Georgia Power Co.

National Labor Relations Board - Board Decisions

Sep 27, 1978

238 N.L.R.B. 572 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia Power Company and International Brother- hood of Electrical Workers, Local 84. Case 10-CA- 13176 September 27, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 13, 1978, Administrative Law Judge Stan- ley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 conclusions2 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 Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Georgia Power Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. I Respondent's request for oral argument is hereby denied as the record adequately presents the issues and positions of the parties. 2We agree with the Administrative Law Judge that it is unnecessary to reach the issue as to whether the rights set forth in N5 L.R B. v. J Weingarten Inc. 420 U.S. 251 (1975), may be waived or restncted by contract. For, the record in this case fails to establish the existence of a waiver consonant , ith announced Board standards for waiver of statutory rights. See Ketler-('res- cent (Comnpan. a Division ofl Mosler. 217 NL.RB 685 (1975). DECISION PRI.[MINARY SIAIMiENrI; ISSUES SIANI.I!Y N. OIii BA '1, Administrative law Judge: This proceeding under the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), based upon com- plaint issued by the Board's Regional Director for Region 10 dated December 14, 1977', growing out of charge filed on October 20, was heard by me in Atlanta. Georgia, on March 27, 1978, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments, as well as to file briefs, which were received on April 28. Dates are in 1977 throughout unless otherwise specified. The principal issues are whether Respondent Employer violated Section 8(a)(1) of the Act by denying a bargaining unit member employee Union representation at a disciplin- ary interview involving his suspected or alleged work mis- conduct; and by threatening the Union representative, also in Respondent's employ, with disciplinary action if he at- tended or insisted on attending that interview. Record and briefs having been carefully considered, upon the basis thereof and my observation of the testimo- nial demeanor of the witnesses, I make the following: FINDINGS AND CONC(L USIONS 1. JURISDIC1 ION At all material times, Respondent Georgia Power Com- pany, a Georgia corporation, has been and is engaged in generating, buying, transmitting, selling, and distributing electrical energy, at and from its place of business in At- lanta, Georgia, where, during the representative year imme- diately preceding issuance of the complaint, it purchased and received, directly in interstate commerce from suppliers outside of Georgia, goods and supplies valued in excess of $50,000. 1 find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act: and that at all of those times International Brotherhood of Electric Workers, Local 84 (herein called the Union), Charging Party herein, has been and is a labor organization as defined in Section 2(5) of the Act. II. ALLEGED UNFAIR lABOR PRACTICES A. Facts as Found Craig B. Payne has been in Respondent's employ since 1973. At all times here material he was a C-Phase Meter- man under Respondent's Smyrna (Georgia) District Meter Foreman Charles Eugene Miller. Since around early 1974 Payne has been a member of the Union, which has had collective labor agreements with Respondent since at least 1963 (and with a union or unions since 1919). Beginning on Wednesday, October 12 1977, Payne worked overtime to 1:30 a.m. of Thursday, October 13, for a total of about 17 hours of work. In accordance with Re- spondent's practice, he was given two meal tickets for use during that overtime period, but he used only one, using the second for breakfast on Thursday morning (after the over- time period had expired). After he turned the second meal ticket, amounting to $3.50, in for reimbursement on Friday, October 14, he was told by Foreman Miller that although he should have used it during the overtime period itself and would check on it, he (Miller) would nevertheless approve it. Later in the day (Friday, October 14), however, Payne was summoned to Foreman Miller's office in further con- nection with the matter. At this time, Payne asked his union steward, Smyrna District B-Phase Meterman Benny Ray Paramore, to accompany him. Paramore, who was occu- pied on the telephone at the moment, indicated he would be there directly. In Foreman Miller's office, Payne indicated 238 NLRB No. 93 572 GEORGIA POWER COMPANY to Miller that he (Payne) desired to have Union Steward Paramore there. Miller refused, stating that "Paramore didn't have any right to come in there" and that "It didn't have anything to pertain to Mr. Paramore." Miller accused Payne of lying to him about the meal ticket.' At or about this point, while--according to Miller himself-the meeting "was still in progress." Union Steward Paramore arrived and knocked on Miller's door, which was closed, with only Miller and Payne inside. Since Paramore's knocks were un- answered, Paramore opened the door. Miller refused to per- mit him to enter, told him his "presence was not requested in [t]here," and ordered him to leave or he would be "in serious trouble." Paramore asked Miller if he was denying Payne Union representation and Miller said ''es. Paramore thereupon left.' In consequence of this and the discussion which took place thereafter4 between Miller and Payne be- hind Miller's closed doors on the occasion in question, Payne was laid off for 7 hours without pay. Respondent's Foreman Miller, in its employ for 20 years, concedes that he refused to permit Union Steward Para- more to enter his office during his interview of Payne, and that he instructed Paramore to leave "for [your] own good." Miller further testified that both before and after he denied Paramore entrance to the interview, he (Miller) told Payne that he (Miller) intended to suspend Payne in regard to the meal ticket matter.' Asked at the trial, on cross-examina- tion, whether he (Miller) "den[ied] him [i.e.. Payne] that right to speak to Mr. Paramore that time he [Payne] asked you [Miller]. "Miller's response was: "I never did have time to comply because of the knocking at the door and Mr. Paramore's entrance, all this occurred at the same time:; and, asked whether, "if Paramore had not knocked on the door that you [Miller] would have said to Payne, yes. let's have Paramore in here," Miller's response was: "As I say, I don't really know, the way things came about." Also testifying on Respondent's behalf, William Hubert Joiner, its employee/official in capacities of increasing re- sponsibility since 1927 until he became its Assistant Vice President for Industrial Relations, testified he is currently preparing a history of Respondent's industrial relations. Re- counting that history. he indicated that the purpose of the 2 At the hearing Miller asserted that Pasne initialls told him untruthfully, on Friday morning, that he had used the meal ticket "dunng overtime." Payne denies he lied to Mille-, but that. on the contrary. he told Miller he had used the meal ticket on Thursday morning something readily suscepti- hle to verification from the restaurant, which was closed between 8 p.m, and 6 a.m. It is unnecessary to resolve this testimonial conflict, since it appears to go to the merits of Payne's alleged misconduct. However. it seems clear that any feeling on Miller's part that Payne had not told him the truth could very well have weighed, possibly heavily, in Miller's mind in connection with the seriousness of the misconduct of which Payne was being accused, and, there- fore, of the severity of ans discipline or penalty clearly evidencing the po- tential gravity of the interview in Miller's office, and therefore Payne's appre- hension of possibly dire consequences to his job and his consequent need for Union representation and assistance. 3 Around February 1978 Paramore relinquished his union stewardship and resigned from the Ulnion ' Contrary to the position suggested by Respondent on post-trial brief. the interview was far from "over" (Resp. br., p. 15) when Paramore sought to enter; in fact, it had hardly begun, and I so find. ' As indicated above (fn 2. uvpra), it is immaterial for present purposes whether Pasne was disciplined for "misuse" ot a meail ticket or oior allegedls not telling Miller the "truth" about it, or bhth collective agreement provision here invoked by Respondent as a defense, worded the same since 1963 ("When an em- plovee is talked to by his supervisor in regard to some form of disciplinary action and there is more than one member of supervision present, the employee shall have the right to request Union representation"),6 is "to protect the individ- ual's [i.e., employee's] privacy"--a contention I find diffi- cult to accept, particularly if-as here, or in any situation where the employee faced with the interview expressly calls for his union steward-the employee himself shows no con- cern for his "privacy." Respondent's witness William C. Zachary. Jr., in its em- ploy commencing in 1948 and since 1972 Manager of its Labor Relations Department, testified that since at least 1972. under the aforequoted contractual provision, Respon- dent has in actual practice and fact permitted L ,nion represen- tatives rt be present at enmplovee interviews of the nature here involved. Zachary further testified (emphasis supplied): [WJe have taken a position that if I am a single super- visor and call a man in in a one-and-one situation and he requests Union representation and I was not plan- ning to discipline. I would tell him he did not need this representation, I just want to talk to you man to man. Il he still insisted on Union representation, we have made the decision wshy nor let him have it because if I cannot convince him that lie doesn't need CUnion representation I'mt not going to get anywhere with him in a mtln-to-man discussion anlshow. But this still is not a contractual requirement, it's just a statement of policy .... In labor relations updates and talks I advise people that if you call a man in on a one-to-one and he insists on Union representation, my advice to you, even though it is not a contractual requirement, is to let him have it, be- cause you're not going to get anywhere with him argu- ing with him. If syou can't convince hin that he doesn't need Union representation, my advice to y'ou is to let him have it because you're not going to get anyw here with him. But, according to Zachary, so far as the Payne episode is concerned: G.C. Fxh. 4, p, 36, art Xll. par. 63: G.C. Exh. 2, p. 25, art. XII, par. 63 The episode here in question occurred on October 14, 1977. G.C. Exh 4 is the parties' collective agreement effective by its terms from July 1, 1975, through June 30. 1977. which was apparently extended until execution on or about January 25. 1978, of G.C. Exh. 2, effective by its terms retroactively from July 1. 1977. through June 30. 1979. The quoted provision is identical in both agreements. Dunng the parties' most recent contract negotiations, i.e., those leading to execution of G.C. Exh. 2 (executed January 25, 1978, effective retroactively from Julv 1. 1977, through June 30. 1979). the Em- ployer rejected a Union proposal that the quoted wording be changed to "When an employer is talked to by his supervisor in regard to some form of disciplinary action, the employee shall have the right to request Union repre- sentation" (G C. Exh. 3). In rejecting this language, the Company took the position thalt it would make it "impossible" fior the Company to talk to an employee: the Union took the position that it provided no more than the law allowed. According to Respondent's labor relations manager. Zachary, when Respondent refused to make this change in the hoary language of the con- tract, the Union explicitly warned that it would rely upon Board processes to vindicate the employees' right to Union representation. The Supreme Court's w'eingarten decision (420 IU S 251 (1975)) was handed down on February 19, 1975. approving the Board's 1973 decision {J Weingarten, Inc.. 202 NLRB 446. enforcement denied 485 F.2d 1135 (C.A. 5, 1973)1, and 1972 decisions (Qualito Manufacturing Conipan)., 195 NLRB 197 (1972), enforce- ment denied 481 F.2d 1018 (CA. 4. 1973). reversed 420 .S 276 (1975); cf Mob,hil Oi! (.Crporltion, 196 NL.RB 1052 (1972). enforcement denied 482 F 2d 842 C A. 7. 1973) ) 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I [Zachary] knew nothing about his involvement until it was all over. Zachary added that he was just about then: in the process of ... giv[ing] what we call a labor relations update ... [including] what was the Supreme Court's decision [in the Weingarten case] and how does that relate to our contract, and ... our advice to you is if you cannot convince a man in a one-on-one conver- sation that he doesn't need Union representation, you might as well let him get one and then get another su- pervisor to sit with ynou ... [even though] in my opinion they would not be in violation of the Supreme Court [Weingarten] decision or the contract. B. Resolution and Rationale In this case, with the essential controlling facts not in substantial dispute. General Counsel contends, and I agree, that Respondent's Foreman Miller's actions in denying unit member Payne Union representation in the described inter- view behind the closed door of Miller's office, and Miller's coercive ousting of Union Steward Paramore when Para- more sought to represent Payne. in a situation resulting in the imposition of disciplinary punishment of Payne, were violative of the Act. Respondent contends that it was under no obligation to accede to Payne's request for the presence of his union rep- resentative: that accordingly Respondent had the right to oust Payne's representative (Union Steward Paramore): that controlling provisions of Respondent's subsisting col- lective agreement foreclosed Paylne's right to union repre- sentation at the described interview; that the Union had. under the collective agreement provision and otherwise waived the unit employees' right to such representation ("second defense" in answer): and that Respondent had been induced to enter into the subsisting collective agree- ment in reliance upon representations and inducements of the Union supporting Respondent's present interpretation of the provision in question allegedly foreclosing unit em- ployees' rights to union representation under the circum- stances here ("third defense"). I do not agree with these contentions as a matter of law and I find that, to the degree they may depend upon fact, the necessary factual predi- cates therefbr have not been established by substantial credible evidence as required. To begin with. it is undisputed that Foreman Miller's interview of unit employee Payne was fraught with disci- plinary peril to Payne; that Payne from the outset of that interview, conducted behind the closed door of Miller's of- fice, requested union representation; and that union repre- sentation was not only denied to Payne, but that Payne's union representative was coercively ousted by Miller from participation in the interview, which did indeed result in discipline to Payne economically and also as a blot upon his employment record. Normally a situation such as this would clearly be stamped with illegality under .. L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975); indeed, the Board in a related case (Mobil Oil Corporation, supra, in effect re- versed 420 U.S. 276 (1975), spoke of employer denial of employee right to representation by his Union as a "serious violation" (196 NLRB 1052) of the Act--a characterization with which the Supreme Court gave no indication it dis- agreed. To the contrary, the Court took occasion to point out that the right of employees to such representation, in accordance with the Board's construction, "plainly effectu- ates the most fundamental purposes of the Act" (420 U.S. at 261). Respondent urges, however, that Weingarten is not con- trolling here fobr a variety of reasons. First, it contends, in effect, that application of Weingarten is foreclosed, out- flanked, or bypassed because of a provision which has been part of its collective agreements since at least 1963. Al- though it is true that the provision dates back to 1963, 1 do not agree, for a variety of reasons, that its perpetuation in effect overcomes the Supreme Court's mandate. To begin with, the contractual provision in question antedated Wein- garten by many years. It is basic that contracts. as well as other jural relationships, must conform and accommodate to statutorily or judicially declared (including innovative and even altered) law: it is not the other way around. Where the Supreme Court has interpretatively declared the scope of, or unfurled a new direction to, a Section 7 right, it is not for a party to continue to deny the existence of the right because his contract so provides. Beyond this, how- ever, I do not read the contract as necessarily so providing. At best (or worst) the provision in question is not so clear as to require an interpretation so drastic as to deprive or oust employees of a right so important that, by Supreme Court declaration, it "plainly effectuates the most fundamental purposes of the Act" (Weingarten, supra, 420 U.S. at 261). Thus, the mere fact that under the contractual provision an employee is expressly given the right to "request" Union representation where there is more than one supervisor pre- sent, does not rule out his right to representation where only one supervisor is present. Certainly the provision does not so state. Respondent's restrictive contrary interpreta- tion would permit the patently absurd result of assuring an employee the right to "request" Union representation in a situation where he is casually "talked to" on the factory floor or elsewhere in the open by two minor supervisors regarding an extremely minor infraction, while absolutelyb denying him that right where he is formally summoned into the closed-door office of the president or general manager that awesome "locus of final authority" for a critically important interview concerning an extremely major infrac- tion upon which his very job turns. It does not seem to me, absent the clearest of language, that the contract provision in question should be interpreted so as to allow, so extreme a result, particularly considering the total absence of proof that the parties so intended. If one were to indulge in specu- lation, unneeded here, a more reasonable interpretation would, for example, be the one in a way suggested in Re- spondent's Industrial Relations Manager Zachary's advice to subordinates that "if you cannot convince a man in a one-to-one conversation that he doesn't need Union repre- sentation, you might as well let him get one and then get another supervisor to sit with you" (emphasis supplied) the converse of Zachary's hypothesis, but, in either case, a com- monsense mechanism to equalize the persons present on ? (;enral Shot ( orporalion. 77 NlRB 124. 127 (1948). 574 GEORGIA POWER COMPANY "each side," so that there is in neither situation the imbal- ance of "two against one." Respondent further urges that through the historic provi- sion in question the Union waived, for all unit employees. their right to representation -a right they would otherwise unquestionably have under Weingarten. Starting with the basic proposition that waiver is a voluntary and unequivo- cal relinquishment of a known right., I cannot see how any of these essential requisites to effective waiver was satisfied. The proof is clear that not only did the Union make no voluntarily relinquishment of the right in question, hut that it explicitly indicated it was insisting upon it. under its in- terpretation of the questionable wording, and that it would seek vindication of its views before the Board if the occa- sion arose. as it did indeed here.9 Furthermore. Respon- dent's position denying to Payne a right which, according to the testimony of its Industrial Relations Manager Zachary. it had vouchsafed regularly to employees other than Payne. was inconsistent with its own practice. It is proper to regard a party's own practice as affording a clue to its interpreta- tion of the meaning of its own words."' Although Respon- dent, having the burden of proof of establishing the alleged waiver by convincing evidence." cannot be regarded as having met that burden, it might further be maintained (al- though unessential under the circumstances here) that a right so seriously regarded by the Supreme Court and the Board simply cannot be waived, much like the employee right to use of factory bulletin boards cannot be waived. as declared by the Supreme Court in N.L. RB. v. The Magna- vo.s Company oJ' Tennessee, 415 U.S. 322 (1974). reversing 474 F.2d 1269 (C.A. 6, 1973), and aff. 195 NLRB 265 (1972)." The reasoning is comparable: to permit employees to be stripped of such a right by agreement of a Union could subject them (and perhaps particularly the minority of employees also represented by the Union, under the statutory scheme, who did not and do not opt for such representation) to the mercies of a Union with which they are less than happy or which may not, in violation of its most basic fiduciary responsibilities, desire to represent them in disciplinary interviews.' It would seem that the 8 C. The Timken Roller Bearing (Coepanir v. V L. R B.. 325 F.2d 746, 751 (C.A. 6. 1963), cert denied 376 U.S. 971 1964). General Electric ('ornpani v .L.R B. 414 F.2d 918. 923 924 (C.A 4. 1969), cert. denied 396 U. S. 1005 (1970). The Fafnir Bearing Coimpman v V . R L. B, 362 F.2d 716. 722 (C A. 2, 1966); Tuucker Steel (lrporation and Steel Suppli ('ompanl. 134 NLRB 323, 332 (1961) and cases cited ' Mere failure to) incorporate a statutory right in a collectise agreement does not justify an inference of waiver thereof Cf (hloierleal Diision of 4damr Dair' Co. 147 NLRI 1410. 1413 14 (1964). SNer York Telephone Comparni 219 NLRB 679, 680 (1975). lo In this connection, I reject out oflhand Foreman Miller's intimation that he denied Payne the right to union representation merely because Union Steward Paramore knocked on his door, without regard to the decibel count of the knock or its persistency Even if these were such as to incur Miller's displeasure, other measures none here apparentls even contemplated could readily have been utilized to cope with iny possible abhuse of that nature. " See cases cited at in. 8, supra. 2 See also uv. York Telephone ( iomplanil, iupra. ,Vt'h Yrk Telephone (Comnlpan 219 NL RB 685(1975). In a given situation. unlike that here. it could also operate as the Board and Supreme C'ourt teared in aUlagnailo to "freeze" into place an incumbent Union favored ho the I mployer as recompense for surrendering this important right of employsees in escape of its fiduciarys obligation to represent them. The M.agnaiox reasoning also could he said to apply. mutalri ,mutandir, against salnctioning advance broadside "waiver." through collec- right of an employee to representation. particularly in con- nection with saving his job,is ordinarily far more funda- mental than his right of access to a bulletin board which roused the high Court's concern in Mt1aga',,ovr indeed, the concern of Congress itself with this very right is manifested by its inclusion in the Act (Section 9 (a)) of express provi- sion securing the unqualified right of an employee to deal directly with his employer even if his union representative does not wish to do so (such, for example., as where his union representative fails to do so or pursues the matter with inadequate zeal). Although union lassitude in repre- sentation is not the situation here, to permit waiver of so important an employee right-certainly not interior in sig- nificance to the employee than the bulletin board right insu- lated against collective-agreement waiver in tlagnatmo - could be said to undercut basic employee protections and watershed policies of the Act involving the fundamental supposed advantage of union affiliation. At the vers least. such a waiver should not be lightly implied. nor found ex- cept on the clearest and most convincing proof'. utterly lack- ing here. Upon the record presented. I find no waiver of the employees' right the Union representation established in ilact or arising by implication or operation of law. Respondent's remaining contention ("third defense"). that it was in some way the victim or dupe of misrepresen- tation or improper inducement bv the Union to enter into a collective agreement containing the provision in question, impresses me to be of the character of an arrow shot into the air to fall one knows not where. Even aside from the fact that no such case has been made out in ans way, it is difficult to assess, because of mans missing links, just what, if anything. would flow therefrom even it' made out. Re- spondent's consequential allegation ("third defense," par. "3") that it was thereby "coerced" bh the Union into doing what it did here by reason of' the existence of the provision in question in its own collective agreement. cannot reason- ably be viewed as other than a leap into the dark. Its con- tention (id., par. "4") that the Union is an "indispensible party" herein is answered by examining the caption of the proceeding, which plainly shows the Union to be a party, Respondent's final contention (id., prayer for relief) that the "Complaint be amended to include" the Union "as co-re- spondent" is utterly misplaced for a variety of reasons: complaints are not amended at the behest of Respondents: there is no indication that any charge has been filed by Respondent against the Union, much less that any com- plaint has been issued against it: and the Union need not be named as a "co-respondent"--it could hardly be, since it is the Charging Party for complete relief here, which from Respondent's point of view could be afforded through dis- missal of the complaint. In short, then, in the circumstances shown. Respondent violated the plain mandate of W'einglrten by depriving its emplo\ee Payne of a Supreme Court-declared right to Union representation under the Act: and it further violated the Act by coercively ousting Payne's representative. LUnion tise agreemlent. of Ihe employees' right to represeni.iiion. because It could be said to ins ite the employer's imposition of discipline based upon emplosees attempted activities adverse to a union with which the emploer enJoss a "sweetheart" relationship There are mans good reasons *hs a union should not he permiitted io w ai, se is (in Vblgai.lon to represent its members 575 I5DFCISIONS OF NATIONAL LABOR RELAT IONS BOARI) Steward Paramore. from his attempt to afford Payne that representation. An employee's right to representation is not limited to a situation in which he is outnumbered '4 Whether or not the right of employees to representation under the Act can he surrendered. "waived" or relinquished by a Union in advance by general collective agreement pro- vision- which is, in my view, an extremely doubtful propo- sition,'5 for reasons explicated above it has not been estab- lished that any, such surrender. waiver, or relinquishment occurred here. I so find and determine.l' Cf. ('olumbnus Faundries, Inc., 229 Nl RB 34 (1977). enf. 84LC 11 10.645 (C.A. 5. 1978): Nel1 Y ork Telephone C(ompant. 219 NLRB 679 (1975); New YorA 7lelephone (Compan.v 219 NLRB 685 (1975). Upon the foregoing findings and the entire record, I state the following: C()N('ol. SIONS ()t LIA\ 1. Jurisdiction is properly asserted in this proceeding. 2. By failing and refusing to accede to lawful requests of its employee Craig B. Payne on October 14. 1977. to have a Union representative present at an investigatory meeting in 14 This is not toi suggest that. in the absence of contractual requirement, an employer is obliged to conduct an interview or meeting with :in employee prior to imposing discipline or discharge. Obhsousl, however. discipline or discharge, whether or not preceded bs an intervsiews or eeting with or without union representation may be fraught itfh consequences if tlir a reason violative of the Act ' Unlike counsel for General Counsel (br. p. 5), I do not read SNe, York Telepilone ('omnpanm. rupra as implying, much less holding, that the emniploy- ees' right to representation under the Act is subject to prospectisve surrender or waiver by the bargaining representative through a provision of broadside general applicability in a collective agreement. since in that case, as here. it was unnecessary to decide that question, the Board there las I here) address- ing itself to the issue of whether there was in fact a waiver and determining that issue in the negative. Western Flectric (Cmpaun, Intm. 198 NlRB 623 (1972), relied upon hb Respondent, was decided prior Ito 'eingarten,; even aside from the fact that Western Eleitric involved arhitraiors' determinations. the Board majority in- cluding lIormer Member Kennedy) there (198 NLRB at 6251) seems to have aligned itself' (prior to the Supreme Court decision in Weiigartrln) with the dissent of former Member Kennedy in the Board decisions in Qua/lity anu- facturing (Cntparnv, 195 NlRB 197 (1972), and fobhil Oil (Corporation. 196 NLRB 1052 (1972), Board decisions which were subsequently (1975) sil- tained by the Supreme Court in U'eingarten. The concurring topinion of former Chairman Miller in Wlestern Electiric, also heavily relied upon by Respondent, was likewise written prior to W'eingarteril and in any event the expressions in the former Chairman's concurring opinion concerning bar- gainable relinquishabilits of what the Supreme Court subsequently. in Wein- garten. plainly regarded as the significant right of employees to representa- tion by their union, smack of personal viewpoint and dictum which were not even adopted by the oither Members comprising the Board panel in that case. In its subsequent decision in .Vet York Telephone (Conpanr. supra, fn. 7. the Board (again including former Member Kennedy. who this time after the Supreme Court Wei'ingarten decision -no longer dissented) expressly pointed out that it was leaving open the question of whether an emploiee's right to) representation could be waived by his representative through advance collec- tive agreement pros'ision a position the Board would hardly have taken in 1975 if it had regarded itself as lireclosed by the 1972. pre- Weingarten views of' the former Chairman. 16 Respondent points out that this is the first complaint issued against it in a long history of amicable industrial relationships. While this aberration. if such it be, is regrettable, it does not constitute a defense to violation of the law: if complaints were dismissed on this basis alhne, there might never arise a finding of violation, notwithstanding protf ,I violation, simply because there is no record ofi prior violation ai circular treadmill preclusive ot ra- tional law enforcement. the office of Respondent's Foreman Charles Eugene Miller concerned with imposing disciplinary punishment upon Payne in connection with his work activities, under the cir- cumstances detailed and found in "11," viupra. Respondent interfered with. restrained, and coerced. and is interfering with, restraining. and coercing, employees in the exercise of' rights guaranteed in Section 7. thereby engaging in unfair labor practices in violation of Section 8(ai( 11. of the Act. 3. By threatening said employee Pavne's Union repre- sentative, Union Steward Benny Ray Paramore, on Octo- ber 14. 1977, with disciplinary action if he attended, at- tempted to attend, or did not leave, the aforedescribed meeting between employee Payne and Foreman Miller, un- der the circumstances detailed and found in "11,I" vuprea. Respondent interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed in Section 7. thereby engaging in unfair labor practices in violation of Section 8(a)( I ). of the Act. 4. Said unfair labor practices and each of them have af- fected. are affecting. and unless permanently restrained and enjoined will continue to affect. commerce within the mean- ing of Section 2(6) and (7) of' the Act. RiSit] ir Respondent should be ordered to refrain from continuing to violate the Act in the respects found, or in like and re- lated manner: to reimburse its employee. Payne. for pay and perquisites lost through the aforedescribed disciplinary furlough imposed upon him. together with interest, com- puted as set forth in F. IW. Woolsworth (Conpanl , 90 NLRB 289 (1950), and Ii.v Pliobhing & Heallng (Co.. 138 NLRB 716 (1962). and interest as explicated in Floridtl Steel Corpo- ration, 231 NLRB 651 (1977): to preserve and make avail- able its books and records to the Board's agents for back- paN computation and compliance determination purposes; to expunge from the personnel and other records of both Payne and Paramore all adverse entries relating to the epi- sode in question: and to post the usual informational notice to employees. Upon the basis of the foregoing findings of fact. conclu- sions of law and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recom- mended: ORDER'7 The Respondent, Georgia Power Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a). Refusing or failing to accede to the request of any employee, made personally or through his agent or repre- sentative, to be represented by a labor organization at any interview or meeting held bh the employer where the em- , In the event no exceptions are tiled as provided by Sec. 10246 of the Rules and Regulations olf the National Labor Relations Board, the findings, conclusions, and recommended Order which lollows herein shall, as pro- sided In Sec. 102 48 of those Rules and Regulations, be adopted bs the Bolard and become its findings, conclusions, and Order. and all objections thereto shall he deemed waived for all purposes. 576 GEORGIA POWER COMPANY ployee has reasonable ground to believe that the matter to be inquired into or discussed may result in his discharge or discipline. (hb). Refusing or failing to accede to the authorized re- quest of anv' labor organization or its representati',e to be present and represent any employee of the bargaining unit, at an's such interview or meeting held by the employer with the ermployee. (c). Directly or indirectly threatening with discipline or reprisal any representative of ans labor organization for lawfully seeking to he present or to represent an) emplosee of the bargaining unit at ans such interview or meeting held by the employer with the employee. (d). Requiring any employee to take part in any such interview or meeting without the requested labor organiza- tion representative. (e). Disciplining, suspending, laying off, furloughing, ter- minating, interrupting the seniority oft discharging. warn- ing, or threatening so to do. ans employee requesting such representation or any authorized employee affording or at- tempting to provide such representation. (t). In any like or related manner interfering with. re- straining, or coercing an' employee in the exercise of the right to self-organization: to form, join, or assist an) labor organization: to bargain collectively through representa- tives of his own choosing: to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection: or to refrain front an! and all such activities. 2. Take the following atfirmatixe actions. necessary' to effectuate the policies of the Act: (a). Make Craig B. Pa tine whole for any loss of pay, se- niority, and benefits. imposed upon or sustained by him in or in consequence of Respondent's interview or meeting with him without the presence of the requested Union rep- resentative, on October 14, 1977: together with interest, in the manner set forth in the "Remedy" portion of the Deci- sion of which this Order forms a part. (b). Forthwith expunge from the personnel. employment, and all other records of Craig B. Payne and Benny Ray Paramore all statements, notations, entries. and references that Payne was disciplined for any work-related fault, defi- ciency. or reason, or that Paramore was in way warned or spoken to or involved in any episode relating to Payne's or Paramore's request or assertion of the right to be present at any meeting between Respondent and Payne concerning an incident involving alleged misbehavior or work rules or policies infraction by Payne: and refrain from any such communication, written or oral, to any other employer. prospective employer, or agency. (c). Preserve and, upon request, make available to the Board or its agents. for examination and copying, all pay- roll records, wage scale records and notations, overtime rec- ords, social security payment records, timecards, personnel records and reports, and also all other records and entries necessary or appropriate to determine the amount of back- pay and other sums, benefits, and adjustments due or ap- propriate under and the extent of' compliance with the terms of this Order. (d). Post at its premises where the October 14, 1977 epi- sode occurred, copies of the attached notice marked "Ap- pendix."TM Copies of said notice. on forms prov'ided by the Board's Regional Director for Region 10 shall, after being duly signed by Respondent's authorized representative, be posted by Respondent 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 by Respondent to insure that said notices are not altered, defaced, or covered bs an' other material. (e). Notify said Regional Director. in writing, within 20 days from the date of this Order. what steps Respondent has taken to compls therewith. 11 Is R iI IR ORDI)RIDI) that the defenses in Respondent's answer herein be and the', are hereby. after hearing dis- missed on the merits. 1" In the exent this Order is enfl)rced Ib a judgment of a t:nited States (Court of Appeals. the words in the otiich e "Posted hb Order of the National l.abhor Relations Board" shall read "Posted Pursuant to a Judgment oft the lUnited States (Cturt orl Appeals Eniforcing an Order itf the National lIahltr Relations Boardl. APPEN[)IX Noiit( To( EpiiIl.(Y[ti:S PoSIFD) BY ORI)I:R ()F 1it NAII)N I .AB()R R I. All()NS BOARI) An Agenc' of( the IUnited States Go'oernment Wl 'rx xI.I N)I require any employee to take part in any interview or meeting without union representation if the employee requests it in the reasonable belief that the matter to be inquired into or discussed may result in his discharge or discipline. W'E il.l. NOt discipline, suspend, lay off, furlough. terminate, interrupt the seniority of. discharge, warn. or threaten so to do. any employee requesting such representation: or any Union Steward or other autho- rized person affording or seeking to provide such repre- sentation. Wi Nv'iii,. NOi in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his right to self-organization: to form, join, or assist any labor organization: to bargain collectively through representatives of his own choosing: to engage in con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection: or to refrain from any and all such activities. Wti wl.l. permit our employees to have their union representative present and to participate in an' such interview or meeting if they so request. WE. v rii.i reimburse Craig B. Payne for any loss of pay. seniority and benefits, with interest, imposed upon or suffered by him as a result of our interview or meet- ing with him in the office of Meter Foreman Charles Eugene Miller on October 14, 1977, without the pres- ence of Pasne's union representative although Payne had requested him to be present: and 'sx 'sx.i. at once remove from our records all indications of our disci- plining of Payne in connection with that episode. as 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well as all indications that Union Steward Benny Ray Paramore was warned by us to leave or stay out of that interview or meeting: and WE WILL. NOT in writing or orally indicate to any other employer or prospective employer or agency that such discipline or warning took place. GEORG(IA POWER COMPANY 578