General Elecrtric Co.

National Labor Relations Board - Board Decisions

Feb 1, 1979

240 N.L.R.B. 479 (N.L.R.B. 1979)

GENERAL ELECTRIC COMPANY 479
General Electric Company and Internationial Union of
Electrical Radio and Machine Workers, Local 623.
AFL-CIO. Case 6-CA-10409 240 NLRB No. 66
February I. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN AN) MLIMBRS PIENl 1() ANI)
TRI -SDAI.i-
On September 20, 1978, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. and the General Coun-
sel filed a brief in answer to Respondent's excep-
tions.
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 only to
the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(l) of the Act by issu-
ing a warning notice to and by suspending employee
James T. Sabol because Sabol refused to participate,
without the presence of his union representative, in
an interview which Sabol reasonably feared might
result in his discipline. Respondent has excepted to
the Administrative Law Judge's finding that it vio-
lated Section 8(a)(1) of the Act. We find merit in that
exception.
The facts, as more fully set out in the Administra-
tive Law Judge's Decision, reveal that on March 4,
1977, during the 4:30 p.m. to 12:30 a.m. shifts Sabol
became involved in a discussion with his foreman.
Henry Murphy. Sabol was at work preparing mate-
rials to be milled on a certain machine when Murphy
approached him and asked whether he would be will-
ing to work overtime. Murphy then began to ques-
tion Sabol about an alleged fault in parts which Sa-
bol had machined the previous night. Murphy and
Sabol briefly discussed Sabol's work of the previous
night and, after Sabol insisted that Murphy speak to
another employee who had checked the accuracy of
Sabol's work, Murphy responded that all he wanted
was Sabol's side of the story so that he (Murph)
could decide what to do about the incident. Sahol
became quite agitated and demanded that Murphy
"give me 3 days off"' or "give me a warning slip...."
Murphy responded that he was not going to suspend
240 NLRB No. 66
Sabol. fine him, or send him home, but that "if I give
you anything. it will he a contact [slip]., ' Sabol
replied that he was not going to listen to any more of
Murphy's "stuff." and that he was going to get
Union Steward William Klein. When Sabol began to
walk away, Murphy told him to return to his work,
which was a "rush overtime job," and that he (Mur-
phy) would locate and bring back Klein. After mak-
ing several requests for Sabol to return to work, Mur-
phy told Sabol that he would be sent home for
insubordination if he persisted in walking away, but
Sabol ignored Murphy and continued to look for
Klein. Murphy returned to his office and. about 10
minutes later, Sabol and Klein appeared at his office.
The three men discussed the events of the evening,
and Murphy finally ordered Sabol to leave the plant
for the remainder of his shift. Sabol was subsequent-
ly given a warning notice 2 and suspended from work
for an additional 2 days.
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(1) of the Act by dis-
ciplining Sabol for his refusal to participate in the
discussion with Murphy without his union represen-
tative. despite the Administrative Law Judge's factu-
al findings indicating (1) that Sabol had no reason-
able grounds to believe that the discussion with
Murphy might result in his discipline, and (2) that,
following Sabol's request for union representation,
Murphy volunteered to locate and bring back the
steward before the interview proceeded any farther.
To support his conclusion, the Administrative Law
Judge relied primarily on the Board's decision in
Spartan Stores. Inec.
Contrary to the Administrative Law Judge, we
find that the absence of a reasonable belief on the
part of Sabol that the conversation with Murphy
might result in his discipline precluded a finding of a
violation in the instant case. In addition, assuming
arguendo that Sabol did reasonably believe that he
would be disciplined as a result of the conversation
with Murphy, the decision in Spartan Stores does not
require a finding of a violation herein.
In N.L.R.B. v. J. Weingarten, Inc..4 the Supreme
Court upheld the Board's construction that Section 7
I According ti LU mIon Steward Klein a "contal li p" is not a form of
disciplin. nor c.l i he used i aI basis for discipihnart action under the
collecitse- h.-lr.ainlin .agreemenl Its purpose Is "to notif ain enlplosee of
m ,lle inllor infringement. m.or or less. carlnjg isaflc l;lsses, if o are
xsecn itlo s feif l? cilasn. e can gise ,ou ;I nt;lacil hp. and this Ill s ei
Ih, Cniplc e kloi)A Ililt hlCe hl. bhccen oinltacted on not r eai;rling the saifeI
lehis,. 1- sone minor friue·liernl Murphs testifie, d hat he had iwsen
colll tic l hpI l nI Illn cmplohcee on Salhls shift, hut thiat he had Inc er
iile one It Sabhol
I lie .irni nlotlce dcrihed thie siolaioI i s "I lh,)rdinallil I icled
to rtilril o sorlk st'iiO ishcln rpcoedl directicd to d so h\ his orc-
's I R B i22 1178
4211 S 1 S1 i97;)
GENERAL ELECTRIC COMPANY
480 DI)I('ISIONS ()OF NA 10ONAI. I.ABOR RIIATIONS B()ARI)
of tle Act creatcs it statutor! right ill aII;i clllo\cC to
refuse to sublmiit xwithot utilion representation to aln
in terv iew which lie reasonabl fears llma result illn his
discipline. In support of its hollding, the (ourt out-
lined the "contours nd limits" of this statutor\ riglit
as developed by te Board, one of which was the
principle that an employe's right to representation is
limited to situations in which the employee reason-
ably believes that the investigation will result in his
discipline. Thus. the Court quoted the Board's state-
ment in Qualit MItantiultur'ing (ormpair' that:
We would not apply the rule to such run-of-the-
mill shop-floor conversations as, for example,
the giving of instructions or training or needed
corrections of work techniques. In such cases
there cannot normally be any reasonable basis
for an employee to fear that any adverse impact
may result from the interview, and thus we
would see no reasonable basis for him to seek
the assistance of his representative. 6
In the instant case. Sabol was actively engaged in
work when his foreman approached him and began
to question him about an alleged fault in Sabol's
work of the previous night. In response to a state-
ment by Sabol, Murphy assured Sabol that 'le would
not be disciplined in any manner regarding the alleg-
edlv faulty work. In fact. Murphy informed Sabol
that the most Sabol would get would be a contact
slip. The record is clear that a contact slip is not a
form of discipline in the plant, and this fact was
known to the employees in the plant including the
employees on Sahol's shift. In our view, the conver-
sation between Sabol and Murphy was clearly a
"run-of-the-mill shop-floor conversation." Murphy's
inquiry of Sabol focused on the quality of Sabol's
work and the possibility that Sabol might require
some additional "instructions or trainine or needed
corrections of work techniques." lThus, based upon
"obJective standards under all the circumstances of
the case." it is clear that Sabol could not have rea-
sonably believed that his conversation with Murph\
might result in his discipline. Were we to rely on
Sabol's testimony that he thought a contact slip was
disciplinary in nature because he in fact did n ot
know what a contact slip was, we would be engaging
in precisely the type of "probe of an emploce's subh-
1 S NlRl 147 11972}
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ilrt ttiilll.cllcx f Ihc c.t, c ii tld pplecd il st.lli n a liLrdl from ' I R 1 /
dol I I'AiiA' ( ,,. I, t S 75. t()iS ( 1t}'1). 1ll ii - itld "ric t ri', I' il,
hill rquill , .a prlhc of i ll r t ll lo'CC rl I IC I .t illO'illls ., 1l. \rim'
Art C'itilsdrCl' I ln rircl.tab lc it]li\
iecli e motivationi'' which wits rejected by tile Su-
preie (ourt in l'it/intar'lcl.7 A reasonable person in
Sahol's position. having been employed at
Responldenlt's plant for 5 cars. having been exposed
to the disciplinary procedures in the plant. and hasv-
int bccn specificalls told almost from the outset of
the collersati on ith his foreman that he \vould not
be disciplined abiout his allcgedls faullty work, would
not have reasonabl feared that the conversation
mig.ht result in his discipline. 'I'herefore. we conclude
that Sabhol was not entitled to invoke his Section 7
right under l 'ein>grltci to union representation dur-
ing the conlversation with Murphy. and, thus.
Respondent's subsequent suspension of Sabol for
leaving his workplace to seek out his union represen-
tative, contrary to his foreman's orders, did not vio-
late Section 8( a )( I ) of the Act.'
lowever. assuming arXuenldo that Sabol was enti-
tled to union representation during his conversation
with Murphy. we would find, contrary to the Admin-
istrative Law Judge, that the decision in Sprtan
Storces" is entirely distinguishable from the instant
case and that Sabol was granted his Weingarien
rights by Respondent. In Spartan Stores, employee
Daniell was called to an office and asked by two of
his supervisors why he had walked out of a meeting
in the company lunchroom while the meeting was
still in progress. Daniell immediately stated that he
was going to get his union steward, and began to
leave the office. The supervisors ordered him to re-
main in the office because they were not finished
with the interview. Daniell left, and, upon returning
to the supervisors' office with this union steward, was
suspended, and later discharged. for failing to obey
the request of two supervisors. ThFile Board found that
l)aniell w'as suspended and discharged for exercising
his right to refuse to participate. without his union
representative, in an interview which he reasonably
believed might result in his discipline. The Board em-
phasized that "the practice of Respondent to call in
the union steward itself rather than have the emploi-
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GENERAL 1.1 I,( I RICCOMPANY 48XI
cc's do it1 . . . uiclc .itl hecau.,c s neiithr 1 [ISulcrt
sir ll strd llllloied ;I l r and tIe\ had;1 itin
l)anilt l no illrdicl[till thes \ Nlild "lo so hcfoe pro-
ccdille frtheil sill ie icttn. ' I tile nlstlantl
case. the "jinlerXle.s" itself took place on tlhe slhop
floor ill thlC iiillldite icillit\ of thile Illachil (ii
l hicl Shol IhaLi allCicl1 prIdLccii the fltN xoloik.
i;11tdi Ilit Shl \d.as II its sulficticl\ lt rellocd 'lo Itii
t[le p{lroductionll pocess as the cnlplotsce ill S1':i(1
.5irc. :O ()f crucial illlprolt;allcc. le act that aIfter Sa-
hol lac Ills lllOtlllclllclt tlha liel Was 1.oli' to Scl
his unioin tc\;lardi. \Millrphil ilimlliatel told Slio]
to reilial at crk and thit he ( lIurph l NcOtl I -
cicle ;arl hri n hback the stes\;lr' . lakes tilis case c n-
tlirlcl distlnluishiahle from Siltlli'm( St're''r. i:Fo' III
ClnploCe's rilhts under I (Illlrt, do(. ICollCie i nto
effect unless and un[til tle it'pClpoIs.cc reIstcsls is
tilliml rep)resenta' e.ll. ()nce s1uch a \a;lid request Is
miade. the burden I o the cnlllplo\cr I( ther (I)
olitl' IC request. 2 isiCcolttRIC Ih eC iitCl'e i. I ' (or
(3) offcr t e c1mplol)e Ihe l ,. choic btci`.ccn otlll tll I e
the liltc'r c\ allZccor;lpaic h Lulilol rpr-esentl-
tisLC or hvillng io iltelrless at all. 14 I Su't S'.
I)anlcll's request for uIIlio reprcsenlalticn \sas cffc-
tiXels dellied h tlhe supclrsiors \.h1i tlc orldrld
hillm t I'lli In th[ illterx s tltil tie -\ ereIil-
slihed. When the supersors failed to ic ;111a inditcA-
i11011 that thihe\ sotuld SLhl1111 the lIon ste ild,
lliClil 'As Colitrll, te clstaIislCil pI)l'actitcc iIl te
1ilalll. tile BOtMi. I' oid il I allici \Is ei ti tlei o
Ica;\e the Ilterli'. 11 in order to see k out( 1s l,111101
I'lprlClCltlill,C. I lli lltilllt ci;1. h tlcer. \llurphll
ilillll lltC l L IAriitcil SAiNh ls l q$Liest 1ii Ills '(l) il
slc\s il ild ce1CaLd -0 )tlCSOtill e Ci rlpl)cce. cil-
aLe III t;ll IlInilller of dliah le tltc. o r pall cilatc i ll ni
oihCr inl lle:IaiC \I tllchl , cot11l 1c clill'aCtCrl' is il
lllrxiev.'' I ls, Sabol liil no Sctiol 7 rigit
lea .e lis . . sork staliti1o 1 Ill olidc tl o fi' l Illi , \.arild
\iell rlltOlilll Ilis o'treClllll' I l'C piCdI toIIlc t,) IctL
It \ik. I herlef[or'. ilMlsllch S )ol's requtlsl rl
lllt1i11 I ' Nml CpCitll l ih c Iit 1s 5511 i11111di-
;itls rlianted h \lurphs. and xct Scl l ct ills
ssorkplace and igored te direct orders f Ills fore-
Ill i I s clear liat Sahol's slispelsioli for instiborli-
lialttl as 11ot callsei h the IScitioIll is iliht tl
refu'le lt p tlcilpailtC. \ itloit tll/Il IprePlCseltioiioll. In
Ill lit\s le I ' Clieeasonhs' belielcd iiIillt Iresult in
is d scitphlc.i,
I hlrceforc, s.c filld that Rspolldcnt's xarniile anld
SlIspeCnsiol of iloc ee Jilies . S;I il for illliIbO-
dillaticl ill failinl t) 'lttill-ll It his kork sattioti s.lIl
zCpealtil dilrectd to do sc h his focr'ilf . liti 11ht
\iolate Sectioll S(il)( I) of te \ctl. ccOTrlIiell. c
shil1l Lii',lliss tlhe cmciliullillt !i its c illLc\
()RIl) iKR
I 1 lrsiltiit to Sectt I ni 1(c Of tile Natiinal Ilboi
Relations Act. is ilniended, the National lIabor Re-
latiols Bor.tid hleeb) ordc-Is tih lt til complaint
hic il1 hc. and 1it lercb\ is. (dislllishseil il its Clltile[\.
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lhtaih ' the R xkc lln'i \ it .(L[ ,Genera l'Fl JJnc (~C'o l.I, , hU[Irii
tcalle J 11tt ( I 'oni pa' hs 'nll k z' ael iC andtlsI ll[ktn i trll iT ln tr i l J1
i11r lrlir praCtices lthin the nieanl1l1ine if Secliccii $ab( I-
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1 , ' cl I i i Jl It l II\\ Aim ist- atint' c I , I s i td11. 1
tl'd lR(. d o \ . 2 nd Septlember 30 . 177 rc specti > b 111
I n lI na on al L mon iF :'.lectrical, RadiJ 1d 1 .d h , i 1c
1ork r esN. Iocal 623, A I .( '1(, herei,1 called , I,, IL , ' ion . a
C0 1plaml. d:.led I bruar\ 2 7 1978I \Ias issued all. 111
that h RespondenCSt, ( ri/e~ral Eleclric orpan herein
called tlie ('orpan, hall engaged i and is cn??n ln
t~l)lJ-i' lahor c . t hin m ftli o ltion 8(;i) I I
slcnc. lhe comlplan alees that o 1 7arch 4 1977. I or-
ian Ilc illr\. % rph? denied he requslt f etriopcI Jllilex
\1 dl, Ifcl h, ti\. Il I t1(). m - ttin all ttd
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(;LN ERAL I-.I.F.(I R IC ('( IM PANY $ I
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting with Murphy when Sabol had reasonable grounds
to believe that the meeting would result in disciplinary ac-
tion against him and that, because Sabol secured the pres-
ence and assistance of his representative, Respondent sus-
pended Sabol for the balance of his shift on March 4 and
on March 8 issued to Sabol a warning notice pursuant to
which he was suspended for 2 additional days.
Respondent's answer to the complaint denies that it has
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held in Pittsburgh. Pennsylvania. on
July 13. 1978. Thereafter, briefs were filed with the Admin-
istrative l.aw Judge on behalf of the General Counsel and
Respondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINI)IN(;S O A(t I
I iHF lIUSINISS OF RISPO)NDFN
Respondent. a New York corporation, among other of
its business activities, operates a plant in West Mifflin.
Pennsylvania, which is the facility involved in this proceed-
ing. During the 12 months preceding the issuance of the
complaint. Respondent received goods and materials val-
ued in excess of $50,000 at its West Mifflin plant which
were shipped by suppliers through channels of interstate
commerce directly from locations outside the Common-
wealth of Pennsylvania. Respondent admits, a d I find.
that it is an employer within the meaning of Section 2(2)
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11 I til I ABOR ()R(;ANIZA I ION I NX OI V I)
The UInion is a labor organization within the meaning of
Section 2(5) of the Act.
III 1111. Al I(il 1 ) NIAIR I ABOR PR ( II(IS
James . Sabol has been employed by the Company as a
machinist for 5 years. In 1977 he was working on the sec-
ond shift from 4:30 p.m. to 12:30 a.m. The incident which
gives rise to this proceeding developed from a discussion
between Sabol and Henry Murphy. the machine shop fore-
man on the night shift. There is conflict between the testi-
mony of Sabol and Murphy as to what transpired. Murphy
testified carefully and fully and made no effort to evade
answering directly any question put to him. Murph? im-
pressed me as bing a truthful witness. Sabol as witness
was argumentative and seemed to permit his interest in the
outcome of this proceeding to affect his objectivity. I be-
lieve that Murphy was a more reliable witness than Sabol
and I credit Murphy's version of his conversation with Sa-
bol.4
I h (icnc l (OUillsc ,-ct in, ,, bIis H. th,,t "1( hiet Stcu aidl Kl i .
.i ltil Itf S;abol', iepori h 1 tortluoih a.ls. ii cs t.cntll 1 1spcl I
Salboul Icsimolll o . IA C i. ,s Kln in mercil rcpea led uh11l lie C i ,i
toild hN S;ill. conlrar o the (icnr.l ( ,,uilca I firI1:11 li lehi l tiinon i
On March 4. Murphy approached Sabol at a bench near
the 48-inch vertical boring mill where Sabol was at work
preparing material to be milled on that machine. Murphy
first asked Sabol whether he was willing to work overtime.
Then Murphy inquired as to what had happened the previ-
ous night regarding the splits on an Elliot-Seal which Sabol
had machined. Sabol asked what did Murphy mean and
then said. "I've been waiting for you to jump me, I knew
you were going to say something to me, I heard about it.
when I came in." 5 There then followed a discussion as to
whether the splits were machined so wide that a timecard
could fit into them or whether, as Sabol contended, they
were correctly machined to a thousandth of an inch.' Sabol
asserted that another employee. Wayne Fish, had checked
the fit and could confirm that they, had been machined to
specification tolerance. Murphy responded that he was not
going to involve Fish and that "1 just want you to tell me
your side of it so I can make a decision on what to do."
Sabol, who was becoming agitated. rejoined, "I am not
going to stand here and listen to a bunch of b.s.... give
me three days off, give me a warning slip. I don't care."
Murphy answered that he was not going to give Sabol 3
days off or a warning slip and added, "If I give you any-
thing. it will be a contact, but before I give you anything, I
want to find out what happened, I want to hear your side
of it." Sabol retorted that he was not going to listen to any
of his stuff and he was going to get Klein. (William Klein
was then the Union's chief steward.) 8
Sabol started to walk away. Then, according to Murphy.
"I said Jim. come back here ... I don't want to argue with
you. you go back to work . . . the job you are on is a rush
overtime job . . . I will get Klein. and Jim repeated what
he told me, no I'm not taking this junk, I'm not going to
listen to this. I'm going to get Bill Klein. and he continued
to walk awav . .. I said Jim. come on back here . . . I
don't want to get tough . . . go back to your job . . . I
can't afford to leave that job sit, while you wander through
the shop looking for Klein . . I'll go get Klein. and he
continued to walk away."
Murphy further testified, "I followed Mr. Sabol and I
asked him to go back to his work station, that I would get
Klein for him, and he refused.... "While he was follow-
ing Sabol. Murphy again said. "I am asking you for the last
time to go back to work." Sabol screamed that he was not
going back, he was not taking any more junk and he was
going to get Klein. Murphy then threatened. "[I]f you don't
go back . . I'll have to consider it insubordination and
send you home ... I"II11 give you one last chance. you go
llO[ t 1. ftll'hllll c
II c .itI eC clcl IC hI 11 I 'p1c I Io 11e I 11ho 1-Scal "aa rpllicd tI Mill
ph 1 IlI dle I hif formIll a-,,Ii., AhicnI Ntlrpl' Icplcd for s.ork iI Ihc Igill
oI i.*t h 4
S piiii~c.uicl h etc ei. 11i 1hi, m. idIIil i 1 I 1 (I)IMI11 1111 'if I IIL 11", \ tIlllztatl Is T.CI s v ll [ " 1~t la lldlh* d 1 15 il~,11 .lldlh 1 .X11 lil'
{iIl L uIn S .ulli l,,ilIi S.li 2. lficd
() ,5il l dd '11 u lh s ''l , I\ \o tl. I ill "t OItV to 'u'pctld
' S I Ili cuili (iit I c Ol; 1i, i l Ioh Ioll 111 I fl iloU-1. Iithis
\ I IJll'l IcI1I|llbi l\lt l\ lit t 1 liE .11I~.
) I)idll'l Iic h' oI i 1icthl Illi i l I lll iC '
it ' \aid] ~,olIIclllll .' \C,,
.hi1i Saho i,i ikcd Ml lie . lcd 11l cilil,l .llilclI.i, c ilciepolid-
cd. i"HCCd.,c 1ti miph I kcpt lircimiiiuic niic m iil a cia ii lip
GENERAL ELECTRIC COMPANY 483
back now or I am sending you home for insubordination."
Then. according to Murphy. Sabol gave "me another pro-
fanity word and walked away, and was still looking for
Klein . . . I turned around and went back to my office."
Murphy testified that at this time he decided to suspend
Sabol because of Sabol's insubordinate conduct in leaving
his work without permission.9
About 10 minutes later Klein and Sabol met Murphy
outside his office. Klein asked whether they could talk and
the three went into the office. Murphy opened the conver-
sation by advising Klein that he told Sabol to return to his
work station and when Sabol refused repeatedly he told
Sabol that he was suspended for insubordination. Klein
responded that Murphy could not do that. There followed
a discussion of the job that was in question and the alterca-
tion that developed between Murphy and Sabol. As the
conversation progressed, Sabol became loud and boister-
ous. Finally, Murphy said that he wanted Sabol to leave.
After Murphy threatened that he was going to call the po-
lice to remove Sabol. Klein turned to Sabol and told him to
go home and said, "[We'll get you paid for it." Sabol com-
plied and punched out at approximately 8 p.m.
As a result of this incident, Sabol. in addition to losing
pay for the balance of the shift on March 4. was given a
warning notice on March 8 and was suspended from work
for 2 additional days on July 20 and 21.10
Sabol testified that he wanted a union representative
present during his discussion with Foreman Murphy "[ble-
cause [Murphy] kept threatening me with a contact slip."
He further testified, "I did not know what a contact slip
was, I thought it was one day off or more." However. Wil-
liam Klein, then the Union's chief steward, testified that
the only forms of discipline recognized in the plant are set
forth in the collective-bargaining agreement between the
Company and the Union. Klein further testified that a con-
tact slip is not a written warning notice such as is described
in the collective-bargaining agreement and that a contact
slip cannot be the basis for disciplinary action against any
employee. Klein specifically testified that a contact slip is
not a form of discipline.'
Discussion
This proceeding explores the reach of the Weingauren
case.' 2 Respondent, who interprets the case literally and
9 Murphy testified that he rea'son he decided to suspend Slhbol was "thai
my job was ito represent he company as best ais I could and I don'l feel tha;t
I could represent the compan fairly if I'd allow n employee to w.llldcr
through the shop. I don't know if Jnm ould he been golle onl tell
minutes or a half hour or an hour, hut I do kno hat I hd a comitinlllntet
Io the customer n a rush oerllme joh. nd I needed I ccred a.: haiI tile.
Now. had I got Mr Klein hen I went to el Mr Klein I aiild he
switched and put someone else on Jim' lobh"
t he warning notice dated Mlrch . 1977. decribhed il "nal.lure .of
violatiln" .s "InsubordinaltlLn I iiled to return tii work stilti, n l cll rc-
peatedly directed to do so hs his orermiti It also st.ite l: ) 1 tllqi.
time off 2 days Further i.ioltlon of the ( ode of ( onduct iill hbc .iie,
for disrphlnar actltl up Iti .ind tnitludit disch.rge.'
Accordrig to Klein. A olltaltt slip is I nif the inployce Ieo -olic
minor infringemetnit. mire or less. w.eirir sIftI rl s1e*. If sit .t1i seccll
without safety glasses. they can gise iu contact , ip And Ihl , * ill ci he
enlplieyce know that he has been coitic.led o1i lnot .cirli the silci sl1 ]-
Cs. or so,me minlr Illfrinigen till
contends that the General Counsel has the burden of prov-
ing each element of his case, in substance, argues:
I. The exercise of the right to insist upon the presence of
a union representative during an interview with the em-
ployer "may not interfere with legitimate employer prerog-
atives," t3 and such right does not pertain to the conversa-
tion between Sabol and Foreman Murphy which only
involved giving "needed corrections of work tech-
niques." 14
2. In the circumstances, particularly as Sabol did not
request union representationt but merely announced that
he was going to get Steward Klein and Murphy offered to
summon Klein. Sabol had no protected right to leave his
work to look for Klein himself.
3. Sabol had no reasonable basis for believing that the
conversation with Murphy would result in disciplinary ac-
tion because, according to Sabol, he wanted union repre-
sentation only because Murphy threatened to give him a
contact slip and, contrary to what Sabol may have be-
lieved. a contact slip is not a form of discipline.
4. The burden of proving that Sabol reasonably believed
the conversation with Murphy would result in disciplinary
action rests on the General Counsel who has failed to ad-
duce evidence to sustain this burden.
The General Counsel, on the other hand, who cites re-
cently issued Board decisions to support an expansive con-
struction of the Weingartenm case, in substance, argues:
I. When, on March 4, Sabol was confronted by Murphy,
who had been his supervisor for 6 to 8 weeks, who had not
previously criticized his work,'6 and "who did not normally
check the finished work. with an allegation of faulty work.
Sabol had a reasonable basis to believe that some adverse
action might result." 17 The General Counsel does not ad-
vance any rationale to support this contention. There is no
evidence in the record that any employee in the plant had
ever been disciplined following criticism by his supervisor
for having done work that did not meet specifications. The
testimony of Sabol is that he requested union representa-
tion not because the criticism of his work by Murphy gen-
erated any fear that he might be disciplined, but "[bjecause
[Murphy] kept threatening me with a contact slip." The
R i R J i. 'letrtiretn. /nie. 420 .S. 251 (19751.
1 . R B . We"¢inittarlen. Ita.. rvupra at 258. Accord: ertle Worker
I illnl /of Atirts-il l. Darilr m Af'nuftarinurng Co. ei al. 380 U.S 263. 269
(1965) ("But I is nI when the interference with § 7 rights outweighs the
business lustfllcai;ion for the employer's action that §
8
(a I is viola(ed."):
.VL.R B . trie Rlloer (Cor. et ci.
3 7
3 U.S. 221. 2'8 230 (19631: Georwe
R (it dl h a Benlantrili C,.. i'., 218 NLRB 1382. 1387 (19751.
I. More than mere "corrections of work techniques" seems to hase been
Il\.iied because Murphy testified that he wanted Sabol to tell his side so
thai "'I cn mLke a decision on what to d As iti what that decision might
he. Murph ltestified that 'If. after talking to Jim. it wa;s case uof shodd
w.orkn.anshlp, thal should has e been better or hat. then I ould ha.
ilJde decisioi in th.ii hiss It ma. he been that I ould hae said. lo.
ol wn't getl Lu1rlling. r ii1 n1l have heen I ould have said I'll gie ou
.i tictll. hl btt l's smeilhmiLg lhat', niler prejudged. You hae to talk
lih .nrdijdvlIl ihbout it. he could hase gien tile . legitim.te relason 1hsil he
splits cre roun w hel dllght Jshifil checked them"
ee S c I R B x J iI cllig, rtct. /i . lq at 257
"' Slhol testified ha "at htnes"'' lulrph hd hild 1,i thlt lie did rlvs
c.'.d ork. iid ithere ,S no problell,"
' Sah, iesi ified t hi his lhb were s-icned I liu tl h MUiphN at the
hclcillnnig f c,ih sffli or wlhen e i cm iipIletd .lllh.ICr .ih IC filrthel Icstl-
li tL \1ii, l l ph\ thCi'ked .i Ic, of Il lie ll ti hie 1 1ii1 b ll 1II I tlc _illk
ICIcTl "iLsIlsIN ,ecCted tile11 ' "
GENERAL ELECTRIC COMPANY 483
Tvv
484 DtECI(SIONS OF NA'IIONAI. I.ABOR RELATIONS BOARI)
General Counsel further argues that "once [Sabol was] in-
formed by Murphy that he would receive a contact slip,
effectively memorializing the alleged poor craftmanship.
Sabol, who at the time misunderstood its significance, had
reasonable grounds to fear that his employment status
would be adversely affected." owever, as a contact slip is
not a form of discipline, Sabol could not have reasonably
believed that the discussion with Murphy would result in
disciplinary action despite his misinformation regarding
the significance of a contact slip.l8 Exxon ('ornpan'.
U.S.A., 223 NLRB 203, 206 (1976). cited by the General
Counsel is inapposite as no evidence was introduced to
explain what caused Sabol to believe that a contact slip
meant a layoff of I or more days. It would appear that his
fear was a "figment [of hisI imagination."
However, as will be discussed more fully below, the Gen-
eral Counsel is on sounder ground when he argues that
recent Board cases hold: "The absence of evidence that the
Respondent has not issued discipline, as defined in the la-
bor agreement, based upon contact slips is not . . . fatal to
establishing that there existed reasonable grounds for
Sabol's apprehension and consequent effort to obtain
union representation. It has been found that employees,
confronted with circumstances in which there is little or no
evidence that at the time the employer itself contemplated
disciplinary action, have nevertheless acted upon reason-
able grounds in requesting union representation."
2. The conversation between Sabol and Murphy consti-
tuted an interview within the meaning of the Weingarren
case.
3. Enforcing the alleged right of Sabol and other employ-
ees to union representation during discussions of the kind
that were had on March 4 between Sabol and Foreman
Murphy would not interfere with any "legitimate employer
prerogatives." 9 According to the General Counsel, "Mur-
phy, in directing Sabol's attention to the alleged error on
the Elliot-Seal virtually' removed Sabol from production as
contemplated by Weingarten. Whether crediting Sabol's or
Murphy's account, it is clear that Murphy at his discretion
interrupted Sabol (either enroute to a job assignment or in
the midst of assigned bench work) to address an alleged
error on work completed the day before." Therefore, if
"consideration should also be given to the employer's side
of the coin, i.e., the practicability, the feasibility, the dis-
ruptive effect of the Board's pronouncements on the tem-
porary employee relationship and the employer's opera-
tions," it was Foreman Murphy, not Sabol, who was
responsible for the disruption because it was the foreman
who initiated the discussion.
Respondent's case simply put is that on March 4 at
Sabol's workbench Foreman Murphy began to question
In N 1. R B v J 'CiI, I'n. 1, . il,',i a f. 5. the (' tI' q,Ltc, U iII
apprval the following excerpt frolti he Boirdl' decisionl in ()lt/ill ltin-o
factriyng (,, 195 Nl.RB 19. 198. In 3 (19721: . Relasonalhie glolllid' ll
of course be mieasured. its here. h oijeti e t.atd.ids under all iIth cuclil
stanc;res f the case" the (Courl hen epand upon lie pi'init: "In N / R B
v. (ig I'lA itl g ( . 395 t S 575,6 ((X 1969). ti (Oilt ,illllllICet l II.i 1
would 'rejectl an rule that rcquitcs ,a probhe of ain emplo ec', ihltct ic
moll.ationl lsa involsing n endless all iiilihlil il Illr.e ilri. n i e t ic.,tr iin
thai ie tioda. as applicable ias, i tlei c rllc l l r t ills casc
See N 1. R B * .1 11 imntat, n, Ia, pni i i 258
him about a fault in parts which Sabol had machined the
previous day. Such discussion is not unusual or abnormal
in a factory environment and Sabol had no reasonable ba-
sis to fear that he might be subject to disciplinary action.
lhis is confirmed by Sabol's testimony that he sought
union representation only because Murphy mentioned that
Sabol might be given a contact slip, which is not a form of
discipline. Further. Sabol did not request union representa-
tion. but announced to Foreman Murphy that he was
going to get Union Steward Klein and continued on his
way even after Murphy directed him to return to his work
and offered to locate the shop steward for him.
Respondent's argument that in the circumstances the stat-
ute does not protect Sabol's insubordinate behavior in de-
fying Foreman Murphy, leaving his work, and himself
seeking out Steward Klein has superficial appeal. However.
consideration of recent Board decisions, nevertheless,
points to a violation of the Act on the facts developed in
this record.
Spartan Stores. In(.. 235 NLRB 522 (1978). cited by the
General ounsel, determines the decision here despite the
factual differences between Spartan and the instant case
referred to be Respondent in its reply brief. The question
in Spartan was whether employee Lannie Daniell was un-
lawfully disciplined for seeking to assert his right to have a
union representative present during an interview with the
shift supervisor, Larry D. Hightower. The issue developed
from these circumstances: While Hightower was speaking
to employees in the company's lunchroom, Lannie Daniell
obtrusively walked out. After finishing his talk and leaving
the lunchroom, Hightower called Daniell to his office.
"Hightower asked, 'Why did you walk out of the meeting
before it was concluded.' He then said that Daniell did not
show very much respect by leaving the meeting and again
asked Daniell why he left. Shaking his finger at Hightower,
Daniell shouted, 'I am going to get my steward' and bolted
out of the office." Hightower called to Daniell to remain
because he had not finished speaking with him. Neverthe-
less, Daniell left, located the shop steward, and together
with the shop steward returned to the office. The evidence
in the case was that when an employee desires the assis-
tance of a union steward, the established practice is for the
employee to request the supervisor to call a steward and
for the supervisor then to summon the steward either by
using the company's public address system or by person-
ally finding the steward. In recommending dismissal of the
complaint, the Administrative Law Judge reasoned, "Dan-
iell was aware of the established procedure for obtaining a
union steward. namely, to request the supervisor to sum-
mon the steward and not for the grieving employee to get
the steward himself. In this case, Daniell made no request
for a steward. While . . . Daniell may have had the right to
request that a union steward be called and to refuse to
continue with the interview until the union steward arrived.
he had no right to ignore the established practice whereby
the union steward was summoned by a supervisor and not
by the grieving employee and defiantly to walk out of the
meeting even though he was asked to remain." However,
the Board reversed the Decision of the Administrative Law
Judge and found that "[Daniell was discharged for exercis-
ing his right to refuse to participate in an interview which
G:NRAI, 1-L1,111 RICC (OMPANY 485
he reasonabhl believed would resull in disclplinar? action
without a union representative hein present." 'Ihe Board
reasoned that "[w]hen I)aniell was called into Supervisor
Hightower's office after walking out of the luncheon meet-
ing. was told that he was disrespectful. and was asked to
explain why he left the meeting, he reasonabhl believed
that the meeting with Hightower could result in discipli-
nary action and, under Wecinrlaricn. he had no obligation to
remain without union representation. His desire for union
representation and his refusal to continue the meeting
without it were made clear when Daniell left the meeting
and told Hightower that he was going to get his stew-
ard." 20
In earlier cases, such as Glomnac Plast.ics In,.. 234 N LR B
1309 (1978). and Certified Grocer's of Californi, Ltd., 227
NLRB 1211 (1977), the Board carefully described the ob-
jective factors from which it reached the conclusion that
the employee involved reasonably believed that the inter-
view would result in disciplinary action. In Spartan. how-
ever, other than the statement b Hightower to [)aniell
that the latter had been disrespectful, no evidence of an
objective nature was adduced as to what might have led
Daniell to believe that his interview with Hightower would
result in disciplinary action. Why Hightower's admonish-
ment that Daniell was disrespectful should have led Dan-
tell to believe that he was going to be disciplined is not
explained. It would appear, therefore, that the Board's ra-
tionale is that whenever a supervisor reproves an employee
there exists the potential that the supervisor might disci-
pline the employee and therefore the "employee reason-
ably believes the investigation will result in disciplinary ac-
tion." 21 Here. Sabol was being criticized for his allegedly
faulty work. Regardless of Murphy's assurances that he
had no intention of disciplining Sabol (other than that he
might give Sabol a contact slip, which is not a form of
discipline) because there existed the potential that Murphy
might do so, Sabol had a reasonable belief that his inter-
view with Murphy would result in disciplinary action.
Here, as well as in Spartan, the employee did not request
union representation, but announced that he was going to
find the shop steward. The Board in Spartan stated, "[TIhe
practice of Respondent to call in the union steward itself
rather than have the employees do it, on which the Admin-
istrative Law Judge relied, is irrelevant because neither
Hightower nor Smith had summoned a steward, and the'
had given Daniell no indication they would do so before
proceeding further with the meeting." Thus, unless the em-
ployerfirst offers the employee the opportunity to have a
union representative present during a "disciplinary inter-
view," the employee has the right to interrupt the interview
in order to find and bring a representative to the meeting.
The situation here parallels that in Spartan. When Fore-
man Murphy questioned Sabol about his allegedly defec-
tive work. Sabol announced that he was going to get a
steward and proceeded to do so. The fact that, after Sabol
t' he BHa,rd did not ccr er ll c dhe llil t l. iitl I .t iii . itll
that ") Ill Imadc rit rqic fl a IClr d
A. dniinitrili'.t cn til n tl.at faroi [lte
such 'r pntl.ltnt.ttl' rca n.'hl n1lt h r.1t.h . I r1 hi ,l l.ell SIX ' I
£iultSh -ilrileiit (t i tllll . *i I 1? 1? 124 I S 7gl $(J} ( 19'4's
made his announcement and begcan to walk awas from
Murph? in order to find a steward Murphy volunteered
that he would locate and bring back the steward does not
appear to be a difference sufficient to distinguish this case
from Spartan. 2 The important similarity between both
cases is that in each the emploee announced that he was
going to get the union steward and left the meeting to do
so. In Spartan the Board specifically held that Daniell had
the protected right to leave the interview for the purpose of
obtaining the presence of a ste.ard and that t w as not
necessary for him to preface his action with a request for
union representation because "under Itl icgarten IDan-
iellJ had no obligation to remain without union representa-
tiIl."
A difference between the instant case and Spral tn,
which Respondent stresses in its reply brief, is that in Spar-
tan the interview took place in an office while here it was
conducted at the employee's place of work. This does not
appear to he a distinguishing factor because in both cases,
while the interview was in progress. the employee was not
engaged in productive work. Furthermore a controlling
precedent is Pink Moody, Inca.. 237 NI.RB 39 1978).24
where the issue was whether the Section 7 rights of an em-
ployee to engage in conduct affecting a term or condition
of work. as distinguished from conduct relating to organi-
zational activities.5 is subject to balance against an alleged
business justification so that the employer lawfull 3 could
restrict the exercise of such rights. In Pink Moodi the Ad-
ministrative Law Judge dismissed the complaint on the
ground that "the Act must be interpreted to accommodate
the tension between the rights granted employees by Sec-
tion 7 and the right of an employer to conduct his business
and maintain discipline over his employees." and therefore
the employee's "refusal to comply with a direct order Ito
drive the truck he was operating back to the garage after
the employee had telephoned to complain that the brakes
were defective] given to him during his regular working
hours relating to his normal work duties" was unprotected.
In reversing the Decision of the Administrative Law Judge.
the Board in Pink Moodr found that the employee's refusal
to drive his vehicle was a protected concerted activit and.
unlike the Administrative aw Judge. found it unnecessary
to pass upon the question of the employer's alleged busi-
ness justification. Similarly here, when Sabol interrupted
the discussion with Murphy in order to find a union stew
ard. he was engaged in the exercise of his Section 7 rights
and therefore he was entitled to continue in his endeavor to
find the steward despite Murphy's request that he return to
1 l, CI ic i,. i g it1h l d ill diffettil p lure 1.11 [ rntl.in \tilptx l-
,1"wed Sahol I.l OIc IllClEC\T xtollI ll/ t h [ ilo ll x1 tl}/il WI ,
rcpreclllititli, heatri prStll \lt phlln lid 11 11 t1 l,
Bitl cc RI B t ( ,,/,, .ii,, , 'I41 1 d " 2 `t 1 ('
l'47(,)
I i uppr t i ) diI d ot .iIll /i n thu i h t , pit it iti llc - ,i ll ill
D, ........ (u /l 1,N[I I /r, 228 NI RII 2.) ( 19)'71 I I, 1C l t l I t1
[Jl ird Oml ll o. I wte I ill J i l , ellfll tCmille t f /) ,, /z I ... l d hCC[I
dellled (Scc \ R E v [)d-.E,1, ( '11diOW ( m/up m. t ~, (ta, I O I ( k l. l
(Ir 1,f7I1 1 IIl.llt lilt [to11C .ar e ad 1¢ ' h i s l Ploltlln ralhel Ie .th [,, thc
tt'llli [\ "'ll o1.)11 .f Ihc t"1 ll ti A'1 ,te l
1 ,1 Iclc 11
.
b . dtfft'TCllk¢ bc'e ccl theLl p. IOICLTIIItI llotlrd
'd. "ill ".111h ".i[t,111 Inll.nt[rI [ iLI ] oither 1th il ,lc, h llc~ hle Icdb cttor'l e '
vICttc l hX 1 hee 1cil -*lllt, rCt hF t he Siprerllc ( rll i 1 tll ,' !,/ b, 1-
] I /d 8 41' 7 S ,>, I Si
GENERAL ELtXi RIC COMPANY
I) ('ISI()NS ()O- NAI I()N AI. IAB()R RELATIONS B()ARI)
work." I n lt1 cLircujtiIIn es. c1 tii ei)t1151 allegt e; d usi-
ness justiliction for its (oilduIt C;inIIIlt bc (onsiderCed ;Is
an eXculpallr l? acttor.
I fillnd that Respondent iolltcd Section 8a)( I) of t(ie
Act hb d isciplining Sahol for asserting his protected righil
to refuse o participate i an inlerview he rec;ison;ibls be-
lieved would result in disciplinar? action without union
represenation.
I II I) 11i1 I ()I 1 N IR IABI)R PR \( i ( IS It P()
( ()MMI R( I
The activities of Respondent set forth in section III.
above. occurring in connection wvith its operations de-
scribed in section 1, above. hae a close, intimate, and sub-
stantial relationship to trade, traff'ic and commerce allong
the several States and tend to lead to lahor disputes hur-
dening and obstructing colmmerce and the free flo of
commerce.
:, I 'n nA If ,l.- tile Bald did I,,( d.,ldc Ill t tIh le C m 1" ;.\C 1 ,'
teoted i rcfilslrlv t drt. C hiI, scillr c it }c'itrs I t, lr ' " ,l " ld I ,I.c 1i.,11
rceulllillo , hlut hllat hc i lc dlllll ;I1 11.i1ii 1 .hl 1C thill c I1l llliillllll.
brakes %.,ild iolat.ic iliaffit Icgtl/ttlli "a'l, iheilcfls c, uhillt l h o l 11hj
refllsad l o l dl¥C sllh tll l i ,ICI 1 CI ,.o lId MillC III lithC h.'lll or .IO llIl,
rcfsi iiondent's dnii s t i n, -i lit'e;ll rd th leC %l 11i11tr i ii 1I t,1l II ci llti I il.
rce tl lltin hut IO L,,cln, rpc tirinil.ll t. io tI . \k1
· liti stcc I R It d//l,,,. S ( , ,, h/ , 7S I 2d I ( s ( uJ 1I7s,
\ I IlI RI M ItS
I;lsin g found that Respondent violated Section 8(a)( I
of the .Act I shall recoinmend that it cease and desist there-
lromi and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Jalies T. Sabol was unlawfully sus-
pended from work on March 4 and July 20 and 21. 1977. I
shall recommend that Respondent make him whole for any
losses suffered bh him as a result of the aforesaid suspen-
sions paNment to him of the amounts he would have
erned on said days. less his earnings on said days. if any.
Interest shall be added to such hackpal and shall be com-
puted as set forth in Florida Steel ('ororalion, 231 NLRB
651 ( 1977). ( 1977).
28
IUpon the basis of the above findings of fact. and upon
the fentire record in this case. I make the following:
(O( I I S)NS (ii0 Aa
I. By issuing to James T. Sabol a warning notice and by
suspending James T. Sabol from work because he refused
to participate in ainterview with a supervisor without the
presence of a union representative when Sabol believed
that the interview would result in disciplinary action being
taken against him. Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)( 1) of the Act.
2. T'Ihe aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.)
?Sc Icincrill rIs, I /'in/,, t ii, < l eatwl ' i ,,. 138 NIlRB 716 (1962I(
480,