Cook Paint & Varnish Co.

National Labor Relations Board - Board Decisions

Nov 30, 1979

246 N.L.R.B. 646 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook Paint and Varnish Company and Paintmakers
and Allied Trades Local 754 affiliated with Interna-
tional Brotherhood of Painters and Allied Trades,
AFL-CIO. Case 17 CA 8258
November 30, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.O
AND TRUE SDALE
On May 31, 1979, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions'
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(l) of the Act by
threatening employees Jesse Whitwell2 and Douglas
Rittermeyer with suspension and or discharge if they
refused to respond to question posed by Respondent's
counsel relating to a grievance proceeding which was
scheduled for arbitration. In so holding, we note that
the Board has previously found that an employer can,
without violating Section 8(a)(1), seek to compel its
employees to submit to questioning concerning em-
ployee misconduct when the employer's inquiry is
still in the investigatory stage and no final disciplin-
ary action has been taken. Service Technology Corpo-
ration, a subsidiary of LTV Aerospace Corporation,
196 NLRB 845 (1972); Primadonna Hotel, Inc., d/b/a
Primadonna Club, 165 NLRB 111 (1967). In those
types of cases, we have been required to balance the
right of employees to make common cause with their
fellow employees against the need for an employer to
Respondent has requested oral argument. Its request is hereby denied as
the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
I2 n her Decision, as an alternative holding, the Administrative aw Judge
found that, even if Whitwell were not entitled to protection under Sec. 7 as
an employee, he was entitled to protection under that section because of his
status as a union steward. Since we find that Whitwell is protected by virtue
of his status as an employee, we find it unnecessary to pass on the question ol
whether a union steward is entitled to different treatment in the type of
situation presented here than are employees generally. We shall modlil the
Administrative Law Judge's recommended Order accordingly.
maintain the orderly conduct of its business. Where
the employer's questioning takes place in an investi-
gatory context prior to disciplinary action, we have
struck the balance in favor of the interests of the em-
ployer. Our decision today does not alter that bal-
ance.
In the instant case, however, Respondent had al-
ready completed an investigatory process pursuant to
which it was determined that discipline of an em-
ployee was justified. Disciplinary action was taken,
the grievance machinery was activated, and the dis-
pute was to be submitted to arbitration. At this junc-
ture, when an employer seeks to question its employ-
ees, it moves into the arena of seeking to vindicate its
disciplinary decision and of discovering the union's
arbitration position,3 and moves away from the legiti-
mate concern of maintaining an orderly business op-
eration. In this context, for the reasons stated by the
Administrative Law Judge, 4 we find that the delicate
balance must be struck in favor of the employees and
that an employer that seeks to compel its employees
to submit to questioning in such circumstances vio-
lates Section 8(a)(I).
We also noted that Respondent relies heavily on
our decision in Pacific Southwest Airlines, Inc., 242
NLRB 1169 (1979), which was issued subsequent to
the Administrative Law Judge's Decision here. In
that case, we applied Spielberg Manufacturing Com-
pan, 112 NLRB 1080 (1955), in deferring to an arbi-
trator's award which provided that an employer was
acting within its rights by disciplining employees who
refused to submit to questioning concerning a matter
which was to be the subject of a grievance arbitration.
Respondent is mistaken in its assertion that our deci-
sion in Pacific Southwest is dispositive here.
Spielberg sets forth two principles which must be
examined in determining the applicability of our deci-
sion in Pacific Southwest to the case .sub judice. First is
the principle that our deferral to an arbitrator's
award "does not mean that the Board would neces-
sarily decide the issue of the alleged . . . misconduct
as the [arbitrator] did"5 when presented with such a
case on the merits. While this principle might appear
to dispose of the issue concerning the applicability
here of Pacific Southwest, the principle is somewhat
tempered by another principle set forth in Spielberg,
'Indeed. the attorney who conducted the questioning on behalf of Re-
spondent candidly stated at the hearing that one of the reaons for the Inler-
view was to discover "what the urion's position would be it it went to arbi-
tration."
4 In concluding that Respondent iolated Sec. 8(a}{If. we find it unneces-
sary to rely upon the Administrative l.as Judge's discussion of N i R B v.
J. Wm'ingarien. Inc. 420 U S. 251 (1975).
112 NlRB at 1(182. The Board went on to as: "We do not pass upon
that issue "
246 NLRB No. 104
646
COOK PAINT & VARNIS (CO.
namely, that, in deferring to an arbitrator's award.
the Board must find that the award is not clearly re-
pugnant to the policies of the National Labor Rela-
tions Act. Our finding here that Respondent violated
Section 8(a)( ) is in harmony with both of these prin-
ciples as they relate to the issue of the applicability of
our decision in Pacific Southwest.
As noted above, the disposition of the instant case,
as with many cases presented to the Board, requires a
balancing of the conflicting legitimate interest of em-
ployers and employees.6 By the same token, the arbi-
trator's award in Pacific Southwest represents that
arbitrator's effort to accommodate conflicting legiti-
mate interests. It is in this context of balancing the
rights of employees and employers that our deferral
to the arbitration award must be assessed. The fact
that the arbitrator cast the balance one way does not
mean that we must, or even would, strike the balance
in the same way. For, as stated above, when the
Board defers to an arbitrator's award under Spielherg,
the Board does not pass on the merits of the contro-
versy. Additionally, because these cases involve con-
flicting legitimate rights, an award vindicating either
of the conflicting rights cannot be viewed as being
clearly repugnant to the policies of the Act. In short,
our deferral to the arbitrator's award in Pacific South-
west does not preclude our finding here that Respon-
dent violated Section 8(a)(1).
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, as modified be-
low, and hereby orders that the Respondent, Cook
Paint and Varnish Company, Kansas City, Missouri,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
I. Delete paragraph I(b) and reletter the remain-
ing paragraph accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER TRUESDALE, concurring:
I agree with the result reached by my colleagues
but not with their reasoning. Here my colleagues an-
'As the Supreme Court stated in N.L.R.B v. Truck Drivers Local Union
No. 449, International Brotherhood of Teamsters, Chauffeur. Warehousemen
and Helpers of America, . F. of L. Buffalo Linen Supplv Co., 353 U.S. 87,
96 (1957):
The ultimate problem is the balancing of the conflicting legitimate
interests. The function of striking that balance to effectuate national
labor policy is often a difficult and delicate responsibility, which the
Congress committed primarily to the National Labor Relations Board.
subject to limited judicial review.
nounce a blanket rule that an employer may not, un-
der any circumstances, threaten to discipline, or disci-
pline, an employee for refusing to participate in an
interview concerning a work-related incident once the
employer has disciplined the participants in the inci-
dent and the grievance machinery has been invoked.
In my view, such a rule is ill advised. Instead, the
Board should review these cases on an individual ba-
sis, balancing the interest of the employer in conduct-
ing the interview against the employee's right to make
common cause with his fellows. Although my col-
leagues recognize the need for, and logic of, the bal-
ancing test in the prediscipline and pregrievance situ-
ation, they fail to apply that test here.
Applying the balancing test here, I would find a
violation. Under that same test, however, Pacific
Southwest is distinguishable. Indeed, the contrast be-
tween Pacific Southwest and the instant case illus-
trates the appropriateness of the balancing test. In
Pacific Southwest, the arbitrator found that the em-
ployer sought the employee interviews because it was
considering asking the employees to testify as em-
ployer witnesses, and because, depending on what the
employees said, there was a possibility of settlement
before arbitration. The employer did not know
whether the employees would be union witnesses, nor
did it attempt to ascertain the union's case. On these
facts, the arbitrator found that the employer was jus-
tified in suspending employees for refusing to cooper-
ate, and we deferred to that decision. Here, however,
Respondent knew that the employees with whom it
sought to speak were to be union witnesses at arbitra-
tion. Furthermore, the employees were not witnesses
to the incident which led to the grievance, so that
discussions with the employees were not necessary ei-
ther to determine if Respondent should call the em-
ployees as witnesses or in order to ascertain the advis-
ability of settlement. Rather, as admitted by
Respondent, one of the reasons it wished to talk to
the employees was to learn the Union's case, Respon-
dent also sought to obtain contemporaneous notes
taken by a union official in processing the grievances.
The last act was unlawful interference, in violation of
Section 8(a)(1), with the Union's ability to process
grievances, as well as evidence of Respondent's true
purpose. Unlike the employer in Pacific Southwest.
Respondent here was not legitimately concerned with
preparing its case or exploring settlement of the griev-
ance, but rather was seeking to undermine the
Union's position at arbitration. Accordingly, I join
my colleagues in finding that Respondent violated
Section 8(a)(l) of the Act by disciplining its employ-
ees for refusing to participate in interviews and for
refusing to turn over notes taken while investigating a
grievance for the Union.
647
I (DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDIN(iS OF FA( I
NoiF'E To EMPI lYFIS
POSITED BY ORDER OFIHE
NArIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examine witnesses,
the National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
WE WIl.L NOT threaten employees with disci-
pline because they refuse to be interviewed by
our counsel or other representatives concerning
matters involved in a grievance as to which arbi-
tration has been invoked.
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
DECISION
JOSEPHINE H. KI.EIN, Administrative Law Judge: Pursu-
ant to a charge filed on April 24, 1978,' and amended on
May 19, by Paintmakers and Allied Trades Local 754 affili-
ated with International Brotherhood of Painters and Allied
Trades, AFL-CIO (the Union), a complaint was issued on
October 10 against Cook Paint and Varnish Company (Re-
spondent), alleging that Respondent violated Section
8(a)(I) of the Act2 by threatening employees with disciplin-
ary action "because of their engaging in concerted activity."
Upon due notice, a hearing was held before me in Kan-
sas City, Kansas, on January 25, 1979. The General Coun-
sel and Respondent were represented by counsel.' All par-
ties were afforded full opportunity to present oral and
written evidence and to examine and cross-examine wit-
nesses. The parties waived oral argument, and post-hearing
briefs have been filed on behalf of the General Counsel and
Respondent.4
Upon the whole record,5 careful observation of the wit-
nesses, and consideration of the briefs, I make the follow-
ing:
I Unless otherwise specified, all dates herein are in 1978.
'National Labor Relations Act, as amended. 29 U.S.C. Sec. 151. et seq.
Robert J. Reinhold, Esq.., the Union's counsel, and Union Business Rep-
resentative Jim Nash, both of Kansas City, Missouri, testified for the Gen-
eral Counsel.
4 William C. Nulton, Esq., of Blackwell. Sanders, Matheny. Weary & Lom-
bardi. originally filed an appearance on behalf of Respondent. However, that
appearance was withdrawn since Mr. Nulton was to testify on behalf of
Respondent.
I Respondent's unopposed motion to correct the transcript is hereby
granted: the word "not" is inserted after the word "were" in . 17 of p. 124.
Although there are other errors in the transcript, they are generally minor
and do not affect the substance. Accordingly, no further corrective lorder is
being issued.
I. PRE I.IMINARY FINDIN(iS
A. Respondent, a Missouri corporation, is engaged in
the manufacture of paint and related products at a hfacility
located in North Kansas City, Missouri. In the course and
conduct of its business operations in Missouri, Respondent
annually purchases goods and services valued in excess of
$50,000 directly from sources outside Missouri and sells
goods and services valued in excess of $50,000 directly to
customers located outside Missouri. Respondent is, and was
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2). (6), and (7) of the
Act.
B. The Union is now, and was at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. IF.E A.l.lEGED UNFAIR l.ABOR PRA(IC('ES
The Issues
The general issue here presented is whether Respondent
violated the Act when it threatened two employees with
disciplinary action if they refused to be interviewed by Re-
spondent's counsel in his preparation for arbitration of an-
other employee's grievance. If that question is decided in
the negative, the next issue presented is whether any dis-
tinction is to be made between the two employees because
one of them was a union steward.
111. Itt I-A('IS
In major part the facts were stipulated and there is little
dispute.
On February 3, employee Paul Thompson was working
at his regular job, which included washing tanks and main-
taining the tank washing room. There is an unresolved dis-
pute as to what instructions, if any, Thompson was given in
the course of that morning by Byron Malott (a "working
foreman" and member of the bargaining unit) and/or Irwin
Wollery (a supervisor). The parties also have stipulated that
"what Thompson did or did not do during the morning to
carry out those assignments, and whether in carrying out
those assignments Thompson slipped and fell were factually
disputed." However, it is agreed that in the course of the
morning Thompson several times conferred with Jesse
Whitwell, also an employee in the tank washing room and
the department's union steward. It is also undisputed that
Thompson, saying he had fallen, requested and was granted
permission to leave the plant to see a doctor. Thereupon
Doug Rittermeyer, also an employee in the tank washing
room, proceeded to clean up some spilled material on the
tank washing room floor.
On February 6, Thompson was called to the office of Ed
Fixler, Respondent's labor relations manager. In addition
to Thompson, the following persons were present: Fixler,
Jerry Frizelle (plant superintendent), Steve Matthews (a su-
pervisor), Irwin Wollery (a supervisor), Malott, Whitwell,
and Jim Nash (the Union's business representative). Fri-
APPENDIX
648
COOK PAINT & VARNISH CO.
zelle announced that Thompson was being discharged as of
the end of that day for insubordination and insufficient pro-
duction. In a 3-hour meeting, the events of the morning of
February 3 were discussed at length. Whitwell testified that
Rittermeyer's role in the events was discussed and Whitwell
"told them what [he] knew of it and discussed it back and
forth with the management." At the end of the February 6
meeting. Thompson's discharge was unchanged. That same
day a grievance was filed on Thompson's behalf.
Thereafter, Thompson applied for unemployment com-
pensation. After a hearing, Thompson was awarded com-
pensation. the Missouri Employment Security Division re-
jecting Respondent's defensive contention that Thompson
had been fired for cause. Additionally, the Occupational
Safety and Health Administration issued a citation and im-
posed a fine of $450 against Respondent.
The grievance was processed under the grievance provi-
sions of the parties' collective-bargaining agreement. The
first step in the procedure is presentation of the grievance
"to the Employee's immediate supervisor with the Steward
of the department present, if so desired." The second step is
presentation "jointly to the Steward and the manager of the
department or the superintendent." If no resolution is
reached, a written grievance is to be "referred to the Busi-
ness Representative of the Union, and representative of the
Employer authorized to handle labor relations." If the
grievance is not adjusted by the business representative and
the employer's labor relations representative, they hold a
hearing. If that third step does not achieve adjustment, ar-
bitration can be revoked.
The parties stipulated that, during 1977, 83 grievances
were handled under the contract, with one going to arbitra-
tion. Frizelle testified that, in many instances when employ-
ees were to be suspended, company representatives inter-
viewed other employees. However, "in the majority of
instances, we [Respondent's representatives] discuss it with
the individual in the presence of his steward, who is the
representative of the union." Frizelle further testified that
the "union steward is always involved," but "it is not a
frequent thing" for the steward to be interviewed as a wit-
ness.
In the Thompson case, the Union invoked arbitration
and the hearing therein was scheduled for May 3. On April
21, Whitwell was called to the office of William A. Keller.
then general superintendent of Respondent's North Kansas
City plant. Present with Keller were Matthews, Frizelle.
and William C. Nulton, Esq.. Respondent's labor attorney.
Nulton said that he was preparing for the forthcoming arbi-
tration and wanted to find out what Whitwell knew of the
events on February 3 involving Thompson. Nulton assured
Whitwell that he (Whitwell) was not being investigated.
Nulton further stated that Respondent had a legal right to
question Whitwell and if Whitwell refused to answer the
questions he would be subject to discipline. In answer to
Whitwell's question. Frizelle said that Whitwell probably
would not be discharged but would be suspended. There-
upon, at his request, Whitwell was granted an adjournment
of the meeting so that he could consult the union business
representative. Unable to reach Nash, Whitwell called Rob-
ert J. Reinhold. Esq., the Union's attorney. Reinhold then
went to the plant and the meeting was resumed, with Rein-
hold also present. At the resumed meeting. Whitwell w.as
again told that he would be suspended itf he refused to an-
swer questions concerning the Thompson episode. Nulton
said that arbitrators had upheld employers' rights to de-
mand such cooperation of employees, but, according to
Reinhold's undisputed testimony. Nulton did not comply
with Reinhold's request for citations of such arbitral
awards. Reinhold advised Whitwell that he did not have to
answer Nulton's questions. At that point, according to
Reinhold, Nulton said to Whitwell: "You have the opinion
of two attorneys here but it is your job that is on the line."
In view of the continued threat of discipline. Reinhold and
Whitwell decided that Whitwell would answer "under pro-
test."
In the course of answering Nulton's questions. Whitwell
revealed that he had taken contemporaneous notes of the
Thompson matter. Thereupon. Nulton "ordered" Whitwell
to produce them. Whitwell refused "because it was [his]
union notebook." He was "ordered" to produce them at 8
a.m. the following Monday. April 24. Respondent denies
that Whitwell was threatened with discipline if he did not
produce the notes. However. Nulton candidly admitted that
he had "ordered" Whitwell to produce the notes. Particu-
larly in the context of express threats of discipline for refus-
ing to answer questions, Whitwell could not reasonably in-
terpret an "order" to produce the notes as anything other
than a similar threat. In the course of the discussion, Rein-
hold asked if he could have the notes taken by Respon-
dent's representatives. The request was rejected. At 4 p.m.
the meeting was adjourned until the following Monday be-
cause Whitwell declined to continue after his quitting time,
despite Nulton's request and assurance that he would be
paid overtime for remaining.
Beginning at or around 10 a.m. on April 24, Nulton
again attempted to question Whitwell and stated that the
employee's noncoo)peration could lead to suspension. After
conferring with Reinhold. Whitwell said he would answer
the questions "for the simple reason that [he] did not want
to be fired." According to Whitwell, Nulton said "that dis-
ciplinary action would be a suspension and possible termi-
nation later."
Whitwell did not give his notes to Nulton on April 24. as
he had been ordered to. However, on that date. the Union,
by Reinhold. filed a charge with the Board. In addition.
Reinhold sent Whitwell's notes to the arbitrator. with a cov-
ering letter stating, in part, that the Union considered Nul-
ton's demand for the notes as constituting "improper coer-
cion of a union steward to submit confidential information
for which among other things an NLRB charge has been
filed." Reinhold stated further that he was sending the notes
to the arbitrator "to make quite clear that the union has
nothing to hide." The arbitrator was authorized to read the
notes at the hearing and submit them to "the company for
inspection" itf the arbitrator deemed that appropriate.
At the conclusion of Whitwell's interview on April 24.
Rittermeyer was called into Keller's office. Nulton, Frizelle,
Whitwell, Nash. and Reinhold were present. When Ritter-
meyer expressed reluctance to answer questions about the
Thompson matter. Nulton stated that Rittermeyer would
be suspended or discharged if he refused to do so. Because
of Nulton's threat. Rittermeyer answered questions. The in-
terview lasted about half an hour.
h49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the present hearing Nulton explained his insistence on
questioning Whitwell and Rittermeyer. Nulton testified that
he had not been consulted until after Respondent had lost
the unemployment compensation case and had been fined
by the Occupational Safety and Health Administration
(OSHA). Although there had been hearings in the compen-
sation case, the OSHA investigation had been confidential.
It was known that OSHA had spoken to Whitwell and Rit-
termeyer, but Respondent's representatives had no inkling
of what the employees had said. Nulton said he believed he
could successfully handle the matters involved in the unem-
ployment compensation case, but he felt he needed to know
what Whitwell and Rittermeyer had told OSHA because
OSHA rarely issued citations or imposed fines without
sound reason. As Nulton put it, Respondent had two strikes
against it and needed to know what kind of pitch would
come next.
Nulton's strategy apparently was successful; Respondent
won the arbitration, despite the fact that both Whitwell and
Rittermeyer testified on behalf of the Union. It may also be
noted that, while the Union's original and amended charges
alleged Thompson's termination as violative of the Act, no
such allegation is contained in the complaint.6
Discussion and Conclusions
I. Employer right and obligation
The starting point of the General Counsel's argument is
the well-established principle that an employee's participa-
tion in grievance and arbitration proceedings constitutes
protected concerted activity which may not be interfered
with either by his employer (The Anthony Company, d/b/a
El Dorado Club, 220 NLRB 886, 889 (1975): Cathay (Wah
Sang d/b/a Daphne San Francisco Funeral Service, 224
NLRB 461. 463 (1976)) or by his union (Canner, Ware-
housemen, Food Processors, Drivers and Helpers Local Union
No. 788 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of A mer-
ica, Independent (Marston Ball), 190 NLRB 24 (1971):
United Steelworkers o America, AFL C('IO CLC, Local
Union 5550 (Redfield Company, a Division of Outdoor Sports
Industries), 223 NLRB 854 (1976): Freight Drivers and
Helpers Local Union No. 557, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Liberty Transfer Company. Inc.). 218
NLRB 1117. 1120 (1975)). The General Counsel's basic po-
sition is that Respondent's threat of discipline if employees
Whitwell and Rittermeyer refused to be interviewed in the
course of Respondent's preparation for arbitration was an
unlawful interference with the employees' participation or
refusal to participate in protected concerted activity.
Respondent, on the other hand, maintains that Board,
court, and arbitral decisions establish an employer's right to
question employees as to the facts concerning matters
which underlie disciplinary action which is the subject of a
grievance. Respondent cites Service Technology Corpora-
6 The charges erroneously alleged Thompson's termination as hasving oc-
curred on )ecember 1. 1977. It was alleged that the discharge violated Sec.
8(ap(3) in addition to Sec. 502: "Paul Thompson was terminated for his
alleged refusal to work under abnormally dangerous conditions in violation
of Section 502."
lion, a Subsidiary of LTV A erospace Corporation. 196 N IR B
845. 846 847 (1972), as the basic authority for its position.
In my opinion, Respondent's reliance on Service lechnol-
ogv is misplaced, since Respondent fails to note the signif-
icance of the facts that that case involved an investigatory
interview, before any decision was reached as to possible
discipline, and the conduct of the interviewees was the ob-
ject of the investigation. In that case, two employees
(Moody and Scott) recorded on the company log that their
work area was dirty, a statement reflecting badly on fellow
employees. Two other employees (Harrison, a shop stew-
ard, and Barnhill), complaining of Moody's and Scott's ac-
tion, "impugned their union loyalties, called them 's.o.b.'s,'
threatened to file charges against them with the Union, and
also threatened to beat them up if theN persisted in making
log entries derogatory of other union members." The next
day Harrison refused to discuss the matter with manage-
ment representatives "because it was an intraunion matter
and no concern of management" and Harrison "wsas not at
liberty to discuss union business of a private nature with a
company official." While Barnhill attributed his refusal to
talk with management to the rejection of his demand that
he be allowed to have Harrison present as a union repre-
sentative, the Administrative Law Judge found that Barn-
hill's refusal was actually based on union instructions not to
talk at all. Harrison and Barnhill were threatened with dis-
ciplinary action for their refusal to discuss the matter with
management. Then, on the basis of information provided
by Moody and Scott, Harrison and Barnhill were given dis-
ciplinary suspensions. A complaint was issued alleging the
suspensions as violative of Section 8(a)(3) of the Act. The
Administrative Law Judge recommended dismissal of the
complaint, in toto, holding that (1) the threats of discipline
were not violative of the Act because "no right accrued to
the employees under the Act, which protected their refusal
to talk or to remain uncooperative" and (2) the General
Counsel had not met his burden showing that the suspen-
sions were ordered "in retaliation for their union activity or
because they insisted on what they claimed to be rights"
rather than "because of their threats to Moody and Scott."
A three-member panel of the Board affirmed the Adminis-
trative Law Judge. However, in affirming the Administra-
tive Law Judge's holding that the employer had not vio-
lated the Act by refusing to permit Barnhill to have
Harrison present as a union representative, two members of
the panel expressly relied on the fact that "larrison himself'
was personally involved in, and a subject of, the incident
giving rise to the interviews."
Thus, in at least two major relevant respects Service
i'echnologv is distinguishable from the present case: ( I ) Ser-
vice Technology involved a purely investigatory interview,
immediately after the event occurred, whereas the present
case concerns interviews about 2-1/2 months after the event
and after Respondent had discharged Thompson and had
reaffirmed such discipline through the grievance procedure.
and the Union had invoked arbitration: (2) in Service Tech-
nology the employer sought to interview employees directly
involved in the incident under investigation and whose con-
duct was in question. whereas in the instant case Ritter-
meyer and Whitwell were uninvolved in the incident lead-
650
COOK PAINT & VARNISH (CO.
ing to Thompson's discharge and their conduct was not
being questioned. There obviously is a world of difference
between an employer's trying to obtain factual information
helpful in determining whether an employee should be dis-
ciplined, on the one hand, and. on the other hand, his at-
tempting to obtain information to justify discipline already
imposed. In the former case, the employer is legitimately
concerned about maintaining order in the operation of his
business, in the latter case, he is concerned only with vindi-
cating action he has already taken. In the former case, an
employee's statutory right to make common cause with his
fellow employees may well have to yield to the more urgent
need of orderly conduct of the business. a necessity to man-
agement and labor alikef in the latter case, however, there
is no apparent reason why an employer's vindication of
action he has already taken should be allowed to override
the employees' concern for solidarity. Thus. Service Teeh-
nology and other Board Decisions cited bh Respondents are
not sound authority for holding that Respondent had an
absolute right to question Whitwell and Rittermeyer, on
April 21 and 24, in its attempt to defend Thompson's dis-
charge early in February.
Similarly, none of the arbitral awards cited as such by
Respondent holds that an uninvolved employee may be dis-
ciplined for refusal to cooperate with an employer's prepa-
ration for arbitration of a grievance. All the awards cited
concern truly investigatory interviews of employees sus-
pected of serious misconduct, generally complicity in theft
from the employer.' Some of the awards were based largely
on the fiduciary nature of the employee's job and the par-
ticular facts presented."
The difference between investigatory and other types of
employer interrogation has been frequently noted and has
significant practical effect. For example. N.L.R.B. v. J.
Weingarten, Inc., 420 U.S. 251 (1975). applies only to inves-
tigatory interviews, not to interviews sought after discipline
has been decided. Amoco Oil Cornpany, 238 NLRB 551
(1978). See, e.g., M. Vernon Tanker Company, 549 F.2d
7As the General Counsel notes. the Administrative Law Judge in Seru -c
Technolog aptly stated that "a proper balance must he struck between the
Company's right to uncover improper conduct on the part of certain employ-
ees in its business and the nghts of these employees." 196 N.RB at 847.
Cross Baking Company, Inc.. 186 NLRB 199, 206 (1970)--employer in-
ferred from an employee's refusal to discuss a matter that she was involved
in the fight which was the basis for the decision to suspend her Primadonna
Hotel, Inc.. dib/a Primadonna Club, 165 NtLRB III. 135 (1967) employee
lawfully discharged fr "refuslall to tell the employer who authorized the
employeel to spend the emplover'sl money." Da Lite Screen Companr, Inc.
154 NLRB 926. 929 (1965) an employer may question employees "to deter-
mine if union activities were being discussed dunng worktime. American
Internaltonal Aluminum Corp.., 149 NLRB 1205. 1210 (1964) employer si-
lated Section 8(a(I) by a rule providing for discipline of employees who
refuse "to submit to interrogation that would be unlawful under Section
8(a) I)": no holding concerning a narrower rule.
9 The Administrative Law Judge's Decision in Pachtic Southwest 4irlints,
Case 32 CA 353. involving an arbitrator's decision, is discussed below
10 Simoniz Co . 44 LA 658 (1964): Esen Mercantile, Inc, 72 1 ARB Sec
8025: Clgate Palmolive (Co.. 68 ARB Sec. 8857: Firestone Snthetr. Rubbher
& lalte Co. 71-1 ARB Sec. 8274: Cit of Bridgepor,. 71 ARB Sec. 8211.
Thriv Drug Stores (C.. 68 2 ARB Sec. 8628. In 7'hrifi Drug the arbitrator
sustained the gnevance of two employees suspected of theft who refused to
be interviewed b the employer without having a union representative pre-
sent
I Firestone guard: Bridgeplor policeman: Simoniz- employee in p*i-
tion of trust failed to cooperate in sheriffs investigatl n.
571. 575 (9th Cir. 1977). and (limat ,t o!lbdenum (,ltapanv
v. N. L. R.B.. 584 F.2d 360. 364 (10th Cir. 1978).12
It is unnecessary in the present case to decide whether.
during the investigatory process, before Thompson was dis-
charged. Respondent could have compelled employees Rit-
termeyer and Whitwell to prov ide information concerning
the Thompson matter, in which they were not personally
involved. At that time Respondent made no attempt to
question Rittermeyer. Whitwell actually discussed the mat-
ter in detail with Respondent's representatives. Whille Whit-
well was then involved as a union representative, in con-
formit, with the contractually established grievance
procedure. there is no suggestion in the record that he with-
held any pertinent information.
In effect. Respondent seeks to assert a right to pretrial
discovery in the arbitration proceeding, enforceable by the
sheer force of its position as emplo er. The Board has held
that an employer must provide the union with the names
and addresses of the witnesses to occurrences leading to
action as to which the union has filed a grievance. 7Tran.vorl
of New Jerse. 233 NLRB 694. 695 (1977). The Board said
that "the requested information is both relevant and neces-
sary to enable the Union to make an intelligent judgment
with respect to the merits of its grievance and a decision
whether to proceed to arbitration." But nothing in that de-
cision indicates that the witnesses so identified must speak
to union representatives upon request. And the Board has
expressly declined to recognize any general right to pretrial
discovery in arbitration or unfair labor practice proceed-
ings. See Tool and Die Makers' Lodge No. 7 of Disirictl No.
I ) of the Ilernaional A4 ssocialion f M achinists and .4 ero-
space W orklers, 4 Fl. -CIO (Square D Comnpatv, iitasilulkc
Plantl), 224 NLRB 11 I. 112 (1976):
There is . . . no statutory obligation on the part of
either [the union or the employer] to turn over to the
other evidence of an undisclosed nature that the pos-
sessor of the information believes relevant and conclu-
sive with respect to its rights in an arbitration proceed-
ing. The contrary view, logically extended. would
impose a statutory obligation on an employer or a
union to examine, upon request. all evidence in its pos-
session relating to a particular grievance and to turn
over for the inspection of the other party the evidence
deemed "relevant" to the grievance. We do not believe
that discovery of this broad nature is necessary or de-
sirable in unfair labor practice cases.
Cf. Anheuser-Busch, Inc., 237 NLRB 982 (1978).
Fundamental concepts of fairness and due process mili-
tate against Respondent's claim to discovery as an incident
of its employer status. It will be recalled that Respondent's
counsel summarily rejected the request by the Union's
counsel for access to material in Respondent's po::session
relative to the scheduled arbitration. While there probabl?
cannot be equality or complete mutuality of rights and ob-
ligations as between employer and employee or union, there
12 Although these wo judicial decisions reversed Board rders UI I ri,n
7anAer (Comrponi. 218 NL.RB 1423 1975) and (limoa i l rrlhbs,illril ('nnCmisip
a Dir.sion o Inmai,. Inc., 227 NRB 1189 ( 1977), there Hwas no disagreement
between the Board and the courts that 1eingarien is applicahle ionl ti
"insesngator) Interiews which the intersicssees reaonahlN hhelesc might
restult in dciphnarx .cl tion agailnst themn
h651
DFCISIONS OF NATIONAL IABOR RELATIONS BOARD
appears to be no sound reason for creating in the employer
such an advantage in litigation.
Respondent attempts to avoid such blatant discrimina-
tion by arguing that "if a unit employee has a 'right' to
decline to participate in an employer's interview, he would
have the same right to refuse to participate in a union's
interview." Although it is unnecessary to decide this issue in
the present case, it may well be that an employee has full
freedom of choice and cannot be compelled to provide in-
formation to either the union or the employer in prepara-
tion for arbitration, or in preparation for any other form of'
litigation, before a court, an administrative agency, or an
arbitrator. except to the extent that applicable rules provide
for pretrial discovery.
In Tool & Die Makers' Lodge 78. IAM (Square D (re-
panst), supra, the Board "assume[d] arguendo. without decid-
ing, that a union's duty to furnish information relevant to
the bargaining process is parallel to that of an employer."
Subsequently, in Local 13, Detroit Newspaper Printing and
Graphic Communications Union (The Oakland Press Co.).
233 NLRB 994 (1977), this mutuality of obligation was ap-
parently accepted as the law. Canner' Warehousemen, su-
pra, and subsequent similar cases 3 hold that a union may
not interfere with or coerce a member in the exercise of his
Section 7 right to participate fully and freely in a grievance
and/or arbitration.
The fact that a union may not properly forbid a mem-
ber's cooperation with his employer in connection with a
grievance has no bearing on the question whether the em-
ployer may compel such cooperation. Cannerv' Warehouse-
men, supra, holds that employees have freedom of choice as
to whether or not to testify in arbitration proceedings. See
also, e.g.. Steelworkers, Local Union 555() (Redfield C(o.), s.-
pra, 223 NLRB 854; Freight Drivers and Helpers Local
Union No. 557, (Liberty Transfir Co.). supra; United Mine
Workers of America. Local 1859 (American Coal Co.), supra.
Respondent proceeds to a purportedly rhetorical argu-
ment, as follows:
. . .Rhetorically it may be asked, if an employee-
witness has a 'right' to refuse to participate in an inter-
view prior to arbitration, does not this employee also
have a 'right' to refuse to participate as a witness in the
arbitration itself?
In my view, this question is not purely "rhetorical." Absent
a specific provision, contractually or otherwise established.
calling for mandatory process. there is no apparent reason
why any employee (or any nonemployee) may not with im-
punity decline to appear and testify in an arbitration pro-
ceeding. Respondent does not advance any authority to the
effect that it is an inherent prerogative of an employer to
compel his employees to testify in any legal proceedings.
Like any other party litigant, an employer may obtain testi-
mony from unwilling witnesses only though the instrumen-
talities and procedures established by the tribunal in which
the litigation is being conducted.
Respondent also seeks to avoid the discriminatory impli-
11 United Mine Workers of America. ocal 1859 (.4merican Coal (ormpanri
235 NLRB 867. 868 (119781, and cases there cited: Amalgamatrred ramni
Union, Division No 825, AFL ('10 (7ransport of Ner Jerse\J, 240 Nl.RB
1267 (1979)
cations of its position by suggesting that the arbitration pro-
ceeding is "non-adversarial" and Respondent's interviews
with Whitwell and Rittermeyer might lead Respondent to
settle the matter, thus serving a salutary purpose. First, it
should be noted that neither Nulton. Respondent's counsel,
nor any other representative of Respondent indicated to
Whitwell. Rittermeyer. or any union representative that set-
tlement was under consideration. Litigation often leads par-
ties to reassess their positions, leading to settlement. And,
as any experienced lawyer knows, all too frequently settle-
ment discussions are postponed until the very day of hear-
ing. But it has never been held that a party's willingness to
consider settlement in itself confers on that party an en-
forceable right to private interrogation of unwilling poten-
tial witnesses. While the prearbitral grievance procedure
might be considered "non-adversarial."' once arbitration is
invoked the fat is in the fire and the parties are unquestion-
ably "adversaries." 5
One further argument advanced by Respondent remains.
Respondent contends that "[e]ven if there were a right un-
der the Act to refuse to participate in an interview, the
Union has expressly waived this right." In support of this
argument, Respondent refers to article V section I(c). of
the collective-bargaining agreement, covering the third step
in the grievance procedure. So far as here relevant, that
section provides that, if a grievance is not adjusted at the
second step, it will be submitted to the Union's business
representative and the company's labor relations represent-
ative. If the grievance is then denied, "the two representa-
tives will agree on a date to hear the grievance . . . with the
parties involved notified . . . so they may be present if they
so request or their presence is requested by either the busi-
ness representative or such representative of the Em-
ployer." Contrary to Respondent's contention, provision is
made only for the mandatory appearance of the "parties";
there is no provision for compelling the attendance of wit-
nesses. Thus. on the assumption that the Union could law-
fully waive employees' rights, if any, to refuse to submit to
interrogation by their employer concerning matters in dis-
pute between the parties, no such waiver appears in the
present case."
Finally. Respondent apparently argues that the Union
waived any statutory protection there may have been by
withdrawing the allegation. contained in its original charge,
that Respondent violated Section 8(a)(5) of the Act "by
failing to supply" the Union "with information relevant to
its performance as bargaining agent." It is assumed that
Respondent does not intend by this argument to admit that
it violated the Act by its admitted rejection of the request of
union counsel for prehearing access to Respondent's files on
the Thompson matter. It needed not be decided in this case
whether Sections 8(a)(5) and 8(b)(3) create equal reciprocal
rights to prearbitral discovery. See Tool & Die Makers'
I.odge 78, supra, and Printing & Graphic Communications
Union, spra. The sole issue here presented is whether an
'1 No opinion is here expressed on this question.
" In this case Whitwell and Rittermeyer submitted to questioning by Re-
spondent's counsel. So tar as appears, Respondent never proposed a settle-
ment or expressed a desire lo discuss settlement. Whitwell and Rittermeyer
testified in the arbitration proceeding here Respondent was the victor.
i' Respondent does not claim any "waiver" based on the parties' practice
under their coillective-bargaining agreements over the past 40 years.
652
('OOK PAINT & VARNISH CO.
employer has a right enforceable by threat of discharge or
other discipline to require an employee to cooperate in the
employer's preparation for arbitration of a grievance. And.
since the Board has never recognized any right in employ-
ers to demand employee cooperation in preparation for ar-
bitration, there is no occasion to consider Respondent's fur-
ther contention that a decision in favor of the General
Counsel would improperly "give retroactive effect to the
General Counsel's newly-found 'right' of an employee to
refuse to participate in an interview."
Respondent refers to a decision by Administrative Law
Judge Roger B. Holmes, in Pacific Southwest Airlines, In..
242 NLRB 1169 (1979) as holding that an employer may
threaten to and actually impose discipline on employees for
refusing to participate in interviews in the course of the
employer's preparation for arbitration. It is not accurate to
say that Administrative Law Judge Holmes did make any
such ruling under the Act; what he did hold was that an
arbitrator's decision based on such a ruling "is not 'clearly
repugnant to the purposes and policies of the Act,' and that
the Board should defer to the decision of [the] Arbitrator
... in accordance with the Board's decisions in Spielherg[i'J
and The Kansas City Star Companyv. "I In the instant case
Whitwell and Rittermeyer yielded to Respondent's threats,
so no discipline was meted out to them. Thus, the issue here
involved was never made the subject of a grievance or arbi-
tration. Accordingly, Judge Holmes' decision is not strictly
applicable in the present case.
But there is no question that the arbitrator's decision to
which Administrative Law Judge Holmes deferred does
support the present Respondent's position.'9 In the Pacific
Southwest Airlines case the arbitrator said:
It is almost routine for a union or an employer advo-
cate lawyer or not-to go to the locale of a pending
arbitration a day or two before a scheduled hearing in
order to interview witnesses and plan the details of the
morrow's presentation. It is not all unusual for that
pre-hearing occasion to be the first time that the advo-
cate has had the chance to get firsthand accounts of
witnesses, to identify possible discrepancies among
their accounts, to press them as a cross-examiner is apt
to, to observe their demeanor and evaluate their credi-
bility, to assess the potential influence on the course of
the hearing of what they have to say and how they are
apt to say it in the context of the hearing.
Contrary to the impression expressed by the Union
representatives and the potential witnesses in this case.
that kind of encounter immediately before a hearing is
1 Spielberg Manufacturing Company., 112 NLRB 1080 (1955).
s The Kansas Ca(v Star Comnpan, 236 NLRB 866 1t978).
" There may have been one significant distinction between the Iwo situ-
ations, namely, that in Pacific Southwest Airlines the witnesses involved had
been subpenaed to testify in the underlying arbitration, whereas there is no
evidence in the present record concerning the availability of subpenas or
other mandatory process in the arbitration. In any event, the possible exis-
tence of subpenas appears to have been unimportant in the arbitrator's con-
sideration: he said 242 NI.RB 1169):
.. The Company asserted that it had secured subpoenas from the
selected arbitrator to compel the testimony of each of these three em-
ployees at the projected August 24 arbitral hearing, although neither the
subpoenas nor testimony relative to them was introduced in evidence
here.
simply not in itself a 'dirty pool' situation. Instead. it is
an important part of the administrative of the griev-
ance procedure. It is bS no means unusual for cases to
be settled on the day or even the hour before the
hearing is to convene based on the advocate's last-min-
ute, eye-opened assessment of the significance of these
pre-hearing contacts.
With all due respect to the arbitrator in that casc. I suggest
that general acceptance of his iew w ould make a sham of
the prearbitral grievance procedures carefully spelled out in
most union contracts: if the parties know that they can lose
nothing by postponing their investigations until the griev-
ance step, they will tend to take unyielding positions, post-
poning bona fide, thoughtful consideration. The result will
inevitably be delays. the avoidance of which is a major pur-
pose of grievance and arbitration provisions. As set forth
above, in the calendar year 1977. the present Respondent
and the Union disposed of 83 grievances, with one reaching
arbitration. It appears most unlikely that any such salutary
result could be attained if the parties were encouraged to
postpone serious consideration of grievances until they had
ascended the courthouse stairs. With lawyers' apparently
inherent tendency to procrastinate being a major problem
in judicial administration, it would be anomalous, at the
least, to foster such course affirmatively in arbitration.
As noted above, in this phase of the case Administrative
Law Judge Holmes' decision in Pacific Southwest .4irlines
merely held that the arbitral award was not clearly repug-
nant to the policies of the National Labor Relations Act.
That precise issue is not presented in the instant case. How-
ever, to the extent that Administrative Law Judge Holmes'
decision may be read as approving the arhitrator's decision,
I respectfully disagree. In Johnni's Pourn, Co., 146 NLRB
770 (1964), enforcement denied on other grounds, 344 F.2d
617 (8th Cir. 1965)., the Board approved a limited amount
of interrogation by an employer concerning his employees'
exercise of Section 7 rights in the preparation for an unfair
labor-practice proceeding. However, strict limitations were
imposed, including, perhaps most importantly, a require-
ment that the employer must obtain the employee's "par-
ticipation on a voluntary basis." In Pacific Southwest Air-
lines, Administrative Law Judge Holmes said: "I am not
persuaded that the Board meant to extend these Johnnies
Poultry safeguards to the pre-arbitration hearing prepara-
tion which was engaged in by the company attorney in this
case." The basis for this conclusion is unstated. Since it is
well established that the prosecution of grievances under a
collective-bargaining agreement is protected concerted ac-
tivity,2 it would appear to follow that invasions into that
realm should be as strictly limited as are incursions into any
other Section 7 rights.
I have been administratively informed that Pacific South-
west Airlines is now pending before the Board on exceptions
filed by both the General Counsel and Respondent.?' Judge
Holmes' decision is not binding on me either as to its hold-
ing or as to any rationale or dictum contained therein.
Accordingly, cn the foregoing considerations. I find and
2 N.L.R B v Pete Cailler Kohler Siiss (Chocolates Contyanml, Inc, 130
F.2d 503. 505 506 (2d (ir. 1942).
2 Respondent's exceptions presumabl refer to an addtional portion of
the decision concerning an issue not raised in the present c:se
653
I):('lSIONS OF NA'IIONAI IABOR RELA IIONS BOARI)
conclude that, as alleged in the complaint, Respondent im-
properly coerced employees Rittermeyer and Whitwell
when it threatened them with discipline if' they refused to
cooperate by providing information to Respondent in the
course of its preparation for arbitration of employee
Thompson's discharge.
2. Shop steward's position
Even ift' it were to be held that Employees generally may
not refuse to be interviewed by their employers in prepara-
tion for arbitration of a grievance, such rule could not ap-
propriately be applied to Whitwell, who was the shop stew-
ard in Thompson's department. Under the collective-
bargaining agreement, Whitwell was to serve as Thomp-
son's representative, at least in the first two steps of the
grievance. As a matter of fact, along with Nash, the union
business representative, and Reinhold, union counsel, Whit-
well participated at all stages of' the grievance. Whitwell's
position is-a-vis Thompson thus was at least "quasi-fidu-
ciary." If Whitwell had arbitrarily failed to present Thomp-
son's position in the best light, the Union would have been
guilty of failing to provide fair representation. Respondent's
contention that Whitwell, as an employee, was required to
assist Respondent in its preparation for arbitration would
place him in a position of sharp conflict of interests. In
effect, Respondent would place him in the position of hav-
ing to choose between defending his own job or Thomp-
son's. It is inconceivable that the law would compel, or even
countenance, such conflict of interests. While Whitwell was
both an employee and a union steward. he could not be
compelled to serve simultaneously in both capacities when
they were in conflict. His function as a union steward under
the collective-bargaining agreement must take precedence
over his role as an employee if it is assumed, as Respondent
maintains, that employees may be compelled to cooperate
with the employer in preparation for arbitration of a dis-
pute with the union. To compel Whitwell to cooperate in
Respondent's preparation for arbitration would be to dens
Thompson the union representation to which he was enti-
tled."22
Respondent argues that if a union steward is "immune
from interview as to things which he may have seen or
heard while on duty as a unit employee . . . there is a very
real likelihood that unions would empower each unit em-
ployee as a union steward, so as to immunize them from
investigative interview." On its face Respondent's specula-
tion is unrealistic, because, if for no other reason, no union
would risk the potential danger of being held responsible
for and bound by the conduct of every rank-and-file mem-
ber. Nor would the union be able to provide permissible
"super-seniority" for stewards.
Unions and employers are legally bound to deal with
each other in good faith. A union could not make an em-
ployee a union steward simply by giving him that title.
Sham stewardships can be readily discerned. In the pre-
2 Obviously, a different situation would be presented if Whitwell himself
were the object of possible discipline as an employee.
23 The question is not unlike those involved in determining alleged supervi-
sory status.
sent case it is sufficient to observe that Whitwell was the
steward in hompson's department and Thompson con-
sulted Whitwell several times in the course of the events of
February 3 which led to the discharge and subsequent mul-
tithceted dispute.
Accordingly, even if' it were held that an employee may
be compelled to cooperate in his employer's preparation for
arbitration, Whitwell would be excluded from such require-
ment since he was duty bound to serve Thompson's inter-
est. Thus, Respondent violated Section 8(a)( } of the Act
when it threatened Whitwell with discipline i' he refused to
submit to questioning by Respondent concerning Thomp-
son's conduct. This conclusion applies equally to Respon-
dent's demand for notes made by Whitwell concerning the
Thompson matter. Those notes were clearly made in the
course of W'hitwell's stewardship.
Co(N(I.I1 SI()NS (t ILAW
I. Respondent, Cook Paint and Varnish Company, is an
employer engaged in commerce within the meaning of Sec-
tion 2(2). (6). and (7) of the Act.
2. The Union, Paintmakers and Allied Trades Local 754
affiliated with International Brotherhood of' Painters and
Allied Trades, AFL CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. On April 21 and 24, 1978, Respondent interfered with,
restrained, and coerced its employees in the exercise of' the
rights guaranteed them in Section 7 of' the Act by threaten-
ing employees Jesse Whitwell and Douglas Rittermeyer
with disciplinary action if' they refused to be interviewed by
Respondent's counsel or other representatives concerning
an incident which was the subject of a grievance and had
been scheduled for an arbitration hearing.
4. On April 21 and 24. 1978, Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of' the Act by threaten-
ing union shop steward Jesse Whitwell with disciplinary
action if he refused to be interviewed by Respondent's
counsel or to provide Respondent with notes taken by him
regarding an incident occurring on February 3. 1978, which
was the subject of a grievance scheduled fi)r an arbitral
hearing.
5. The aforesaid conduct constitutes unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)( 1) of the Act.
Til RIMEI)Y
Since it has been found that Respondent has committed
unfair labor practices, it will be recommended that Respon-
dent be ordered to cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act,
as is customary in cases such as this.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
654
CO()K PAINT' & VARNISH (CO.
ORDER 2 4
The Respondent. Cook Paint and Varnish Company,
Kansas City, Missouri, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with disciplinary action for
refusal to submit to interrogation by Respondent's counsel
or other representatives concerning the matters involved in
a grievance as to which arbitration has been invoked.
(b) Threatening a union shop steward with discipline for
refusing to submit to questioning by Respondent's counsel
or other representative, or to submit written material, con-
cerning any matter concerning an employee whom the
steward is contractually bound or authorized to represent in
a grievance or arbitration.
(c) In any like or related manner interfering with, re-
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
straining, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act,
2. 'Take the following affirmative action designed to ef-
tecluate the policies of the Act:
(a) Post at its plant No. 3 in North Kansas ('it. Mis-
souri, copies of the attached notice marked "Appendix." 2'
Copies of' said notice, on forms prov.ided hb the Regional
l)irector for Region 17. after being duly signed by an au-
thorized representatie of Respondent. shall he posted by
Respondent immediately upon receipt thereof' and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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 writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith.
2' 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 hb Order of
the National Labor Relations Board" shall read "Posted Pursuant IO a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board "
655