Lennox Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1979

244 N.L.R.B. 607 (N.L.R.B. 1979)

I.INNOX IND SI RIl[S. IN(C
Iennox Industries, Inc. and Ulnited Steelworkers of
America AFL-CIO, IA)Cal 4629. Case 16 (CA 7764
August 24. 1979
DECISION AND ORDFR
On January 31. 1979. Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief' in support of the Administrative Law Judge's
Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefl
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith, and to adopt his rec-
ommended Order.
The basic issue presented herein is whether Re-
spondent violated the Weingarten rights 2 of emplo}-
ees of Coy Wade and Paul Nestle as a result of ex-
changes between them and various managers or
supervisors of Respondent. While the Administrative
Law Judge found that both employees' Weingarten
rights have been violated,3 upon consideration of Re-
spondent's exceptions to the finding of said violations.
we find merit to its exception concerning Wade and
we shall dismiss the allegations in the complaint with
respect thereto.
Coy Wade
1. February 15
As more fully stated in the Administrative Law
Judge's Decision, on February 15, 1978. Supervisor
Ary approached employee Wade while he was at
work and told him that Boenker. one of Respondent's
managers, wanted to see him in his office. Consistent
with past practice. Wade was not told the purpose of
the meeting. Upon being told to go to the office.
Wade stated that he wished to have representation.
Ary did not refuse the request but permitted Wade to
obtain the assistance of Jerry Apple. the vice pres-
ident of the Union. Wade and Apple then proceeded
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 Dry Wall Pr-ducts. 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
N L R.B. v. J. Weingarren. Inc.. 420 U.S. 251 (1975).
As the General Counsel has not filed exceptions concerning the Admin-
istrative Law Judge's dismissal of additional alleged Wlingarien violations.
we shall adopt the Administrative Law Judge finding and conclusions on
these matters.
to Boenker's office. Upon entering the otlice. Boenker
asked Apple what hlie could do for him. Apple replied
that Wade had requested his assitance there. Boen-
ker. in turn. stated that he did not want to speak with
Apple but wished to talk with Wade. When Apple
protested that Wade had a right to a counsel. Boen-
ker interjected that he might want to "talk about
going fishing. or something. T4 When Apple tiled to
leave. Boenker placed a phone call to the office of Bill
Smith. Respondent's industrial relations manaer. but
Smith was not in his otffice. Apple testified that Boen-
ker made a request for Smith to return the call. After
the phone call Boenker requested Apple anti Wade to
return to work, and they did so.
Later that day Ary again requested Wade to go to
Boenker's office. As before Wade replied that he
wanted representation. Ary did not answer, and
Wade immediately met with Lawrence Plemmons.
president of the Union, as well as Apple. Upon Ap-
ple's suggestion they went directlN to Smith's office.
where Apple asked Smith "what he was trxing to
pull" by sending Wade back to Boenker's office
"without a committeeman." Smith testified that he
had already talked with Boenker about the earlier in-
cident and told Apple that he was fiamiliar with the
question as to whether or not Wade should go to
Boenker's office for a discussion. Smith then told
Wade that, if Wade did not go to Boenker's office,. he
would be in serious trouble. Wade asked Plemmons
and Apple what he should do, and Apple advised him
to go to Boenker's office. Wade left immediately and
went to Boenker's office where the two had a short
discussion about production problems and general
work habits of employees. Boenker asked Wade to
take a leadership role in increasing production be-
cause he commanded the respect of his fellow em-
ployees. The exchange ended and Wade left Boen-
ker's office.
2. February 16
Shortly before the end of his shift. Wade was stand-
ing idle waiting for parts when he was called on the
plant's public address system to report to Ary's desk,
located on the production floor away from Wade's
work station. When Wade reached Ary. he was asked
what he was doing standing idle in his work area. A
heated verbal exchange ensued in which Wade
cursed. When Ary warned Wade against using such
language. Wade again cursed, and Ary instructed
Wade to go with him to Boenker's office. Wade asked
for some representation. but Ary did not respond.
possibly because he did not hear the request.
'The Administratise Law Judge discredited Boenker's testimonV toi the
effect that he stated specificall 5y to Wade and Apple that there wasl no discl-
plinary action nvolved In the meeting with Wade.
244 NLRB No. 88
607
DI)'( ISIONS ()F1: NAIIONAI I.ABOR REL.ATIONS BOARI)
After they arrived at Boenker's office, Ary told
Boenker of the prior exchange involving the cursing,
and Wade agreed with Ary's account. Wade did not
reassert his request for representation, and Boenker's
remarks to the two basically were a request for them
to try to do the best they could to get along, and that
there was a need to increase productivity on the as-
sembly line. At that point the shift ended, and Boen-
ker concluded the meeting.
Paul Nestle
During the first 2 weeks in February, Respondent
closely watched Nestle's work performance. Nestle
had recently been transferred to a different assembly
line and was having difficulty increasing his produc-
tion speed. Nestle was assigned different positions on
this line, and Ary noted that the job Nestle was doing
just wasn't "going to get it," and that, if Nestle did
not acquire greater speed, Ary would have to take
some action against him.
In the afternoon of February 16 Nestle was ap-
proached by Ary, who started that he would like to
talk to him at the latter's desk. Although Nestle de-
clared that he would like to have a committeeman
present, Ary replied that he did not need one. Never-
theless, Nestle indicated that he still desired assist-
ance. Enroute to the desk, Nestle stated something
which Ary interpreted as a threat, and Ary took Nes-
tle directly to Boenker's office. There Ary told Boen-
ker that Nestle had threatened him. When Boenker
asked Nestle if this had occurred, Nestle denied it.
The matter was discussed further, and it was deter-
mined that there were no witnesses to the claimed
threat. At this point Boenker was interrupted by a
telephone call, and during the call Ary and Nestle
aired their personal animosity toward each other. Af-
ter Boenker was finished with the phone call, he indi-
cated to the two that he was aware of their feelings
toward each other but that he would like to see them
get along. Boenker further indicated that he had ob-
served Nestle and Wade and that he believed they
were causing a slowdown in production. Nestle then
requested a committeeman to represent him, and
Boenker said that, if he thought Nestle needed one,
he would get one. Nestle replied that he would still
like a committeeman present. No representative was
called, however, and Boenker reminded Nestle that
his production would have to improve. After some
further discussion the meeting ended.
Analysis
In N.L.R.B. v. J. Weingarien, Inc., supra, the Su-
preme Court held that it is a violation of Section
8(a)( 1) for an employer to deny an employee's request
that a union representative be present at an interview
which the employee reasonably fears might result in
disciplinary action. Section 7 of the Act guarantees to
employees the right to "engage in . . . concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection." The Court majority
in Weingarten agreed that the action of an employee
in seeking to have a union representative present at
such an interview "clearly falls within the literal
wording of Sec. 7." The employee, said the Court, is
clearly seeking the "aid or protection" of a union rep-
resentative against a perceived threat to the employ-
ee's job security. However, for the reasons stated be-
low, we find that Respondent violated Section 8(a)( 1)
of the Act only by denying employee Nestle's request
for union assistance, but that it did not unlawfully
deny any of Wade's requests for assistance.
In view of the prior remarks made to Nestle by Ary
that he needed to acquire greater speed and the job
he was doing was not "going to make it." it is appar-
ent that Nestle entertained a reasonable fear of disci-
pline when Ary requested that he go with him to
Ary's desk. At no time did Ary dispel the apprehen-
sion expressed by Nestle in requesting union assist-
ance by advising him that no disciplinary action was
being considered.5 On the contrary, Ary's response
was limited to denying this request by telling him that
he did not "need" such assistance. Such an equivocal
response is not sufficient to allay Nestle's fear of disci-
plinary action, as Ary did not give any reason why
the employee did not "need" assistance. In this cir-
cumstance, the comment that an employee does not
need assistance is not sufficient basis to disregard an
employee's request.6 However, rather than granting
Nestle's request, suspending the interview, or giving
him the choice between an interview without assist-
ance or no interview at all, 7 Ary proceeded to Boen-
ker's office and engaged Nestle in an interview with-
out his requested union representative. Once Ary
actually initiated the interview in Boenker's office, the
Weingarten violation had been established, as the em-
ployee who has made a request for union representa-
tion on the plant floor need not repeat the request at
the interview.
In addition, we agree with the Administrative Law
Judge's finding that Respondent also interfered with
Nestle's Section 7 rights when it denied Nestle's fur-
ther request for union assistance made during the
course of the interview which followed in Boenker's
office. This second request was precipitated by Boen-
ker's accusation that he had observed Nestle and
Wade and that he believed they' were causing a slow-
Amoco Chemicals Corporation, 237 NLRB 394 (1978). General Electric
Compantt. 240 NLRB 479 (19791.
'Columbus Foundries, Inc., 229 NLRB 34. 35 (1977)3; anTran Electric
Corporation, 218 NLRB 43. 44 ( 1975).
7 Weingarien, supra, at 258.
h608X
LENNOX INDUSTRIES. INC.
down in production. While Boenker did not directly
deny Nestle's request, his response, similar to that
made earlier by Ary, indicated that if he thought Nes-
tle needed a committeeman he would get one. How-
ever, the evidence shows that Boenker ignored the
request, did not send for a representative, and contin-
ued with the interview. Accordingly., we adopt the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(1) by denying Nestle's second
request for union assistance at the interview held in
Boenker's office.
We disagree, however, with the Administrative
Law Judge's finding that Respondent committed
similar Weingarten violations against employee Wade
on February 15 and 16, 1978. With respect to events
that preceded the exchange in Smith's office on Feb-
ruary 15, the Administrative Law Judge found, and
the General Counsel does not now dispute, that
Boenker did not act unlawfully in excusing both
Wade and Apple from his office after Apple refused
to heed Boenker's request that he be able to talk with
Wade alone.' When Wade was ordered to report to
Boenker's office a second time, instead of doing as
ordered he got the president and the vice president of
the Union and went with them to Boenker's superior,
Smith. Smith merely warned Wade that if he did not
go to Boenker's office he would be in serious trouble.
Although the Administrative Law Judge viewed
Smith's order as a "specific denial of a defined request
on Wade's behalf for union representation in the up-
coming meeting [with Boenker]," the record does not
support such an analysis. The Administrative Law
Judge's finding in this regard stretches Weingarten to
the breaking point. What is crucial is that Boener
wanted to meet with Wade: that only Boenker knew
why he wanted to talk to Wade; and that it was for
Wade to request union representation from Boenk-er
before any meeting with Boenker. Moreover, it was
for Boenker alone to determine whether he wanted to
grant Wade's request for union representation at the
meeting, not hold the meeting, or give Wade the
choice between having an interview without represen-
tation or having no interview at all. Smith's advice to
Wade that he should report to Boenker's office was
merely for the purpose of warning Wade that he
could get in serious trouble for disobeying an order to
report to a supervisor's office. Although Smith admit-
ted that he had previously talked to Boenker and that
he was familiar with the occurrence at Boenker's of-
fice earlier that day, this fact is insufficient to show
that any renewed demand for union representation by
Wade would be rejected by Boenker or that Wade
was threatened with discipline should be renew his
demand for representation. In view of the above, we
I See Amoco Oil Compan. 238 NLRB 551 (1978).
also reject the Administrative Law Judge's conclusion
that Boenker's discussion with Wade was "tainted by
Smith's conduct."
With respect to the interview the next daN. Febru-
ary 16, the record reveals that Ary and Wade got into
an argument and Ary suggested that they both go to
Boenker's office. Wade requested representation, but
Ary did not respond to the request. The two pro-
ceeded to Boenker's office and met with Boenker to
discuss the incident. The Administrative Law Judge
specifically found no violation arising out of the meet-
ing in Boenker's office, but he did find a violation
with respect to Ary's "denial" of Wade's request for
union representation at the time that Ary suggested
that the two men proceed to Boenker's office. he
record indicates that Ary simply failed to respond to
Wade's request for union representation and not that
Ary denied the request for representation. \Walde ad-
mitted at the hearing that failure to respond could
have been caused by Ary having not heard the re-
quest to have assistance. No discussions ensued be-
tween Wade and Ary prior to their arrival at Boen-
ker's office, and Wade made no further request for a
union representative once inside Boenker's office. As
the right to have assistance at an interview where dis-
cipline is reasonably feared is triggered only upon a
request for such representation. we conclude that the
record here is insufficient to establish that Respon-
dent was aware that a request for representation had
been made prior to the discussion with Wade in
Boenker's office on February 16. In so finding we
note that no exception had been filed with respect to
the Administrative Law Judge's finding that no
8(a)( ) violation occurred during Boenker's efforts to
mediate the dispute which had arisen between Arv
and Wade.
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 hereb\ or-
ders that the Respondent, Lennox Industries, Inc..
Fort Worth, Texas. its officers, agents. successors. and
assigns. shall take the action set forth in the said rec-
ommended Order.
CIAIRMAN FANNIN(; and N[MPI-I R JEINKINS, dissent-
ing in part:
While we agree with the majority's adoption of the
Administrative Lav Judge's finding that Respondent
violated employee Nestle's 4l'eingartlen rights on the
two occasions noted, and also find with them that the
evidence is insufficient to show that employee WVade
communicated his desire for union assistance to Su-
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervisor Ary on February 16, 1978, we disagree with
their conclusion that no Weingarten violation oc-
curred in Smith's office the previous day. In his testi-
mony Smith indicated that he was fully aware of
Boenker's earlier attempt that day to interview Wade
alone despite Wade's forthright request for union as-
sistance. In view of this admission, the cornerstone of
the majority's argument, that only Boenker knew why
he wanted to talk to Wade, is contradicted be record
evidence. Consequently, it is apparent that the struc-
ture of the majority's argument, which of necessity
must be borne by this single cornerstone, is no sound-
er than its defective cornerstone.
On the morning of February 15 Boenker caused
Wade to be sent to his office for a reason which was
not explained to Wade at the time. Wade, apprehen-
sive that the interview might result in disciplinary
consequences, contacted Apple, his union vice pres-
ident, and was accompanied by him to Boenker's of-
fice. When Boenker questioned Apple as to the rea-
son for his presence with Wade, Apple said he was
there to assist Wade. While Boenker did not give a
clear response to this request for assistance, his state-
ment to the two employees that he did not want to
speak to Apple and that he might want to talk to
Wade about "going fishing, or something" could
serve only to increase Wade's fear that the requested
interview contained disciplinary overtones. When
Boenker's oblique response did not prompt Apple to
leave, Boenker attempted to telephone Smith, as
Boenker testified, in order to obtain Smith's advice.
Apple testified that after Boenker was informed that
Smith was not present, Apple heard Boenker instruct
the person who answered the call to have Smith call
when he returned. Following the phone call, Boenker
chose to defer the requested interview with Wade un-
til later and ordered both employees back to work.
Later that afternoon Wade was told, as he had
been that morning, to present himself at Boenker's
office. Again he sought the assistance of Apple as well
as employee Plemmons, president of the Union. Ap-
parently in order to avoid a repetition of the standoff
which had occurred in Boenker's office earlier that
day, the three went directly to Smith's office. When
Apple and Plemmons entered the office, Apple asked
Smith "what he was trying to pull" by sending Wade
back to Boenker's office "without a committeeman."
Smith denied trying to "pull" anything. Smith's ac-
count of this exchange states, in part:
Also, Mr. Apple raised the question as to
whether or not Mr. Wade should go to Mr.
Boenker's office for discussion. And I advised
him I was familiar with that question at that
time. I had talked with Mr. Boenker since that
morning.
From this quoted testimony it is clear that Smith had
been fully apprised of the events which occurred in
Boenker's office that morning. Hence, in this context,
his threat to Wade that if he did not go to Boenker's
office he would be in serious trouble and his refusal to
consider Wade's request for assistance during the in-
terview, which Smith knew Boenker had earlier re-
jected, placed Smith in a position of full and active
responsibility for this denial of Wade's Weingarten
rights. When Smith threatened Wade with "serious
trouble" if he did not go to Boenker's office for the
interview, Wade was coerced into going to the inter-
view with Boenker unassisted.9 The fact that he did
not continue to insist on having his requested union
representative present and submitted to the interview
does not show, as Respondent argues, that Wade
waived his right to union assistance during the inter-
view.' ° In view of the above, the majority's statement
that Wade was warned that he could get into serious
trouble for disobeying a supervisor's order to go to his
office ignores the context in which it was placed and
is blind to the fact that Wade's resistence to going to
Boenker's office was not simply that he arbitrarily
thought he need not obey the order of a supervisor,
but because his further presence alone in that office
would be in direct violation of his Weingarten rights.
For these reasons, we disagree with the majority and
would adopt the Administrative Law Judge's finding
of an 8(a)(l) violation here.
I New York Telephone Company, 203 N LRB 53. 1156 (1973).
o1 See Super Valu Xenia, a Division of Super Valu Stores, Inc.. 236 NLRB
1581, 1590-91 (1978): United States Postal Service. 241 NLRB 141 (1979).
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me in Ft. Worth, Texas, on August 21 and
September 19, 1978, pursuant to a complaint and notice of
hearing issued on April 11, 1978. by the Acting Regional
Director of the National Labor Relations Board for Region
16.' The complaint was timely issued with respect to the
February 22 charge filed by United Steelworkers of Amer-
ica, AFL-CIO, Local 4629, herein after called the Union.
The complaint alleges violations of Section 8(a)(1) of the
National Labor Relations Act, as amended, hereinafter
called the Act. The parties were provided full opportunity
to make opening statements, examine, and cross-examine
witnesses, introduce relevant evidence, make closing state-
ments, and file briefs with me. The General Counsel and
Respondent timely filed briefs.
Upon the basis of the entire record.' my observations of
I Unless otherwise specified, all dates refer to the year 1978.
2The transcript of this proceeding is replete with errors with respect to
both the substantive testimony of witnesses and colloquy, statement of posi-
tion of counsel, and rulings of the Administrative Law Judge. No motion to
610
the witnesses, and the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FA(T
I. rHE BUSINESS OF RESPONDENI
At all material times Respondent has been a corporation
organized under the laws of the State of Texas and has
maintained a principal place of business in Ft. Worth.
Texas, where it engages in the business of manufacturing
heaters and air-conditioners.
During the 12-month period immediately preceding the
issuance of the complaint herein, Respondent, in the course
and conduct of its business operations, has purchased and
received goods and materials at its Ft. Worth, Texas, plant
valued in excess of $50,000 directly from points located out-
side the State of Texas. Respondent concedes, and I find,
that at all times material herein it has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. TE LABOR OR(iANIZ.AION INVOII(l. )
Respondent concedes, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
Ill. IE ISSUES
The General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by denying two employees the
right on separate occasions to have union representation at
interviews in circumstances wherein the employees had rea-
sonable grounds to believe that they would be subjected to
disciplinary action. On the other hand, Respondent denies
the commission of an unfair labor practice and. in effect,
avers that, on the basis of the proper resolution of conflict-
ing testimony relating to the several events placed in issue
by the complaint, it must be found that the General Coun-
sel failed in its burden to establish the existence of a reason-
ably grounded belief on the part of the interviewed employ-
ees that disciplinary action would result.
correct the transcript has been filed, but for the most part clarity and accu-
rate meaning is achieved through context and thoughtflow considerations
buttressed by the notes of the Administrative Law Judge taken at the hear-
ing. I order no correction.
Documents marked G.C. Exhs. 4(a)-(I), 5(a)(c). and 6(a)-(i). were
marked for identification and offered by the General Counsel during the
course of the hearing. These documents. which were entitled. Request for
Personnel Action or Notice of Verbal Action, were furnished from the files of
Respondent pursuant to subpena. They represented writeups by supervisors
following oral conversations with rank-and-file employees. The credited evi-
dence of record reveals that they were not used as the basis for subsequent
disciplinary action but were maintained merely for the purpose of jogging
the recollection of the initiating supervisor. The completed forms were not
shown to the employee or employees to whom they pertained nor is this type
of form normally made available to employees. During the initial day of the
proceeding, ruling was reserved on the receipt of the proffered exhibits pend-
ing some additional showing on the part of the General Counsel as to rele-
vancy. materiality, and foundation. The General Counsel sought and re-
ceived a ruling placing the exhibits in the rejected exhibit file and did not
thereafter seek an amendment of that disposition.
I.ENNOX INDUSTRIES. INC
Pertinent Facts
I. Background facts
Respondent employs approximately 250 employees in its
final assembly operation. Fred Boenker is the manager of
final assembly, and nine line supervisors, including Leo
Ary, report to him. Bill Smith is Respondent's industrial
relations manager, and Boenker is subordinate to him in the
organizational structure.
The collective-bargaining agreement between the Union
and Respondent contains a three-step grievance procedure
followed by arbitration. In addition the collective-bargain-
ing agreement provides:
Any supervisor meeting with an employee for the pur-
pose of issuing written disciplinary action will so ad-
vise the employees so that the employee, at his discre-
tion, may invite either his committeeman or the union
President or a pre-designated alternate officer to at-
tend. The committeeman or union officer must work
the same shift as the employee.
Paul Nestle and Coy Wade have been employed by Re-
spondent in rank-and-file assembly line positions since
1969. Both have been members of the Union at relevant
times, and both have served in the capacity of committee-
man a steward-like position with the Union --and Wade
was a committeeman at the time the events pertinent herein
transpired.
Wade testified that in 1977, while he was serving as a
committeeman on the line, he was called into the office of
Boenker's predecessor and was told that the production
group was not producing at a satisfactory level. He testified
further that when an individual employee is called to the
office, the employee does not know the purpose of the meet-
ing and does not learn of the purpose of the meeting until
the meeting is actually convened. Wade did not testify as to
the basis of his knowledge, nor did he give specific verifica-
tion of his generalized testimony to the effect that some-
times employees are called to Boenker's office for encour-
agement and counseling and sometimes for disciplinary
purposes. Similarly, Nestle testified that he "generally"
went to Boenker's office to receive a reprimand or when
some type of problem existed. However, in contradistinc-
tion, he further testified that the only time he had been in
Boenker's office was on February 16.
In practice, according to the credited testimony of Fred
Boenker. first-line supervisors, including Leo Ary. initiate
disciplinary actions, which are in writing. The supervisor
believing disciplinary action to be warranted consults with
higher authority, and this may include Boenker. If a deci-
sion to discipline is reached, the line supervisor transmits
the written notice of discipline to the employee affected.
Boenker testified that he was not "normally" or "usually"
involved in either the issuance or dispatch of the written
disciplinary notice.
2. The alleged unlawful conduct
a. The setting
In January and February 1978 both Wade and Nestle
were working as assemblers assigned to line 4 working un-
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der the supervision of Leo Ary. Wade had worked on line 4
for a period of approximately 3 1/2 years, while Nestle had
been transferred to line 4 in January 1978. Wade had ful-
filled job assigments at various stations on line 4 and found
variations in the degree of difficulty in mastering the re-
quired job tasks. Some of the work tasks were relatively
easy to master while others were more difficult. As a result
of a reorganization of the various assembly lines. Nestle,
together with several other employees, was transferred to
line 4, and these transferees and other employees formed a
production-line unit comprised of 12 individuals. This as-
sembly line group was having difficulty in February 1978
maintaining production. For his part, in the 6-week period
preceding February 15, Nestle was tranferred five times and
performed four different job tasks on line 4)
During the week of February 15 Nestle received the im-
pression that he was being watched in the performance of
his work by Fred Boenker, and by the plant manager, and
to a lesser degree by the factory manager. For a 2-week
period prior to February 15, Nestle's work was subjected to
close scrutiny by Ary. Ary told Nestle that he was going to
try to find a job for Nestle to do because he. Ary, was not
satisfied with Nestle's production. Ary told Nestle that he
had to increase his production speed. Then, in conjunction
with one of the transfers on line 4, which Nestle experi-
enced, Ary told Nestle that the job Nestle was doing just
was not "going to get it" and if Nestle did not acquire
greater speed, he would have to take some action against
him.
During this same period of time, Ary conversed with
Wade concerning the failure of the work group to maintain
production. In substance, Wade blamed some of the diffi-
culty on the poor fabrication of parts which the production
group was called upon to assemble. Ary indicated to Wade
his awareness of this difficulty but counseled Wade to work
with the parts supplied and to endeavor to reach as high a
production percentage as possible.4
b. A ry speaks with Wade
In mid-morning on February 15, Boenker contacted Ary
by telephone and asked Ary to contact Wade at his conve-
nience and send Wade to his office. Boenker said nothing to
Ary about the purpose of this meeting with Wade, but it
was Boenker's intention to counsel Wade about his produc-
tivity on the assembly line.'
Thereafter. Ary approached Wade and told him that
Boenker wanted to see him in his office. Wade replied that
he wished to have representation. Ary told Wade that he
could not have representation, and Wade said, "Now. if I
go to court, I'd like to have a lawyer with me." Ary re-
sponded, in effect, that Wade could get representation, but
Boenker would not let the union representative stay in the
3 The record does not reveal whether these assignments required utiliza-
tion of skills which were foreign to Nestle. but the record establishes that the
unit produced on line 4 was smaller and of a different type than that pro-
duced on line I to which Nestle had been assigned immediately prior to
January 1978.
4 The foregoing is based on the credited and essentially unrefuted testi-
mony of Coy Wade and Paul Nestle,
5The foregoing is based on the credited and undisputed testimony of Fred
Boenker.
meeting. Thereupon, Wade went to the work station of Jer-
ry Apple situated nearby and informed Apple of the sub-
stance of his conversation with Ary. Apple, who was em-
ployed as an assembler I and was vice president of the
Union. went with Wade to Boenker's office. Ary did not
accompany them. Wade entered Boenker's office followed
by Apple. Wade addressed Boenker stating that he under-
stood Boenker wished to speak with him. Boenker did not
respond directly but asked Apple what he could do for him.
Apple observed that Wade had requested him to serve as
his counselor. Boenker stated that he did not want to speak
with Apple but wished to talk with Wade. Apple asserted
that Wade had a right to counsel. Boenker replied that he
might want to talk to Wade about "going fishing. or some-
thing." Apple, who had by this time taken a seat in front of
Boenker's desk, responded that he had not heard a good
fish story for quite some time and would be willing to hear
one now. Boenker initiated a phone call and asked to speak
to Bill Smith, Respondent's industrial relations manager,
but Smith was not in. Boenker hung up and told Apple and
Wade to return to work.6
c. The evtents of the aftiernoon
(I) The conference with Smith
At approximately 3 p.m. Ary again contacted Wade and
told him that Boenker wanted to see him. Wade responded
that he wanted representation, but Ary made no comment.
Thereupon, Wade went to line I where Apple and Law-
rence Plemmons, president of the Union, were conversing.
Wade informed Apple and Plemmons that Boenker had
sent for him again. Apple suggested that they see Bill Smith
concerning the matter. Apple, Plemmons, and Wade pro-
ceeded to Smith's office. Before entering, Wade stopped at
the restroom, and Plemmons and Apple preceded him into
Smith's office. After obtaining permission to speak with
Smith. Apple addressed Smith. He asked Smith "what he
was trying to pull" by sending Wade back to Boenker's
office "without a committeeman." Smith denied trying to
"pull" anything, and as Wade entered Smith's office. Smith
stated that if Wade did not go to Boenker's office he would
be in serious trouble. Thereupon. Wade asked Plemmons
and Apple what he should do, and Apple answered that he
I The foregoing is based on a composite of the credited testimony of Fred
Boenker. Coy Wade, and Jerry Apple. I credit each witness only to the
extent that his testimony is consistent with the foregoing findings. Specifi-
cally. I do not credit Wade's testimony on cross-examination to the effect
that Boenker told Wade, in terms, that he could not be represented by Ap-
ple. Wade's testimony in this respect finds no support in the testimony of
either Apple or Boenker, and I find that Boenker made no such overt com-
ment. On the other hand. I do not credit Boenker's testimony to the effect
that he stated specifically to Wade and Apple that there was no disciplinary
action involved in the meeting with Wade. I conclude from a composite of
the testimony in this respect that Boenker was noncommital with respect to
the precise purpose of the meeting, and the testimony of Apple and Wade
accurately characterized the nature of Boenker's comments. Finally. I do not
credit the testimony of Apple on cross-examination that, in seeking o speak
with Smith by telephone. Boenker informed the person to whom he spoke
that he had a "man up here unruly." or that in adjourning the meeting.
Boenker stated that Bill Smith would probably be calling Apple and Wade
"back at a later date." This testimony on cross-examination impressed me as
an embellishment of Apple's testimony on direct examination and tinds no
support in the testimony of either Wade or Boenker.
612
L.ENNOX INDlSTRIES, INC
had better go to Boenker's office "before [he got] sus-
pended." lie added that unfair labor practice charges
would he filed later. Wade thereupon left and went directly
to Boenker's office.'
After Wade had departed. Apple endeavored to discuss
with Smith the legal imperatives resulting from decisions of
the Board and courts which he claimed required the Com-
pan to grant Wade's request for representation during the
course of any interview with Boenker. A dialogue followed
with no resolution of the matter. This later became a topic
of conversation between Apple and some of Respondent's
supervisors.*
(2) Wade reports to Boenker
In the meantime, Wade met with Boenker in Boenker's
office. No one else was present. The meeting was a brief
one, and Boenker spoke to Wade about the need for in-
creasing production on the assembly line and. in substance.
Boenker urged Wade to take a leadership role in this regard
because he commanded the respect of his fellow employees.
The conversation also encompassed the work habits of em-
ployees generally, the problem of poorly fabricated parts.
and the negative impact of this on production. The conver-
sation was civil, low keyed, and ended with an exchange of
pleasantries as the 3:30 p.m. whistle blew ending the work-
day.'
d. ,4 'l reprimands Wade -Februao' 16
Approximately 30 minutes before the end of the shift on
the afternoon of February 16. Wade was standing idle wait-
ing for parts. He was summoned over a public address de-
vice used for intraplant communication to report to Ary's
desk. He did so. and when he approached Ary, Ary asked
him what he was doing standing idle in his work area.
Wade responded that he was out of parts and was waiting
for parts to be brought to him. Ary criticized W'ade for
standing around, and this led to a heated verbal exchange
between them, culminating in Wade's slapping Ary's desk
and exclaiming, "God damn!" Ary cautioned Wade against
using this type of language in front of him, and Wade re-
sponded, "You're such a god damn Christian man." In re-
' The foregoing is based upon a careful consideration of the testimony of
Coy Wade, Jerry Apple. and Billy Smith. I reject the testimony of each
witness to the extent that it is inconsistent with the foregoing findings I am
convinced, upon my observation of each of the witnesses as they testified
before me in the proceeding, that for the most part they endeavored. consis-
tent with present recollection, to convey their preception of the essential
meaning of the bits and fragments of dialog which made up the entire con-
versation. However. they failed to describe accurately many details, and
each witness recalled pertinent statements differently. I am convinced from
my observation of Apple as he testified that he was prone to exaggeration
and embellishment and was expansive in certain aspects of his testimony. On
the other hand, I conclude from my observation of Smith as he testified that
he tended to understate the nature and tenor of events. Specifically. I do not
credit Apple's testimony to the effect that Smith said that if Wade did not go
to Boenker's office he would be suspended: nor do I credit Smith's testimony
that he stated in bland terms that Wade should avoid getting himself in a
position of being insubordinate. I am convinced that Smith's directive to
Wade was more direct than this and that Wade's testimony accurately de-
scribes the directive which Smith gave to him.
I The testimony of Jerry Apple and Billy Smith supports the foregoing.
I A composite of the credited testimony of Coy Wade and Fred Boenker
establishes the foregoing.
sponse. ArN said, "et's go to Mr. Boenker's office." Wade
asked for union representation but Ary did not respond."'
They went together to Boenker's office and met with him.
In meeting with Boenker, Ary described the events and
the exchange of words which had transpired. Wade indi-
cated his agreement with Ary's summary of the incident.
and Boenker took a conciliatory attitude. He spoke of the
need to increase productivity on the assembly line. As
Boenker spoke, the 3:25 p.m. whistle blew, denoting the
approach of the end of the workday. Thereupon Boenker
told Ary and Wade to go back out into the factors and do
the best they could to get along. Boenker noted that it was
about time to go home."
e. .4 r and/ .N'cstle clarsh
Just prior to the 2 p.m. break on the afternoon of Febru-
ary 16, Arv approached Nestle at his work station and
stated that he would like to talk to Nestle at his desk. Nestle
responded that he would like to have a committeeman pres-
ent. Ary responded that he did not need one, but Nestle
stated that he still desired to have one present. Gerald
Walls, an assembler on line 4, was standing nearby and
heard Ary ask Nestle to accompany him to his desk. Nestle
asked Wall if he would acknowledge or witness the fact that
he had asked Ary for union representation. Thereupon.
Nestle proceeded with Ary toward Ary's desk. As they
walked, Ary addressed Nestle saying, "You really think
you're a smart ass, don't you?" Nestle answered, "Hey. isn't
there some way we can get this worked out'?" Ars re-
sponded saying, "l.et's go to Freddie Boenker's office."
Nestle stated his willingness to do so. The went together to
Boenker's office and spoke with him.
f. Ne'slle metis't ill Boenler
Ary commenced the conversation saying, "Freddie. this
man just threatened to wnip m) ass." Boenker replied that
he would not permit an) show of temper and asked Nestle
directly whether he had said that. Nestle denied having
made the remark, and Ary again stated that he had. Nestle
repeated his denial. Boenker then asked if there had been
any witnesses to the conversation between Ary and Nestle,
and Ary answered that they had been alone in the aisle, a
fact which Nestle substantiated. Thereupon. Boenker al-
luded to the question of production and stated that he
lo Wade testified he did not know whether Ary merely ignored his request
or did not hear it. There is no evidence concerning the tone of roice used by
Wade in requesting union representation. hut there is no basis in the record
for surmising that the tone was less than conversational
" The foregoing is based on a composite of the credited testimony of Fred
Boenker and Coy Wade. Leo Ary was not called to testify concerning this
incident. I do not credit the testimony of Wade to the effect that during the
course of this conversation in Boenker's office. Boenker said. "You know. I
could send you home for the rest of the day" I am convinced that Boenker
made no such statement because the workday was drawing to a close and.
indeed the conversation was in progress when the 3:25 p.m arning whistle
blew. It is doubtful that, in this context, Boenker would have made so futile
an observation as that attributed to him by Wade This is particularly so, in
my view. because Boenker was well aware of Wade's experience as a union
representative full) conversant with his rights, and he was doubtlessly cogni-
zant of the fact that this statement of threatened discipline would have intro-
duced a disciplinary overtone to a meeting at which Boenker endeavored to
render conclliatorx In nature
1
I) I('ISI()NS 01F NATIONAL ILABOR RA I IONS BOAR)
wanled to talk to them anyway. I he meeting was inter-
rupled wi hen Boenker answered the telephone on his desk.
As Boenker spoke on the telephone. Ary addressed Nestle
saying. in substance, that he had tried to have Nestle trans-
ferred back to his former position. Ary added that he did
not like Nestle and would go so ftar as to say he hated him.
Nestle responded that the feeling was mutual. At this point
Boenker completed his telephone call and interrupted. Nes-
tle reiterated that he hated Ary. and Boenker stated that he
was not running a popularity contest but wanted "produc-
tion out there." He stated further that he was aware of the
personal differences between Ary and Nestle and would
like to see them get along. Boenker returned to the topic of
productivity in the assembly area and discussed the low
production of' some employees, including Nestle. Boenker
added that he had been observing Nestle and Wade, and he
believed they were instigating a slowdown in production.
Nestle responded that he was not accustomed to working
on units as small as those assembled on line 4 and wished to
be transferred back to his former position. Nestle then
asked for a committeeman to represent him, and Boenker
replied that if he thought Nestle needed one, he would get
one. Boenker added that as long as a seniority system was
in effect. Nestle would work for Leo Ary. Boenker added
that he did not want disharmony between supervision and
the rank-and-file and stated that as far as the dispute be-
tween Ary and Nestle was concerned, he could do nothing
about it. lie reminded Nestle that his production would
have to improve and assured him that he was not threaten-
ing him. The meeting ended, and Ary and Nestle left.' 2
Conclusions
The issue in this proceeding is whether the Section 8(a)( I)
of the Act is violated by an employer who summons em-
ployees to the loci of supervisory authority and counsels
with them while denying their request for union representa-
tion during the course of the counseling sessions. The ques-
tion posed is a derivative of the principle enunciated in
N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975). In Wein-
garten, the Supreme Court held that in Quality Manufactur-
ing Company, 195 NLRB 197 (1972), and in Mobil Oil Cor-
2 The foregoing is based on a careful consideration of the testimony of
Paul Nestle and Fred Boenker. I place primary reliance upon the testimony
of Nestle. As I observed Boenker testify concerning this particular meeting. I
became convinced that he was somewhat evasive and lacked a full and com-
plete recollection of the details which comprised this conversation. I reject
his testimony that at no time during the meeting did Nestle seek representa-
tion. Howeser, although Nestle's testimony was more reliable than Boenker's
in many respects, I am unable to credit the testimony of Nestle to the effect
that he lodged a request for a committeeman soon after entering Boenker's
office. His testimony in this regard was rationalized. and I am convinced that
he mentally merged his earlier request to Ary with a supposed request made
in the opening phases of the meeting in Boenker's office. Nor do I credit
Nestle that during the course of the conversation in Boenker's office, Boen-
ker stated that he had the option of transferring Nestle to a nonincentive unit
or of disciplining him in the event he continued to participate in an alleged
slowdown of production. It is clear from the record that the assignment of
Nestle was accomplished in accordance with seniority, and Boenker lacked
the authority under the agreement to transfer Nestle to a nonincentive
group. I am convinced that, in this regard, Nestle further rationalized his
testimony to support the essential thrust of his testimonial attributions
against Boenker.
poration, 196 NLRB 1052 (1972. the Board had properly
shaped the "contures and limits of the statutory right"
vested in employees by Section 7 of the Act to refuse to
submit without union representation to interviews which
they reasonably fear may' result in discipline. In reaching
this conclusion, the Supreme Court adopted the rationale of
the Board to the effect that the right of an employee to
union representation in the described circumstances "in-
heres in Section 7's guarantee of the right of employees to
act in concert for mutual aid and protection." The Court
further declared that the right arises only in situations
where the employee requests representation: that the em-
ployee's right to request representation as a condition of
participation in an interview is limited to situations "where
the employee reasonably believes [measured by objective
standards] the investigation will result in disciplinary ac-
tion": that the exercise of the right may not interfere with
legitimate employer prerogatives: and that in conducting
investigatory interviews the employer is under no duty to
bargain with any union representative who may be permit-
ted to attend that interview. The Court also held that an
employer has no obligation to justify his refusal to allow
union representation and, despite refusal, the employer is
free to carry on his inquiry without interviewing the em-
ployee, and thus leave to the employee the choice between
having an interview unaccompanied by his representative.
In W'eingarten, the Court noted with approval the follow-
ing statement of the Board in Qualmit t .lanu/lcturing Cor-
puanY, upra:.
We would not apply the rule to such run-of-the-mill
shop-floor conversations as. for example. the giving of
instructions or training or needed corrections of work
techniques. In such cases there cannot normally be any
reasonable basis for an employee to fear that any ad-
verse impact may result from the interview, and thus
we would then see no reasonable basis for him to seek
the assistance of his representative.
The case at bar involves meetings between rank-and-file
employees and supervision at which no disciplinary action
was intended and none resulted. directly or indirectly, from
the meetings. However, the meetings were neither prefaced
nor punctuated by assurances from supervision that they
were to be devoid of disciplinary overtones or content.
In Amoco Chemical Corporations, 237 NLRB 394 (1978).
the Board affirmed the action of an administrative law
judge in dismissing a complaint alleging violations of Sec-
tion 8(a)(1) of the Act resulting from an employer's denial
of separate requests for union representation during the
course of counseling interviews about excessive absences.
These interviews had been conducted by supervision with
expressed assurances to each of the interviewees that no
disciplinary action would be taken, and none had been
forthcoming. The counseling program was found not to
constitute an integral part of the employer's disciplinary
system.
In contrast, earlier, in Alfred M. Lewis Inc., 229 NLRB
757 (1977), enforcement denied in pertinent part 587 F.2d
403 (9th Cir. 1978), the Board, citing Weingarten and Qual-
itv, concluded that an employer had violated Section 8(a)(1)
of the Act by refusing to permit a union representative to be
(,14
LENNOX INDUSTRIES. INC.
present at counseling sessions carried out under a produc-
tion quota and disciplinary system unilaterally instituted by
the employer. The new counseling or on-the-job instruction
sessions in question had not resulted in the discipline of any
of the employees and had the stated and avowed objective
of aiding the employees in obtaining adequate production.
The Administrative Law Judge found nothing contrary to
the Act in respondent's refusal to permit a union represent-
ative to be present at each of the sessions, and he distin-
guished Weingarten and Qualitv. In reversing the Adminis-
trative Law Judge, the Board stated:
. . .in the present case. the conclusion is inescapable
that employees involved in the type of counseling
given by Respondent had reasonable grounds to fear
adverse consequences. The counseling sessions ex-
plored the reasons for an employee's failure to meet
production quotas and took place as an integral part of
Respondent's production quota and disciplinary sys-
tem. The counseling was a preliminary step to the im-
position of discipline under the system. Investigators
interviews which may lead to discipline are clearly
within the scope of Weingarten. supra, under which the
employees' right to representation was affirmed.
As found, in neither Amoco nor Alfred M. Lewis, Inc..
was disciplinary action taken as a direct consequence of the
conferences, and it seems apparent from a careful scrutiny
of these precedents that the decision in those cases, in the
final analysis, turned on the Board's perception of the state
of mind of the interviewee at the time he requested union
representation. The avowed purpose or intention of an em-
ployer in conducting the interview. and the absence of di-
rect imposition of discipline during the course of the inter-
view, or as an immediate consequence thereof. appears not
to have been deemed significant to the ultimate finding
made by the Board with respect to the presence or absence
of a violation of Section 8(a)( ) of the Act.
I find in agreement with the General Counsel that, under
the precepts of these Board decisions applying the princi-
pals of the Weingarten decision of the Supreme Court to
situations analogous to those found in the case at bar, Re-
spondent must be held to have violated Section 8(a)(1) of
the Act in denying certain of the separate requests of em-
ployees Wade and Nestle for union representation during
the course of interviews with Boenker and/or Ary. The
General Counsel correctly contends that, with respect to
incidents and occasions detailed below, the employee-
Wade or Nestle-being subjected to the interview. had rea-
sonable basis for believing from all surrounding circum-
stances objectively assessed that the interview would result
in disciplinary action. On the other hand, in certain other
circumstances, as set forth below, no such reasonable basis
existed.
In reaching these conclusions, it is essential to start from
the premise that first-line supervision was endowed by man-
agement with responsibility for initiating the disciplinary
process and for transmitting to the employee the documen-
tation of the decision reached. Thus, it is apparent that
employees intimately involved with the daily realities of the
workplace comprehend the potential for discipline arising
from the involvement of a supervisor, and they knew that
the first-line supervisor possessed authority beyond mere
jawboning. but. in point of fact, played an integral role in
the disciplinary process. Moreover. in the nature of things,
these employees must be credited with a clear insight into
the realities of the chain-of-command principal and with
the realization of the involvement of upper level supervi-
sion, in this case. Fred Boenker. in the formulation of disci-
plinary decisions. While he neither issued nor transmitted
disciplinary notices. he was consulted with respect to mans
such actions and. by reason of his position or authority. was
believed capable of influencing. if not determining. Whether
disciplinary action would he taken. It is reasonable here, of
course, to attribute a degree of sophistication to Wade and
Nestle, for they had served as union committeemen and
had had experience in fulfilling the functions of this calling
in the first step of the complaint and grievance process pro-
vided by the collective-bargaining agreement. It is assumed
here that both Wade and Nestle knew that not all correc-
tive or counseling discourse between rank-and-file cmploy-
ees and first-line supervision, or with Boenker. had disci-
plinary overtones: but they must be presumed to have
known also that the potential was present from either or
both sources.
The record establishes that the events which transpired in
mid-February and which formed the essential basis for the
instant complaint allegations, here under scrutiny. occurred
against a background of dissatisfaction on the part of super-
vision with the productivity of both Wade and Nestle. and
both had been urged by supervision to improve. Thus. the
events of February 15 and 16 did not materialize from thin
air. so to speak. but had contextual moorings to what had
proceeded in the way of counsel and apparent disapproval
on the part of supervision with the contribution of both
Wade and Nestle. But. with respect to Wade. it is essential
to find, as I do, that in February 1978 his assignment to line
4 had been a longstanding one. and he had received previ-
ous indications during the course of at least one meeting in
the office of Boenker's predecessor that, in the eyes of su-
pervision and management. he was viewed as an employee
commanding the respect and following of other rank-and-
file assemblers, and that he was credited by management
with a capacity for favorably motivating the productivity of
his fellow employees. Thus. there was scant reason for
Wade to have harbored a reasonable belief that ant sum-
mon to the office of Boenker, or to the desk of first-line
supervision, was for the per se purpose of enforcing disci-
plinary measures against him personally. On the other
hand. Nestle's view of his own security in his recently ac-
quired assignment to line 4. under the supervision of Ary.
was not accompanied by similar undercurrents of stability
and assurance. He had been under pressure from Ary to
improve his productivity, but nothing in Nestle's experi-
ence, so far as the record evidence reveals. imbued him with
the knowledge or expectation that disciplinary action inexo-
rably accompanied or followed a summons to Ary's desk or
Boenker's office. It is against this background. and on the
basis of these considerations, that a determination of the
merits of the instant complaint must he made.
Initially, I find no violation of Section 8(a( I) flowing
from the refusal of Ary to acquiesce in Wade's request that
he be accorded representation as a prelude to proceeding to
Boenker's office in accordance with Ary's directive. It is
615
D[I (CISIONS OF NATIONAL LABOR RELATIONS BOARD
noteworthy that Ary merely indicated to Wade the desire of
Boenker to meet with Wade in his office. Nothing in Ary's
message carried the connotation of a potential disciplinary
interview, and, as noted above, nothing in Wade's personal
experience on the job could reasonably be viewed as infer-
ring that imminent discipline would evolve from a meeting
with Boenker in his office. Indeed, the record suggests that
Wade had become somewhat jaded and bemused by past
efforts of supervision to marshal his good offices in motivat-
ing the productivity of his fellow workers. I shall recom-
mend dismissal of the complaint to the extent that it en-
compasses a denial of union representation on this specific
occasion occurring on the morning of February 15.
The next sequence of events involving Wade and Boen-
ker must, however, be viewed in a different light. When, as
the record reveals, Wade did, in fact, proceed to Boenker's
office accompanied by Vice President Apple of the Union,
Boenker was noncommittal as to the purpose of his desired
meeting with Wade. In following this tact, and in failing to
define the reason for wishing to meet with Wade. Boenker
left open the actual reason and purpose for desiring Wade's
presence. While I find Boenker legitimately invoked his op-
tion of adjourning the meeting rather than proceeding in
the presence of Apple, the incident fbrged an integral link
in the chain of events involving Wade which transpired lat-
er in the day- It was in the subsequent denial of Wade's
request made in connection with an afternoon meeting in
Boenker's office that Respondent, through the interrelated
conduct of Smith and Boenker. perpetrated violations of
Section 8(a)( ) of' the Act.
The record establishes that when Wade was again sum-
moned to appear in Boenker's office on the afternoon of
February 15, he and Apple first spoke with Smith. The rec-
ord establishes that Smith admonished Wade to report to
Boenker's office for the scheduled interview without union
representation. Smith's admonition was accompanied by
the cleat suggestion that to do otherwise would result in
adverse consequences for Wade. A statement of this type
emanating from an official in the capacity of industrial rela-
tions manager must be viewed as something more than be-
nign advice; rather, it assumes the character of a specific
denial of a defined request on Wade's behalf for union rep-
resentation in the upcoming meeting." In my view of the
record, considering the close relationship between Smith's
instruction to Wade and the scheduled meeting with Boen-
ker, Smith's statement became an effective denial of repre-
sentation, just as efficacious and attributable to Respondent
as if expressed by Boenker himself at the convened meeting
which followed immediately.
The events which thereafter followed when Wade com-
plied with Smith's directive and reported to Boenker's office
and spoke with him are, for decisional purposes, tainted by
Smith's conduct, and it is of no moment that Wade did not
it Boenker credibly testified he summoned Wade with no intention of in-
voking discipline, but, as found. he did not convey this to Wade or Apple.
The General Counsel does not challenge the legality of Boenker's decision to
adjourn the meeting rather than permit Apple to participate in this asserted
counseling session.
4 Apple had told Smith of Wade's wish for union representation, and
Wade's presence in Smith's office with Apple served as clear notice to Smith
of his request in this regard and served to ratify Apple's action in notily ing
Smith of Wade's request.
renew his request for union representation before Boenker
while the two met and spoke together. Nor is it decisionally
significant that, in actuality, during the course of the meet-
ing Boenker neither inferred nor imposed disciplinary ac-
tion against Wade. As found, the test to he applied is the
reasonable belief test measured by objective standards.
Thus, it is essential to conclude from the context of events
converging from (I) the summons of Boenker's office during
the morning hours. (2) the willingness of Boenker during
the course of that earlier meeting to disavow any' intention
of discipline. (3) the renewed summons of Nestle to appear
again in Boenker's office, and (4) Smith's directive to ap-
pear, that Wade had a basis for reasonably believing that
the meeting would be investigatory in nature and would
lead to disciplinary action relating to production difficulties
which had been an element of current and expressed super-
visory concern.
On the other hand. in earlier directing Wade to appear at
the afternoon meeting. Ary did not intrude on Wade's Sec-
tion 7 rights. As on the occasion in the morning. Ary was
serving as a mere conduit of Boenker's instructions, and in
the afternoon, in responding to Wade's request for union
representation in the upcoming meeting with Boenker. Ar
merely expressed the opinion that Boenker would not ac-
cede to Wade's wishes once the meeting commenced.
However, violative of Section 8(a)( 1) of the Act was
Ary's refusal to grant Wade's request for representation
when he directed Wade to report with him to Boenker's
office following the interlude on February 16 in which tem-
pers had flared and Wade had intemporately and profanely
addressed Ary. The eruption had followed in close time
sequence to Ary's censuring of Wade for apparent idleness
at his work station. The credited evidence establishes
Wade's request for representation and Ary's denial. The
circumstances of Ary's directive to Wade to proceed to
Boenker's office were such as to form a full and adequate
basis t'fr a reasonable belief on Wade's part that this meet-
ing would be investigatory in nature and would result in the
imposition of' discipline.'
In close analogy to the event involving Wade and Ary is
the incident of the flareup between Ary and Nestle, which
caused Ary to direct Nestle to accompany him to Boenker's
office. The record evidence suggests, and I find, that Nes-
tle's attitude and comments to Ary. as they proceeded
through the plant toward Ary's desk pursuant to Ary's re-
quest to Nestle that he accompany him to his desk for a
conference, had been sufficient to motivate Arv to forego
the intended conference at his desk and to proceed directly
to Boenker's office. This abrupt change of events was signit:
icant in and of itself, and was sufficient to raise reasonable
apprehension in Nestle's mind that the resultant meeting
harbored the realistic potential for disciplinary action. In
this context, after the discussion with Boenker in his office
began to focus on employee productivity. Nestle lodged a
request for union representation. I find this request to have
been timely with respect to the evolution of the substantive
15 Neither the allegations of the complaint nor the brief filed by the Coun-
sel for the General Counsel contain a facial indication that the General
Counsel is alleging the events which immediately followed in Boenker's of-
fice to have constituted violations of the Act under the principle enunciated
in Weingarten. In any event. I specifically find no siolaion of Ihe Act result-
ing from Boenker's efforts to mediate the dispute which had arisen between
Ary and Wade.
616
LENNOX IND)lrSTRIFS IN(C
discussion with Boenker. The circumstances were such as to
have made Nestle's request for union representation a justi-
fled one for, upon an application of the objectiv e standard
test, he must be found to have reasonably feared that when
Boenker directed the flow of conversation to the question of'
employee productivity, the meeting had taken a turn which
would result in disciplinar action involving him. '
Similarl\ I find Arv interfered with Nestle's Section 7
rights and xiolated Section 7 of the Act in denying Nestle's
reCuticst lor union representation before proceeding with an
inters ew at Ars's desk. Past events, including supervisory
scrutin, of Nestle's job performance and Ary's own verbal
warnings concerning the consequences of Nestle's failure to
improve his productivity, were such ias to have raised in
Nestle's mind the specter of unfavorable job action flowing
from the meeting with Ary, who possessed authority to ini-
tiate and dispense discipline.
IV. rtt IFF'(I ()F TE UtNFAIR I ABOR PRA('II( IS 'PO()N
('COMMIR('I:
The activities of Respondent, set forth in section III.
above., occurring in connection with the operations of Re-
spondent described in section I,. above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and the entire record
in this case. I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing 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. By denying requests of employees Wade and Nestle
for union representation during the course of interviews or-
dered and thereafter conducted by Respondent. under cir-
cumstances in which. at the time of the employees' request.
Wade and Nestle each had reasonable grounds for fearing
the interviews might result in their discipline. Respondent
engaged in. and is engaging in. unfair labor practices within
the meaning of Section 8(a)( I ) of the Act.
4. The aforesaid are unfair labor practices affecting com-
nierce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
ind upon the entire record. and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
It In ans eveni. the meeting with Boenker and Arv cannlot he separaled obr
cause and effct purposes and was, n fact. a single. interrelated episode tied
to the eents which had transpired between Nestle and Ar on the work
floor Thus viewed. Nestle's Initial request is rendered efficacl,.us and opera-
tlse with respect to all elements ,of the continuing incident
ORDER L'
The Respondent. ennox Industries. Inc.. Ft. W'orth.
Texas. its officers. agents. successors. and assigns. shall:
. ('Cease and desist rom:
(a) Requiring anN emploee to take part in an interieAw
meeting. or conterence ithout union representation, it'
such representation has been requested b the emplosee
anid the employee has reasonable grounds to fear or believe
that the intcr ies, meetin . or conlerence still resilt in dis-
clplinary action.
(h) In any like or related manner interfering vith, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them b Section 7 of the Act.
2. Take the following affirmative action designed to ei-
fectuate the policies of the Act:
(a) Post at its Ft. Worth, Texas, place of business copies
of the attached notice marked "Appendix."', Copies of said
notice, on forms provided by the Regional Director for Re-
gion 16. after being duly signed bh its authorized represen-
tatives, shall he posted by Respondent immilediatel upon
receipt thereof. and maintained by it f;)r 60 consecutive
days thereafter. in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken b) Respondent to insure aid no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director for Region 16. in writ-
ing, within 20 days from the date of this Order. w hat steps
it has taken to comply herewith.
i' In the event no exceptions are filed as provided by Sec. 102 46 f the
Rules and Regullains of the National Labor Relations Board. the findings,
conclusions and recommended Order herein shall. as pros ided in Sec. 102 48
of the Rules and Regulations. he dopted h) the Board and hecome its
findings, conclusions. and Order, and all obhecions hereto shall be deemed
waived for all purposes
i' In the event that this Order i enforced b a Judgment of a United
States Court of Appeals. the ,rds In the notice reading, "Posted bh Order
of the National l.abor Relations Board" shall read "Posted 'ursualn to a
Judgment of the United States (Court of Appeals Enforcng an Order of the
National lahbor Relations Board "
APPENDIX
No rl( rFo EMPOY()tS
POSTED BY ORDER OF THE
NAI()ONAl. LABOR REI.AIIONS BOARD
An Agenct of the United States Government
Wt: x\s.. Not) require an' employee to take part in
an interview. meeting, or conference where the em-
ployee has reasonable grounds to believe that the mat-
ters to be discussed ma\ result in his her being the
subject of discipliner 3 action, and where e have re-
fused that emplo ee's request to he represented at such
inter iew,. meeting. or conference b a labor organiza-
lion.
Wi- \x llI so) in any like or related manner interfere
with, restrain. or coerce anN emplosee in the exercise
of those rights guaranteed b,, Section 7 of the National
l.abor Relations Act.
I.iNNOX INI).SI'RIS. N(.
h617