Exxon Co.Download PDFNational Labor Relations Board - Board DecisionsMar 23, 1976223 N.L.R.B. 203 (N.L.R.B. 1976) Copy Citation EXXON COMPANY Exxon Company , U.S.A. and Industrial Employees Association, Inc. and Gilbert Conde . Cases 29-CA- 4338 and 29-CA-4340 March 23, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On December 17, 1975, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Exxon Company, U.S.A., 320 Freeman Street , Brooklyn, New York, its officers, agents, successors , and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE RICHARD L . DENISON, Administrative Law Judge: This case was heard at Brooklyn , New York, on September 8, 1975. The charge in 29-CA-4338 was filed by the Industri- al Employees Association , Inc. on May 2 , 1975, alleging violations of Section 8(a)(1) and (5) of the Act by Respon- dent . The charge in 29-CA-4340 was filed on May 2, 1975, by Gilbert Conde, an individual , alleging violations of Sec- tion 8(a)(1) and (3) of the Act. Since both charges related to an identical set of circumstances, an order consolidating cases, complaint and notice of hearing was issued on June 30, 1975. The complaint was limited to two allegations: (1) that on various dates during the months of November and December 1974 Respondent denied the request of the Union and the various employees that the Union's repre- sentative be permitted to be present during investigatory interviews with employees ; and (2) that on various dates during November 1974 Respondent , through its supervisor 203 Frank Giles, threatened employees with discharge and other reprisals if they refused to participate in investigatory interviews without a representative of the Union being pre- sent.' Respondent's answer denied the allegations of unfair labor practices alleged in the complaint. All parties were afforded a full opportunity to participate in the hearing. The Charging Party Union and the Respondent filed briefs which have been carefully considered. Upon the entire rec- ord and from my observation of the demeanor of the wit- nesses , I make the following: FINDINGS OF FACT 1. JURISDICTION Exxon Company, U.S.A., the Respondent, is a New Jer- sey corporation with its principal office and place of busi- ness at Houston , Texas . Respondent maintains a plant lo- cated at 320 Freeman Street, Brooklyn, New York, where it is, and has been at all times material herein, engaged in the manufacture, sale; and distribution of gasoline, petroleum products, and related products. During the past year, a representative period, Respondent purchased and received at its Freeman Street plant gasoline and other goods and materials valued in excess of $50,000 directly from points outside the State of New York. During the same period of time Respondent manufactured, sold, distributed, and shipped products valued in excess of $50,000 directly to points outside the State of New York. As admitted in the answer, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Industrial Employees Association, Inc., hereinafter re- ferred to as the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Under the terms of the collective-bargaining agreement between Respondent and the Union for the period May 1, 1973, to April 30, 1975, certain "posted offenses" are listed in "Schedule D" of that agreement as conduct for which an employee may be dismissed or otherwise disciplined with- out notice. Among the itemized list of proscribed conduct appears the following:2 1. General a. Committing a crime on company time or proper- ty or committing a crime anywhere at any time which is punishable by death or imprisonment in a penitentiary. s Hereafter , all dates are in 1974 unless otherwise specified. a Copies of the collective -bargaining agreement had been distributed to all unit employees, including those who testified in this proceeding. These offenses were also posted in Respondent 's plant. 223 NLRB No. 24 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Damaging company property, or damaging the property of others on company time or property, on purpose or through negligence. q a s q 2. Dishonesty a. Stealing from the Company, or stealing from others on company time or property. b. Making a statement to the Company, which he does not believe to be true . For example : Making false statements in connection with employment, medical history , investigation of accidents, etc. c. Offering or accepting anything of value in ex- change for a job, work assignment, work location or other favorable condition of employment. s s s e. Substituting a product. s * n 3. Insubordination 11 q s s c. Refusing a company request to answer a ques- tion in the investigation of an accident. During the fall of 1974 security employees of Respon- dent commenced an investigation to determine whether or not its gasoline truckdrivers and dispatchers were engaged in an unlawful arrangement with certain service station op- erators whereby, in return for appropriate compensation, the drivers reportedly delivered regular grade gasoline to the stations' high test tanks . George S . Oed, plant operator at the Brooklyn plant and president of the Union, first learned of this investigation from Company Attorney Ma- honey on November 5. Mahoney told Oed that the New York state operations manager, Mr. Clements , wanted to talk to Oed about the matter . After telephoning Clements, Oed met with him that afternoon at the Company's region- al office in Pelham , New York. Clements said that as the result of a single dealer complaint , a big investigation has taken place , and that a number of drivers in Brooklyn were involved in dishonesty . Clements refused to identify the suspects . Clements stated that on that very day 20 dealers were being interviewed at the Brooklyn plant , and that the employees would be interviewed the following day. Cle- ments described the dishonesty as the adulteration of gaso- line. Following this meeting Oed called Anthony Levan- dowski , and John Martin , James Holden , and John Wheeler, employee union representatives at the Brooklyn plant , and informed them of the conversation with Cle- ments . Upon reporting for work at 7:15 a.m. on November 6, Oed called Labor Relations Coordinator John C. Fisch- er, and asked if any of the employee union representatives were involved in the investigation . Oed explained that he wanted to avoid embarrassing the Union "by having a rep- resentative called out of a meeting and told, `You are next' " Fischer called back at a later time and suggested that Oed have Wheeler accompany him in his meetings with the Company concerning this matter. Oed then con- tacted Wheeler and together they proceeded upstairs to the terminal office where the Union was allowed to use an empty desk in the outer office during the initial phases of the investigation. Oed and Wheeler arrived at the Company's offices and found the investigation already in progress . The first em- ployee interviewed was Mike Macintosh. Oed succeeded in getting him to leave the interview room where privately the union representatives advised him to ask for union repre- sentation during this meeting . Macintosh stated he would do so. Next Wheeler and Oed proceeded to the office of George Carse, the terminal superintendent. Oed and Wheeler told Carse that they wished to be present during the interviews that were being held with their employee members. Carse refused, stating that they would be permit- ted to attend any interviews involving discipline, but not interviews for investigatory purposes. Oed and Wheeler had several meetings with Carse during the course of the morning, and at one of these meetings Carse stated that any employee who refused to submit to an interview would be subjected to disciplinary action. Approximately eight interviews were conducted on the first day of the investigation. During this time and on other days during the investigation, until forced to move, Oed and Wheeler remained stationed at the desk in the outer office, 15 to 20 feet from the interview site, from which point they could see the employees entering and leaving. As the employees entered the union representatives suc- ceeded in speaking to many of them. They advised those to whom they spoke not to sign any statements , and, concern- ing anything that was asked them of an incriminating na- ture, not to answer without being permitted to have their union representative present . Oed and Wheeler also ex- plained briefly to these employees that the investigation invoved the adulteration of gasoline at certain New York City stations. Oed estimated that out of some 43 employees interviewed they succeeded in speaking to 37 or 38. Ac- cording to Oed and Wheeler they were later permitted to attend all the disciplinary interviews at which employees were either suspended or discharged.4 According to Oed, at each of the suspension interviews a company investigator stated that the employee was possibly involved in a mixture of product at stations and therefore was being suspended pending the completion of the investigation. At the dis- charge interviews employees were told they were being ter- minated for a violation of the posted offenses in the con- tract. Respondent's investigation, as described above, continued through the remainder of November and into December 1974. The last discharge date specified on the Rider to General Counsel's Exhibit 1(b) is December 19. 3 At a later time , during the course of the investigation , after the union representatives had managed to speak to and give advice to certain of the affected employees, union officials were moved to other office space at the end of the building where they could not see or talk to anyone entering or leaving the investigative interviews. 4 Those employees suspended were Bob Betsch , Jerry D 'Agostino, Ray Melcer, Frank Colasuonno , Bill Trotter , Richard Cassaliggi, Joe Nocerino, Bob Schank , Jack Jackson, Joe Montefinesse , George Cakoganis, Gil Conde, Bob Twibel , Henry Hulst, John Martin, and Michael Macintosh. The employees discharged (either outright or following a suspension) were: Ed Kenny, Dan Ryan , David Delimonico , Thomas Slaski, and Larry Fen- sore. EXXON COMPANY 205 John P. Wheeler, a heating oil dispatcher and employee union representative , testified concerning his accompani- ment of Oed to the Company's offices during the investiga- tive period. Wheeler corroborated Oed's testimony, specifi- cally stating that Carse refused the Union's request to be present during the investigative interviews and told them that, if an employee refused to cooperate with the investi- gators, disciplinary action would be taken against him. Employees John T. Martin, Henry J. Hulst, David Deli- monico, Robert Twibel, and Lawrence Fensore, all of whom were interviewed during the course of the investiga- tion , testified in substance that they had some advance in- formation concerning the nature of the investigation, that they requested to be allowed to have their union represen- tative present during their investigative interview, that this request was denied, and that they were told that if they persisted in taking this position or refused to cooperate without a union representative present they would be disci- plined. Martin learned of the investigation from Oed while ac- companying him at the same meeting at which Oed and Mahoney first spoke of this matter. Concerning his individ- ual role in the investigation , Martin testified he was taken to the office by Frank Giles, the dispatch supervisor. After requesting and being denied union representation by Giles, Martin asked what would happen if he insisted on it. Giles replied, "Well, you could be terminated." Under these cir- cumstances Martin agreed to be interviewed after which he was suspended for posted offenses l.a, 2.a.b., and 3.c. Ac- cording to Martin he was recalled approximately Decem- ber 17 or 18 and again asked to talk to the investigators. This time Martin refused to talk to them without the Union being present , whereupon the union officials were called in and Martin was discharged. Martin further testified that following his interview he spoke to employees Betsch, Hol- den, MacIntosh, Twibel, and others prior to their own in- terviews and informed them concerning the nature of his interview and that he had been suspended. Henry J. Hulst testified that he first heard about the investigation by means of a phone call from Harry Laza- rus, an employee friend, who telephoned Hulst on a Wed- nesday night, his day off. Lazarus informed Hulst that an investigation was going on and that some men had been fired and others suspended. Hulst next reported for work on Friday at 4:45, at which time John Martin informed him that the Company wanted to see him. Hulst went to see Giles in his office. Hulst requested to have the Union present, but this request was denied. Giles added, "If you don't want to cooperate and face them alone you're going to be terminated immediately." Hulst responded, "I really have no decision-I guess I have to go ." Hulst was inter- viewed by the investigators following which he was taken to George Carse's office. At this point the union represen- tatives were permitted to be present. Carse said they had evidence Hulst was involved in wrongdoing with the Com- pany, and that he would be suspended until further notice. About a week later, in another interview with union offi- cials present, Hulst was discharged. David Delimonico, a gasoline truckdriver, testified that he first heard of the investigation on Wednesday, Novem- ber 6, by means of a phone call from one of his fellow workers. He also was later informed by Oed and Wheeler, prior to being interviewed, that the investigation concerned the adulteration of gasoline at different stations, and that drivers were being questioned about payoffs to dispatchers. On the day following his conversation with Oed, a Satur- day, he was told to report to Giles who in turn told him to go see the investigators . Delimonico asked what would happen if he refused to go and Giles answered that he could be fired for refusing to cooperate. Delimonico's re- quest to have the union representatives present at the inter- view was denied. He was told that it was either go along with the investigation or be fired, after which Delimonico agreed to go. Delimonico was interviewed after having been denied the opportunity to speak to the union repre- sentatives. After being interviewed for over an hour, Carse told him he was not involved and to return to work. How- ever, on December 17, Delimonico was called upstairs for another session with the investigators. Again he asked to see the union representatives, but his request was refused. Following this interview he was taken to Carse's office and discharged. Robert Twibel met Henry Hulst on Friday night, No- vember 8. Hulst had just come out of the office as Twibel was starting work. Hulst said he had been suspended. Later Twibel was told to go see Frank Giles. In his office Giles stated that there was an investigation going on, and that he wanted Twibel to talk with the investigators up in the main office. Twibel asked to have the Union present but Giles refused, stating, in response to Twibel's question, that if he did not go talk with the investigators he would be fired for insubordination. Twibel stated he would cooperate and proceeded to be interviewed. An additional request to be permitted to see the Union first was also denied. Following his talk with the investigator Twibel was taken to Carse's office and, in the presence of the union representatives, suspended. Lawrence Fensore first learned of the investigation on Wednesday or Thursday from employee Dan Ryan. On Friday, November 8, he also talked to George Oed and John Wheeler who gave him the names of the employees who had been suspended as a result of the investigation. Oed and Wheeler also told him that the employees inter- viewed were not allowed union representation, and there- fore he should be careful concerning his behavior during the interrogation. Later Fensore was informed by Giles that he was to be interviewed, and not to talk to anyone. Giles denied Fensore's request for union representation at the interviews, and stated that if Fensore refused to coop- erate he would probably be terminated. After being inter- rogated for approximately an hour and a half, Fensore was led to Carse's office where he was told he had been cleared of any complicity and to return to work. However, approx- imately a month later Fensore was reinterviewed by the investigators, taken to Carse's office, and in the presence of Oed, Levandowski, and Wheeler, discharged for infrac- tions of the posted offenses. George Carse did not testify. Dispatch Supervisor Frank L. Giles testified that his. role in the investigation was sim- ply to assemble the employees to be questioned at a rea- sonable time, tell them that they were to be questioned by people in the terminal investigating a "company probe" 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to conduct them to the interview location . He denied that the employees requested union representation , or that he told them they would be discharged if they did not co- operate . He testified on direct examination that he knew .not very much at all" about the investigation which was taking place, and suggested in his direct testimony that he was, therefore, not in a position to inform employees con- cerning the nature of the investigation . However, on cross- examination Giles testified that he did in fact have advance information concerning the nature of the inquiry, predat- ing the employee interviews, and relating back to the time when dealers were being called in for questioning . Giles' testimony was shifting and evasive. He clearly was at- tempting to tailor his testimony and minimize his role for the benefit of the Respondent 's case . To the extent that his testimony is at variance with that of Oed, Wheeler, and the General Counsel's employee witnesses , it is discredited.' In Mobil Oil Corporation, 196 NLRB 1052 (1972), the Board stated: An employee's right to union representation upon re- quest is based on Section 7 of the Act which guaran- tees the right of employees to act in concert for "mutu- al aid and protection ." The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8(aXl) of the Act. Thus, it is a serious violation of the employee's individual right to engage in concerted activity by seeking the assistance of a statutory representative if the employer denies the employee's request and com- pels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee's right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted pro- tection, rather than individual self-protection , against possible adverse employer action. The Board then delineated the circumstances under which this right arises . They are: (1) Only where the employee requests representation ; (2) under circumstances where the employee reasonably believes the investigation will result in disciplinary action ; (3) the exercise of the right may not interfere with legitimate employer prerogatives. Thus, when a request for representation is made the employer may refuse and cancel the interview without being prevent- ed from acting on the basis of other information. (4) An employer need not bargain over the question of whom may be permitted to attend an investigatory interview. In addi- tion the Board said in Quality Manufacturing Company, 195 NLRB 197 (1972), ( 1) that in determining whether an em- ployee has reasonable ground to believe that an interview may adversely affect his employment is to be measured by objective standards in the light of all the circumstances of the case, and (2) that for the employer to insist upon the appearance of the employee alone at the investigative in- terview to the extent of threatening to discipline the em- ployees' representative unless the interview was held with- out his presence , further violates Section 8(aXl) of the Act. s I find that at all times material herein Frank Giles was a supervisor and agent within the meaning of the Act, acting on Respondent 's behalf. The Board's rationale in Mobil Oil Corporation, supra, was approved by the Supreme Court of the United States in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975); and in ILGWU v. Quality Manufacturing Co., 420 U.S. 276 (1975). The Court stated (420 U.S. at 260-261): The Board's holding is a permissible construction of "concerted activities for . . . mutual aid or protec- tion" by the agency charged by Congress with en- forcement of the Act , and should have been sustained. The action of an employee in seeking to have the assistance of his union representative at a confronta- tion with his employer clearly falls within the literal wording of §7 that "[e]mployees shall have the right ... to engage in . . . concerted activities for the pur- pose of . . . mutual aid or protection ." Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (1973). This is true even though the employee alone may have an immedi- ate stake in the outcome ; he seeks "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however , safeguarding not only the particular employee's interest , but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a prac- tice of imposing punishment unjustly. I find that the facts of the instant case fall squarely within the limits delineated by the Board, and approved by the Supreme Court in its Weingarten decision . In its brief Re- spondent contends firstly that the employees interviewed never requested union representation . This contention is based upon Giles' denials which I have discredited. My finding that each of the employee witnesses herein made such a request is buttressed by Oed's uncontradicted testi- mony that he so instructed these employees after having made a similar blanket appeal to Carse on behalf of the Union . Secondly, I reject Respondent's argument that the employees interviewed had no objective basis on which to believe that the interviews might result in disciplinary ac- tion. An abundance of evidence exists in the record that the affected employees had heard from various sources, including Giles, that the investigation was related to the alleged adulteration of gasoline , an obvious form of dis- honesty clearly within the scope of the posted offenses in the contract for which an employee could be dismissed without notice . It is clear that the employer contends that much of the evidence concerning what the employees heard is hearsay evidence and thus should not be consid- ered. However , the standard enunciated by the Board is simply one of whether a reasonable belief exists in the employee's mind based on some objective evidence, rather than a mere figment of the employee 's imagination. In my view this standard has been met in each instance in this case regardless of whether the information related to the individual employee by either the union representatives or their fellow employees was in fact totally accurate or not. I find and conclude that Respondent violated Section 8(a)(l) of the Act by rejecting the individual employee's request for union representation during their investigative inter- views under the circumstances described herein . In view of the Court's adoption of the Board's holding in Quality EXXON COMPANY 207 Manufacturing Company, supra, a portion of which was that a threat to discipline the employee 's representative unless the interview was held without his presence constituted a further violation of Section 8(a)(1) of the Act, it follows that Giles' direct threat to employees that they would be discharged or otherwise disciplined upon refusing to par- ticipate in the investigative interviews without the presence of their union representative also violates Section 8 (a)(1) of the Act. Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By denying employees' requests for union representa- tion at interviews conducted by Respondent under circum- stances from which employees could reasonably conclude that their jobs were in jeopardy, and by threatening them with discharge or other disciplinary action if they refused to be interviewed without union representative, Respon- dent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in , and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The foregoing are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in the unfair labor practices described above, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I note that the complaint in this matter does not allege any unlawful conduct by Respondent in suspending and/ or discharging employees because of their union or con- certed activities , although the charge in Case 29-CA-4340 contains such an allegation. At the hearing the General Counsel specifically disavowed any intention or proceed- ing on this aspect of the charge . Consequently the merits of the suspensions and/or discharges of the named employees were not litigated . In its brief the Charging Party simply requested an appropriate remedy . Finally, the General Counsel did not argue orally nor did he file a brief or a proposed remedy seeking such relief . Thus , under all the circumstances I find only an order consistent with the spe- cific allegations of the complaint appropriate. Upon the foregoing findings of fact , conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER6 Respondent , Exxon Company, U.S.A., Brooklyn, New York, its officers, agents , successors , and assigns , shall: 1. Cease and desist from requiring any employee to take part in an interview or meeting without union representa- tion, if such representation has been requested by employ- ees 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. Cease and desist from threatening employees with discharge or other disciplinary action if they refuse to take part in an interview or meeting without union representa- tion, if such representation has been requested by the em- ployees and if the employee has reasonable grounds to be- lieve that the matters to be discussed may result in his being subject to disciplinary action. 3. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Post at its plant located at 320 Freeman Street, Brooklyn, New York, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for Region 29, after being signed by an authorized representative of Respondent, shall be 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 29, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 6 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. 7 In the event that the Board's 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 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 After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT require that any employee take part in an interview or meeting without union representation, if the employee requests such representation, and if the employee has reasonable grounds to believe that the matters to be discussed at such interview or meet- ing may result in his being subject to disciplinary ac- tion. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with discharge or employee has reasonable grounds to believe that the other disciplinary action if they refuse to take part in matters discussed at such interview or meeting may an interview or meeting without union representation result in his being subject to disciplinary action. if the employee requests such representation and if the EXXON COMPANY, U.S.A. Copy with citationCopy as parenthetical citation