Lafayette Radio Electronics Corp.

National Labor Relations Board - Board Decisions

Dec 9, 1971

194 N.L.R.B. 491 (N.L.R.B. 1971)

LAFAYETTE RADIO ELECTRONICS CORP. 491
Lafayette Radio Electronics Corp. and Local 431,
International Union of Electrical;, Radio and Ma-
chine Workers, AFL-CIO. Case 29-CA-1578
December 9, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 27, 1971, Trial Examiner Henry L. Jalette
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the
Trial Examiner's Decision and supporting briefs.
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 Recommend-
ed 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
HENRY L. JALETFE, Trial Examiner: This case involves
allegations that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to permit a representative of
the Union to be present at the interrogation of employees
concerning their alleged participation in thefts of money
and merchandise from Respondent. The complaint was
issued on November 9, 1970, pursuant to an unfair labor
practice charge filed by the Union on February 4, 1969. The
case was heard in Brooklyn, New York, on February 22
and 23, 1971.
1 In his brief, counsel for General Counsel moved to correct the
transcript as set forth in an Appendix headed "Typographical Errors." The
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation with its principal
office and a warehouse and store at Syosset, New York (the
only facility involved herein), and stores at various other
places in the State of New York, where it is engaged in the
retail sale and distribution of electronic equipment and
related products. In the course and conduct of its business
operations, Respondent annually derives gross revenues in
excess of $500,000 and purchases and causes to be
transported and delivered in interstate commerce goods
and materials valued in excess of $50,000.
II. THE LABOR ORGANIZATION INVOLVED
Local 431, International Union of Electrical , Radio and
Machine Workers , AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts '
There is no dispute about the essential facts. As noted in
the statement of Respondent's business, Respondent is
engaged in the retail sale and distribution of electronic
equipment. The theft of merchandise is one of Respon-
dent's major problems. Either through the actions of its
security guards, observations by its supervisors, or informa-
tion supplied to it by other employees or by other sources,
Respondent will learn that employees are or may be
engaging in theft of merchandise. On such occasions,
Respondent will conduct an investigation which may
follow one of two courses.
A suspected employee will be sent to the office of
Personnel Manager Charles Dornbaum. He will interrogate
the employee to determine whether or not there is any truth
to the information which Respondent has received
implicating the employee in the theft of its property. He
may even accuse the employee of theft. If possible, he will
obtain a written statement from the employee admitting his
guilt.
On other occasions, an employee about whom informa-
tion is received will be sent to Dornbaum's office ad
Dornbaum will escort the employee to an office where he
will introduce him to a private detective working under
contract with Respondent. The detective will interrogate
the employer, privately and, if the employee is willing, give
the employee a polygraph test. As in the case where
Dombaum conducts the interrogation, the detective will
attempt to obtain from the employee a written statement of
guilt. The results of the detective's interrogation are turned
over to Dornbaum.
Respondent has a no compromise policy of always
motion has not been opposed and it is hereby granted, and the Appendix is
received in evidence as TX Exh. 1.
194 NLRB No. 77
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging any employee it concludes has been guilty of
theft, irrespective of^the amount of thethef0, Nevertheless,
Respondent does not always tell an employee that he is
fired immediately upon proof of his guilt.
The interrogation of an employee may reveal not only the
employee's own guilt, but also it may reveal thievery to a
greater extent than previously suspected and the interrogat-
ed employee may implicate others. In these circumstances,
the investigation is broadened to include the interrogation
of implicated employees. In some cases, the original suspect
may be reinterrogated even though he admitted his own
guilt in the initial interrogation. Such an investigation may
take 2 days with no adverse action until the investigation
has been completed.
An additional reason for not discharging an employee
immediately on proof of guilt is Respondent's desire to
recover some of the stolen merchandise. For example, an
employee was caught with three transceivers (mobile radio
units) under his coat when leaving work one day. He was
questioned by a supervisor and gave a written statement.
His guilt was clear. However, he was not discharged then
and there. Instead, he was asked to report to Dornbaum the
following day. The employee did and he agreed to take a lie
detector test, which was administered by a private
detective. This test showed the employee had stolen
merchandise on other occasions and Dornbaum made
arrangements to meet him the following day to receive the
merchandise. Dornbaum recovered $9,000 worth of
merchandise. Up to this point there had been no mention of
discharge, but after he turned the merchandise over to
Dornbaum, the employee remarked, "Well, I guess you
don't want me back." Dornbaum replied, "Well, at this
point I don't think so."
The interrogations which underlie the allegations of the
complaint arose out of thefts at Respondent's Syosset
facility and were conducted in August 1968, January 1969,
and December 1970. It is not clear how many employees
were interrogated in August, but one was found to be
innocent and returned to work. In January, nine employees
were interrogated, but only five were discharged. Two were
interrogated in December, and both were discharged.
The Union has been the bargaining representative of
Respondent's employees at certain of its locations for many
years and at all times material herein a collective-bargain-
ing agreement was in effect. On August 23, 1968, the
Union's business agent, Sidney Gilbert, received informa-
tion that Respondent had been calling employees into the
office and interrogating them about alleged thefts. Pursuant
to Gilbert's request, a meeting was held on August 27 with
Respondent's labor consultant and other representatives of
Respondent. At this meeting Gilbert informed Respondent
that the Union objected to interrogation of employees
which resulted in their being discharged where they were
accused of violating any rules of the Company and stated
that the Union wanted to have a union steward present
2 As a notice to all employees states, "Theft is theft, whether the amount
involved is big or small The theft of a 50e item and the theft of a $2,000
collection of merchandise involve the same principle as far as we are
concerned. If everyone took 50e worth of merchandise often enough this
company would be bankrupt "
3 Texaco, Inc, Houston Producing Div, 168 NLRB 360, enforcement
denied N.L R.B v. Texaco, Inc., 408 F.2d 142 (C A. 5) In United Aircraft
when any such interrogations were contemplated by
Respondent.
Respondent's labor consultant, Louis Basis, told the
Union that they would not be permitted any such
privileges; that the Union had no right to be present; and
that Respondent intended to proceed the way it had been
.proceeding in the past.
Thereafter, on September 11, 1968, the Union sent a
letter to Respondent stating as follows:
We herewith request that the company shall not
interrogate any employee with respect to employment
or matters that may result in disciplinary action
including termination of employment without notice to
the Union and having a Union representative present.
Respondent did not reply to the letter, but the Union
heard of no complaints until January 1969. Upon learning
at that time that employees were again being called in,
Gilbert asked for a meeting with Respondent. Such a
meeting was held in January 1969, with representatives of
Respondent, including Personnel Manager Charles Dornb-
aum. Gilbert protested Respondent's failure to permit
union representation when employees were called in or to
advise them that they had the right to have a union
representative present. He renewed the demand that union
representation be permitted to the employees. Respondent
adhered to its previous position.
'B. Analysis and Conclusions
The main issue in this case is the right of a Union to be
present during a meeting between an employee and
management representatives respecting the employee's
alleged theft of company property. There are only a few
cases which have considered a similar issue and in only one
of these did the Board find that the Union had the right to
be present, and that case was denied enforcement by the
court of appeals .3 (In this case , unlike Texaco, the
employees were not the ones to request union representa-
tion. The only request was that of the Union. There is,
therefore no question of an independent 8(a)(1) violation as
in Texaco.)
From the grist of the Texaco case and those cases which
have considered the issue, the principle appears to have
evolved that the right to union representation exists if the
purpose of the meeting between the employee and
management is disciplinary; but that the union has no right
to be present if the purpose of the meeting is fact finding or
investigatory. In Texaco, the employee in question had
been caught in the act of stealing, had admitted the theft,
and had been promptly suspended without pay by his
foreman. In the circumstances, the Board concluded that
the only purpose of the meeting that was later held was to
determine whether the suspension should be lifted or
continued, or a stronger sanction imposed. This was a
Corporation (Pratt & Whitney Division), 179 NLRB No. 160, a Trial
Examiner upheld the right of an employee to union representation during
interrogation about his alleged misconduct , but the Board had no occasion
to pass on the question because the union did not enjoy majority status at
the time of the interrogations and the employer accordingly was under no
obligation to bargain with it
LAFAYETTE RADIO ELECTRONICS CORP. 493
disciplinary purpose and it involved direct dealing'with the
employee.
In Chevron Oil Company, 168 NLRB 574 at 578, the
Board stated, "But this is not to say that a bargaining agent
must be privy to management councils, or that represented
employees must be shielded by that.agent from company
inquiries, on each and every occasion when management
embarks upon an investigation to ascertain whether plant
discipline has been breached."
What factors determine whether a meeting is factfinding,
rather than disciplinary? In Chevron Oil, supra, no definite
adverse action had as yet been decided on. In Jacobe-
Pearson Ford Inc., 172 NLRB No. 84, the Board found that
"the `potential' for disciplinary action was remote.. . ." In
Texaco, Inc., Los Angeles Sales Terminal, 179 NLRB No.
157, the Board found that management was neither
precommitted to disciplinary action, nor to whether the
conduct under investigation even merited discipline, and if
so, what degree of discipline. In Dayton Typographical
Service, Inc., 176 NLRB No. 48, management expressly
stated the purpose of the meeting was not disciplinary and
its actions were consistent with such a statement.
If these two ideas represent the only alternatives in a
situation such as is presented herein, the complaint must be
dismissed because the evidence clearly shows that the
interrogations that occurred had a factfinding purpose and
not a disciplinary purpose.
The interviews fall into two categories: those by
Dornbaum and those by private detectives. It seems
unnecessary to point out that the detectives were not
involved in any way in Respondent's decision making
respecting the discipline of employees; they are what their
job classification signifies, investigators. Their interviews
with employees cannot therefore be characterized as having
a disciplinary purpose. Discipline by Respondent could,
and did, follow from their interviews, but this does not
change the nature of the interviews they conducted.
The interviews by Dornbaum could well have had a
disciplinary purpose since he is director of personnel.
However, this does not preclude a finding that the purpose
of his interviews was factfinding. In this connection, two
situations must be examined: (1) the interviews of
employees about whom Respondent had received informa-
tion giving rise to a question of possible guilt; (2) the
interviews of employees where Respondent had clear proof
of guilt.
The first situation is that described by Luis Torres,
Anthony Macchia, and Marino Gallon. Whatever informa-
tion Respondent had about their actions, there was still a
possibility of innocence; there was still a possibility that an
4 General Counsel in an effort to overcome the evidence that the
purpose of the interviews was factfinding states that "assuming arguendo,
that the sessions are investigatory, at some point prior to the actual
discharge the Union should be notified and given the chance to be
present" Whatever merit there may be to this position, it is not in issue
herein. The Union's written request was very explicit, namely, ". . . that
the company shall not interrogate any employees with respect to
employment or matters that may result in disciplinary action including
termination of employment without notice to the union and having a union
representative present " In my opinion, this request is very clear and is
addressed to a single matter: the interrogation of the employees about the
alleged thefts. The Union's oral requests in August 1968 and January 1969
were not essentially different. Dornbaum testified, without contradiction,
interview would clear the employee. Accordingly, one
cannot infer from the mere fact of the interview that its
purpose was to discuss with the affected employee the
discipline to be meted out. One must look elsewhere to find
evidence of such a purpose and none is to be found.
The second situation is analogous to the situation in the
Texaco case. As noted earlier, an employee was caught by a
supervisor leaving work with three transceivers. He
admitted the theft in a written statement to the supervisor.
Yet, Dornbaum had a meeting with him and the employee
consented to interrogation by a detective and to a he
detector test . Considering his established guilt before he
spoke to Dornbaum and the detective, how could his
interrogation be characterized as investigatory? Is not the
inference warranted that the interrogation as in Texaco had
a disciplinary purpose? An inference of disciplinary
purpose might have been warranted, but it was negated by
Dornbaum's testimony about the purpose of interrogation
where guilt is clear. Dornbaum convincingly demonstrated
the investigatory purpose of the interrogation by recouping
thousands of dollars of stolen merchandise. It can be seen,
therefore, that even where guilt has been established it does
not necessarily follow that the employee interviews are for
the purpose of discipline. There may still be an investigato-
ry purpose, albeit a different investigation from that where
guilt has not been established. In my judgment, in this
situation, as well as the first one, there must be other
evidence of a disciplinary purpose in order to fit this case
into the Texaco mold.
In none of the cases portrayed in the record, whether of
the first variety or the second, was any evidence adduced
that Dornbaum discussed with the employee involved the
discipline to be imposed for the misconduct. The reason of
course is simple: the discipline was predetermined and
nonnegotiable. (By saying the discipline was nonnegotiable,
I do not mean that discipline of employees is not a
mandatory subject of bargaining, nor do I imply that the
Union had waived the right to bargain about the matter. I
use the term to emphasize that in this case there were no
degrees of discipline, unlike Texaco where the Board found
the purpose of the meeting to determine whether the
suspension should be lifted or continued, or a stronger
sanction imposed.) Discharge followed a theft of a 5-cent
item as well as a $2,000 collection of merchandise.4
What significance attaches to the fact that discipline by
discharge has been predetermined? For example, in Jacobe-
Pearson Ford, Inc., supra, the Board deemed the "potential"
for disciplinary action to be remote and relied on that
factor in finding no violation. Here the potential for
discipline was real, but it was only real if the employee was
that the Union never requested to be present after an interrogation, but
before discharge . Accordingly , as the Respondent had the right under the
contract to discharge for good cause shown without prior notice to the
Union, the Respondent's failure to notify the Union prior to discharge for
theft cannot form the basis of an unfair labor practice finding . In addition,
testimony was adduced as to whether or not Respondent gave proper
notice to the Union of the discharge of employees found to have stolen
company property This testimony is not relevant to the issues raised by the
complaint The complaint does not allege that Respondent violated the Act
by failing to notify the Union of such discharges. The complaint alleges
specifically and only that Respondent refused to permit a representative of
the Union to be present at the interrogations.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guilty of stealing. And this is what is significant, not the
predetermined policy of discharge. If the evidence about
the manner in which the interviews were conducted
indicates a purpose to discover whether employees are
stealing, the existence of a predetermined policy of
discharge for stealing in no way alters the nature of the
interview.
On the basis of the foregoing, if the finding of a violation
hinges on whether the interviews were "factfinding" or
"disciplinary," I would find that there was no violation here
because of the evidence of a factfinding purpose and the
absence of any evidence that Respondent discussed with
employees the discipline to be meted out to the guilty. But
General Counsel argues for a violation on a broader
concept than that presented by the factfinding versus
disciplinary concept. According to General Counsel, the
employees were in need of, and entitled to, union
representation, because ". . . the interrogations in the
circumstances here were also reasonably calculated to
prejudice any future grievances as to the `cause' for any
subsequently imposed discipline because the interrogations
were for the purpose of extracting detrimental admissions
or confessions. Accordingly, any such interrogations tend
to render futile any future grievances concerning the
`merits' of the employee's case and would virtually restrict
any meaningful contentions later to the subject of the
measure of discipline."
There is a certain appeal to this contention, and although
General Counsel does not cite the case, his contention
echoes the principle underlying the Supreme Court's
decision in Escobedo v. State of Illinois, 378 U.S. 478,
wherein the Court, quoting from an earlier case, stated that
the "right to use counsel at the formal trial [would be] a
very hollow thing [if ] for all practical purposes, the
conviction is already assured by pretrial examination." 5 By
parity of reasoning, the right to union representation in the
processing of a grievance through the various steps of the
grievance procedure, including arbitration, which the
collective-bargaining agreement provides for, is a very
a It is noted that in its brief to the court in Texaco, supra, the Board
cited not only Escobedo, but also Miranda v. Arizona, 384 US. 436 (1966),
hollow thing if the decision to discharge is immune from
challenge because of a statement of the employee obtained
in a private interrogation.
Despite the similarity of the two situations, I conclude
that General Counsel's contention must be rejected.
Escobedo rests on a constitutional guarantee of the right to
counsel. Although General Counsel is here asserting the
existence of a statutory right, in reality the right which he
seeks to protect is a contract right, namely, the asserted
nullification of the grievance and arbitration provisions of
the contract. Of course, in certain circumstances, the statute
protects the rights the union acquires by contract. See St.
Louis Cordage Mills, 170 NLRB No. 7; W. P. Ihrie & Sons,
165 NLRB No. 2. In this case, Respondent has not
repudiated any of its contractual obligations. It has not
refused to process grievances over the discharge of any
employee for theft (none was filed). Since the contract does
not give the Union the right to be present during an
interrogation (the Union sought unsuccessfully to obtain a
provision to that effect in the contract in the negotiations in
1969) and since I find the interrogations were part of an
investigation and that there is no evidence that Respondent
dealt directly with employees about tenure and conditions
of employment, 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. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act by
the conduct alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that the complaint be
dismissed in its entirety.
and United States v. Wade, 388 U.S. 218 (1967), cases which also dealt with
the rights of criminal suspects to be represented by counsel.