Miesel Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1192 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Miesel Company and Robert Radyko. Case 7
CA- 14596
August 25. 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND Mi MBI RS JFNKINS
AND PENtiLLO
On July 10, 1978, Administrative Law Judge Mar-
vin Roth issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a brief, and Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
The General (Counsel's m tion Ito correct official records is hereby
granted.
DECISION
STATEMENT OF IHF CASE
MARVIN ROTiH Administrative Law Judge: This case was
tried at Detroit, Michigan on May 4, 1978. The charge was
filed on November 10, 1977, by Robert Radyko, an indi-
vidual. The complaint, issued on December 30, 1977, alleg-
es that The Miesel Company (herein the Company or Re-
spondent), violated Section 8(a)(1) of the National Labor
Relations Act, as amended. The gravamen of the com-
plaint is that the Company allegedly denied union repre-
sentation to Radyko at interviews which he reasonably be-
lieved might result in discipline. The Company's answer
denies the commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs.
Upon the entire record in this case ' and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the briefs submitted
by General Counsel and by Respondent, I make the fol-
lowing:
FINDINGS OF FACT
The Company, a Michigan corporation, maintains its
principal office and plant at Detroit, Michigan, where it is
engaged in the wholesale sale of institutional foods and
related products. In the operation of its business, the Com-
pany annually ships products valued in excess of $50,000
from its Detroit plant to points located outside the State of
Michigan. The Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein the Union), is a labor organization within the
meaning of Section 2(5) of the Act. The Company and the
Union are parties to a collective-bargaining contract, effec-
tive from June 20, 1976 to June 20, 1979, covering an ap-
propriate unit of employees. The contract contains a griev-
ance and arbitration procedure which provides, inter alia,
that any employee may file a grievance as to his discharge,
suspension or warning notice. The contract, and the Com-
pany's work rules for its driver and warehouse employees
(which were approved by the Union), provide, in sum, that
an employee may be discharged for theft or other dishon-
esty without prior warning or reprimand.
Robert Radyko was employed at the Detroit plant as a
truckdriver and was covered by the collective-bargaining
contract. Three other members of Radyko's family were
also employed at the Detroit plant: his father-in-law, Gor-
don Mullins: his brother-in-law, Robert Mullins, who was
a plant steward; and a cousin, Frank Panetta, who was the
Union's driver-steward. As these facts indicate, Radyko
did not have to look far to obtain advice or assistance on
job-related matters, or with respect to his rights as a union-
represented employee. On September 8, 1977,2 Radyko re-
signed from his job with the Company. Ralph Miesel, who
is a vice president and assistant to the president, and the
son of Company President G. Edward Miesel, was the
Company's principal witness with respect to the events
which culminated in Radyko's resignation. For reasons
which will be discussed, I have credited Miesel's testimony,
and as his testimony is dispositive of the merits of the case,
I am recommending that the complaint be dismissed.
The following is a summary of Miesel's testimony: On
August 31, Miesel received a tip that indicated that a com-
pany driver might be improperly selling company mer-
chandise to the proprietor of a restaurant known as Gar-
den of the East, in Fowlerville, Michigan. Miesel
subsequently received information which indicated that the
driver was Robert Radyko. On the afternoon of Wednes-
day, September 7. Miesel, acting pursuant to the advice of
G'eneral ( ounsel's mlotion to correct official record is hereby granted
Ilosver. the word "truth" rather than "substance" would more accurately
reflect mn ruling, which was apparently understood by the parties.
1 All dates herein are In 1977 unless otherwise indicated.
237 NLRB No. 188
1192
THE MIESEL COMPANY
company labor relations consultant Richard Travis, and
accompanied by company buyer Rem Purdy. drove to the
restaurant and waited in the parking lot from about 6 p.m.
until about 8:30 p.m., when Radyko pulled up in his truck.
Radyko went into the restaurant, came out. took a large
case from the truck, placed it in a garage in back of the
restaurant, and returned to the restaurant through the
kitchen door. Miesel and Purdy then pulled alongside the
truck. When Radyko emerged from the restaurant, Miesel
signaled him to come over. Miesel asked him whether this
was a scheduled stop, and whether he had an invoice for
the case. Radyko answered no to both questions. Miesel
told him to get the case, which contained garbage can lin-
ers, and he did. Radyko said he was sorry, but offered no
explanation. Miesel looked inside the truck, and asked
about a case of shrimp in the freezer. (Radyko was en route
back to the terminal, and there were only four or five items
in the truck). Radyko answered that he had not been able
to locate the case at the intended delivery stop. Miesel said
he would drive the truck back to the terminal, while Purdy
followed, but Miesel had difficulty in operating the truck.
He proceeded to a rest area and stopped. Miesel asked
Radyko why he was selling merchandise at the restaurant.
Radyko answered that the had difficulty in making ends
meet because he had to pay alimony to his former wife. He
gave no other explanation, and continued to apologize.
Miesel told him to drive the truck, while Miesel and Purdy
followed. Subsequently, Miesel signaled Radyko to pull
over at a restaurant known as the Roman Terrace. Miesel
then directed Radyko to turn over company cash and in-
voices in his possession, and to place the remaining mer-
chandise in Purdy's car. Miesel told Radyko to return the
truck to the plant, punch out, and to come to his office at
7 a.m. the next day to discuss the matter further. Rem
Purdy, who was presented as a company witness, substan-
tially corroborated the testimony of Miesel concerning the
foregoing events.
Miesel further testified that he attempted without suc-
cess to contact consultant Travis. Miesel telephoned his
father and told him that there would be a meeting about
the matter the next day, at 7:30 a.m. Miesel was about to
go home, but decided to go to the plant in order to make
sure that Radyko had returned the truck. He determined
that the truck had been returned, but to his surprise he
found that Radyko was still at the plant. Radyko and stew-
ard Mullins were together in an office, and one of them
was speaking on the telephone. Miesel went to his office,
again tried unsuccessfully to reach Travis, and was having
a cup of coffee when Radyko came up and asked to speak
to him. Radyko again apologized, and asked Miesel to re-
consider. Miesel said that he could not change the facts
which he saw. Radyko asked him what he should do. Mies-
el said he had violated the rules, but that it was not his
(Miesel's) decision to make, that they would discuss the
matter at 7:30 the next morning, but that if Radyko was
not agreeable to this he could resign. Miesel pointed out
that either way his family would know what had happened.
At no time did Radyko ask for or mention union represen-
tation. After Radyko left, steward Mullins came in to see
Miesel. Mullins said that Radyko was wrong, and asked
Miesel to reconsider. Miesel said there would be a meeting
the next morning, and the, went on to discuss other mat-
ters. Mullins did not ask to be or sas that he would be
present at the meeting. After Mullins left. Miesel again
tried unsuccessfully to reach Travis.
Miesel testified that he arrived at the plant about 7:25
a.m.. and learned from his father that Radyko had re-
signed. It is undisputed that Radyko in fact did not show
up at the plant that morning, but instead telephoned the
plant and told company President Miesel that he was re-
signing. RadNko testified that he called the plant at about
8:30 a.m., that President Miesel answered the phone, and
that Radyko said that he would resign rather than face
prosecution, that he was sorrN if he did anything wrong,
and that he wanted to save his family from embarrassment.
President Miesel was not presented as a witness. However,
Ralph Miesel, in his testimony, categorically denied that he
ever said anything about prosecuting Radyko. Miesel testi-
fied that the Company had never prosecuted an employee.
Steward Frank Panetta, a General Counsel witness, testi-
fied that he arrived at the plant for work between 7 a.m.
and 7:30 a.m., went to company President Miesel's office
to find out what happened, found him on the phone. and
when Miesel hung up, he told Panetta that Radyko had
resigned. In light of this testimony. it is evident that Rad,-
ko called before 7:30 a.m.
Ralph Miesel further testified that upon informing con-
sultant Travis of Radyko's resignation, Travis said that
there should be a resignation letter for the record. Travis
prepared such a letter and Miesel telephoned Radyko at
his home, asking him to come to the plant at 4:30 that
afternoon, without telling him the reason. Radyko agreed
to be there, and he signed the form at the appointed time.
The form provided, in substance, that Radyko was allowed
to quit "as a means of settlement" and that in consider-
ation of being allowed to quit, he was releasing the Compa-
ny from any liability arising out of the events of September
7. The form said nothing about Radyko's potential liabili-
ty: however, Radyko testified that Miesel said that if he
signed the form he would not be prosecuted. As indicated.
Miesel denied ever making such a statement. Radyko testi-
fied that after Miesel called, he tried to reach steward Pan-
etta, but that Panetta was already on the road. Steward
Mullins was in the plant: however, Radyko testified that he
did not tell Mullins about the afternoon appointment be-
cause he thought Miesel might be offering to reinstate him.
Radyko, Mullins, and Penetta testified as the principal
witnesses for General Counsel. Their testimony contained
serious inconsistencies and improbabilities which cast
doubt on the accuracy of their version, or more correctly,
versions of the events which began on September 7. With
respect to his presence at the Garden of the East Restau-
rant, Radyko testified vaguely about an event which had
allegedly occurred some 2 weeks earlier, when the restau-
rant proprietor stuck his head out the door at a time when
a suspicious looking character was standing near Radyko's
truck, and thereby supposedly prevented a robbery. There
is no evidence that Radyko ever reported this alleged inci-
dent, and his immediate supervisor, James Hogan, testified
without contradiction that he had never been told about it.
Radyko testified that on September 7. in gratitude for
being saved from a possible robbery, he detoured off his
1193
DECISIONS OF NATIONAL LABOR RELtATIONS BOARD
regular route in order to offer the proprietor a container of
trash can liners. According to Radvko, the proprietor said
that he did not use liners. According to Radyko. the pro-
prietor said that he did not use liners, but would accept
them anyway. It is not necessary for me, in determing the
merits of the present case. to decide whether the Company
had just cause to terminate Radyko. However. Radyko's
explanation for his presence at the restaurant, which was
given on his direct testimony, raises credibility questions
which must be considered in resolving the conflicting and
crucial versions of Radyko and Miesel about the events
after they returned to the plant. I find it unlikely that Ra-
dyko would have detoured off his regular route on the pos-
sibility, of which he could not even be sure, that the propri-
etor would be interested in accepting a gratuity because of
an unreported incident. I find it even more unlikely that if.
as indicated by Radyko's testimony, it was a spontaneous
gesture on his part, that Miesel would have had correct
reason to believe that Radyko was stopping at the restau-
rant that evening? If Radyko had reason to detour from
his route, it would have been to deliver the case of shrimp
which he allegedly was unable to locate, but which Miesel
had no difficulty in spotting upon looking into the truck.4
More serious, however, are the contradictions among the
testimony of Radyko, Mullins. and Panetta concerning the
events after Radyko and Miesel returned to the plant. Ra-
dyko testified that before their return, Miesel would not
give him a chance to explain, but that when they stopped at
the Roman Terrace, Miesel told him to drive the truck
back to the plant and meet him in his father's office. Radv-
ko testified that he returned to the plant between 10:30
p.m. and II p.m., but did not speak to anyone on the way
to President Miesel's office. Radyko later qualified this tes-
timony, stating that he telephoned his wife, but was not
sure whether this was before or after he met with Miesel, or
whether steward Mullins was with him when he made the
call. According to Radyko, he met alone with Ralph Mies-
el. Miesel said that Radyko was in serious trouble, and that
he told his father that he caught Radyko stealing. Radyko
asked if he should have union representation. Miesel alleg-
edly answered that it was not necessary because the Union
was not involved, it might hurt or embarrass Radyko's
family, and if the Union were involved, Radyko might be
prosecuted, but that Radyko could voluntarily quit. Miesel
told Radyko to leave the plant, and to return at 8 o'clock
the next morning, but gave no reason. However, Radyko
subsequently testified that Frank Panetta was to be there at
8 a.m., "because he is my steward." Radyko testified that
after leaving Miesel's office he saw Robert Mullins, and
told him that he thought he was in trouble because he gave
some liners away, adding that Miesel gave him the option
of resigning or facing possible prosecution, and had direct-
ed him to leave. Radyko asked Mullins what he should do,
and Mullins answered that if Miesel told him to leave the
3 In slew of the questionable role of the proprietor in this matter. I hase
not drawn any adverse inference from the failure of either side to present
him as a witness.
4 In light of these findings, it is unnecessary for me to determine Whether
and to what extent the Company had a practice of permitting its drivers to
give away small gifts of merchandise. usually a case of fruit juice, because of
assistance rendered at a delivery point or in an on-the-road emergency.
plant, he should do so. Radyko testified further that after
he arrived home he received a call from Panetta, who
wanted to know what was going on. Radyko testified that
he did not know how Panetta learned that there was a
problem. but assumed that Mullins told him. Mullins testi-
fied that he did not see Radyko make any telephone calls
at the plant, that after Radyko left, he went to Miesel's
office and discussed the Radyko matter with Ralph Miesel,
and that Miesel said he had given Radyko an ultimatum to
quit or be discharged, but said nothing about a meeting the
next morning. Mullins testified further that after leaving
Miesel's office at about 11:30 p.m.. he first contacted Pan-
etta. However, Panetta testified that at about 11:30 p.m.,
he received a call from a steward (either Mullins or one
"Leo", he could not remember which). The steward said
there was a problem. that Radyko had been suspended,
and that he was in Miesel's office. The steward then put
Radyko on the phone. Radyko said that Miesel had fired
him for giving away garbage liners. Penetta testified that he
told Radyko to go home and not to talk to anyone, and
that he (Panetta) would be at the plant at 7:30 the next
morning, but that no meeting was mentioned. Panetta testi-
fied that it was his understanding that the steward and
Radyko were calling him in his capacity as driver-steward.
Whichever, if any, of these versions is followed, there is no
evidence that prior to his resignation, Radyko asked for or
was given any advice from a union representative as to
whether he should resign or meet with Miesel on Septem-
ber 8.
Additional questionable testimony was presented by Ra-
dyko and Panetta concerning an alleged written grievance
by Radyko over the circumstances of his termination. Ra-
dyko testified that on the night of September 8 he wrote
two grievances. One related to an alleged denial of vaca-
tion pay, and the other to the circumstances of his termina-
tion. Radyko testified that he gave one to Mullins and the
other to Panetta, but that the second grievance somehow
was misplaced, and that with the help of another employee
he rewrote the second grievance at a grievance meeting
between the Company and the Union on September 27.
Panetta testified that he received only the second grievance
from Radyko, that he placed it in a locked filing cabinet,
but was subsequently unable to locate it. Panetta testified
that he filed away the grievance because he saw no need to
present it after Radyko quit. This explanation does not
make sense, because the circumstance of his resignation
presumably constituted the very subject matter of the
grievance. Although Radyko allegedly rewrote his griev-
ance. even this alleged document was not identified or of-
fered in evidence to corroborate his testimony. I credit the
testimony of company labor relations consultant Travis,
who testified that the Company was presented only with
the grievance over vacation pay. that such grievance was
presented at the September 27 meeting, and rejected by
him as being untimely filed, but that following another
meeting on November 8, the Company agreed to give Ra-
dyko the alleged accumulated vacation pay.5 I further
the contract pros ides that A ritten grievances must be presented within
10 diss after the aggrieved has knowledge of the occurrence complained of.
Travis testified that when he rejected the grievance. the union representa-
1194
THE MIESEL COMPANY
credit the testimony of Travis that the matter of Radyko's
termination was first raised at the November 8 meeting,
when the Union's attorney adivsed Radyko that he could
go to the NLRB if he wanted. Radyko filed the present
charge on November 10.
As indicated, in light of material inconsistencies and im-
probabilities contained in the testimony of General Coun-
sel's principal witnesses, I have credited the testimony of
Ralph Miesel. I find no comparable defects in the testi-
mony of the Company's witnesses, or other significant rea-
son to disbelieve Miesel. The fact that Ralph Miesel was
unable to contact consultant Travis on the evening of Sep-
tember 7, does not evidence that Miesel did not intend to
have a meeting about the matter the next morning. RadNko
conceded in his testimony that Miesel requested his pres-
ence the next morning, and that he (Radyko) expected
steward Panetta to be present. Moreover, Travis testified
that on the afternoon of September 7, he told Miesel that if
he did not hear from Miesel, he would be at Miesel's office
the next morning at 7:30 a.m. Even in the absence of such
an arrangement, it is unlikely that a competent labor rela-
tions consultant would not have promptly checked to find
out the result of his plan of action. In fact, Travis came to
the plant at 7:30. 1 also do not attach significance to minor
discrepancies on insignificant matters between the testi-
mony of Miesel and that of Rem Purdy, concerning the
long chain of events which occurred on the evening of Sep-
tember 7.
Even on the basis of Radyko's own testimony, which I
have not credited, the present case comes close to the line
delineated by the Supreme Court in N.L.R.B. v. J. Wein-
garten, Inc., 420 U.S. 251 (1975). 6 That testimony indicates
tives left the room and returned with a freshly written gnevance dated Sep-
tember 15. whereupon everyone broke into laughter
In Certified Grocers of California Lid. 227 NLRB 121I. 1212 13 1977)
the Board summed up the holdiag of K4eingarten as followss
The Supreme Court in 14 eingurten cited with approvsal the Board's
decisions in Qualir, Manufacturing Companm and Mobhil Oil Corpral
nion, indicating that the Board had set forth in those cases the basis of
the statutory right of an employee to refuse to submit without union
representation to an interview which he reasonably fears mas result In
his being disciplined The Supreme Court. citing relevant language In
Mobile and Quality found that (1) the right inheres in the Section 7
guarantee of the right of employees to act in concert for mutual aid and
protection; (2) the right arises only in situations where the employee
requests representation, i.e.. the employee may forgo his guaranteed
right and. if he prefers. participate in an interview unaccompanied by
his union representative; (3) the employees' right to request representa-
tion as a condition of participation in an interview is limited to situa-
tions where the employee reasonably believes the investigation will re-
suit in disciplinary action: (4) exercise of the right may not interfere
with legitimate employer prerogatives and the employer need not Justi-
fy his refusal and may leave to the employee the choice between having
an interview unaccompanied by his representative, or having no inter-
that when Radyko left the plant on the evening of Septem-
ber 7, he understood that the Company would make its
final decision the next day, when Panetta would be present,
that Miesel did not interrogate Radyko at the September 7
meeting, and that Radyko had an opportunity to, and did
consult with Mullins and Panetta, but nevertheless made
an independent decision to resign. However, having credit-
ed Miesel. it is unnecessary for me to resolve the case on
that basis. I find, in light of the credited testimony of Mies-
el and the admissions by General Counsel's witnesses, that
Radyko consulted with one and possibly two stewards be-
fore he voluntarily saw Miesel and attempted to persuade
him to head off a possible discharge. If Radyko were con-
cerned about union representation, he probably would
have asked Mullins to accompany him. However, he did
not do so. When his effort failed, Radyko made an inde-
pendent decision to resign. probably to avoid embarrass-
ment to his family. Radyko further acted independently
when he agreed to sign a resignation form, although he
could have sought the assistance or advice of Mullins. In
sum, the Company did not deny or interfere with Radyko's
statutory right to union representation, and therefore the
complaint must be dismissed.
CONCLoSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tice alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
view and foregoing any benefits that might be derived from such Inter-
sler: and I5) the emploser has no duty to bargain with any union
representative who may be permitted to attend the investigatory Inter-
siew. JFn nl omited
In Soutrheietern Bell Telephone (£ompanr. 227 NLRB 1223 (1977). the Board
further held that "tlhe Employers' threat that the exercise of the right to
representation would lead to more severe discipline or that the employees'
fate would be In more capricious and hostile hands is no less interference
and restraint than an outright denial of his right."
In the event that no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and Order herein shall, as provided In Sec 102.48 of the Rules
and Regulations. be adopted by the Board and become its findings. conclu-
sions. and Order. and all objections thereto shall be deemed waived for all
purposes
1195