New Jersey Bell Telephone Co.

National Labor Relations Board - Board Decisions

Feb 15, 1991

301 N.L.R.B. 719 (N.L.R.B. 1991)

719
301 NLRB No. 111
NEW JERSEY BELL TELEPHONE CO.
1 In its exceptions, the Respondent requests that ‘‘the decision of the Admin-
istrative Law Judge be affirmed, or, alternatively that the matter be referred
to arbitration.’’ Because we adopt the judge’s conclusion that the Respondent
did not violate the Act, we find it unnecessary to reach the Respondent’s con-
ditional argument that the dispute should be deferred to the parties’ grievance
and arbitration procedure pursuant to Collyer Insulated Wire, 192 NLRB 837
(1971), and United Technologies Corp., 268 NLRB 557 (1984).
1 All dates refer to 1988 unless otherwise specified.
2 The instant complaint had been consolidated with Cases 22–CA–16180 and
16367. On January 10, 1990, the Regional Director ordered that those cases
be severed from Case 22–CA–15822 and that pars. 2 and 3, portions of par.
8 and pars. 10, 11, and 12 of the consolidated complaint be dismissed.
3 David McLellan and John Reilly testified on behalf of General Counsel
and Bruce Underwald testified on behalf of Respondent. Each of them ap-
peared to be a credible witness. With respect to the facts pertinent to this pro-
ceeding, for the most part the witnesses corroborate each other.
New Jersey Bell Telephone Company and Local
827, International Brotherhood of Electrical
Workers, AFL–CIO. Case 22–CA–15822
February 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 7, 1990, Administrative Law Judge
D. Barry Morris issued the attached decision. The Gen-
eral Counsel and Charging Party filed exceptions and
supporting briefs. The Respondent filed conditional ex-
ceptions, a supporting brief, and a brief in support of
the judge’s decision. The General Counsel filed a reply
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings, and con-
clusions and to adopt the recommended Order.
ORDER
The complaint is dismissed.
Renee Crain, Esq., for the General Counsel.
James Brady, Esq., of Newark, New Jersey, for the Respond-
ent.
Paul M. Levinson, Esq. (Mayer, Weiner, Levinson &
Weinberg), of Ft. Lee, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Newark, New Jersey, on January 16
and 17, 1990. On a charge filed on July 12, 1988,1 a consoli-
dated complaint was issued on September 7, 1989,2 alleging
that New Jersey Bell Telephone Company (Respondent) vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally and file briefs. Briefs were filed by General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation with offices in
Newark, New Jersey is engaged in the furnishing of tele-
phone communication services. Respondent’s total annual
volume of business is in excess of $100,000 and it annually
purchases goods in excess of $50,000 from points outside the
State of New Jersey. Respondent admits, and I so find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. In addition, Respond-
ent admits, and I so find, that Local 827, International Broth-
erhood of Electrical Workers, AFL–CIO (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Should the case be deferred to arbitration under the par-
ties’ collective-bargaining agreement?
2. Did Respondent fail to provide employees with their
Weingarten rights in violation of Section 8(a)(1) of the Act?
B. The Facts
The essential facts are not in dispute.3 David McLellan
and John Reilly are employed by Respondent as cable splic-
ers. They had both been working on Saturday, February 20,
1988. At approximately 3 p.m. they went for lunch in their
company truck to a bar on Blanchard Street in Newark. The
truck had ‘‘New Jersey Bell’’ written on it. The bar was lo-
cated in an industrial area, and being Saturday, except for the
bar being open, the other establishments were closed.
McLellan and Reilly had been in the bar approximately 1
hour, until 4 p.m.
Bruce Underwald was employed by Respondent as a man-
ager of its motor vehicle department. He did not supervise
either McLellan or Reilly and did not know them. In addi-
tion, he had no authority to discipline them, nor did he have
authority to make recommendations concerning their dis-
cipline. On February 20 Underwald was working as an Essex
County sheriff and was paid by the Sheriff’s Department. On
that day he wore a sheriff’s uniform, he had a badge and he
carried a weapon. As part of his training he received instruc-
tion in standard police procedures to follow where drunk
driving is suspected. He credibly testified that in such a situ-
ation the normal procedure is to ask the individual for his
driver’s license and his registration and ask whether the driv-
er would be willing to take a breathalyzer test.
On February 20 Underwald was on patrol on Blanchard
Street in Newark looking for illegal dumping of hazardous
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
waste. It is an isolated area where there is a high volume of
illegal dumping and a high volume of stolen vehicles. As he
came down Blanchard Street. he observed a New Jersey Bell
vehicle parked on the wrong side of the street. with no occu-
pants. The truck was approximately 100-150 feet away from
a bar and appeared to him to be abandoned. It was parked
next to a stolen vehicle.
Underwald credibly testified that when he comes upon an
abandoned public service vehicle or an abandoned vehicle
belonging to a large corporation, it is his practice to contact
the company to ascertain if someone of responsibility is in
the area with the vehicle. In accordance with that procedure,
he telephoned New Jersey Bell’s maintenance desk to report
the vehicle. At the same time he observed a vehicle that had
all indications of being a stolen car. He called the informa-
tion concerning the stolen vehicle to the Sheriff’s head-
quarters and waited until a tow truck came to remove the ve-
hicle.
While Underwald was waiting, he observed two individ-
uals coming out of the bar. They were McLellan and Reilly.
Underwald credibly testified that the two appeared to be in
a ‘‘joking state’’ and they proceeded to walk across to the
New Jersey Bell truck. After they entered the truck,
Underwald walked up to the driver and asked for his license,
his registration, and his I.D. He also asked if they had been
drinking. Reilly replied that he had one beer with his sand-
wich. Underwald asked Reilly whether he would be willing
to take a breathalyzer test and Reilly replied that he would
if he had to. Underwald did not tell McLellan and Reilly that
he was employed by Respondent but he asked them ‘‘do you
think Mr. Fedroff would appreciate you guys having a beer
for your lunch?’’ Fedroff was McLellan’s and Reilly’s super-
visor. Underwald asked the two whether they were aware of
the company policy on drinking but he did not ask them any
other work-related questions.
Shortly thereafter Pat Ryan, a New Jersey Bell supervisor,
appeared on the scene with a clearly marked New Jersey Bell
vehicle. Underwald handed McLellan’s and Reilly’s I.D.’s to
Ryan. Underwald did not tell Ryan that he had asked the two
whether they had been drinking and he did not make any de-
cisions or any recommendations whether disciplinary action
would be taken. At this time Ryan told McLellan and Reilly
that Underwald was a supervisor at New Jersey Bell.
On February 26 an investigation was conducted by
Fedroff. Both McLellan and Reilly asked for, and were
given, union representation. During the investigation they
were questioned regarding their activities on February 20.
The two employees were subsequently suspended for drink-
ing on the job, being away from the job without permission
and falsifying company records.
Discussion and Conclusions
1. Deferral to arbitration
Respondent has moved that the proceeding be deferred to
the grievance and arbitration procedure provided for in the
collective-bargaining agreement. Whether deferral is appro-
priate is a threshold question which must be decided in the
negative before the merits of the unfair labor practice allega-
tions can be considered. L. E. Myers Co., 270 NLRB 1010
fn. 2 (1984).
In United Technologies Corp., 268 NLRB 557 (1984), the
Board reaffirmed and clarified the criteria for deferral as set
forth in Collyer Insulated Wire, 192 NLRB 837 (1971). The
Board stated (268 NLRB at 558):
The Collyer majority articulated several factors favoring
deferral: The dispute arose within the confines of a long
and productive collective-bargaining relationship; there
was no claim of employer animosity to the employee’s
exercise of protected rights; the parties’ contract pro-
vided for arbitration in a very broad range of disputes;
the arbitration clause clearly encompassed the dispute at
issue; the employer had asserted its willingness to uti-
lize arbitration to resolve the dispute; and the dispute
was eminently well-suited to resolution by arbitration.
As noted, one of the factors to be considered in deter-
mining whether deferral should take place, is whether ‘‘the
arbitration clause clearly encompassed the dispute at issue.’’
In Electrical Workers IBEW Local 702 (Central Illinois Pub-
lic Service), 274 NLRB 1292 (1985), the Board declined to
defer the proceeding. In a concurring opinion, Member
Hunter pointed out that the Board has deferred only in cases
where the ‘‘contract has a provision specifically addressing’’
the question which would be arbitrated.
Article 19 of the collective-bargaining agreement, dealing
with union representation, states:
At any meeting between a representative of the
Company and an employee in which discipline . . . is
to be announced, a Union representative may be present
if the employee so requests.
In addition, section 2 of article 12 of the collective-bar-
gaining agreement, dealing with arbitration, states:
The Board of Arbitration in its decision shall be
bound by the provisions of this Agreement and shall
not have the power to add to, subtract from, or modify
any provision of this agreement.
Article 19 provides for union representation at a meeting
where discipline is to be announced. These are not the rights
provided for in NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975). As stated in Weingarten, the Board recognizes that
‘‘Section 7 guarantees an employee’s right to the presence of
a union representative at an investigatory interview in which
the risk of discipline reasonably inheres. . . .’’ (Id. at 262.)
Thus, Weingarten provides for representation at an investiga-
tory interview, whereas article 19 of the collective-bargaining
agreement in the instant proceeding provides for representa-
tion at a meeting in which discipline is to be announced.
In view of the fact that article 19 of the collective-bar-
gaining agreement does not provide for union representation
at an investigatory interview and since article 12 of the col-
lective-bargaining agreement provides that the board of arbi-
tration may not add to, or modify any provision of the col-
lective-bargaining agreement, I believe that the agreement
does not have a provision which specifically addresses the
question of investigatory interviews. Accordingly, I deny Re-
spondent’s motion to defer this proceeding.
721NEW JERSEY BELL TELEPHONE CO.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
2. Denial of representation
In Weingarten, supra, 420 U.S. 251, during the course of
an investigatory interview, at which an employee was being
interrogated by a representative of the respondent about re-
ported thefts at the respondent’s store, the employee asked
for, but was denied, the presence at the interview of her
union representative. The Supreme Court pointed out that the
right to representation arises ‘‘only in situations where the
employee requests representation.’’ In addition, the Court
stated that the right to representation is ‘‘limited to situations
where the employee reasonably believes the investigation
will result in disciplinary action’’ (id. at 257). Thus,
Weingarten involved a situation where the company rep-
resentative was acting in his capacity as a company rep-
resentative, the employee requested representation and the
employee reasonably believed that such investigation would
result in disciplinary action.
On Saturday, February 20, Underwald was not acting in
his capacity as a supervisor of Respondent. Instead, he was
acting in his capacity as a sheriff and on that day he was
paid by the Sheriff’s Department. He came upon a New Jer-
sey Bell truck which was located in an unpopulated area and
which appeared to be abandoned. When two persons, whom
he did not then know, came out of a bar and approached the
truck, in conformance with standard police procedure, he
asked them for their I.D.s and asked the driver whether he
would take a breathalyzer test. McLellan and Reilly were not
aware that Underwald was a New Jersey Bell supervisor and
consequently, did not ask for union representation. While it
is clearly understandable why the two employees did not ask
for representation, nevertheless, the rights afforded by
Weingarten apply only where the employee requests rep-
resentation. General Counsel has cited no case which estab-
lishes that an employer has an affirmative duty to ask the
employee whether he or she wishes to be represented.
I find that General Counsel has not sustained its burden
of showing that Respondent violated the Act by not pro-
viding union representation to the two employees. Underwald
was not acting in his capacity as a supervisor of Respondent
but instead was acting in his capacity as Sheriff. McLellan
and Reilly did not request representation and the situation
was not one where the ‘‘employee reasonably believes the
investigation will result in disciplinary action.’’ Accordingly,
the allegation is dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The complaint is dismissed.