Illinois Bell Telephone Co.

National Labor Relations Board - Board Decisions

Aug 20, 1971

192 N.L.R.B. 834 (N.L.R.B. 1971)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois Bell Telephone Company and International
Brotherhood of Electrical Workers, Local 336,
AFL-CIO. Case 13-CA-9513
August 20, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 29, 1971, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices alleged in the com-
plaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel, the Charging Party, and the Respondent
filed exceptions to the Trial Examiner's Decision and
supporting briefs. Respondent also filed an answer-
ing brief to the exceptions of the General Counsel
and the Charging Party.
Pursuant to the, provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to, a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner : Upon an original charge
filed December 10, 1969,1 by International Brotherhood of
Electrical Workers , Local 336, AFL-CIO (herein the
Union), against Illinois Bell Telephone Company (herein
the Respondent or the Company), the General Counsel of
the National Labor Relations Board , through the Regional
I
All dates hereinafter refer to the calendar year 1969, unless otherwise
indicated.
Director for Region 13, issued his. original complaint and
notice of hearing dated December 7, 1970.2 Respondent's
duly filed answer to the complaint , as amended, admitted
certain jurisdictional allegations but denied the commis-
sion of any unfair labor practices . The sole issue presented
for decision in this case is whether Respondent committed
a violation of Section 8(axl) and (5) of the National Labor
Relations Act, as amended (herein the Act), when it
refused to allow its employee , Wilbert Davis, at his request,
to have a union representative with him at a meeting with a
management representative to which he had been sum-
moned for interrogation respecting his work performance
on December 3.
At the hearing, which was held before me in Chicago,
Illinois, on February 1, 1971, all parties were represented
by counsel and were given full opportunity to present
evidence, examine and cross-examine witnesses, and to
argue orally on the record . All parties waived oral
argument, but filed helpful posthearing briefs with me,
which have been duly considered.
Upon the entire record in this case , including my
observation of the demeanor of the witnesses while
testifying, and the arguments of counsel , I make the
following:
FINDINGS AND CONCLUSIONS
1. COMMERCE
The Respondent, an Illinois corporation with its princi-
pal offices in Chicago, is, and has been at all times
material , engaged in the business of providing local and
long-distance communications and related services as part
of a nationwide telephone system. During the past
calendar year, which is a representative period, the
employer in the course and conduct of its business
operations derived gross revenues in excess of $1 million.
Based upon the foregoing facts, which are admitted by
Respondent, I find and conclude, as Respondent concedes,
that it is an employer egaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is and has been at all times material a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Since 1948, including the time material to the events in
this case, the Union has been the collective-bargaining
representative of a unit of the Company 's employees which
included the aforesaid Wilbert Davis . The relevant facts as
to what occurred on December 3, as respects the issue in
this case, are not essentially in dispute and may be
summarized as follows:
Davis, an installer-repairman at the Company's Joliet,
Illinois, facility, at approximately 9 a.m. on the morning of
2 The complaint was later amended on December 10 and 18 , 1970, and
at the hearing herein.
192 NLRB No. 138
ILLINOIS BELL TELEPHONE CO. 835 ,
December 3, attempted to contact a fellow repairman, one
Lawrence Routt, for the purpose of obtaining from the
latter a, telephone' dial to complete a repair on Collins
Street an the east side of Joliet . Routt's foreman instructed
Davis that the latter might find Routt at the K-Mart Food
Store on Larking Street on the west side of Joliet. Davis
proceeded to that location but did not we Routt;
whereupon, utilizing a coin-operated telephone on the
outside _of the K-Mart Food Store, he attempted to contact
Routt's foreman again in order to ascertain Routt's
whereabouts . However, that telephone was inoperative as
Davis, discovered after he had deposited a dime and two
nickles- into it _ (he received 'a "permanent" dial tone). He
went to his,truck for the purpose of obtaining keys to open
and see if he could repair the telephone. He opened the top
housing of the `telephone and some coins fell out of it
which he picked up 'and placed back into the telephone
except for his dime and two nickles . Concluding that he
was unable to repair the telephone,, and knowing `that
Routt would be at the telephone later in the day, Davis
proceeded to his first-job and worked the remainder of the
day.3
Routt arrived,at the K-Mart location at approximately
10 o'clock and testified thane found that the coin shute at
the particular telephone was damaged and bent , and that'
two washers were locking the relay which kept the
telephone from` operating properly. Routt repaired the
telephone,, tool,' the excessive coins out of the upper)
housing thereof, counted, them, and advised the operator,
Routt then went about his regular duties until approxi '4
mately 2;30 p,m. when he received instructions from a
company supervisor to report to the central office. There,
he was introduced to two of the Company's security
agents, one of whom took him into a conference room and
commenced asking him about his day's work - activities.
When- asked specifically concerning what he had done at
the K-Mart telephone; he responded as above related. He
was then asked if the interrogator could see the coins in his
pocket which 'Routt replied in the affirmative.4 The
interrogator then called in the other security agent and
placed the money under a fluorescent light and one of the
agents stated that "he's clean," and Routt was told to pick
up his coins.
After some more discussion between the interrogator
and Routt in which the former told the latter that he
thought Davis was the one who had taken the money,
Routt was requested to sign a statement taken by the
interrogator, which he did. As Routt departed, he saw
Davis in the outer office along with Company Supervisors
Greenham and Amstutz and the other security agent.
About 4 p.m. on the afternoon of December 3, Davis was
summoned to the central office where he saw his
supervisor, Greenham , and was introduced to the security
agent. The latter commenced interrogating him in the
conference room, alone, concerning his day's activities.
When the agent commenced interrogating Davis concern-
3 Testimony of Davis.
The security agent advised Routt that Routt had placed only $3.80 in
the telephone and that the security people had placed money in the
telephone in an amount of approximately $5.10.
5 Greenham and Amstutz were not in the room at any other time during
the interrogation, nor when the money was placed under the fluorescent
ing the K-Mart telephone, Davis inquired whether he was
entitled to union representation. The agent responded,
"No, we don'-t do it this way."
The agent then advised Davis that the Company had
"salted" the telephone by placing $5.35 in it and found
$1.85 missing, and that his partner had observed Davis at
the telephone that morning. Davis advised that he did not
have the money, but the'agent stated that "we- think, you
do," and asked Davis if he would -take the change out of
his pocket. Davis acquiesced . Whereupon, the agent called-
the other security agent into the room and-placed the
money under, the fluorescent fight at the end of the room,
outside the presence of Davis . The other agent advised that
he had found some marked money. The regular light was
then turned back - on and the -company, supervisors,
Greenham and Arstutz,--were called into the. room and so
advised.5 All ' of the men then left the conference- room
except Davis and the interrogating security` agent, who
then wrote out a statement' and requested Davis to sign` it.
While the agent was writing out the statement , Davis again
asked him "shouldn't I have union representation?"to
which he replied "no, you don't need representation: We'll
come to that later." Davis signed the statement, but on his
way out of the conference r mFmet his union steward and
related the event concerning the-interrogation to-ltim.'The
steward asked Davis if the latter requested union represent=
ation to which Davis replied in the affirmative , but that it
was not afforded him. The union steward then asked the
security" agent" if that was true' 'to-which -the `agent
responded affirmatively- and added -a sentence to the
bottom of'the statement to that effect .6 " -
That evening at approximately 7 p.m., Greenham called
Davis at the latter's 'home and advised that he had been
indefinitely suspended. - -
The following day, December 4,^there was a meeting at
the Company's offices among company and,- union
representatives.r After some 'discussion, ' the division
manager advised ' that Davis 'susspension ' was' converted
into a discharge. - -
On December 18, as a result of `a grievance filed-by the
Union respecting the matter,' Davis was reinstated' to his
former job and the discharge was converted to a ' discipli-
nary suspension plus reimbursement of a week's backpay.
Analysis and Concluding Findings
Section 7 of the Act guarantees to employees the right "to
bargain collectively through representatives of their own
choosing...." Section 8(axl) and (5) make it an unfair
labor practice for an employer "to refuse to bargain
collectively with the representatives of his employ-
ees.... " Section 8(d) of the Act defines the term
"bargain collectively" as the "performance of the mutual
obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good
light.
6 See Resp. Exh.1.
r Present for the Company were its division plant manager and his
assistant; present for the Union were its president, the chief steward, and
another steward . Davis was also present.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith with respect to wages, hours , and other terms and
conditions of employment...." (Emphasis supplied.)
Although the matters and things encompassed by the
interview between the security agents and Davis on
December 3 had to do with terms and conditions of his
employment, there does not appear to be substantial
evidence that the Respondent 's agents , on that occasion,
sought to confer or deal with Davis respecting a term or
condition of his employment. Rather , they were merely
interrogating him concerning his activities for the purpose
of gathering information to be turned over to the line
supervisor of the company ; i.e., the management officials
who did have authority to effect disciplinary action. Under
these circumstances, the case law seems clear that the Act
exacts no obligation upon the Company to accord the
employee the right to union representation at that level of
discussion .8 There is no evidence that the security agents
had any power or authority to make any decision
respecting any discipline that might be imposed upon
Davis or that any supervisor of the Company who had
such authority participated in any way in the interview on
December 3. The most that can be said of the General
Counsel's case is that Davis' supervisor was advised during
the course of the interview that the investigators had
discovered marked money in Davis' possession, thereby
making more probable the conclusion that some form of
discipline would be imposed; however, there is absolutely
no evidence that any decision in this respect was made
prior to the termination of the interview. Moreover, after
such decision was made and communicated to Davis, a
meeting among all interested parties, including the union
representatives, was held the next day where the subject
was for the purpose of dealing with .Davis respecting terms
and conditions of his employment-specifically what form
of disciplinary action was to be imposed.
The facts in the Board's decision in Texaco Inc., Houston
Producing Division, 168 NLRB 361, 362, relied on by the
General Counsel, distinguish it from the case at bar. The
meeting under scrutiny in that case , so the Board held, was
"not simply part of an investigation into some alleged theft
and Alaniz [the affected employee] was not invited to
attend solely to provide the Company's representatives
with information. Rather the meeting was concerned
essentially with Alaniz and his alleged theft, the facts of
which were known to management representatives some 2
Chevron Oil Company, 168 NLRB 574, 578-579; Jacobe-Pearson For4
Inc., 172 NLRB No. 84 ; Dayton Typographic Service, Inc., 176 NLRB No.
48; Wald Manufacturing Company, 176 NLRB No. 119; Texaco, Inc., Las
weeks earlier, and more specifically with the Company's
concluding its `case' against Alaniz in order to provide a
`record' to support disciplinary action, if deemed appropri-
ate. Thus it is clear that on November 17, the Company
sought to deal directly with Alaniz concerning matters
affecting his terms and conditions of employment." (Emphasis
supplied.) As previously noted, there is no evidence in the
instant case that the security agents had any authority to
"deal with" Davis concerning matters affecting his terms
and. conditions of employment , or that they did so in this
case . Nor is it shown that Respondent was under a
contractual or statutory obligation to notify Davis or the
Union of its decision to discipline prior to its imposition. It
is certainly commonplace in plant procedures to take
disciplinary action subject to the grievance procedure.
That was done in this case , and a grievance meeting was
promptly held in which all interested parties participated.
Although the Union, in its brief , makes an appealing
argument that the right of union representation should be
afforded even in the investigatory stage in those cases
involving misconduct which could result in a criminal
prosecution , I find no basis in the authorities above cited
for making such a distinction . Accordingly, I must deem
myself bound by such precedent. Moreover , when the time
came to confer with him concerning such matters , his right
to union representation was secured.
For the foregoing reasons , I find and conclude that the
General Counsel has not sustained his burden of proving
by substantial evidence the allegations of the complaint
herein , and I will recommend that it be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is ordered that the complaint be, and the same is
hereby, dismissed in its entirety.
Angeles Sales Terminal, 179 NLRB No. 157; Texaco Inc., Houston Producing
Division v. N.LR. B., 408 F.2d 142 (C.A. 5, 1969), denying enforcement of
168 NLRB 361.