ITT Continental Baking Co.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1047 (N.L.R.B. 1979)

ITT CONTINENTAL. BAKING COMPANY
ITT Continental Baking Company and Alvin Sim-
mons. Case 13 CA 18384
December 14, 1979
DECISION AND ORDER
BY MEMBERS JENKINS. PNEIL,. ANt) TRUESDAI E
On September 19, 1979, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and supporting brief, and Respondent
filed a brief in response to the General Counsel's ex-
ceptions.
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 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 complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drv Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
In adopting the Administrative Law Judge's findings with respect to the
dismissal of the alleged 8(a)l) violation, however. we rely entirely on his
credibility finding that employee Simmons did not, as he claimed, at his
initial meeting with Plant Manager Poulos. ask Poulos if Respondent had
notified the Union of the meeting, as required by N.L R B. v. J. Weingarten,
Inc., 420 U.S. 251 (1975). We therefore do not pass on the Administrative
Law Judge's statement that, even if Simmons had asked if the Union had
been notified, such a question would not have been tantamount to a request
for a representative.
DECISION
STATEMENT OF TilE CASE
HUTTON S. BRANDON, Administrative Law Judge: This
case was heard in Chicago, Illinois. on June 27-28, 1979.'
The charge was filed by January 22, and the complaint
All dates are in 1979 unless otherwise stated.
herein was issued on Fehruary 28 (amended March 13 and
June 8). The primary issues are whether ITT Continental
Baking Company, hereinafter called Respondent or the
Company, violated Section 8(a)(1) of the National Labor
Relations Act, as amended, herein called the Act, by deny-
ing the request of its employee Simmons bor union represen-
tation during an interview on January 8, and violated Sec-
tion 8(a)(3) and (I) of the Act by discharging Simmons on
January 10.
Upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINI)INGS oF FACI
1. JL RISDI) IION
Respondent is a Delaware corporation with an office and
place of business located in River Grove. Illinois, where it is
engaged in the wholesale sale and distribution of bread and
other bakery products. During the past year Respondent
purchased and received goods and materials valued in ex-
cess of $50,000 directly from points outside the State of
Illinois and during the same time sold and shipped goods
and materials valued in excess of $50,000 directly to points
outside Illinois. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. le I ABOR ORGANIZATION
The complaint alleges, Respondent by answer admits,
and I find that Bakery. Cracker, Pie, Yeast Drivers and
Miscellaneous Workers Union. Local 734. International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union. is, and has
been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
111. rHI- AI.i.-(;EI) UNFAIR I.ABOR PRA(CII'IES
Simmons had been employed by Respondent since 1965
and at the time of his discharge on January 10 was working
as a receiver-loader in the bread department at Respon-
dent's River Grove facility. He was a member of the Union
and had been since shortly after the beginning of his em-
ployment. The Union and Respondent had been parties to
a collective-bargaining agreement for several years with the
last, and current, agreement, being effective from October
20, 1977. to October 18, 1980. There is no evidence in the
record that the relationship between Respondent and the
Union was other than amicable.
The events upon which Respondent relied in effectuating
the suspension and discharge of Simmons which the Gen-
eral Counsel contends violated the Act occurred on January
5. It was on that date, according to Simmons' testimony,
that, as he was coming into work around 4:25 p.m.. he was
greeted by Route Supervisor James Driscoll saying loudly,
"Here comes my boy."2 Simmons told Driscoll either to call
him by his name or call him nothing. Simmons proceeded
' To understand the derogatory or offensive nature of this remark, t must
be noted that Simmons is black and )riscoll is white
246 NLRB No. 166
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to begin his paperwork, getting load sheets and returning to
Driscoll's area about 30 minutes later. At that time he ob-
served that Driscoll had spilled some coffee as he was re-
moving it from a vending machine and remarked to Dris-
coil, "You should have burned your ass off." Driscoll
proceeded to clean up the coffee spill and then began to
taunt Simmons who was engaged in some paperwork by
pointing his finger about 4 inches from Simmons' face and
stating, "My boy, my boy, my boy." Simmons asked Dris-
coil to kindly remove his finger, but Driscoll continued his
taunting. Simmons reached for a bread tray on a nearby
tray rack and "fanned" the tray' at Driscoll's outstretched
finger, which Driscoll quickly withdrew, avoiding any phys-
ical contact with the tray. At that point, still according to
Simmons. Driscoll "put up his guard," and told Simmons,
"Come on." Gus Fiejoo, another route supervisor, came
into the area, and inquired, "What the hell is going on?"
Simmons returned to his work, apparently without any ex-
planation to Fiejoo, and Driscoll did likewise. There were
no further incidents for the remainder of Simmons' shift
that day.
On January 8, the next common workday for Simmons
and Al Poulos, branch manager for the River Grove
branch. Poulos told Simmons that he wanted Simmons' ver-
sion of the incident between Simmons and Driscoll the pre-
ceding Friday. Simmons testified that he asked Poulos if the
Union had been notified, but Poulos did not respond. Nev-
ertheless, Simmons got a cup of coffee and went into Pou-
los' office where Poulos interviewed him about the matter
and took notes of the interview on a yellow pad. After
about 20 minutes, Simmons observed Pat Gleeson, person-
nel manager from Respondent's bakery plant on West Di-
versey Parkway, through the window in Poulos' office. Af-
ter a few minutes, Poulos waved Gleeson into the office.
When she came in, Gleeson also asked Simmons' version of
the incident with Driscoll. Simmons testified that he knew
"something was up" when he saw Gleeson, and so, instead
of responding to her question, he inquired of Poulos if he
had notified Louis Olszewski, the union steward.4 Poulos
this time responded that Olszewski got "stuck" out of town,
but that he had talked to him over the phone. Again, Glee-
son asked Simmons for his side of the story and Simmons
responded that Poulos could read it to her. Gleeson in-
quired what the problem was and Simmons replied that
they should not even be discussing the matter because he
did not have union representation there. Then he went on
to complain that the situation was just like it was before
when he had to call William Toles, a vice president of Re-
spondent in Respondent's New York office.' Gleeson re-
sponded. "Al., you shouldn't have called Mr. Toles in New
York."
Thereafter, Simmons was asked to step outside while
The "tray" referred to was approximately 2 by 2 feet in size and made of'
heavy gauge wire. Witnesses estimated it weighed from I to 2 pounds.
4 It is undisputed that there were two stewards at the River Grove facilits
including Olszewski. Neither was present or available at the time Simmons
was interviewed by Poulos.
'The reference was to a telephone call Simmons had made to Toles about
October 1977, complaining about various work-related matters, explained in
greater detail, iua.
Poulos and Gleeson conferred. After a while Poulos advised
Simmons that he was suspended
On January 10, Simmons met with Union Steward
Olszewski, Union Business Representative Jim Murphy,
Poulos, Gleeson, Driscoll, and Maynard Almeling, general
manager of Respondent's area bread operation including
the River Grove location. At this meeting, both Simmons
and Driscoll gave the respective versions of the January 5
incident when Simmons "fanned" Driscoll with the bread
tray, with Driscoll denying that he had instigated the inci-
dent or otherwise engaged in any misconduct. Driscoll and
Simmons were then excluded from the room while the re-
maining persons discussed the case. Subsequently, Simmons
was called back into the room where Almeling announced
that Simmons was discharged.
The General Counsel contends that Poulos' interviewing
Simmons after Simmons had asked whether the Union had
been notified constituted a breach of Simmons' statutory
rights under N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
11975), and therefore violated Section 8(a)(1) of the Act.
Moreover, the General Counsel argues that Simmons' dis-
charge was pretextual and designed to cloak its real reason
fir the discharge, i.e., Simmons' complaints to Toles about
racial matters and later complaints to the Union regarding
Respondent's late delivery of Simmons' pay check. The pre-
text is evidenced, according to the General Counsel, by the
timing of the suspension shortly following his complaint to
the Union regarding his paycheck problem, by the refer-
ence of Gleeson at the time of the suspension to Simmons'
complaints to Tole, and by the relatively innocuous con-
duct on Simmons' part when compared to that of Driscoll
who provoked the incident and who was not himself disci-
plined. Moreover, in the General Counsel's view, Driscoll,
as a supervisor within the meaning of the Act and an agent
of Respondent, deliberately attempted to prod Simmons
into retaliation in order to provide a basis for Simmons'
discharge.
In order to understand the General Counsel's argument
with respect to the actual basis for Simmon's suspension
and discharge it is necessary to relate the background of
Simmons' complaints to Toles and his problems regarding
the late receipt of his paycheck.
Employee paychecks are prepared in Respondent's New
York offices and are distributed to the River Grove facility
through the West Diversey Parkway facility. The River
Grove employee checks are contained in a locked pouch
along with order sheets and supervisory directives and
memos and are delivered to the River Grove facility by a
transport driver late on Thursday evenings or early Friday
mornings. They are thereafter distributed by the branch
manager to employees on Friday. Simmons, however,
worked an odd shift on Thursdays and finished his shift at
1:30 a.m. Friday mornings. For many years, the head
loader, James Barefield, would secure a key for the locked
pouch from the branch manager's drawer, open the pouch,
and give Simmons his paycheck, assuming that the pouch
6 While the context is not clear Simmons testified that Gleeson had also
remarked to him before he was suspended that on the preceding Friday
Simmons had also had "words" with John Harris. a transport driver for
Respondent. Simmons conceded in his testimony that he had an argument
with Harris about unloading product into the wrong room. As a result Sim-
mons had telephoned Harris' supervisor t complain.
1048
ITT CONTINENTAL BAKING COMPANY
had arrived before the completion of Simmons' shift. There
were occasions, however, when the branch manager would
forget to leave the key to the pouch and Simmons would
not be able to get his paycheck until he reported for his next
shift Friday afternoon. Although the check was available to
him earlier in the day on Friday if he returned to the facil-
ity, Simmons' occasional inability to get his paycheck at the
completion of his shift at I a.m. Fridays caused him consid-
erable inconvenience and dissatisfaction. Receipt of his
check at the beginning of his regular shift on Friday after-
noons was too late for deposit in his bank which was closed
on Saturdays.
In the fall of 1977, Simmons telephoned Vice President
Toles, whom Simmons considered to be in charge of Re-
spondent's Equal Employment Opportunity division.' Sim-
mons complained to Toles about his paycheck problem and
expressed the belief that he was not being treated fairly.
Toles said he would check into the matter. Thereafter, fol-
lowing an inquiry by Toles through Eleanora Clarke, man-
ager of Respondent's EEO administration, Simmons was
interviewed by Gleeson regarding his complaints. It is Sim-
mons' testimony that during that interview, which I find
took place about November 1977,1 Gleeson told Simmons,
"Al, you know you shouldn't have called New York."
In June or July 1978, during his vacation time, Simmons
traveled to New York and met with Toles and told him that
he was still having trouble getting his paycheck and was
still having his same "problems." Toles, according to Sim-
mons, promised to check into it.
In November 1978, Simmons again got his paycheck late
and complained to Union Steward Olszewski about his
problem and Olszewski said he would talk to Poulos.9
Moreover, Simmons again called Toles to complain about
his paycheck situation and to contend that he was not being
treated fairly. Toles said he would check into it and get
back to Simmons.
On another occasion in late December, Simmons failed
to get his paycheck when he completed his Thursday shift.
On January 2, he went to the union hall and this time com-
plained to Business Representative Murphy who attempted
to contact General Manager Almeling by phone concerning
the matter but was unsuccessful in reaching him. Murphy
then phoned Supervisor Fiejoo at the River Grove facility.
Fiejoo referred him to Branch Manager Poulos. On Janu-
ary 8, Murphy talked to Poulos about Simmons' paycheck
problem. Poulos' response, according to Murphy's testi-
mony, was that the paychecks came in a pouch and only
Poulos had the key and Poulos was not going to come down
at 1:30 a.m. to give Simmons his check and he was not
going to let the transport drivers take care of it because he
would not be able to hold them responsible.
Olszewski testified that he had three conversations with
Poulos about Simmons' paycheck situation. Once was in
I In actuality. Toles was Respondent's director of urban affairs at the time
although he had been an Equal Employment Opportunity officer years ear-
lier.
This conclusion is based upon a report of Gleeson on the interview with
Simmons to Clarke dated January 12, 1978. which referred to the interview
having taken place about 2 months earlier. (Resp. Exh. 4.)
9 Simmons said he had complained to Olszewski about his paycheck prob-
lem at some earlier time also.
November 1978, at which time Poulos told him that the
checks come in a locked pouch for security reasons and
Poulos could not give Simmons his check at I a.m. because
Poulos was not there and he had the only key. Olszewski
responded that he would have to take the matter up with
Murphy. Again, in December when Simmons did not re-
ceive his check at the completion of his Thursday shift,
Olszewski again asked Poulos to straighten the matter out.
Poulos replied again, that he was not coming at I a.m. to
give Simmons his check. Olszewski pointed out that the
other loaders got their checks when they completed their
shifts on Friday mornings, but Poulos explained that he was
at the facility when they completed their shifts, much later
than Simmons. On January 5, Poulos told Olszewski that
Simmons had phoned him that morning at 1:30 a.m. asking
for his check and that Poulos had told him that he could get
his check when Poulos came in later in the morning or
when Simmons started his next shift that afternoon.
Except for acknowledging Simmons' complaints regard-
ing receipt of his paycheck Respondent disputes the Gen-
eral Counsel's evidence on almost all points. With respect
to the pay procedure Poulos testified he had made the
pouch key available to head loader Barefield and autho-
rized him to give Simmons his check but that was usually
done by prearrangement at Simmons' request. Moreover.
on occasion, at Simmons' request, Poulos gave Simmons'
paycheck to a routeman whom Simmons arranged to meet
on the route and pick up the check. Poulos acknowledged
Simmons' 1:30 a.m. phone call on January 5 inquiring
about his "f-" paycheck, to which Poulos had responded
that he was not driving all the way down to the facility to
give Simmons his paycheck. According to Poulos, he had
not authorized Barefield to give Simmons his paycheck on
that particular occasion because Simmons had made no
prior arrangement with Poulos to get his check.
Respondent, through the testimony of Gleeson, Poulos.
and Almeling, denied that Simmons' complaints to Toles or
his complaints about his paycheck had anything to do with
his discharge. Simmons' suspension and discharge, Respon-
dent contends, was for cause and was based on the incident
with Driscoll on January 5. In Respondent's view, and
based on Driscoll's testimony, Simmons' swinging of the
bread tray at Driscoll was unprovoked and warranted the
discharge. Moreover, Respondent contends that Driscoll
was not a supervisor within the meaning of the Act so that
even if he did provoke Simmons he was not acting as agent
for Respondent and Respondent was not responsible for
such provocation. Finally, Respondent argues that there
was no denial of Simmons' Weingarten rights in the inter-
view by Poulos on January 8 because Simmons never asked
for union representation and Respondent never refused to
allow him union representation.
With respect to the January 5 incident between Driscoll
and Simmons. Respondent presented as witness Driscoll
and Fiejoo and employees John Harris, James McGee, and
John Gates. Driscoll in his testimony denied that he had
called Simmons "boy" or had waved his finger in Simmons'
face. According to Driscoll when he saw Simmons come
out of the rack room shortly after Simmons came to work,
Driscoll commented to Simmons, "There he is." or words to
that effect. Simmons responded by scolding Driscoll for
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calling him "boy" and told him he should have more re-
spect. A few minutes later, Driscoll saw Simmons in the
restroom and told Simmons he did not know what the prob-
lem was but apologized if he had said anything offensive
although he believed he had not said anything to upset Sim-
mons.' ° Subsequently, Driscoll again saw Simmons at the
loaders' desk and inquired again why Simmons was so up-
set, and stated he did not know why Simmons was taking it
out on him. Simmons then picked up a bread tray and
swung it at Driscoll's head. Driscoll testified that he stepped
back and told Simmons he was ready if Simmons wanted to
continue. Fiejoo testified that, about this point, he came
into the area after having been summoned by employee
James McGee who had told him there was an argument
going on and there might be a fight. When Fiejoo ap-
proached the two, he inquired what was going on, but nei-
ther responded and proceeded to go about their work. It
was not until later that Driscoll explained to Fiejoo that
Simmons had accused Driscoll of calling him "boy." The
following day, Saturday, Simmons in a telephone conversa-
tion told Fiejoo his version of what happened including the
fact that he had swung a tray at Driscoll. Fiejoo reported
the matter to Poulos on that Saturday, January 6.
Employee James McGee who testified that he was pre-
sent during much of the altercation between Driscoll and
Simmons related that he did not hear Driscoll call Simmons
"boy" at any time or wave his finger in Simmons' face, but
conceded he could not recall the words in their shouting
argument and was not present during all their argument.
He went to get Fiejoo because it appeared to him that they
were going to start "boxing."
John Gates was another employee of Respondent who
was present for a portion of the time of the altercation be-
tween Driscoll and Simmons. Gates testified that he was
present when Simmons first came in and Driscoll had re-
marked, "There he is," to which Simmons responded, "My
name is Al Simmons." The incident with Driscoll spilling
his coffee followed and Simmons remarked to Driscoll that
he wished he would "burn his a- off."" Thereafter, ac-
cording to Gates, "They said a few things but to me I
thought it wasn't going to be nothing .... " Gates left
shortly thereafter and testified he did not hear Driscoll call
Simmons "boy" nor see Simmons swing a tray at Driscoll.
IV. CONCLUSIONS
Determination of the issues in this case obviously re-
quires a resolution of the credibility of the witnesses to the
'0 John Harris corroborated Driscoll's testimony with respect to Driscoll's
initial remarks to Simmons and also his apology offer later in the restroom.
Harris had already encountered Simmons' anger as a result of Harris and
McGee's unloading product in what Simmons considered the wrong area. At
one point, according to Harris, he saw Simmons pick up a bread tray off the
loaders' desk and fling it across the floor. Harris also testified he did not hear
Driscoll call Simmons "boy" at any time and he did not see Simmons swing
a bread tray at Dnscoll. Harris left in his truck shortly after exiting the
restrooms but not before Simmons had accused him of being a "lazy m-
f-" and told him to get back on his Indianapolis truck run and stay there.
Simmons was calling Hams' supervisor to complain about his unloading in
the wrong room as Harris was leaving.
i Driscoll recalled in his testimony that he had spilled his coffee but he
could not recall hearing Simmons make any comment about it.
events on January 5. Aside from the testimony of Driscoll
none of Respondent's witnesses claimed to have viewed the
whole episode between Driscoll and Simmons and, thus,
could not eliminate the possibility that Driscoll provoked
Simmons with an insult any more than they could preclude
the possibility that Simmons swung a bread tray at Dris-
coll's head. Having considered all the witnesses and their
testimony, however, and notwithstanding that neither Dris-
coil or Simmons was particularly persuasive in their testi-
monial demeanor, I am persuaded that Driscoll's version of
the affairs supported in various parts by the other employee
witnesses is the more probable and credible one.
Driscoll's testimony that he did not initiate the incident
with Simmons by calling him "boy" is supported by em-
ployees Harris and Gates who struck me as being fully
credible. I am cognizant that Harris bore the brunt of some
of Simmons' obvious anger that afternoon as well as on
some previous occasions for unloading where Simmons said
he should not have. The possibility of some bias against
Simmons by Harris existed. Nevertheless, Harris impressed
me as being a trustworthy witness. Furthermore, if Driscoll
called Simmons "boy" as many times that afternoon as
Simmons would have me believe, it is likely that at least one
of the three other employees would have heard it. It is sig-
nificant that Simmons testified that McGee was present
when Driscoll first yelled or shouted, "Here comes my
boy." when Simmons first came into work. Yet McGee tes-
tified that he did not hear Driscoll call Simmons "boy" or
"my boy." McGee did not profess to have clear or total
recall of the verbal exchanges between Simmons and Dris-
coil, but he gave the appearance of sincerity in his testi-
mony and I am convinced that he heard Driscoll call Sim-
mons "boy" he would have so testified.
Simmons was unquestionably angry beginning at least
shortly after he came to work that day. That anger was
shown in his encounter with Harris and also by his admit-
ted remark to Driscoll upon Driscoll's spilling his coffee.
His anger was further revealed through Harris' unrebutted
testimony that at one point he saw Simmons fling a bread
tray off the loaders' desk and across the floor. Given this
frame of mind I am not willing to believe that Simmons
grabbed the bread tray simply to "fan" it at Driscoll's hand.
If Driscoll's hand had been the target there would have
been little need to resort to a bread tray to deliver the blow.
It is perfectly clear from McGee's credited testimony that
heated words were passed between Driscoll and Simmons
to the point that McGee expected a fight and went to get
Fiejoo. However, I cannot conclude that Driscoll intention-
ally provoked Simmons into a dischargeable offense. Dris-
coIl's testimony supported by the credible testimony of
Harris was that he offered an apology to Simmons in the
restroom for any offense against Simmons prior to the
bread tray incident. Such offered apology is inconsistent
with a plan to provoke Simmons into his subsequent ac-
tions. On the contrary, it demonstrates an effort to placate
Simmons. Moreover, had Driscoll intended as a part of a
plan by Respondent to prod Simmons into a dischargeable
offense it is likely that Respondent would have moved
faster to capitalize on the incident. Yet Simmons was al-
lowed to complete his shift that Friday afternoon and also
1050
ITT CONTINENTAL BAKING COMPANY
to work on Sunday. It was not until Poulos came into work
on Monday that an investigation of the incident was begun.
In summary, and based upon the credited testimony, I
conclude that Driscoll and Simmons were involved in an
altercation on January 5, that the altercation was not inten-
tionally provoked by Driscoll, and that Simmons did swing
a bread tray at Driscoll's head. I thus conclude that there
existed a lawful basis for the suspension and discharge of
Simmons."
There remains the contention that Respondent neverthe-
less seized upon the incident as a pretextual basis for dis-
charging Simmons. There is little to support this contention
aside from the timing of the suspension in relation to Sim-
mons' last complaint to the Union about his paycheck. But
even timing loses significance in view of the fact that Sim-
mons had made prior complaints to the Union about his
paycheck problem without retaliation. Moreover, he had
complained to Toles more than a year earlier about the
same thing, again without retaliation.
No evidence was presented to establish any animosity on
the part of Respondent toward Simmons because of his
paycheck dispute. His dispute was one of long standing and
it is clear that Respondent had made attempts to accommo-
date him. Nor is there much in the way of evidence to show
that Respondent harbored any animosity toward Simmons
because of his contacts with Toles. The only evidence in
this regard is Simmons' testimony, denied by Gleeson, that
she had told him upon his initial contact with Toles that he
should not have called Toles in New York, and Simmons
claimed Gleeson also repeated the statement during the in-
terview in Poulos' office on January 8. 1 am persuaded to
accept Gleeson's denial that she made the statements, not
only because Gleeson appeared fully credible while testify-
ing, but also because Simmons, in a letter to Toles dated
January II, failed to refer to such a remark by Gleeson.
Since Simmons was appealing to Toles for help it seems
logical that Simmons would have included any remark by
local management, if in fact made, which might reflect that
Simmons' resort to Toles was itself a basis for the action
taken against him by local management. Accordingly, I
conclude that the General Counsel has not established by a
preponderance of evidence that Respondent, in suspending
and discharging Simmons, was motivated, in whole or in
part, by Simmons' resort to the Union regarding his pay-
check problems or because he complained to Toles about
his problems. Accordingly, I find Respondent did not vio-
late Section 8(a)(3) of the Act in this respect.
Turning to the General Counsel's contentions that Re-
spondent violated Simmons' Weingarten rights, the law is
clear that an employee is entitled to union representation at
an interview with management where an employee reason-
12 This conclusion makes Driscoll's supervisory status irrelevant. The su-
pervisory status of Fiejoo which was also in issue was material only to estab-
lish Respondent's knowledge of a complaint by Simmons to the Union about
his paycheck prior to the bout with Driscoll. Since I found Dnscoll did not
provoke the January 5 incident, Respondent's knowledge of Simmons' com-
plaint to the Union is irrelevant. and therefore so is Fejoo's supervisors
status. In any event, insofar as Respondent's knowledge of Simmons' paN-
check complaint is concerned, Poulos admitted in his testimony that he was
aware from discussions with Olszewski on the morning of January 5. and
before the Driscoll-Simmons incident, that Simmons had again complained
to the Union regarding his failure to get his check when he wanted it.
ably believes that disciplinary action may result from such
interview. Under the eingarten decision, however, the
right to union representation "arises only in situations
where the employee requests representation." Weingarten.
vupra at 257. Once a valid request for representation has
been made, the employer is permitted one of three options
as set forth most recently by the Board in United States
Postal Service, 241 NLRB 141 (1979), as fillows:
... (I) grant the request. (2) discontinue the interview.
or (3) offer the employee the choice between continu-
ing the interview unaccompanied by a union represent-
ative or having no interview at all. Under no circum-
stances may the employer continue the interview
without granting the employee union representation,
unless the employee voluntarily agrees to remain un-
represented after having been presented by the em-
ployer with the choices mentioned in option (3) above
or if the employee is otherwise aware of those choices.
In considering whether Simmons invoked his Weingarten
rights by requesting representation it must be observed that
Simmons, in his sworn statement to the Board's investigator
on January 29. did not mention asking Poulos whether the
Union had been notified prior to the beginning of the inves-
tigatory interview on January 8. This failure is a substantial
one and clearly suggests that Simmons' belated recollection
and testimony at the hearing herein that he did pose such a
question to Poulos prior to the interview was a contrivance.
A conclusion to this effect is supported by Simmons' failure
to attribute to Poulos a response to the question. Had Pou-
los in fact been asked, it is likely he would have responded
because he did not hesitate to respond when as Simmons'
testimony has it. Simmons asked later in the interview after
Gleeson came in if Olszewski had been notified. Moreover.
Simmons' testimony that he asked Poulos the same ques-
tion three times appears to be an exaggeration, not only
because he did not relate three such inquiries in his state-
ment to the Board. but also because his testimony reveals
only two specific times when the request was allegedly
made. Finally. since Simmons testified he was aware of his
rights to representation, and because there did exist a rea-
sonable basis for a belief that disciplinary action might en-
sue from any talk with Poulos. it is highly unlikely Simmons
would have been satisfied with no response from Poulos if
he had in fact asked if the Union had been notified at the
outset of the interview. Thus. I do not credit Simmons on
this point and I find that he did not ask Poulos before the
interview if the Union had been notified."
Assuming. arguendo, that Simmons did ask Poulos prior
to the interview if the Union had been notified, I do not
regard such an inquiry as tantamount to a request for union
representation. Certainly. a negative response to such a
question would not constitute a denial of representation.
And there was no evidence that the Union was automati-
IJ I am cognizant that Poulos did not specifically deny Simmons' claim
regarding the initial inquiry about notification to he uLnion. Poul,s was not
asked about it. Nevertheless a trier of the fact is niot hound o accept uncon-
tradicted testimony as true. See V L R B H,oll (heiroletr C,pun, 204
F.2d 79 (9th Cir. 1953). affd. 346 U.S. 482: Operaie Pla.terers' & Cment
Masons' International Associaion Local 94 (Burnhamn Brother, Inc , 207
NLRB 147(1973)
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally notified of all employee meetings with management
which could result in disciplinary action against the em-
ployee, nor was there evidence of any automatic attendance
by union representatives at such meetings. Accordingly, an
inquiry of whether the Union had been notified was not in
itself sufficient to put Respondent on notice as to Simmons'
desires for union representation. In this regard the instant
case is distinguishable from the factual situation considered
by the Board in Southwestern Bell Telephone Company, 227
NLRB 1223 (1977), where inquiries of uncertain employees
regarding the propriety of obtaining union representation at
an investigatory meeting with management was sufficient to
put the employer on notice of the employees' wishes in this
regard." In the case subjudice Simmons was well aware of
his right to representation, but his "request" was ambiguous
and vague in light of such knowledge and, I conclude,
would not be sufficient standing alone to put Poulos on
notice that Simmons wanted a union representative present.
Simmons' testimony that he did ask Poulos when Glee-
son came into the room whether Olszewski had been noti-
fied is believable primarily because his testimony indicates
he only become apprehensive about his situation at that
point. In this regard, Simmons testified that when he saw
Gleeson through a window in Poulos' office he knew
"something was up." Thereafter, when Gleeson entered the
room, his inquiry of whether Olszewski had been notified,
coupled this time with a comment by Simmons that they
should not "be having this matter at all because I do not
have union representation," was clearly sufficient to put
Poulos and Gleeson on notice at that point that he wanted
representation. However, by then he had already given his
version of the Driscoll incident, and his request for repre-
sentation was too late. This is not to say that a valid request
for representation cannot be made at any time during the
course of an investigatory interview. But the evidence here
on Simmons' own testimony shows that he did not discuss
the Driscoll incident with Gleeson or Poulos at any time
after Gleeson entered the room or after Simmons indicated
he wanted representation. Simmons, in fact, referred Glee-
son to Poulos for information about the incident already
given Poulos by Simmons. While Simmons testified that
there was further discussion with Poulos and Gleeson. it
14 More specifically, the questions of the employees were whether or not
union representation was needed or whether the Union should be called in.
One stated he would "like to have someone there that could explain to me
what was happening."
appears that it was after the decision to suspend Simmons
was announced to him. Moreover, the record does not es-
tablish that such discussion related in any way to the Dris-
coil incident. I conclude that the investigatory aspect of
Simmons' interview ended before Simmons indicated that
he wanted representation. The Board has previously held
that no violation of Weingarten rights occurs where the in-
vestigatory interview ends before there is any request for
assistance by the interviewed employee. Greyhound Lines,
Inc., 239 NLRB 849 (1978). I therefore find and conclude
that Respondent did not violate Simmons' Weingarten
rights.'5 Accordingly, and since it appears that the General
Counsel does not contend and the record does not support a
conclusion that Respondent suspended and discharged
Simmons because he sought representation in the interview
with Poulos and Gleeson, I conclude that Respondent did
not violate Section 8(a)(1) of the Act as alleged in the com-
plaint.
Having found that Respondent did not violate Section
8(a)(3) and (1) of the Act in its actions with respect to Sim-
mons, I shall recommend that the complaint 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 committed any unfair labor prac-
tice within the meaning of Section 8(a)(3) or (1) of the Act
with respect to its investigatory interview with, or suspen-
sion and discharge of, Alvin Simmons.
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, I hereby issue the following recommended:
ORDER'"
The complaint is dismissed in its entiret.
i In view of this conclusion. I find it unnecessary to determine the effect of
the unavailability of any union stewards on the premises at the time of
Simmons' interview with Poulos.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived fir all purposes.
1052