Detroit Edison Co.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 622 (N.L.R.B. 1975)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Detroit Edison Company andLocal 223, Utility Work-
ers Union of America, AFL-CIO. Case
7-CA-10761
April 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On June 21, 1974, Administrative Law Judge Robert
E. Mullin issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief.
On February 26, 1975, following the Supreme
Court's decision in N.L.R.B. v. J. Weingarten, Inc., and
International Ladies' Garment Workers' Union, Upper
South Department AFL-CIO v. Quality Manufacturing
Company,' the parties were advised that statements of
position could be filed with the Board with respect to
the impact of the Supreme Court's decisions, supra, on
the instant case. On March 17, 1975, Respondent filed
a statement of position.
Pursuant to the provisions of Section 3(b) of the
National Labor Ralations 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 brief and
the Respondent's statement of position and has decided
to affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, the Detroit Edison Company, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order.
' 420 U.S 251, and 420 U S. 276, respectively, decided February 19,
1975
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on March 29, 1974, in Detroit, Michigan, pursuant
to a charge duly filed and served,' and a complaint issued
on February 13, 1974. The complaint alleges that the Re-
spondent violated Section 8(a)(1) of the Act in refusing to
permit a union representative to be present while an employee
was being interrogated by'company security personnel. In its
answer, duly filed, the Respondent conceded certain facts
with respect to its business operations, but it denied all allega-
tions that it had committed any unfair labor practices.
At the trial, the General Counsel and the Respondent were
represented by counsel. All parties were given full oppor-
tunity to examine and cross-examine witnesses, and to file
briefs. The parties waived oral argument. A brief was submit-
ted by the General Counsel on April 29, 1974, and by the
Respondent on May 2, 1974. Upon the entire record in the
case, including the briefs of counsel, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent corporation, organized under, and exist-
ing by virtue of, the laws of Michigan and New York, has its
principal office and place of business in Detroit, Michigan,
where it is engaged, as a public utility, in the production, sale,
and distribution of electrical power, steam, and related prod-
ucts. During the calendar year 1973, a representative period,
the Respondent purchased from outside the State of Michi-
gan and had shipped directly to its Michigan facilities sup-
plies and equipment valued in excess of $5 million. During
the same period, the Respondent sold electrical energy valued
in excess of $250 million to customers within the Detroit
metropolitan area, including the Ford Motor Company,
Chrysler Corporation, and General Motors Corporation. An-
nual gross revenue from these last described services ex-
ceeded 350,000. Upon the foregoing facts, the Respondent
concedes, and I find, that The Detroit Edison Company is
engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Local 223, Utility Workers Union of America,
AFL-CIO, herein called Union, is, and has been, at all times
material a labor organization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent and the Union have had collective-bar-
gaming relations for many years. The current agreement,
which has a maintenance of membership provision, is effec-
tive until June 9, 1975. It also has a conventional automatic
renewal clause.
In late October 1973,2 the Respondent initiated an inves-
tigation of a travel reimbursement claim submitted by em-
ployee Richard D. Logan On November 5, the Respondent
notified Logan that he was being suspended for 3 days, al-
legedly for having submitted an altered meal check receipt to
defraud the Company. Prior to November 5, various supervi-
sory and investigatory personnel met with Logan on the mat-
ter of the altered meal check. It was not until November 5,
however, when Logan was summoned to a conference at
' The charge was filed on November 28, 1973
2 All dates hereinafter are for the year 1973 unless otherwise indicated
217 NLRB No. 96
DETROIT EDISON COMPANY
which he was informed of his suspension, that he was permit-
ted to have a union representative present when he met with
management. The General Counsel contends, and the Re-
spondent denies, that by this course of action the Respondent
violated Section 8(a)(1) of the Act.
B. The Facts -
The facts herein are largely undisputed. At the time in
question, Logan was a steam meter inspector at the Respon-
dent's Warren Service Center. On that job he spent from 75
to 80 percent of his working time away from the branch
headquarters. During the week of October 22, Logan and one
Newton, a coworker, were engaged on a project that was
generally referred to in the record as "the Vassar job."3 On
October 29, the following Monday morning, Almont P.
Palmer, supervisor of the steam meter division, and Logan's
immediate supervisor, asked that Logan submit his time slips
for the preceding week. When he did so, Logan also submit-
ted a claim for reimbursement as to a restaurant meal that he
claimed he had paid for while on the Vassar job. Shortly
before closing time that afternoon, Palmer summoned Logan
to his office. After Logan arrived, Palmer told him that they
would proceed to a conference room in an adjoining building.
On the way to the conference room, the pair encountered
Robert Jackson, union steward for the division. Logan testi-
fied that when this occurred he asked Jackson to accompany
him to the meeting. Jackson testified that after he indicated
that he would accede to this request, Palmer prevented him
from doing so by ordering that Jackson return to his work for
the remainder of the shift. Although Palmer testified that
neither he nor Logan engaged in any conversation with Jack-
son, I conclude that as to this conflict in the testimony Jack-
son and Logan were the more credible.
During the conference, Palmer questioned Logan as to why
his time slips reflected an extra 30 minutes of work as com-
pared with the record of his colleague Newton. Logan ex-
plained that it was because he had worked through his lunch
hour and thereby qualified for an extra 30 minutes pay pursu-
ant to a provision in the collective-bargaining agreement.
According to Logan, his supervisor accepted this explana-
tion. Palmer acknowledged having done so and that at the
time he told Logan "Fine, that explains it,",after which he
went on to the other topic that he wanted to discuss with the
employee.
The latter subject involved Logan's claim for reimburse-
ment for a meal at the Golden Lion, a restaurant at Seven
Mile Road and Mack, on October,24.4 Palmer testified that
after Logan submitted the meal check that morning he
became suspicious of the documentation because the date of
October 24 was written over a figure 27. According to Palmer
on telephoning the restaurant to ascertain when the meal had
been purchased, the cashier there told him that the serial
number of the check indicated that it was for a meal that had
been served on October 27, a Saturday. Palmer testified that
he thereupon went to the restaurant where he secured the
The record is silent as to whether this project was located in Vassar,
Michigan, or only in that general vicinity The town of Vassar is approxi-
mately 75 miles from Detroit.
" This restaurant was about 2-1/2 to 3 hours driving time away from
Vassar where Logan had worked on the day in question.
623
duplicate copy of the meal check which Logan had given him
that morning and in so doing found that the copy supplied
by the Golden Lion demonstrated that the meal had been
bought on October 27 rather than the 24th. Palmer testified
that he told Logan that he did not believe his story that the
meal in question had been bought on Wednesday, October
24.5 Logan testified that when Palmer told him that it ap-
peared that he had submitted a fraudulent ticket, he (Logan)
concluded the meeting and left the room with the declaration
"Hey, that's it. I 'm getting out of here."
On or about October 31, Palmer met with Charles Mills,
his immediate superior, William Yelton, assistant superm-
tendent of the meter department, William Lang, a representa-
tive of the union relations department, and Donald Bluhm,
administrator of the investigations division in the security
department. Palmer testified that the meeting was called to
determine whether the security department should check into
possible fraud in connection with the meal ticket from the
Golden Lion. According to Palmer, at this meeting it was
decided that Bluhm's department should investigate the meal
check in question. He further testified that this was the first
such meeting that he had ever attended. According to Bluhm,
there was no discussion of discipline at this conference.6
When Logan reported for work on the morning of Novem-
ber 1, Palmer introduced him to James B. Taylor, a represen-
tative of the security department, and told him that he would
have to accompany Taylor "downtown to give a statement to
straighten . . . out this thing in Vassar." Logan immediately
told Palmer that he wanted union representation at any such
meeting. Palmer told him that he could not have it and to
emphasize the necessity that Logan accompany Taylor at
once, Palmer told him that in the event Logan did not do so
he could receive "very severe disciplinary action." Logan
again asked for union representation and after Palmer once
more told him that he did not need it, Taylor gave a similar
answer and added that no union representation was required
because the security department had no authority to disci-
pline anyone. Logan finally said that he would go with Tay-
lor, but added that at any meeting in the security department
"I won't open my mouth."7
On arrival at the headquarters of the security department,
located in the Respondent's general office building in down-
town Detroit, Taylor introduced Logan to Bluhm. According
to Logan, Bluhm stated that the meter department had asked
that he secure a statement from him as to the Vassar incident.
Logan testified that he told Bluhm that he had asked for
union representation three times in connection with the inves-
tigation. According to Logan, Bluhm thereupon stated,
"[the contract] is very explicit. You do not get it [union
representation] unless you are being disciplined . . . You are
not being disciplined. We just want a statement from
you."' Thereafter Logan discussed the matter of the meal
5 The claim was for $20
6 Palmer testified that this meeting was held on October 30, whereas
Bluhm testified that the date was October 31 Bluhm, however, seemed to
have a more accurate recollection of the time when it occurred.
7 The quotations in this paragraph are from Logan's testimony which was
credible and substantially corroborated by that of Palmer and Taylor
8 Bluhm testified that prior to entering the conference room with him,
Logan did not request union representation . On the other hand, he did not
deny having made the above quoted comments which Logan, in his tes-
timony, attributed to Bluhm.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticket with Bluhm and during the course of the conference
told him that he and his wife had been to the Golden Lion
for dinner on October 27. After their discussion had been
under way for some while, Bluhm secured a stenographer
who took a statement from Logan. After she had transcribed
her notes, Logan was shown the statement. He did not sign
it, but he initialled a number of corrections that he made on
the finished product. Upon the conclusion of the meeting,
Logan was given a ride back to the Warren Service Center
where he resumed work.
Late on the afternoon of November 5, Palmer told Logan
he wanted him in the office and that, since disciplinary action
was contemplated, Logan could have union representation.
Union Steward Jackson was then summoned and the three
thereupon went to the office of Charles Mills, supervisor of
the meter standards, materials, and steam division. At the
outset of the meeting Mills handed Jackson a notice of disci-
plinary action pursuant to which Logan was being suspended
for 3 days, effective on November 6, allegedly for having
submitted an altered meal receipt in support of a reimburse-
ment claim .9 Logan testified that when he was handed the
disciplinary notice he protested that it was inaccurate and left
the room, without any discussion of the matter. Jackson re-
mained to protest the basis for the action being taken against
Logan, but without effect. Palmer testified that when Logan
was called to the meeting that day the decision had already
been made to discipline the employee.10
CONCLUSIONS OF LAW
In Quality Manufacturing Co., 195 NLRB 197 (1972), en-
forcement denied 481 F.2d 1018 (C.A. 4, 1973), the Boarct
held that an employee ordered to meet with her employer
under circumstances that caused her to have reasonable
grounds to fear that her job was in jeopardy had a right to
have a union representative present and that for an employer
to deny her request was a violation of Section 8(a)(1) of the
Act.
In Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce-
ment denied 482 F.2d 842 (C A. 7, 1973), employees were
questioned as to their suspected role in a company theft.
When the objective of the interview became apparent they
requested union representation but it was denied. In keeping
with its decision in Quality, supra, the Board held that by this
action the employer violated Section 8(a)(1). In a later case,
J Weingarten, Inc., 202 NLRB 446 (1972), enforcement de-
nied 485 F.2d 1135 (C.A. 5, 1973), an employee was ques-
tioned by an employer's security agent as to a theft of com-
9 In the notice of this action, Logan was charged with having submitted
a $20 claim for reimbursement that was supported by a meal ticket from the
Golden Lion Restaurant which was originally dated October 27, a Saturday,
but on which the date of October 24, a Wednesday, had been superimposed.
i0 The parties stipulated that Logan subsequently filed a grievance pro-
testing the disciplinary action which was taken against Logan This was still
pending at the time of the hearing in the instant case. However, no grievance
was filed to protest the denial of the union representation to Logan The time
for filing such a grievance, pursuant to the provisions of the contract, expired
without the Union, or Logan, having taken any action Counsel for the
Respondent stated at the hearing that in the event the Union subsequently
sought to file a grievance on the latter issue, the Company could, and would,
object to such action for failure to comply with the contractual requirement
on timeliness. Consequently, there is no Collyer issue here The Detroit
Edison Company, 206 NLRB 898, 899-900 (1973)
pany property. A request by the employee'-for union
representation was denied by the security agent. The Board
held that the employee had reasonable grounds to fear that
her job was endangered soon after the security agent began
questioning her about possible dishonesty and that the action
of the security-agent in denying her request for union repre-
sentation constituted a violation of Section 8(a)(1). The
Board further held that it was immaterial that the security
agent himself did not have the power to discipline the
employee."
On October 29, Supervisor Palmer told Logan that he did
not believe Logan' s explanation regarding the apparent alter-
ation of a meal ticket which the latter submitted for reim-
bursement. On November 1, Palmer notified Logan that the
employee was to report to the downtown headquarters for an
interview with the head of the Respondent's security depart-
ment "to give a statement to straighten . . out this thing in
Vassar a r . Logan, whose request that the union steward
accompany him on his first meeting with Palmer on October
29 had been denied, again requested union representation of
both Palmer and Security Agent Taylor, the latter being the
one who was to accompany Logan to the Respondent's down-
town headquarters. In each instance, Logan's request was
denied, first by Palmer and then by Taylor. When Logan
reached the office of Bluhm, head of the investigation divi-
sion, he renewed his request for union representation and
Bluhm likewise denied it on the ground that he had no au-
thority to discipline Logan. Nevertheless, at the outset of the
conference with Bluhm the latter told Logan that the meter
department wanted him to secure a statement from Logan as
to the Vassar incident. Consequently, it was apparent to Lo-
gan that although Bluhm might have no power to discipline
him, Bluhm's report of the interview was destined for Logan's
superiors in the meter department who clearly had such au -
thority.
On November 5, when Logan was summoned to a meeting
with his superiors and the union steward was permitted to be
present, the decision to discipline the employee was a fait
accompli. At that point the presence of the steward could be
of little, if any, assistance. It was as if counsel for the accused,
instead of being allowed at the arraignment and throughout
the trial of a case, was permitted to be in the courtroom only
after the jury had brought in a verdict of guilty and to hear
the court pronounce the sentence.
In its brief, the Respondent has relied upon the opinions
of the circuit courts which have disagreed with the Board's
doctrine on the issue here involved. N.L.R.B. v. Quality
Manufacturing Co., supra; N.L.R.B. v. Mobil Oil Corporation,
supra; and N.LR.B. v. J Weingarten, Inc., supra. Insofar as
these latter opinions conflict with the Board's position, the
Administrative Law Judge is bound to follow the Board. In
an earlier day the Board reminded the trier of the facts, at
times sharply, that "it is not for a Trial Examiner to speculate
as to what course the Board should follow where a circuit
court has expressed disagreement with its views." Insurance
Agents' International Union, AFL-CIO, 119 NLRB 768,
I' "To Collins [the employee], the possibility of discipline was just as real
whether the discipline that might be visited upon her was imposed immedi-
ately by Hardy [the security officer] and/or York [the store manager], or at
some future time by the president of the Company." Weingarten at p 449,
JD.
DETROIT EDISON COMPANY
772-773 (1957), reversed on other grounds 361 U.S. 477
(1960). Novak Logging Company, 119 NLRB 1573,
1575-76 (1958). Consequently, and in accordance with the
Board's decisions cited above, it is my conclusion that on
November 1, 1973, the Respondent violated Section 8(a)(1)
of the Act by the refusal of its agents to permit employee
Logan to have union representation when he was interviewed
by Bluhm, the Respondent's security officer.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices it will be recommended that it be required to cease
and desist therefrom, and take certain affirmative action de-
signed and found necessary to effectuate the Act.
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, there is
issued the following recommended:
ORDER12
The Respondent, The Detroit Edison Company, its offic-
ers, agents, successors and assigns, shall:
1. Cease and desist from:
(I) Requiring any employee to take part in an interview or
meeting without union representation, if such representation
has been requested by the employee and if the employee has
reasonable grounds to believe that the matters to be discussed
may result in his being subject to disciplinary action.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Section 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.
625
(a) Post at its facilities in the Detroit, Michigan, metropoli-
tan area, copies of the attached notice marked
"Appendix."13 Copies of said notice, to be furnished by the
Regional Director of the Board for Region 7, after being
signed by an authorized representative, shall be posted by it
immediately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, delfaced, or covered by any other material.
(b) Notify the aforesaid Regional Director,' in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
13 In the event the Board's Order is enforced by a Judgement of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant 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
WE WILL NOT require that any employee take
part in an interview or meeting without union rep-
resentation if the employee requests such represen-
tation and if the employee has reasonable grounds
to believe that the matter to be discussed at such
interview or meeting may result in his being sub-
ject to disciplinary action.
THE DETROIT EDISON COMPANY