further request for the
notes.5
In its decision, a majority of the court held: "As
part of a contractual arbitration procedure, an em-
ployer may conduct a legitimate investigatory in-
terview in preparation for a pending arbitration."
With respect to the order to turn over the notes. we specifically
adopt the Administrative Law Judge's finding that Nulion ordered
Whitwell to produce them and that Whitwell reasonably could not have
viewed the directive as anything other than a threat of discipline for fail-
ure to comply.-
6 648 F.2d at 723.
It further held, however, that the "interview may
not pry into protected union activities. '7 In the
view of the court majority, Respondent's interview
of Rittermeyer was a legitimate investigatory inter-
view that did not pry into protected activities.
With respect to Whitwell, however, a majority of
the court found that there may be 'fundamental
differences between an interview of an employee
and an interview of a union steward. '8 While cau-
tioning the Board against promulgating a "blanket
rule' immunizing stewards from investigatory in-
terviews relating to pending arbitrations, the court
remanded the case to the Board to determine
whether Respondent's interview of Whitwell con-
stituted a lawful investigatory interview or an un-
lawful prying into protected union activities.
Upon review of the entire record, including the
court's decision, we are of the view that Respond-
ent's interview of Whitwell, in the circumstances of
this case, did constitute an unwarranted infringe-
ment on protected union activity and, consequent-
ly, violated Section 8(a)(1) of the Act.
In reaching this conclusion, our initial inquiry in-
volves examination of the role played by Whitwell
in the Thompson incident. From our review of the
record, it is clear that Whitwell's involvement in
the Thompson incident arose solely as a result of
his status as union steward. In this regard, we note
that Whitwell did not become involved as a result
of his own misconduct. Nor was Whitwell an eye-
witness to the events that resulted ir; Thompson's
alleged fall and his subsequent discharge. Instead,
Whitwell initially was approached in his capacity
as steward by Thompson and Mallot who were en-
gaged in a dispute over a paint spill. Whitwell con-
versed with the two, attempting•to "straighten out"
the dispute. Several minutes later, Mallot and
Thompson returned to Whitwell to discuss further
developments. At that point, Whitwell gave his
advice to Thompson and then sought out Supervi-
sor Woolery. Meanwhile, Thompson returned to
his work area where he allegedly slipped and in-
jured himself. Thus, Whitwell became involved in
the incident ab initio as a result of his role as union
steward.
Following the incident, Whitwell continued to
act in a representational capacity. Pursuant to the
collective-bargaining agreement, Whitwell was
Thompson's designated representative at the first
two grievance steps. In addition, as found by the
Administrative Law Judge; Whitwell acted in this
representational capacity at the third step of the
grievance process as well. In short, from the begin-
Id.
' Id. at 724.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fling of the Thompson incident, and up through
each progressive step of the grievance process, all
of which occurred prior to the April 21 interview,
Whitwell's participation was a direct result of the
execution of his duties as union steward in repre-
senting Thompson.
Having determined that Whitwell's involvement
in the incident arose and continued in the context
of his acting as Thompson's representative, our in-
quiry shifts to an examination of the scope of Re-
spondent's interrogation to determine whether the
questions pried into protected union activities and
interfered with the employees' exercise of their
Section 7 rights. In our view, the questioning ex-
ceeded permissible bounds, pried into protected ac-
tivities, and, accordingly, constituted an unlawful
interference with employee Section 7 rights.
As to the scope of Respondent's interrogation it
is virtually undisputed, and we specifically find,
that Nulton sought to probe into, inter alia, the
substance of conversations between Whitwell and
Thompson. Indeed, the scope of Respondent's
probing is highlighted by Nulton's order to
Whitwell to turn over the contemporaneous notes
concerning the incident which he had taken in his
capacity 8- steward. Significantly, the order was
reiterated even after Whitwell informed Respond-
ent's representatives that the notes were part of his
"union notebook" that he regularly kept in carry-
ing out his union functions.
Clearly, the scope of Respondent's questioning
exceeded the permissible bounds outlined by the
court and impinged upon protected union activity.
For while questions posed by Nulton may be
termed "factual inquiries," the very facts sought
were the substance of conversations between an
employee and his steward, as well as the notes kept
by the steward, in the course of fulfilling his repre-
sentational functions. Such consultation between an
employee potentially subject to discipline and his
union steward constitutes protected activity in one
of its purest forms. To allow Respondent here to
compel the disclosure of this type of information
under threat of discipline manifestly restrains em-
ployees in their willingness to candidly discuss mat-
ters with their chosen, statutory representatives.9
9 In its brief, Respondent advances the argument that Whitwell, pursu-
ant to the bargaining obligations of Sec. 8(d), was obligated to turn over
documents in his possession relating to the Thompson grievance. We find
no merit in such a claim. Initially, we note that, while the cases cited by
Respondent do refer to a union's obligation to supply relevant informa-
tion for the purposes of collective bargaining, Respondent has advanced
no case support for the unique proposition that notes kept by a steward
in ,the course of representing employees are subject to the requirements
of supplying relevant bargaining information. Yet, even if we were to so
hold, which we do not, we could not endorse Respondent's additional
claim that the Union's obligation to supply such information can be uni-
laterally enforced against a steward by means of a threat of discipline for
failure to comply. For if, indeed, the information. was relevant to collec-
Such actions by Respondent also inhibit stewards
in obtaining needed information from employees
since the steward knows that, upon demand of Re-
spondent, he will be required to reveal the sub-
stance of his discussions or face disciplinary action
himself. In short, Respondent's probe into the pro-
tected activities of Whitwell and Thompson has
not only interfered with the protected activities of
those two individuals but it has also cast a chilling
effect over all of its employees and their- stewards
who seek to candidly communicate with each
other over matters involving potential or actual
discipline.
Finally, in view of the court's admonition against
our promulgation of a "blanket rule," we wish to
emphasize that our ruling in this case does not
mean that all discussions between employees and
stewards are confidential and protected by the Act.
Nor does our decision hold that stewards are, in all
instances, insulated from employer interrogation.
We simply find herein that, because of Whitwell's
representational status, the scope of Respondent's
questioning, and the impingement on protected
union activities, Respondent's April 21, 1978, inter-
view of Jesse Whitwell violated Section 8(a)(1) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Cook Paint and Varnish Company, Kansas City,
Missouri, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening union shop stewards with disci-
pline for refusing to submit to questioning by Re-
spondent's counsel or other representatives, or to
submit written material kept in the course of the
steward's representation of employees, concerning
any matter involving a unit employee when the ste-
ward is contractually bound or authorized to repre-
sent such employee in a grievance or arbitration
proceeding and the steward has acted in such rep-
resentational capacity.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
live bargaining and Respondent was entitled to obtain it, our Act pro-
vides the appropriate mechanism for Respondent to assert its rights. Re-
spondent, however, rejected that course and sought to short circuit the
process through threats and coercion. We firmly reject the concept that
an employer, in its quest to obtain information, may unilaterally deter-
mine the relevance of the information and its entitlement to obtain the
information and then set about enforcing its determination through
threats of discipline.
ti
COOK PAINT AND VARNISH COMPANY 1233
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plant 3, in North Kansas City, Mis-
souri, copies of the attached notice marked "Ap-
• pendix."1° Copies of said notice, on forms provided
by the Regional Director for Region 17, after
being duly signed by an authorized representative
of Respondent, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
‘° In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten union shop stewards
with discipline for refusing to submit to ques-
tioning by our counsel or other representa-
tives, or to submit written material kept in the
course of the steward's representation of em-
ployees, concerning any matter involving a
unit employee when the steward is contrac-
tually bound or authorized to represent such
employee in a grievance or arbitration pro-
ceeding and the steward has acted in such rep-
resentational capacity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
COOK PAINT AND VARNISH COMPANY